Ela18 v Minister for Home Affairs - [2019] FCCA 213

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELA18 v MINISTER FOR HOME AFFAIRS & ANOR

[2019] FCCA 213

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority misunderstood or misapplied the country information – whether the adverse credibility findings were open to the Authority – whether the Authority’s adverse findings were illogical, irrational or unreasonable – no jurisdictional error made out – amended application dismissed.

Legislation:

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

Applicant:

ELA18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 2378 of 2018

Judgment of:

Judge Street

Hearing date:

4 February 2019

Date of Last Submission:

4 February 2019

Delivered at:

Sydney

Delivered on:

4 February 2019

REPRESENTATION

Solicitors for the Applicant:

Mr D Taylor
Sydney West Legal & Migration

Solicitors for the Respondents:

Ms K Morris
Clayton Utz

ORDERS

Grant leave to the applicant to rely upon the amended application filed on 23 January 2019.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 4 February 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2378 of 2018

ELA18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

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 9 August 2018 affirming the decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.
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 1 May 2013. The applicant was found to be a Tamil male born in Kayts Division of the Jaffina District in the Northern Province of Sri Lanka.
The applicant claimed between 2007 and 2009 he was a member of the Liberation Tigers of Tamil Eelam (“LTTE”) police force. The applicant claims that he was taken to a controlled area and into welfare camp in February 2009. The applicant claims that in April 2009, he was taken to a rehabilitation centre and that he was detained at that centre for one year and five months. The applicant alleges he was released from the rehabilitation centre in September 2010 and was subject to ongoing harassment, questioning and monitoring and had regular reporting requirements. The applicant alleges he paid an agent who made arrangements for him to leave Sri Lanka in 2011 and travel to Malaysia where he remained until May 2013.
The applicant alleges that since his departure the authorities have routinely attended his family home and questioned his family about his whereabouts. The applicant claims that if he returns to Sri Lanka, that he will be harmed including detained, interrogated, abducted, tortured and arrested under the terrorism legislation by the Sri Lankan authorities on the basis of his ethnicity, his involvement with the LTTE, past detention in a rehabilitation camp, departure and contravention of the authorities instructions not to leave his home area and to have travelled overseas and his illegal departure. The applicant believes he will be considered an outcast by the Tamil community because of his past detention in a rehabilitation centre.
The applicant fears harm on the basis of an actual or imputed political opinion of being pro-LTTE arising from his profile as a young Tamil male from the north, perceived and actual links to the LTTE including his former combat role in the final stages of the civil war and his role as an LTTE police officer, his profile as a former rehabilitee and a returned failed asylum seeker. On 23 October 2017, a delegate found the applicant failed to meet the criteria for the grant of a safe haven enterprise visa.
On 26 October 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred from 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 and was the subject of an interview on 27 June 2018 and did provide submissions to the Authority, all of which are referred to in the Authority's reasons.
The Authority in its reasons identified the background to the visa application and had regard to the information given by the Secretary under s 473CB of the Act. The Authority identified new country information and referred to the submissions and material provided by the applicant.
The Authority found that the applicant's statement dated 17 November 2017 met the requirements of s 473DD of the Act and that there were exceptional circumstances to justify considering the same. The Authority found that the country information that predated the delegate's submission referred to in the submissions dated 17 November 2017 did not satisfy the requirements of s 473DD of the Act and made the same finding in relation to a letter from the applicant's father dated 13 December 2017.
The Authority accepted certain aspects of the applicant's claims and that the applicant was a member of the LTTE police force for approximately two years and that, for approximately six months, he was armed and provided assistance on the battlefield to the front line. The Authority accepted that the applicant withdrew from the LTTE forces as the Sri Lankan army advanced and that he and his family surrendered to the Sri Lankan government and were taken to welfare camp and that the applicant was subsequently taken to and released from a rehabilitation camp and that at that rehabilitation camp the applicant was questioned, assaulted and threatened and had his details recorded. The Authority accepted the that the applicant had been subject to reporting requirements and ongoing monitoring and that he had been told not to leave his home area or to travel overseas and that his monitoring and reporting in turn caused the applicant and his family to fear for his safety and was the reason he wished to depart Sri Lanka.
The Authority accepted that in 2010, the applicant had been physically assaulted questioned and detained for four days and mistreated and that again, in the beginning of 2011, the applicant was detained, physically assaulted and questioned regarding his LTTE involvement. The Authority however, did not find it plausible that the authorities continued to visit the applicant’s home since his departure from Sri Lanka. The Authority did not accept the applicant’s claims that there had been more recent visits. In this regard, the Authority found that the applicant had significantly embellished this aspect of his evidence.
The Authority did not accept aspects of the applicant's claims regarding his treatment when at a rehabilitation camp and when later questioned. In particular, the Authority did not accept that the applicant had failed to admit to the authorities the full extent of his LTTE involvement when questioned and found the applicant's claim in this regard to be implausible. It is this finding that is the subject of challenge in a ground raised by the applicant. The Authority did not accept the applicant had been injected with a substance when he was detained and did not accept the applicant had departed from Sri Lanka using a forged passport or by bribing an official. Nonetheless, the Authority accepted the applicant may have been on a watch list. Having considered the applicant's claims to fear harm and taking into account the country information and the submissions, the Authority was not satisfied the applicant would be perceived as having a significant or high level role in the LTTE.
The Authority was not satisfied the applicant was subject to ongoing attention. The Authority was not satisfied the applicant's time at the rehabilitation camp was suggestive of serious suspicions by the authorities or of treatment he would receive now. The Authority was satisfied the applicant could return and find employment and would not be imputed with an adverse profile. The Authority considered the country information and accepted that the authorities might be aware the applicant had made claims for protection and that his name would be on a watch list and that he would be returning on a temporary travel document. The Authority noted that the applicant would have a rehabilitation certificate.
The Authority was not satisfied the applicant would face real chance of persecution as a young Tamil male or because of any actual or imputed pro-LTTE, pro-Tamil, pro-separatists or anti-Sri Lankan government political opinions.
The Authority was also satisfied the applicant would not be at high risk of additional detention or adverse treatment on return and that the processing he would be subject to was not discriminatory, selectively enforced or would amount to mistreatment or that the applicant would be subject to more than standard processing.
The Authority found the applicant was not a person in respect of whom Australia has protection obligations. The Authority found the applicant failed to meet the criteria under s 36(2)(a) and s 36(2)(aa) of the Act and affirmed the decision under review.

