Ejj18 v Minister for Home Affairs

[2019] FCCA 230

FEDERAL CIRCUIT COURT OF AUSTRALIA

EJJ18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 230

Catchwords:
MIGRATION – Immigration Assessment Authority – whether Authority failed to apply the forward-looking test – whether the Authority had a real and genuine engagement with the applicant’s submissions – whether the Authority failed to consider the “what if I’m wrong” test – no jurisdictional error made out – amended application dismissed.  

Legislation:

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

Applicant: EJJ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2358 of 2018

Judgment of: Judge Street

Hearing date: 5 February 2019

Date of Last Submission: 5 February 2019

Delivered at: Sydney

Delivered on: 5 February 2019

REPRESENTATION

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

Solicitors for the Respondents: Ms S Burnett
Clayton Utz

ORDERS

1. Grant leave to the applicant to rely upon the amended application annexed to the applicant’s submissions filed on 22 January 2019 and the Court dispenses with the filing and service of the same.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 5 February 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2358 of 2018

EJJ18

Applicant

And

MINISTER FOR HOME AFFAIRS

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 31 July 2018 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 was found to be a Tamil from the Northern Province of Sri Lanka and arrived in Australia on 13 October 2012, as an unauthorised maritime arrival.

3. The applicant claimed to fear harm from the Sri Lankan government by reason of his former Liberation Tigers of Tamil Eelam (“LTTE”) links, his Tamil ethnicity, his Northern Province origin, his work as a fisherman, his public activities and for being a returned failed asylum seeker. On 27 April 2018, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

4. On 3 May 2018, the Authority wrote to the applicant explaining that the application had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction giving the applicant an opportunity to put on new information and submissions. The applicant did put on new information and submissions that were referred to by the Authority, and insofar as the submissions engaged with the delegate’s reasons the Authority had regard to the same. The Authority otherwise considered the new information in accordance with s 473DD of the Act and the Authority also took into account a more recent Department of Foreign Affairs and Trade (“DFAT”) country information report dated 23 May 2018. The Authority in its reasons identified the background to the visa application and had regard to the information referred by the Secretary under s 473CB of the Act.

5. The Authority summarised the applicant’s claims. The Authority accepted that between February and April 2006 the applicant attended LTTE meetings and distributed LTTE leaflets and pamphlets. The applicant also attended military training with the LTTE for six days in 2006. The Authority accepted that in April 2006 the applicant travelled to Mannar and was unable to return due to the conflict and road closures. The Authority accepted that the applicant spent the next three years working as a fisherman and performing occasional sentry duties for the LTTE in various villages on the North West coast of Sri Lanka.

6. The Authority accepted the applicant’s brother-in-law is a former LTTE combatant who attended rehabilitation. The Authority found that the applicant has no association with that brother. The Authority accepted that the applicant has another brother-in-law who lost his own brother whilst fighting for the LTTE in 2008. The Authority noted that the applicant has not claimed that either himself, his sisters, or his family members have faced any adverse issues as a result of those two relatives.

7. The Authority noted that the applicant had informed the delegate as to his limited LTTE activities. The Authority referred to the applicant confirming that none of his immediate family had joined the LTTE and whilst the Authority accepted the applicant’s involvement with the LTTE as claimed, the Authority found that those were limited activities.

8. The Authority accepted the applicant and his family were held in two IDP camps from April 2009 until their release in September 2009. The Authority accepted that the applicant and his family were questioned by the Criminal Investigation Department (“CID”) regarding associations and that they have denied any LTTE involvement. The Authority found the applicant and his family were released from the Internal Displaced People (“IDP”) camp and returned to their hometown in which the applicant stayed under the control of the Eelam People’s Democratic Party (“EPDP”) and the Sri Lankan authorities.

9. The Authority referred to the applicant’s claim that between September 2009 and April 2012 he was subject to mistreatment. The Authority identified having concerns as to the severity of the mistreatment claimed by the applicant and found the same had been exaggerated. The Authority also expressed concern that some aspects of these claims had been wholly fabricated.

10. The Authority referred to the applicant referring to an incident that allegedly occurred on 10 November 2009 when he was taken to a CID office in a particular place four or five times and beaten, and that he was interrogated then released, and that this occurred seven or eight occasions subsequently. The Authority referred to an incident in which the applicant alleged that his hands were bound and he was hung in a tree so that his feet were not touching the ground. The applicant alleges he lost consciousness and the applicant alleged that this happened monthly or whenever they called.

11. The Authority referred to what the applicant had said at the entry interview when he first arrived in Australia that the CID would come to his home and take him for questioning, and that he had been tortured and beaten and that this continued for six to eight months. The Authority noted that the applicant asserted in his Safe Haven Enterprise visa statement that the estimated period was incorrect and that the CID treatment had occurred over the entire period he was living in his hometown. The applicant advanced an explanation for his incorrect period which the Authority did not accept. The Authority listened to the audio of the arrival interview which did not suggest that the applicant was the subject of confusion as alleged by the applicant.

