EGA17 v Minister for Immigration

[2019] FCCA 408

FEDERAL CIRCUIT COURT OF AUSTRALIA

EGA17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 408

Catchwords:
MIGRATION – Application for judicial review – refusal of protection visa – claim that the Authority failed to consider relevant information – weight of and preference for relevant information – real risk of significant harm – where the Authority has correctly applied the relevant test – jurisdictional error not found. 

Legislation:

Migration Act 1958 (Cth)

Cases cited:

SZSKC v Minister for Immigration & Border Protection [2014] FCCA 938

Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Applicant: EGA17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: DNG 30 of 2017

Judgment of: Judge Young

Hearing date: 1 February 2019

Date of Last Submission: 1 February 2019

Delivered at: Darwin

Delivered on: 1 February 2019

REPRESENTATION

Counsel for the Applicant: Ms Nguyen

Solicitors for the Applicant: Ward Keller

Counsel for the Respondent: Mr Liveris

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application filed 21 September 2017 is dismissed.

2. The Applicant is to pay the Respondent’s costs in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

No. NG 30 of 2017

EGA17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY 

Second Respondent

REASONS FOR JUDGMENT

Ex – Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision of the Immigration Assessment Authority made on 11 September 2017 to affirm a decision of the Minister’s delegate to refuse the applicant a protection visa.

3. The applicant is a Sri Lankan citizen of Tamil ethnicity born in Jaffna, Sri Lanka in 1981.  In 1990 he left Sri Lanka with his parents to escape the war when he was about nine or 10 years old.  He came to Australia from India by boat in 2012.

4. His initial protection claims are set out in a statutory declaration dated 29 February 2016 in support of his protection claims.  He said in that statutory declaration that he feared return to Sri Lanka because he feared persecution based on his Tamil ethnicity.  He mentioned in the statutory declaration that his mother and father provided assistance to the LTTE, that is, the Liberation Tigers of Tamil Eelam, by supplying them with food.

   When the Sri Lankan army found out they had been supplying food to the LTTE they began threatening my parents.  This resulted in them making the decision to migrate to Sri Lanka.

   That should be “India”, I imagine.

5. The claim that the applicant feared persecution based on family connection to the LTTE was raised as an express protection claim in a submission to the delegate made on 5 June 2017 by the applicant’s legal representative. It was expressed in summary terms (court book 127) that he feared persecution because country information indicated:

   Tamils with family connections to the LTTE (e.g. with immediate family members who have assisted the LTTE with transportation of materials) are at risk of being detained and possibly tortured.

6. The country information that was included in that submission appears at court book 129 to court book 149.  At court book 133 there is some country information from an organisation called Refworld. At court book 134 that country information, in summary terms at least, indicates that persons at risk on return to Sri Lanka include sympathisers with and those with links to the LTTE.  At court book 140 there is country information from the Immigration and Refugee Board of Canada and at court book 142 that material refers to persons being at risk who have links that go beyond “prior residency” in LTTE controlled areas.  At court book 143 in the same country information there is a reference or an observation that “[n]early every family” living in such an area, LTTE controlled areas, during the war would be likely to have “some tie to the movement” – a reference to the LTTE – “through either bloodlines or their own engagement in legitimate or illegitimate activities”.

7. The reference to links in the applicant’s legal representative’s submission to family connection to the LTTE, that is, the reference to connections to the LTTE through immediate family members who have assisted the LTTE with transport of materials, may be intended to invoke the criteria for those who may be in need of protection set out in the UNHCR Report dated 21 December 2012 and the DFAT Country Information Report Sri Lanka dated 24 January 2017 (which adopts the relevant criteria I am about to mention set out in the UNHCR Report).  Both these reports are referred to or footnoted in the Authority’s decision.

8. The UNHCR Report, at page 27, says the following:

   However, previous (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case.  The nature of these more elaborate links to the LTTE can vary but may include people with the following profiles:

   1.Persons who hold senior positions with considerable authority in the LTTE civilian administration …;

   2.Former LTTE combatants or “cadres”.

   3.Former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence …;

   4.Former LTTE supporters who may never have undergone military training but were involved in sheltering or transporting LTTE personnel or the supply and transport of goods for the LTTE;

   5.LTTE fundraisers and propaganda activists…;

   6.Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.