The grounds

The grounds in the amended application are as follows:
3. The Authority erred in the reasoning process by which it rejected the applicant’s evidence and claims that the Sri Lankan authorities did not discover during his rehabilitation detention, the full duration and armed nature of his LTTE service.
Particulars:
a. The Applicant claimed in the IAA interview that the Sri Lankan authorities had not discovered his 2 years of service in the LTTE, including armed service, but that he had only disclosed to them that he provided three months unarmed service in the LTTE police.
b. The Authority referred to the OHCHR Investigation on Sri Lanka”, 01 January 2015 [OISL] at paragraph 32 and footnote 7, to support the finding that the claim to have undergone 15 months rehabilitation in response to an admission of 3 months service in the LTTE was implausible.
c. The authority stated [at 32]
32. I accept while detained the applicant was forced to admit he had been forcibly recruited by the LTTE to the Sri Lankan security forces; however, I find it difficult to accept that during his period of rehabilitation the Sri Lankan government did not learn the full extent of his role with the LTTE. DFAT and OCHCR have reported that administrative detention in rehabilitation centres or elsewhere was possible for up to two years without judicial review or access to legal representation but that rehabilitation was typically a one year program, extended up to two years for those considered to be highly radicalised.7 In light of this information, I find the applicant’s explanation and evidence that arising from his admission of involvement that being for mere 3 months in the LTTE’s police force he was detained in a rehabilitation centre for a period of more than 12 months to be implausible. [emphasis added]
d. The applicant had previously submitted the relevant excerpt from the 2015 OHCHR ‘OISL’ report paragraph 361 [CB122]:
The report notes that:
Habeus corpus rights were suspended in the “rehabilitation” process where “surrendees” could be detained for 12 months, which could be extended for up to two years without charge or trial. The process of deciding who was a hard-core LTTE member and how long people should be detained was completely arbitrary.25
e. The Authority had understood that the reference indicated that the determination of whether an LTTE member was “hardcore” was relevant to the length of rehabilitation. However the paragraph 361 of the OHCHR report in context indicates entirely the opposite, that the length of rehabilitation detention was completely arbitrary, and that on the contrary, “hard-core LTTE activists … will be prosecuted”, that is separately to the rehabilitation process.
f. The OISL report states:
361. Under the 2005 Emergency Regulations 287, “surrendees” could be detained in “rehabilitation centres” for 12 months, which could be extended for up to two years without charge or trial for the purposes of “rehabilitation”. The legal status of some 11,696 individuals who, according to the Government, had “varying degrees of involvement” with the LTTE was not always clear. As of September 2010, the Government stated “6,500 “surrendees” are undergoing short term rehabilitation, while around 3,500 are subjected to longer term rehabilitation. Only less than 1,500 which had identified (sic) as hard core LTTE activists who have direct evidence regarding the activities were involved will be prosecuted.” The Government stated, “the philosophy would be “restoration rather than retribution.” There was no clear indication of the legal or policy basis on which shorter or longer rehabilitation was based.
g. Thus contrary to the findings of the Authority, there was nothing in the OHCHR report to indicate that a 15 month rehabilitation detention meant that the Sri Lankan government considered the applicant to be highly radicalised.
h. The Applicant’s claims to have been subjected to rehabilitation detention for a period of 15 months in response to his disclosure of only 3 months unarmed police service in the LTTE, was entirely consistent with the information in the OHCHR ‘OISL’ report.
i. Consequently the authority erred when it found the applicant’s claims and evidence to be inconsistent with the OHCHR report and hence implausible.
j. As a result the Authority failed to consider the risks of harm to the applicant from the fact that his full service with the LTTE had not been discovered at the time of his release from rehabilitation, and that therefore he had not yet been held accountable for the full duration and nature of his armed activities in the LTTE.
Mr Taylor, the solicitor for the applicant, confirmed that ground 4 and ground 5 were abandoned.