12. The Authority found the applicant had exaggerated his claims since his arrival interview and significantly overstated the problems he had with the CID for the purpose of his Safe Haven Enterprise visa application. The Authority noted the applicant did not claim to have been arrested or detained by the authorities. It was in these circumstances the Authority found that when the applicant was questioned, including at the IDP camp, the authorities were satisfied the applicant was not a person of adverse interest to them. The Authority did not accept that the applicant was tortured and beaten by the authorities.

13. The Authority accepted and preferred the initial evidence of the applicant that this activity occurred over a six to eight month period in 2009 and 2010. The Authority referred to being unconvinced by the applicant’s evidence presented to the delegate that the CIDs interest was ongoing. The Authority was not satisfied with the applicant’s evidence regarding being the subject of physical harm. The Authority referred to the applicant not being able to easily recall his claims of physical harm. It was in these circumstances the Authority did not accept the applicant was beaten and tortured by the CID as claimed, and the Authority did not accept the applicant continued to attract the adverse attention of CID after 2010.

14. The Authority referred to the applicant’s assertion in the Safe Haven Enterprise visa statement of a new claim regarding the CID hiding the motor to the applicant’s boat. The Authority did not accept that claim, or that the CID hit the applicant.

15. The Authority referred to the applicant’s evidence in relation to his departure from his hometown and identified having concerns as to the credibility of the claims in that regard. The Authority was willing to accept that the applicant may have been intimidated by the EPDP. The Authority noted that the applicant had stated that the harassment occurred when he passed by their office and when he was part of a group. The Authority did not accept the applicant was systematically targeted. The Authority did not accept that the day before the applicant left his hometown he was grabbed and beaten by the EPDP.

16. The Authority found the applicant used his passport to depart Sri Lanka lawfully by plane in July 2012. The Authority found the applicant travelled to Indonesia and with the assistance of people smugglers then travelled by boat to Australia.

17. The Authority was not satisfied the applicant was a person of interest to the authorities when he departed Sri Lanka. The Authority was not convinced that the applicant’s brother was questioned and beaten on account of the applicant’s whereabouts. The Authority did not accept the applicant’s brother was detained and beaten on account of the applicant and did not accept that the applicant’s brother had to depart Sri Lanka for this reason almost six years after the applicant.

18. The Authority accepted the applicant attended commemorative events in Australia for the reasons he stated and not for the purpose of strengthening his protection claims.

19. The Authority referred to the relevant law. The Authority was not satisfied the applicant is of any interest to the Sri Lankan authorities when he departed Sri Lanka and found that the Authority did not accept that the CID visited the applicant’s home in 2012 after he departed. The Authority was satisfied the applicant’s involvement in the LTTE was low level and took into account that the applicant was not arrested or detained when he returned to his home town.

20. The Authority accepted the applicant has relatives who were former LTTE combatants, however the Authority considered these relationships are founded on marriage and to be distant. The Authority was not satisfied the applicant’s attendance at the commemorative events would be perceived as separatist activity.

21. The Authority was not satisfied that the applicant’s Tamil ethnicity and his time in the Northern Province, LTTE links, and his attendance at the commemorative events held in Australia would result in him now. or in the reasonably foreseeable future being imputed with Tamil pro-separatist profile.

22. The Authority referred to country information concerning the political party EPDP as it was in 2012 and what had occurred in the years following. The Authority referred to the country information supporting that there had been a significant change in the situation for Tamils since the applicant’s departure in 2012. The Authority expressly referred to the political dialogue for Tamils having increased since the change of government in 2015.

23. The Authority referred to some Tamils being exposed to discrimination in employment. The Authority also referred to country information that indicates there has been a significant shift in the landscape in Sri Lanka in recent years, and since the applicant was last questioned and mistreated in 2011. The Authority was not satisfied the applicant’s ethnicity, his origins in the north, his personal and familial links, and his public activities in Australia will now give rise to a real chance of harm.

24. The Authority referred to the applicant as a person who will be returning to Sri Lanka on a temporary travel document. The Authority referred to the country information identifying difficulties that can be faced by asylum seekers. The Authority referred to the applicant’s experience in the fishing industry and found the evidence does not indicate that he will be prevented from returning to work, or that his capacity subsist will be threatened. It was in those circumstances the Authority was satisfied the applicant will be able to find accommodation and employment.

25. The Authority was not satisfied the applicant faced a real chance of serious harm as a returning asylum seeker. The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and found the applicant did not meet the criterion in s 36(2)(a) of the Act.

26. The Authority referred to its earlier adverse findings and referred to the real risk and real chance standard as being the same and clearly made a typographical error by omitting a “not” in the sentence referring to “I am also satisfied the applicant faced a real risk of significant harm”, in paragraph 56. Mr Zipser of counsel, on behalf of the applicant, accepted that was a typographical error. It is apparent from the negative finding in the first sentence of paragraph 56, the reference to “also” in the critical sentence where the typographical error appears, as well as the ultimate sentence in paragraph 57, and paragraph 58’s adverse finding that there was a typographical error in the omission of the word “not”.