9. Turning to the amended grounds of review in the applicant’s application,  Ground 1 is:

   The determination of the Immigration Assessment Authority that “the applicant is not a person of interest to the Sri Lankan authorities” was unreasonable, unintelligible and irrational.

10. The particulars, which I will not read in their entirety, go on to assert that the Authority failed to consider the risk criteria mentioned in the UNHCR Report and the DFAT Country Information that I have just read.

11. In submissions the argument was developed that the Authority’s failure to expressly refer to the criteria should lead to an inference that the Authority had not evaluated this material and that, as the material was key to the applicant’s claims, that demonstrated jurisdictional error.  Although counsel for the applicant did not refer to the case in discussion with the bench, she, in substance, I think, developed an argument that was reflective of the decision in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114.

12. Ground 2 alleged:

    The determination of the Immigration Assessment Authority that the applicant does not fall within a category of persons at risk as set out by the UK Home Office Report 2017 was unreasonable, unintelligible and irrational.

13. The particulars then went on to assert that the UK Home Office had identified four recognised categories of person at risk: those with a significant role in post-conflict Tamil separatism, journalists or human rights activists, people who gave evidence to the Reconciliation Commission implicating the Sri Lankan security forces and those whose names appear on a “stop” list. It was asserted that, given that the Authority had accepted that the applicant’s father, prior to the family’s departure for India in 1990, had “transported items” for the LTTE, it was open, in the absence of any evidence about what was actually transported, to find this included “weapons and explosives”. It was suggested that unless the Authority negatived that possibility, it could not negative the possibility that the applicant’s father played a significant role in the “conflict situation in transporting goods to the LTTE”.

14. Ground 3 was simply an assertion that the Authority failed to apply the correct test for complementary protection set out in subsection 36(2)(aa) of the Migration Act.

15. Turning to Ground 1.  Ground 1 hinges on the following passage in the Authority’s decision at paragraph 8:

    I accept that the applicant’s father supported the LTTE in Sri Lanka and that he transported items for them and provided them with food.

16. The paragraph goes on to say:

    The applicant’s claims of his father’s involvement is consistent with country information about people living in LTTE controlled areas.  The UNHCR report that “at the height of its influence in Sri Lanka in 2000 to 2001, the LTTE controlled and administered 76% of what are now the Northern and Eastern Provinces of Sri Lanka.  Therefore, all persons living in those areas, and at the outer fringes of the areas under LTTE control, necessarily had contact with the LTTE and its civilian administration in their daily lives”.

17. It was alleged in the particulars of Ground 1 that the first sentence in paragraph 8 ought to have engaged a consideration or an evaluation by the Authority of the criteria in the UNHCR and DFAT reports that I have read, and in particular, ought to have engaged an evaluation of whether the applicant was at risk of persecution or there was a well-founded fear of persecution on the basis of criteria (4) and (6) – namely (4), persons being former LTTE supporters who were involved in the supply and transport of goods for the LTTE, and (6), persons with family links or otherwise closely related to persons with such a profile.

18. It was said that the failure to expressly refer to those criteria in the evaluation permitted an inference and, indeed, I think the submission was made, required the inference that those criteria were not taken into account in assessing the applicant’s claims, that is, in assessing or evaluating his claim to have a well-founded fear of persecution for those reasons: his father’s involvement in transporting items and the applicant’s obvious close family link to his father.

19. Although the applicant’s counsel did not refer to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, that is authority for the proposition that what is present and what is absent from the Authority’s reasons or a tribunal’s reasons in a given case may enable the court to find that there has been jurisdictional error, and, in particular, a failure of a tribunal such as the Authority to discharge its statutory obligation of assessing the applicant’s claims for protection.

20. It appears to me the question is whether the inference can be drawn that the Authority did not, to use the language of the Full Court of the Federal Court in MZYTS at paragraph 50 in that decision, engage in a process of weighing and preference but rather omitted and ignored from its evaluation that material (which was not suggested by the Minister to be other than centrally relevant to an assessment of the applicant’s claims).

21. In considering whether an inference can be drawn that those criteria in the two reports were ignored or were not included in a process of weighing and evaluation it should be noted that the Minister’s delegate also considered the applicant’s claims in relation to his father’s involvement or asserted involvement with the LTTE.

