Edg16 v Minister for Immigration and Border Protection
[2021] FCCA 650
•1 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
EDG16 v Minister for Immigration and Border Protection [2021] FCCA 650
File number(s): SYG 3741 of 2016 Judgment of: JUDGE BLAKE Date of judgment: 1 April 2021 Catchwords: MIGRATION – Minister for Immigration and Border Protection – Safe Haven Enterprise (subclass 790) visa – review of delegate’s decision – whether the delegate erred in finding that the Applicant is an Excluded Fast Track Applicant within section 5(1) of the Migration Act 1958 – whether the delegate was unreasonable and failed to engage in an intellectual process – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 s 5(1)(a)(iii) Cases cited: FMM17 v Minister for Immigration [2019] FCCA 1500
FMM17 v Minister for Immigration, Citizenship, Migrant
Services and Multicultural Affairs [2020] FCAFC 20
Republic of Nauru v WET40 (No 2) (2018) 93 ALJR 102
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225
W64/001A v Minister for Immigration and Multicultural Affairs [2003] FCAFC 12
Number of paragraphs: 25 Date of hearing: 18 February 2021 Place: Heard at Melbourne, delivered at Dandenong Counsel for the Applicant: Mr Foster Solicitor for the Applicant: Mr Senthil Rajan Sinnarajah Counsel for the Respondents: Mr Johnson Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 3741 of 2016 BETWEEN: EDG16
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
1 APRIL 2021
THE COURT ORDERS THAT:
1.The Application filed on 28 December 2016, amended on 26 July 2017 and further amended on 29 October 2020 be dismissed.
2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $7,467.
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
This is an application for review of a decision made by a delegate of the Department of Immigration and Border Protection (‘Delegate’) on 12 December 2016. In that decision, the Delegate refused the Applicant’s Application for a Safe Haven Enterprise (subclass 790) visa ('visa'). The Delegate also determined that the Applicant was an ‘excluded fast track review applicant’ within the meaning of section 5(1) of the Migration Act 1958 (‘Act’).
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant is a Sri Lankan national. The Applicant arrived in Australia in August 2012 as an unauthorised maritime arrival. He applied for the visa on 14 December 2015.
On 23 August 2016, the Department of Immigration and Border Protection (‘the Department’) wrote to the Applicant and invited him to comment on adverse information. The adverse information was that the Applicant had made a claim for protection in Norway in 2010, which was refused in 2012. This had relevance as to whether the Applicant was an ‘excluded fast track review applicant’ as defined in section 5(1) of the Act.
The Applicant’s legal representative responded to the invitation on 20 September 2016. In the response, among other things, the Applicant indicated that his claims for protection were substantially based on what had happened to him since he was returned to Sri Lanka from Norway.
On 12 December 2016, the Delegate refused to grant the application for the visa and determined that the Applicant was an excluded fast track review applicant under section 5(1) of the Act.
The Applicant filed his Application for review and affidavit in support in the Sydney registry of this Court on 28 December 2016. On 29 October 2020, the Applicant filed written submissions and a further Amended Application ('Application'). The Minister filed submissions on 4 February 2021 and subsequently provided a bundle of authorities on 16 February 2021.
THE APPLICATION
The Application contains four grounds of review. Grounds 1 and 2 are not pressed, which leaves Grounds 3 and 4. Given the nature of Ground 4, I will deal with it first.
Ground 4
The fourth ground of review in the Application is:
The Delegate erred when he found [158] the Applicant is an Excluded Fast Track Review Applicant in s 5 (1) of the Act.
Particulars
i.S 5 (1) defines 'excluded fast track review applicant' as meaning inter alia: "a fast track applicant (a) who in the opinion of the Minister .... iii has made a claim for protection in a country other than Australia that was refused by that country ... ";
ii.The legally correct interpretation of the meaning of "a fast track applicant (a) who in the opinion of the Minister .... iii has made a claim for protection in a country other than Australia that was refused by that country ..." refers to a person whose earlier claim for protection is the same or substantially similar to the claim being brought;
iii.The Applicant had made a claim for a protection visa [55];
iv.The claims made by the Applicant in Norway in 2010 were significantly different to the claims made by the Applicant to the Australia authorities in 2015 after the S 46A bar was lifted [1]-[7].
