Eep18 v Minister for Immigration
[2020] FCCA 411
•25 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EEP18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 411 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in some respects and his fears found not to be well-founded – whether the Authority failed to consider a material claim as part of a cumulative assessment considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.473CB, 473DD |
| Cases cited: Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 |
| Applicant: | EEP18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2245 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 25 March 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Hodges of Hodges Legal |
| Solicitors for the Respondents: | Ms A Lucchese of Sparke Helmore |
ORDERS
The application as amended by leave on 26 February 2020 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2245 of 2018
| EEP18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 13 July 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant, a citizen of Sri Lanka, arrived on Christmas Island as an unauthorised maritime arrival on 25 April 2013[1] and applied for a Safe Haven Enterprise Visa (SHEV) on 16 September 2016.[2]
[1] Court Book (CB) 57
[2] CB 36
The applicant’s claims can be summarised as follows:[3]
a)he is a Tamil and was born in the Jaffna district. He was caught up in Sri Lankan Army (SLA) round ups of Tamil youth;
b)his brother was working for the Liberation Tigers of Tamil Eelam (LTTE) as a tax collector from 2005 and disappeared in 2009;
c)following the end of the civil war in 2010, the applicant went to look for his brother in the army camp in Vavuniya and was beaten and detained for four days. The applicant was harassed and interrogated about his brother’s whereabouts;
d)the CID or the SLA took his National Identity Card (NIC) in 2010. The applicant then left illegally for India. Following his departure, his parents were arrested and the applicant had not heard from them since. He had been told his father had passed away; and
e)he feared harm on the basis that he no longer had an NIC and was a failed asylum seeker who departed illegally.
[3] CB 76-78
On 13 October 2017, the delegate refused to grant the SHEV.[4] On 18 October 2017, the matter was referred to the Authority.[5] On 11 November 2017, the applicant provided the Authority with country information and submissions[6] and on 25 November 2017 provided further submissions.[7] On 13 July 2018, the Authority affirmed the delegate’s decision.[8]
[4] CB 136
[5] CB 159-160
[6] CB 165 – 261
[7] CB 288
[8] CB 293
The Authority’s decision
The Authority had regard to the s.473CB material[9] and to the applicant’s submissions of 11 November 2017 and 25 November 2017 to the extent that they were legal argument.[10] The Authority identified two pieces of “new information” within the 11 November 2017 submission, and one piece of new information within the 25 November 2017 submission, namely:
a)extracts from the “Advanced Unedited Version of the Committee against Torture’s (CAT) concluding observations of the fifth periodic report of Sri Lanka” (CAT report);
b)a claim the applicant will be imputed with a political opinion as he will be processed en masse; and
c)a claim the applicant’s father was killed by the SLA.
[9] CB 295, [2]
[10] CB 295-296, [3], [6]
The Authority found that this new information did not satisfy s.473DD of the Migration Act 1958 (Cth).[11]
[11] CB 295-296, [4]–[7]
The Authority accepted the applicant’s identity as claimed.[12] The Authority accepted that the applicant was subjected to round ups with other Tamils on a number of occasions, that no further action was taken and that the applicant’s brother was employed as a tax clerk in the LTTE administration.[13] However, it did not accept that the brother had a senior role or was involved in combat.[14] While the Authority had concerns as to the discrepancies in the applicant’s evidence, the Authority accepted that his brother had disappeared in the mid to late 2000s.[15]
[12] CB 297, [9]
[13] CB 297-298, [11]-[12]
[14] CB 298, [12]
[15] CB 298, [13]
The Authority accepted the applicant’s claim that his family received information about the potential whereabouts of his brother.[16] Although the applicant’s evidence was contradictory and confusing, the Authority accepted the applicant was detained for four days in late 2009, was asked about his brother, was released and was required to report to the camp for a period following this.[17]
[16] CB 298, [14]
[17] CB 298-299, [15]–[18]
In light of the country information, the Authority found that if the applicant had ever been seriously suspected of ongoing or continuing links to the LTTE, the SLA had an adequate opportunity to take action when he reported to them. The Authority found that the fact they did not do so indicated the authorities did not have concerns at that time.[18] The Authority accepted that the applicant’s NIC had been confiscated and that it occurred in 2009 when he was detained.[19] The Authority accepted that the applicant had a subjective fear of further interactions with the SLA but did not accept that he was under any kind of reporting condition when he made his decision to leave. It found there was no credible evidence before it of any adverse consequences for the applicant’s family nor did it accept that he was of interest to the authorities.[20] Noting the inconsistent information regarding the death of the applicant’s father, the Authority did not accept that the applicant’s parents were ever targeted, arrested or tortured by the authorities. It accepted his father had died and that he lost contact with his mother. The Authority found the applicant’s claims regarding his parents were embellishments to enhance his protection claims.[21]
[18] CB 299-300, [19]
[19] CB 300, [20]
[20] CB 300-301, [21]
[21] CB 301, [23]
The Authority accepted that the applicant has a subjective fear that he may be of concern to the authorities because he does not have an NIC and the act of applying for another may bring him to the attention of the authorities. However it went on to conclude that:[22]
Country information does not support that in Sri Lanka today persons who cannot produce their NIC on the spot are imputed to be an LTTE member or supporter, or otherwise considered to have committed a crime. While there can be delays and the applicant may have to travel to a major township ... I have concluded that he was not of any ongoing interest to the Sri Lankan authorities prior to his departure for India and I do not accept that applying for a replacement NIC will give rise to any issues for the applicant.