22. The delegate expressly referred to the UNHCR’s comments that I have referred to and their adoption in the DFAT Country Information Report Sri Lanka. At court book 244 there is reference to that. Footnote 11 in the delegate’s decision refers to page 16 of the DFAT Country Report which reproduces those criteria.

23. The delegate then goes on to, without listing them, but certainly referring to the page at court book 245, to generally evaluate the significance of the father’s asserted involvement with the LTTE in some detail.  The delegate ultimately doubted the extent of the father’s involvement and the applicant’s claims in relation to that.  I am not suggesting that that conclusion by the delegate is relevant given the Authority’s contrary conclusion about that.

24. That material in the delegate’s decision would have been referred to the Authority by the Secretary under the fast track review process. That material and reference to that material was before the Authority.  Nevertheless, the Authority, as I have already mentioned, itself, does not expressly refer to those criteria in the UNHCR Report and the DFAT Country Report.

25. The Authority, after accepting the applicant father’s involvement in transporting items and providing food to the LTTE, goes on to say half way through paragraph 11:

    I accept that during the war and in the immediate period following, the Sri Lankan Government pursued people with LTTE links and thousands were detained in rehabilitation or prosecuted for security offences.  However, reporting recently in 2017, the UK Home Office noted that the Sri Lankan Government’s concern has changed since the civil war ended and the Government’s present objective is to identify Tamil activists who are working for Tamil separatism and to destabilise the Unitary Sri Lankan State.  The UK Home Office reported the Upper Tribunal, in 2013, recognised four categories of persons at risk:  those with a significant role in post conflict Tamil separatism;  journalists/human rights activists, people who gave evidence to the Reconciliation Commission implicating the Sri Lankan security forces and those whose name appears on a “stop” list of those against whom there is an extant court order or arrest warrant.  I am not satisfied that the applicant falls within one of these categories of persons.

26. And at paragraph 12:

    I do not accept that the applicant’s fear the authorities have a record of his father due to his support for the LTTE before 1990 is well-founded.  From the applicant’s account, his father was not a member of the LTTE, did not fight for the LTTE and his support was similar to the experience of many civilians living in Jaffna at the time.  Noting the country information about people who are of concern to the authorities now, I do not accept that the activities of the applicant’s father in Sri Lanka before 1990 would result in the applicant coming to attention and experiencing harm on return to Sri Lanka now or being imputed as an LTTE supporter.

27. And at paragraph 13, about halfway through the paragraph:

    Similarly, the International Truth and Justice Project report noted that human rights violations by the security forces continue with impunity and Tamils with tenuous links to the LTTE or low level cadres continue to be targeted, along with their families. The US Department of State continued to report human rights abuses in 2015 and noted cases of harassment, arbitrary arrest, detention and torture of civil society activists, journalists and LTTE sympathisers.  However, I find that overall the reports of harm relate to people with LTTE connections or who are otherwise Tamil separatist activists and I do not accept that the applicant would be perceived as such, nor do I accept that his father’s low level support before 1990 would attract adverse attention.

28. I am unable to infer, notwithstanding the absence of express reference to the criteria in the UNHCR Report or the DFAT Country Report on Sri Lanka, that the Authority has not engaged with and evaluated the applicant’s claim that he is at risk because his father supported the LTTE in Sri Lanka and that he transported items for them and provided food.  The reason I say that is as follows. At paragraph 12 it appears to me that the Authority is emphasising a number of matters.  The father’s support for the LTTE was before 1990.  That is, some 28 years ago.  The applicant, of course, at that time, was only nine or 10 years old.  The Authority noted that the applicant’s father was not a member of the LTTE.  Nor did he fight for the LTTE.  And it said that his support was similar to the experience of many civilian Tamils living in Jaffna at the time.

29. Precisely where that last observation came from is not clear but it appears to me to be at least consistent with the observations in the country information from the Immigration and Refugee Board of Canada which was relied on by the applicant, that is, that during the war in areas controlled by the LTTE nearly every family would have had some kind of connection with the LTTE, either through bloodlines or through involvement in legitimate or illegitimate activity.  It appears to me that the observation that the father’s support was similar to the experience of many civilians living in Jaffna at the time is consistent with that country information.