Particulars of difference in Claims
The Claims made to the Norway authorities were made in 2010. They did not include claims made in respect of events which occurred after the Applicant was returned to Sri Lanka, which events are claimed before the Australian authorities and include:
i.The taking of the Applicant to the CID for investigation upon suspicion that they were involved with the LTTE;
ii.The Applicant being interrogated and assaulted by the CID
iii.The Applicant being threatened to be sent to the fourth floor (meaning he would be tortured or killed) [67];
iv.The Applicant having to bribe for his release [68];
v.CID visiting the family's house in Jaffna at least twice [68] and interrogating his mother about his past involvement in school organisations and activities [68];
vi.vi. The Applicant going into hiding as a result of his fear he would be arrested and taken to the fourth floor [68].
v.Accordingly the Applicant did not meet the definition of Excluded Fast Track Review Applicant, and so the matter should have been referred to the Immigration Assessment Authority in accordance with the Act.
Consideration of this ground must begin with a review of the definition of ‘excluded fast track review applicant’ within section 5(1) of the Act. The definition relevantly provides that a person will be an ‘excluded fast track review applicant’ if the person is ‘a fast track applicant’ who ‘has made a claim for protection in a country other than Australia that was refused by that country’: see paragraph 5(1)(a)(iii) of the definition of ‘excluded fast track review applicant’.
It is not in dispute that the Applicant had made a claim for protection previously in Norway and that his claim had been refused. For this reason, the Delegate held that the Applicant was an ‘excluded fast track review applicant’ within the meaning of section 5(1) of the Act.
In FMM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 20 (‘FMM17’), a Full Court of the Federal Court of Australia considered the construction of the term ‘excluded fast track review applicant’ in section 5(1)(a)(iii) of the Act. The Full Court held that the section is to be interpreted as applying even where new claims for protection have arisen after the determination of refugee status in another country and even after the person has returned from the country of rejection to their own country before arriving in Australia: see paragraphs [24]-[34] of the decision in FMM17.
The Applicant in the present matter accepted that FMM17 was binding on this Court but sought to distinguish it from the facts of this case. The Applicant submitted, in effect, that FMM17 was a decision that arose out of circumstances where the claims being raised in Australia by the appellant were the same as those that had been raised by the appellant in France. In the present matter, it was submitted that the Applicant had made a range of new claims (Court Book 144) and that the Court was therefore not required to follow FMM17.
I do not accept the Applicant’s contention that the present matter is significantly different from the facts in FMM17. A review of the primary decision, FMM17 v Minister for Immigration [2019] FCCA 1500 discloses at paragraph [25] that the Applicant made a submission that ‘the applicant’s present claims for protection occurred after the applicant had been removed from France and that he should not be considered to be an “excluded fast track review applicant’. That is the same situation with which I am confronted.
I am not persuaded that the present matter is distinguishable from FMM17. In my view I am required to follow FMM17. Given that the Applicant has previously made a claim for protection in Norway that has been refused, and given those claims overlap with claims he advances before me, the Delegate did not fall into error in holding that the Applicant was an ‘excluded fast track review applicant’ as defined in section 5(1) of the Act. This ground of review should therefore be dismissed.