[22] CB 302, [29]
The Authority therefore did not accept the applicant’s claim that applying for a replacement NIC would give rise to adverse interest, as it had already found that he was not of ongoing interest to the authorities prior to his departure.[23] The Authority did not accept that any reporting or mistreatment was more than what was commonplace for Tamils following the conflict or that it was indicative of a continuing interest in the applicant.[24] While the Authority accepted the applicant was questioned, it did not find this was indicative of suspicion of the applicant himself and was not satisfied that having a brother who was an LTTE civilian would impute the applicant with a profile.[25] The Authority found that country information confirmed that the monitoring and harassment of Tamils in day to day life had decreased and that merely being Tamil from a formerly LTTE-controlled area no longer gave rise to the need for protection.[26]
[23] CB 302, [29]
[24] CB 302, [30]
[25] CB 303, [32]
[26] CB 305, [37]
The Authority did not accept the applicant’s claim that he would be required to register with the army and police wherever he lives in Sri Lanka.[27] As for the applicant’s claims about the suspicions of neighbours and notification to the police, the Authority found that this was mere speculation, and even if it did occur it concluded that as the applicant was not a person with any involvement with the LTTE, it was not satisfied there was a real chance of harm for this reason.[28]
[27] CB 305, [38]
[28] CB 305, [39]
Having considered all the evidence, the Authority was not satisfied the applicant faced a real chance of harm on the basis of his ethnicity, residence in the Northern Province, past round ups, his brother’s employment as an LTTE clerk, confiscation of his NIC, his failed asylum seeker status, or a combination of these factors.[29]
[29] CB 305, [40]
Turning to the applicant’s claim to fear harm from his illegal departure, the Authority accepted the applicant departed illegally in contravention of the Immigrants and Emigrants Act 1949. Nevertheless, considering the potential fine, custodial sentence and prison conditions, the Authority was not satisfied the treatment and penalties which he may face as a consequence of his illegal departure amounted to serious harm.[30] The Authority did not accept the applicant faced a real chance of persecution.[31]
[30] CB 306, [45]
[31] CB 307, [47]
Regarding the complementary protection criteria, the Authority imported its earlier findings, noting that a real chance and real risk involve the same standard.[32] Regarding the applicant’s illegal departure, it was not satisfied that the acts or omissions of the authorities are intended to inflict pain or suffering, nor was it satisfied there was a real risk he will be subject to torture or other significant harm.[33]
[32] CB 307, [51]
[33] CB 307-308, [52]
The present proceedings
These proceedings began with a show cause application filed on 14 August 2018. There were two grounds in that application. In written submissions filed on 18 February 2020 the applicant foreshadowed the abandonment of the first ground and reformulation of the second ground. At the trial on 26 February 2020 I granted leave for the applicant to file and serve an amended application, which the solicitor for the applicant undertook to do. The sole ground as reformulated is:
The Authority failed to consider in accordance with the law if the fact that the applicant did not have an NIC would expose him to risk.
PARTICULARS
(i)The applicant claimed that were he to apply for a new NIC he would immediately come to the adverse attention of the authorities due to his past interactions with the authorities;
(iii)The Authority accepted that the applicant's NIC was confiscated as claimed [29].