Ground 3

The kernel of Mr Taylor's submissions and the issue raised by ground 3 concerned the adverse finding by the Authority at paragraph 32 in rejecting the applicant's assertion that the Sri Lankan government had not ascertained the full extent of his role with the LTTE during the period of rehabilitation and the rejection of the applicant's explanation that he had been detained for a period of more than 12 months and amounting to 15 months merely for three months service in the LTTE police force. Mr Taylor submitted that the country information cited by the Authority in paragraph 32 had been misunderstood or misapplied by the Authority.
The Court was taken to the DFAT country information of 2014 and the DFAT country information of 2018, to which the Authority referred, as well as the to the Office of the High Commissioner for Human Rights (“OHCHR”) report which is the subject of a typographical error which is obvious in paragraph 32. Mr Taylor emphasised that the OHCHR report information referred to the period of detention being arbitrary.
It was in that context that Mr Taylor contended that the Authority must have misunderstood that report where the Authority noted DFAT and OHCHR have reported that administrative detention or rehabilitation centres or elsewhere was possible for up to two years without judicial review or access to legal representation, but that rehabilitation was typically a one-year program extended up to two years for those considered to be highly radicalised. The OHCHR report did not refer to the extension for those considered to be highly radicalised. That was, however, clearly a reference to material that was in the DFAT country information 2018 report at paragraph 3.41:
Rehabilitation is typically a one-year program, extended to up to two years for those considered to be highly radicalised.
The Authority's reasons are not to be read with a keen eye for error. Mr Taylor is correct in contending that the OHCHR report does not itself expressly say what is said in the DFAT report to which I've referred. That does not, however, reflect any misunderstanding of the country information or support the contention that the finding by the Authority in that sentence was not open. The Authority was not bound by the OHCHR report’s reference to the period of rehabilitation being arbitrary in the findings to be made by the Authority, nor should the Authority's sentence be read with a keen eye for error as if the reference to the OHCHR, the subject of a typographical error, was seeking to verbatim quote what was in that report. Indeed, it is apparent from the footnote that it was not a verbatim assertion but rather a confirmation of the country information and the ultimate finding being made by the Authority. There is no misunderstanding of the country information or this application of the country information as contended by Mr Taylor.
Mr Taylor sought to place weight upon the Authority accepting the applicant was detained for 15 months, found in paragraph 64, in contending that the finding in paragraph 32 that the authorities did not learn of the full extent of the applicant's involvement was inconsistent with the greater than the 12 month period at the rehabilitation centre. There is obviously an inconsistency in the argument advanced by Mr Taylor in that regard in seeking to place weight on the proposition that the longer period reflects more serious involvement with the LTTE at the same time as arguing that the period is really one that the Authority should have accepted the OHCHRs contention that it was arbitrary. Be that as it may, this is a case where the applicant had initially contended in his statement that he joined the police force and worked for them for about five months from May 2008.
The applicant contended, in his statement that in late 2008, during the last war, that the LTTE asked people to go and fight but that he managed to escape and went back home. The applicant alleged in his statement that he did not want to tell the Australian authorities when he first arrived that he was a member of the LTTE because he was frightened to tell them. The applicant, in that statement, referred to the fact that in April 2009, he was placed in a camp where they stayed for two months and that he was taken away to a rehabilitation camp and that he was held there for one year and three months and released in 2010. The applicant referred to the process that he was subject to during that period. In the delegate's reasons, the delegate referred to the applicant contending that in October 2010, he was called to the Criminal Investigation Department office and was detained for four days and they kept asking him if he would re-join the LTTE if they regrouped even though he stated he had never been a member.
The delegate referred to the applicant's service in the LTTE civil police force in May 2008 for five months before he escaped and that he was then placed in a rehabilitation camp. In the delegate's reasons, the delegate referred to the applicant reporting that he had provided correct information to the authorities regarding his level of involvement with the LTTE while in rehabilitation. The delegate referred to this giving rise to the proposition that the authorities did not consider the applicant to be a high-level member of the LTTE and that this was the likely reason for his release in 2010.
It was following these findings from the delegate that a statement was provided on behalf of the applicant, albeit, as pointed out by Mr Taylor, not signed or the subject of any interpreter's certificate, but in that statement the contention was advanced that the applicant was forced to reveal the extent of his involvement with the LTTE for two years, including that he was in the battlefield even though he was not fighting and that he told them he had to run away from the fighting. The applicant's statement explained about having never mentioned being involved in fighting before in advancing his claims.