Ground 3
The third ground of review in the Application is:
The Delegate erred when he did not accept:
· The Applicant held membership or a position of leadership within the TSU;
· The Applicant had substantial personal dealings with a LTTE cadre named Crazy;
· The Applicant would have been imputed as an affiliate or member of the LTTE
Particulars
i.The Delegate found it plausible that the Applicant participated in school boycotts or demonstrations along with other students from across the Jaffna peninsula; [145]
ii.The Delegate accepted the Applicant may have had a leadership position within his school as a prefect, which may have conferred certain responsibility within his school community [145];
iii.The Applicant's account [145] included claims that:-
a.He was the leader of 10 or 12 students in the TSU [145] which was acting as a front for the LTTE [146];
b.He did everything that they asked of him;
c.He stated that the TSU would advise him of what they intending to stage a protest and he was responsible for organising it;
d.He stated he would go to mall of the classrooms and advise the students that they had to go to the protest;
e.He stated he participated in the protests himself and held placards;
f.They held these protests throughout 2006 seven or eight times;
g.He attended a large TSU meeting at Jaffna university;
h.He stated within his school there was a man from the local LTTE office called Crazy who regularly visit the school and organise things, and that Crazy was identified as being a member of the LTTE [145];
iv.The Delegate found the Applicant's account appears broadly credible and consistent with country information [145];
While the Delegate did not find any information regarding students who participated in TSU protest activity being targeted by the Sri Lankan authorities [146], the Delegate did find a report which alludes to the SLA troops clashing with students trying to fly the LTTE flag which quotes the TSU as intending to be continually disruptive to the civilian administration [146] which was consistent with the Applicant’s account at [145];
v.Notwithstanding the above, the Delegate considered
a. the Applicant’s description of his role as a member and/or leader within the TSU proved ‘insubstantial’ and ‘demonstrated a fairly limited level of involvement in the operations of the organisation beyond helping to round up students to attend protests, and his own personal participation [in] the protests’ and
b. the Applicant’s description of his interactions with the LTTE person Crazy was also ‘generalised and insubstantial, giving the impression that this was a person the applicant was likely aware of, and maybe even an acquaintance acting of, but not heavily involved with as claimed’ [146], and as a result the Delegate did not accept:
·The Applicant held membership or a position of leadership within the TSU;
·The Applicant had substantial personal dealings with a LTTE cadre named Crazy;
·The Applicant would have been imputed as an affiliate or member of the LTTE by virtue of his participation in TSU protests. [CB 146]
vi.Such failure to accept these claims was contrary to the evidence, was unreasonable, and demonstrated a failure by the Delegate to engage in an active intellectual process directed at that representation or submission.
This ground of review asserts unreasonableness and a failure by the Delegate to engage in an active intellectual process. The principles to be applied where such a ground is raised are well known.
The Applicant contended that the findings above were unreasonable when one has regard to, among other things, the following findings of the Delegate:
(a)the Applicant’s account appeared broadly credible and consistent with country information: Court Book 145;
(b)there was country information which corroborated the existence of the Tamil Student Union (‘TSU’) who were involved in a stand-off with the Sri Lankan government in 2006: Court Book 145;
(c)it was plausible that the Applicant participated in school boycotts or demonstrations along with other students from across the Jaffna peninsula: Court Book 146;
(d)the Applicant may have held a leadership position within his school as a prefect, and that this may have conferred certain responsibilities within his school community: Court Book 146; and
(e)the TSU was an organisation acting as a front for the LTTE: Court Book 146.
In the present matter, the Delegate was confronted with a range of claims by the Applicant. Some of those claims were accepted by the Delegate whilst other elements of the claims were not. The Applicant’s submission, insofar as it contends that the Delegate was required to have positive evidence in order to find that certain claims were implausible, must be rejected: see SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]. Further, as the Minister submitted and I accept, a delegate need not consider an allegation is impossible in order not to be satisfied that an allegation is plausible: see Republic of Nauru v WET40(No 2) (2018) 93 ALJR 102 at [35]. The Minister further submitted that to assess an allegation as ‘implausible’ is to assess it as ‘not having the appearance of truth or probability’: see W64/001A v Minister for Immigration and Multicultural Affairs [2003] FCAFC 12 at [42] (French J).
The delegate gave careful consideration to the Applicant’s responses at interview prior to commencing his analysis and reasoning. The Delegate’s process of reasoning in relation to the claims made by the Applicant was as follows:
Having given careful consideration to the applicant's responses at interview, I find that the applicant's account appears broadly credible and consistent with country information, however there appear to be some crucial aspects which have been exaggerated or overemphasised. There is country information which corroborates the existence of an organisation called the 'Tamil Student Union' (also referred to as 'International Tamil Students Union' or 'Vadamaradchy Tamil Students Union'), who were involved in a stand-off with the Sri Lankan government over the abduction of two school students in late 2006. I note that there was no information published about the individual statuses or profiles of the students abducted. The information located indicates that the TSU rallied students from across the Jaffna peninsula to boycott school activities for multiple weeks until the abducted students were released. The information acknowledges the TSU as being a front for the LTTE in Jaffna.