(iv)The Authority accepted that the applicant:
a was required to report to the SLA [30]
b was questioned about his brother [30];
c was mistreated and detained [30].
The Authority did not make a cumulative assessment of the risk to the applicant arising from its finding. That is (i) that the applicant did not have an NIC (ii) that on return to Sri Lanka the applicant would be detained at the airport and (iii) that the applicant would be interrogated as to (inter alia) his identity, arrested and charged.
The only evidence I have before me is the court book filed on 19 November 2018.
Consideration
The applicant does not dispute that the Authority was aware of and considered the applicant’s claim concerning his NIC. The applicant’s complaint is that the claim concerning the NIC did not figure in the Authority’s cumulative assessment.
The Authority accepted that the SLA confiscated the applicant's NIC and did not return it.[34] This occurred in late 2009. Consequently the applicant has been without an NIC for about nine years. He had been absent from Sri Lanka for about eight years.
[34] CB 300, [20]
The Authority gave consideration to the events likely to occur if the applicant was returned to Sri Lanka as an involuntary returnee. The Authority found that country information indicates that on arrival in Sri Lanka involuntary returnees are routinely questioned at the airport and subject to administrative checks by the authorities who verify travel documents and identity. There are checks against immigration and intelligence databases.[35] Charges might be laid and consideration given to bail.
[35] CB 306, [42]
There is an obligation of the decision-maker to give cumulative consideration to a visa applicant's claims. This arises as part of the decision-maker's obligation to consider the case before them. The above principle was examined by the Court in Minister for Immigration v DDK16.[36] The Court stated at [33]:
In that context, a decision-maker is required to consider each integer of a visa applicant's claims, whether they are raised expressly or arise clearly on the material [citing Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802: (2001) 233 FCR 136 at 139 [7]]. Further, as part of the decision-maker's duty to address the case raised by the material before them, the decision-maker must consider the whole of the case put forward by the visa applicant [citing Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31]]. There may be a combination of factors that create the profile of the person who meets (relevantly here) the complementary protection criteria [citing MZZUG at [47]], or causative factors that may not give rise to the relevant risk on their own, but may do so collectively [citing W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]].
[36] [2017] FCAFC 188
As the Court noted in DDK16 at [32]:
“….no obligation to make a “cumulative assessment” arises where individual claims have been rejected as a factual matter, or have been the subject of findings that they did not or would not lead to ongoing problems for the visa applicant were he or she to return to a receiving country (and no claim is made that any of those individual findings were the subject of appellable error): see SZNKO v Minister for Immigration and Citizenship [2013] FCA 123; 140 ALD 78 at [135]-[136]: W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]; Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31].
It was the applicant’s case to the Authority that he would have problems because his NIC had been confiscated. It was also part of the applicant’s case that he would be stopped at the airport on return to Sri Lanka, be interrogated, arrested and charged.
The Authority accepted both propositions set out in the above paragraph. The Authority found that the NIC was probably confiscated in late 2009[37]. In dispelling the risk to the applicant on account of the confiscated NIC, the Authority first noted that the practice of confiscating NICs was common during the war[38]. Later in the decision, the Authority found that country information does not support the proposition that in Sri Lanka persons who cannot produce their NIC on the spot are imputed to be an LTTE member or supporter, or are otherwise considered to have committed a crime.[39] The Authority went on to refer to delays and that the applicant may have to travel to a major town. The Authority did not accept that applying for a replacement card would give rise to any issues for the applicant.
[37] CB 300, [20]
[38] ibid
[39] CB 302, [29]
The factual findings of the Authority are said to have required that a cumulative assessment be made of the likely risk to the applicant if, as an involuntary returnee he is arrested or detained at the airport and interrogated as to his identity and history and cannot produce his NIC. Clearly, under arrest at the airport, the applicant will not have the ability to apply for a new NIC nor travel to a major town. There is no reference to country information or other evidence as to returnees who arrive without an NIC.
The applicant further contends that, if the Authority had engaged in consideration of the impact of the confiscation of the NIC in its cumulative assessment, it would have figured in the qualitative assessment of the deprivation of his liberty on return to Sri Lanka because of his irregular departure from Sri Lanka.
I prefer the submissions of the Minister on the issue raised.