The submissions advanced on behalf of the applicant in relation to his real or perceived links endeavoured to address the applicant's credibility in relation to perceived or actual links to the LTTE, the graver claims of involvement advanced by the applicant, and the assertion of a greater role in the LTTE claimed by the applicant. The submissions contended that the new information should not detract from the applicant's credibility and that his disclosure makes logical sense in light of the concerns of the Sri Lankan authorities about him, why he was detained in rehabilitation for one year and three months, and subsequently tortured.
The Authority in its reasons expressly referred to what occurred at the interview with the Authority and that the applicant was asked whether he admitted the full extent of his involvement with the LTTE when questioned by the Sri Lankan government forces. The Authority noted that the applicant stated at the beginning that he did not but that after physical assault he admitted to being forcibly recruited. The Authority noted the applicant stated, after admitting his involvement, he was asked to sign a paper admitting to being involved for a short time and being with the LTTE police force for three months. The applicant said he signed the paper but assumed it was a statement to which he admitted to being an LTTE member.
The Authority noted that it was put to the applicant in his evidence that he had only admitted to being involved in the LTTE for three months appeared disproportionate to his period of rehabilitation, that being for a period of one year and three months. The Authority noted the applicant's response that at the time he was allegedly deemed to be in prison under the Terrorism Act and that people who were arrested at that same time as him had not yet been released. It was in that context that the Authority accepted that the applicant had been detained and was forced to admit to being forcibly recruited by the LTTE.
The finding by the Authority rejecting the applicant's contention that the authorities did not learn the full extent of his role was a finding that was open to the Authority for the reasons given by the Authority as summarised above and cannot be said to be illogical, irrational or unreasonable. The Authority's finding in relation to the applicant being released after 15 months based on the assertion that having only three months involvement in the LTTEs police force being implausible was also open to the Authority and cannot be said to be irrational, illogical or unreasonable. It was a finding by the Authority that was open and not inconsistent with or reflecting a misunderstanding of the country information identified by the Authority in paragraph 32.
The Court notes that the reference in ground 1(d) to the extract concerning habeas corpus comes from submissions advanced to the delegate on behalf of the applicant relevantly at page 122 and was from The International Truth and Justice Project released on 13 February 2017. The Court notes that that reference was also taken into account by the Authority and is referred to in its reasons in footnote 5 in the context of accepting the applicant's assertions as to what occurred at the rehabilitation centre.
The contention advanced that the Authority had failed to consider the risk of harm to the applicant from not having disclosed his full service to the LTTE at the time of his release from rehabilitation in essence seeks to take issue with the adverse credibility finding made by the Authority in paragraph 32. For the reasons given, that adverse credibility finding was open. No jurisdictional error as alleged in ground 3 is made out.

Conclusion

Accordingly, the amended application is dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 25 March 2019