I note that apart from reporting by TamilNet - a pro-Tamil news reporting agency, I have been unable to locate additional information regarding protests led by the TSU. I have located a Reuters report which alludes to SLA troops clashing with students trying to fly the LTTE flag on their campus in Jaffna, and quotes the TSU as intending to be continually disruptive to the civilian administration.' I have not, however, located any information regarding students who participated in TSU protest activity being targeted by the Sri Lankan government.
The applicant's described activity in TSU protest bears resemblance to that described in the country information listed above, and I find it plausible that he participated in school boycotts or demonstrations along with other students from across the Jaffna peninsula. However, the applicant's description of his role as a member and/or leader within the TSU proved insubstantial, and demonstrated a fairly limited level of involvement in the operations of the organisation beyond helping to round up students to attend protests, and his own personal participation the protests. I accept that he may have held a leadership position within his school as a prefect, and that this may have conferred certain responsibilities within his school community, however based on his described activities, I do not accept that he held membership, or a position of leadership within the TSU. Similarly, the applicant's description of his interactions with the LTTE person named Crazy was also generalised and insubstantial, giving the impression that this was a person the applicant was likely aware of, and maybe even an acquaintance of, but not heavily involved with as claimed. Whilst I accept that the TSU was an organisation acting as a front for the LTTE, I am not satisfied that the applicant's described association with this group was of such an extent that he would be considered an affiliate of the LTTE.
In summary on this point, I accept the following as fact:
• The applicant was a prefect in his school; and
• The applicant participated in TSU protests during 2006/2007;
However, I do not accept the following:
• The applicant held membership, or a position of leadership within the TSU; or
• The applicant had substantial personal dealings with a L TTE cadre named Crazy; or
• The applicant would have been imputed as an affiliate or member of the LTTE by virtue of his participation in TSU protests.
A review of the reasons above discloses the following:
(a)the Delegate engaged in active consideration of the claims. The reasoning process is set out clearly in the extracts above;
(b)the Delegate considered not only the statements of the Applicant, but also country information. Country information was used by the Delegate to corroborate the existence of the TSU and the stand-off with the Sri Lankan government, and I observe that this appears to have formed the basis for the Delegate concluding he was satisfied that the Applicant participated in TSU protests. Further, the Delegate noted there was an absence of information about the individual statuses or profiles of students who may have been abducted, nor was there information regarding any protests being ‘led by’ the TSU. The Delegate further noted that he could not locate any information regarding students who participated in TSU protest activity being targeted by the Sri Lankan government (Court Book 145-6);
(c)the Delegate considered the Applicant’s description of his role within the TSU as ‘insubstantial’. The delegate also describes the Applicant’s evidence in relation to his interactions with a person named ‘Crazy’ as ‘generalised and insubstantial, giving the impression that this was a person the applicant was likely aware of, and maybe even an acquaintance of, but not heavily involved with as claimed’ (Court Book 146).
(d)The delegate considered that ‘some crucial aspects’ of the Applicants account ‘have been exaggerated or over emphasised’ (Court Book 145).
In addition to the above, it appears from what I have set out that the Delegate formed a view about the Applicant at least in part on his presentation at the interview. The demeanour of an interviewee is a matter that a decision-maker may take account of.
There are two other aspects of the decision that bear upon the question of whether the conclusions reached by the Delegate were unreasonable. First, the Delegate queried how a person said to be of interest to the Sri Lankan authorities was able to present for a passport application (Court Book 147). Second, the Delegate observed, by reference to country information, that the way in which authorities questioned the Applicant on his return from Norway closely resembled ‘standard documented procedures for returned asylum seekers’ (Court Book 149).
When all of the above matters are considered, the Delegate’s findings were not unreasonable. The Delegate set out his reasoning on these matters. It was open to the Delegate to make the findings that he made. There is nothing within the reasoning which amounts to extreme illogicality or a failure to engage in active intellectual consideration of the Applicant’s claims. This ground of review must also be dismissed.
CONCLUSION
For all of the above reasons, the Application must be dismissed. Costs usually follow the event. I will award costs to the Minister in the amount of $7,467.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 1 April 2021
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