30. In other words, the Authority assessed whether that involvement some 28 years ago was likely to be productive of the Sri Lankan authorities considering that the applicant had an adverse profile now or a profile that put him at risk now.

31. It seems to me that the conclusion of the Authority that, overall, the material that has been referred to, that is, the country information relied on by the applicant himself, the UK Home Office material and indeed, the criteria set out in the UNHCR Report and the DFAT Country Information do, indeed, overall, to use the word in the Authority’s decision, suggest that reports of harm relate to people with LTTE connections, Tamil separatist activists and the like and that the father’s low level support some 28 years ago was not likely to bring the applicant to the attention of the authorities.

32. It appears to me that while the Authority has not expressly referred to those criteria, it has, in substance, weighed all of the country information including the UNHCR material and the DFAT country information and decided that, having regard to the particular circumstances of the applicant and the particulars of the claim he advanced, that it was not satisfied that he was at risk of persecution.

33. I am not satisfied that the Authority has failed to discharge its statutory obligation to evaluate, weigh and assess the applicant’s claim in relation to this particular issue.  I am satisfied that, on the contrary, the discussion of the Authority indicates, notwithstanding its failure to expressly mention the relevant criteria, on a fair reading of the material, that the Authority came to grips with the particular claim and rejected it.  I am not satisfied that there is jurisdictional error on that ground.

34. Ground 2 is somewhat unusual in what it asserts. The gravamen of the assertion is set out in (e) of the particulars, that is:

    Without specific evidence about what “items” the applicant’s father transported to the LTTE, it was equally open to the Authority to find that these “items” are likely to have included “weapons or explosives” giving rise to a perception that the applicant’s father played a “significant role” in the conflict situation in transporting goods to the LTTE.

35. There are two points to be made about that.  The first is that the UK Home Office material that is relied on as setting out a basis for claiming a risk profile for the applicant is not actually as stated in the UK Home Office material referred to by the Authority.  The first of the four categories are those with a “significant role in post-conflict Tamil separatism”, the other 3 categories; journalists and human rights activists, people who gave evidence to the Reconciliation Commission and those whose name appears on a “stop” list are not relevant.

36. Whether or not the father played a significant role in the conflict is not to the point.  The UK Home Office were dealing with four categories and the only possibly relevant one is “those involved in post-conflict Tamil separatism”.  So it does not appear to me that the argument follows at all.

1. The second point is that it is a matter for the applicant to bring forward his claims.  When he asserted and it was accepted by the Authority that his father transported items, he made no claim that the items were weapons or explosives.  To assert that the Authority ought to have negatived that possibility in the absence of any claim appears to me to be misconceived.

2. Ground 3 is an assertion that the Authority misapplied the test for complementary protection. It was said at paragraph 34:

   I accept that there are reports of mistreatment of asylum seekers who have been returned to Sri Lanka; however DFAT reports that the risk of torture or mistreatment for the majority of returnees is low.

3. It was said that that was a failure to properly apply the test for complementary protection which required an assessment of the applicant’s particular or individual claims and circumstances, and similarly, the Authority failed to ask, consistently with the test said to be set out in SZSKC v The Minister for Immigration & Border Protection [2014] FCCA 938, whether harm was a necessary and foreseeable consequence of the applicant’s return to Sri Lanka as opposed to some kind of statistical assessment of the exposure of risk to harm.

4. As far as that goes, I agree the Authority is required assess whether there is a risk that the applicant, individually, would face a real risk of significant harm as a necessary and foreseeable consequence of his return. It also requires an assessment of his individual circumstances.

5. However, I do not accept that the Authority has not done that.  In paragraph 30 it correctly states the test, that is, whether or not there is a real risk that he would face significant harm. The Authority goes on to say that, for the reasons it refused or rejected his refugee claims, it saw no basis for his complementary protection claims.

6. I am satisfied on reading paragraphs 30, 31, 32 and 33 that what the Authority did was to make an assessment of the particular and individual circumstances of the applicant having regard to his claims. At paragraph 34, by way of an overall assessment, it also observed that the country information asserts that there is for someone in his general situation a low risk of harm on return.  I see no error in the way the Authority has approached that.

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

Date: 20 February 2019