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

The grounds

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

   1. The Immigration Assessment Authority (“the IAA”), in considering whether the applicant faced a real chance of serious harm as a result of his Tamil ethnicity if required to return to Sri Lanka. erred in one or both of the following ways:

   a) The IAA failed to consider the position of the applicant into the reasonably foreseeable future which is a jurisdictional error.

   b) The IAA failed to consider that part of a written submission made by the applicant to the IAA concerning the fluidity of the political and human rights situation in Sri Lanka and the need for the IAA to consider this and the position for the applicant into the reasonably foreseeable future. This is a jurisdictional error.

   2. The IAA at [22]-[29] did not accept aspects of the applicant's claims. The IAA at [20] stated that it “[had] concerns” about some aspects of the applicant's claims. The IAA at [23) stated that it was unconvinced" by some of the applicant s claims. This language used by the IAA indicates that the IAA had doubts as to whether its findings rejecting aspects of the applicant's claims were correct. In the circumstances, the IAA was obliged to take into account the possibility that the applicant's claims concerning these past events were true. Its failure to do so involved jurisdictional error: see Minister v Rajalingam (1999) 93 FCR 220.

Ground 1

1. Mr Zipser took the Court to the structure of the Authority’s reasons and also to the submissions that were advanced to the Authority sent on 21 May 2018, and, in particular, paragraph 8 on page 141 of the Court Book under the heading “DFAT Country Information of Sri Lanka”. Mr Zipser drew attention to the reference to the political situation in paragraph 8 being described as “fluid” and the reference to local council elections on 18 February 2018.

2. The submissions in paragraph 8 contended, in circumstances where the political and security situation in the country is fluid, it is important for the decision-maker to consider the situation for the applicant in the reasonably foreseeable future. The submissions contended that the Authority had not clearly addressed the reasonably foreseeable future and did not apply the real chance test. Mr Zipser identified that there was no express reference to the term “fluid” or “fluidity” in respect of the country situation, but accepted that the Authority’s reasons are not to be read with a keen eye for error and that the use of a particular term in that regard is not determinative of whether the Authority has had a real and genuine engagement with the applicant’s submissions. Mr Zipser submitted that the Court should infer from the absence of express reference to the content of paragraph 8 in the submissions dated 21 May 2018 that there had not been a real and genuine engagement with the submissions.

3. Mr Zipser drew attention to what was described as the structure of the reasoning of the Authority in respect of the applicant’s claims and also drew attention to the second limb of the argument advanced under ground 1, which was that the Authority had not correctly applied the reasonably foreseeable future test. Mr Zipser in that regard drew the Court’s attention to the use of the term “now” in the Authority’s reasons in paragraph 46. Mr Zipser contended that there had been either a failure to apply the forward-looking test in respect of the applicant’s Tamil ethnicity and claimed fear, and/or a failure to have a real and genuine engagement with the submissions advanced concerning the fluidity of the security and political situation in Sri Lanka in applying the forward-looking test.

4. The Authority’s reasons correctly identify the forward-looking test and expressly referred to “now or in the reasonably foreseeable future” in taking into account and making an adverse finding in respect of the applicant’s Tamil ethnicity and his time in the Northern Province in paragraph 41. The reasons are to be read as a whole. The reference in paragraph 46 to “now” on a fair reading does not reflect a failure to apply the forward-looking test by the Authority in determining the applicant’s claims under the Refugee Convention.

5. Reading as a whole and in context with paragraph 41, and the reference to future considerations as is apparent from the reasoning of the Authority that refers to country information indicating a significant shift in the landscape, as well as the forward-looking language identified in paragraphs 47 and 50 as well as the reference to country information concerning political parties in paragraph 42. The Court is not satisfied that there has been any failure by the Authority to have a real and meaningful engagement with the applicant’s submissions.

6. Further, the Court is not satisfied that the Authority has failed to apply the forward-looking test in determining the applicant’s claims in respect of his fear of harm by reason of his ethnicity and origin. Notwithstanding the applicant’s submissions in this regard, the Court is satisfied, taking into account paragraph 6 of the Authority’s reasons which expressly refers to having regard to the submissions, and the reasons of the Authority as referred to above, that there was a real and genuine engagement with the submissions dated 21 May 2018 by the Authority. The Court finds that the Authority applied the correct test as expressly identified in paragraph 41, and that the Authority took into account those submissions as well as applying the correct test under the Refugee Convention in considering the applicant’s claims on a fair reading of the Authority’s reasons as a whole. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Zipser referred to the adverse credibility findings made by the Authority and submitted that on a fair reading the Authority’s adverse findings relating to the applicant’s claims were the subject of doubt. In that regard, Mr Zipser referred to the Authority’s reasoning, in particular where the Authority referred to not being convinced by the applicant’s evidence. Mr Zipser submitted that the Authority should have considered the “what if I’m wrong” test and that the finding was one which the Court, on a fair reading of the Authority’s reasons, should find was the subject of doubt.

2. The Authority’s reference to not being convinced by the applicant’s evidence is followed by an adverse findings that do not reflect doubt in the adverse finding. This is not a case where it was necessary for the Authority to apply a consideration of “what if I’m wrong” test in determining the applicant’s claims. No jurisdictional error as alleged in ground 2 is made out.

Conclusion

1. Accordingly, the amended application is dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 8 March 2019