The claim that the applicant now asserts was overlooked was expressly mentioned in the Authority’s decision at [8][40] when it summarised the applicant’s claims. The relevant paragraph states as follows:
The CID or the SLA has confiscated his National Identity Card (NIC). He will not be able to live in Sri Lanka without the card. If he approaches the government authorities to obtain a new card, he will come to the adverse attention of the authorities including the SLA and the CID.
[40] CB 297
The tenor of this ground therefore must be that notwithstanding the Authority’s express reference to this claim, it subsequently failed to consider it in its decision. This is, naturally, inconsistent with well-settled principles that one should not readily infer that an issue was overlooked where that has been identified at some point.[41] Furthermore, the Authority at [29][42] again sets out the applicant’s claim with respect to his NIC and makes the following findings:
a)the applicant’s NIC was confiscated and he has a subjective fear that he may come to the attention of the authorities for not possessing an NIC;
b)country information did not suggest that a person who could not produce an NIC on the spot were imputed to be LTTE members or supporters or criminals;
c)country information also did not suggest that the applicant would be unable to apply for a replacement NIC;
d)he was never a member of the LTTE or of ongoing interest to the Sri Lankan authorities; and therefore, ultimately;
e)applying for a replacement NIC would not “give rise to any issue for the applicant”.
[41] Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at [47]
[42] CB 302
In light of the Authority’s express reference to the claim in question at [8][43] and [29][44] and its various findings relating to the applicant’s NIC and the authorities’ lack of interest in him, I accept the Minister’s submissions that there is no basis to suggest that that claim was not considered.
[43] CB 297
[44] CB 321
The applicant asserts that the Authority committed jurisdictional error in failing to consider his claims cumulatively, the Minister submits that in circumstances where the Authority made findings in respect of each claim raised by the applicant and found that none of the claims gave rise to any risk of serious or significant harm, the lack of any reference to “cumulative consideration” of these claims does not demonstrate any jurisdictional error. I agree. As stated by Full Federal Court in the case of DDK16 at [34]:[45]
…as a matter of inexorable logic, that if, as is common ground here, all individual claims or bases for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result.
[45] [2017] FCAFC 188; this was applied in CED17 v Minister for Immigration [2018] FCA 877 at [21]-[26] (Steward J)
That inexorable logic applies here. As stated above, in addressing the applicant’s claim with respect to his NIC, the Authority found at [29][46] that:
a)country information did not support the proposition that persons who cannot product their NIC on the spot are imputed to be an LTTE member, an LTTE supporter or a criminal;
b)the applicant may have to travel to a major township to apply for a replacement NIC, but country information did not indicate that a replacement NIC would be unavailable to him; and
c)as he was not of ongoing interest to the Sri Lankan authorities, applying for a replacement NIC would not give rise to any issues.
[46] CB 302
With respect to the applicant’s claim that he would be detained, interrogated, arrested and charged, the Authority made the following findings:
a)as a returnee who departed Sri Lanka illegally, the applicant would very likely be subject to scrutiny as part of routine immigration processing;[47] and
b)as there was no evidence that he had a criminal background or outstanding court orders or arrest warrants against him, the extent of the returnee processing applicable to the applicant would very likely consist of detention at the airport, being briefly held in a prison and/or fines.[48] Notably, having regard to “the applicant’s circumstances”, the Authority was not satisfied that any treatment and penalties he may be subjected to on re-entry as a consequence of his illegal departure amounted to serious harm.[49]
[47] CB 306, [42]
[48] CB 306, [45]
[49] CB 306, [45]
The Authority therefore dismissed each of the applicant’s individual claims that are the subject of the ground of review. With the NIC claim, the Authority found that persons who could not produce their NIC on the spot would not attract adverse attention, and the applicant could apply for a replacement NIC without giving rise to any issues. With the returnee processing claim, the Authority found that, based on the applicant’s circumstances, he would be subject to detention, brief imprisonment and/or fines which did not amount to serious harm. In those circumstances, “no amount of ‘cumulative consideration’ of those rejected claims is capable of producing a different result”.
The applicant tried, but failed, to distinguish this case from DDK16. I was the judge at first instance in that proceeding. In my view, I would fall into the same error I was found to have committed in that case if I accepted the applicant’s contentions. Accordingly, the ground of review fails.
Conclusion
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 25 March 2020
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