EMO18 v Minister for Immigration

[2020] FCCA 753

FEDERAL CIRCUIT COURT OF AUSTRALIA

EMO18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 753

Catchwords:
MIGRATION – Judicial Review – decision of Immigration Assessment Authority to refuse a protection visa – application for adjournment – where not satisfied an adjournment is likely to permit the applicant to obtain legal representation – where applicant claims he was denied procedural fairness as the Authority failed to take into account a relevant consideration – where applicant claims he is at risk of harm should he be returned to Sri Lanka because of publication of his name in relation to a murder charge of a Muslim man in South Australia that was subsequently dropped – where applicant failed to produce evidence to support this claim – where there was a suppression order in this case – where the Authority’s found that the applicant’s name had not been publicised in Sri Lanka – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: EMO18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 332 of 2018

Judgment of: Judge Young

Hearing date: 20 March 2020

Date of Last Submission: 20 March 2020

Delivered at: Darwin

Delivered on: 20 March 2020

REPRESENTATION

The Applicant: In Person

Counsel for the First Respondent: Mr Cummings

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application for adjournment is refused.

2. The application is dismissed.

3. The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs.

4. The applicant pay the costs of the first respondent in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 332 of 2018

EMO18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

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.

Adjournment

1. This is an application for adjournment by the applicant.  He gave evidence from the witness box assisted by a Tamil interpreter.  He told me that he believed, until about a month ago, that his former migration agent, Playfair Visa and Migration, who appear to have made a submission for him to the Immigration Assessment Authority (“the Authority”) with the last one I can see in about 2017.  He told me, as I understood his evidence, that he thought they would continue to assist him until he received notice about a month ago that that was not the case.  I asked him if he was able to produce the notice or a document or anything indicating that that was correct.  He was unable to find any document supporting that.  Nevertheless, I am broadly prepared to accept that occurred.

2. However, on 5 October 2018, Registrar Colbran made machinery orders in this case, including an order that the applicant file and serve any amended application by 23 November 2018,  that he file further material, if he wished, by that date and that he file submissions before the hearing.  There is no notice of address for service from Playfair Migration Services or any other representative of the applicant and there is no evidence that they have been involved with him since the filing of this application in any substantive way.  I am not satisfied that they have indicated to him at any point that they would appear for him or arrange for legal representation to appear for him today.  I am not satisfied that they have, in fact, had any substantial involvement with the applicant in relation to this application since 5 October 2018. 

3. The applicant said he needed or wanted an adjournment so he could obtain legal representation.  He said he would need to obtain money to pay for a lawyer.  I asked him how he proposed to do that.  He told me he was not working at the moment.  He said that he would seek to obtain money from Sri Lanka.  I asked him how much money he had obtained so far from Sri Lanka and he told me he had obtained nothing.

4. I am not satisfied that any adjournment is likely to serve any purpose and, in particular, I am not satisfied that an adjournment is likely to permit the applicant to obtain legal representation.  The application is refused.

Judicial Review

1. This is an application for judicial review of a decision of the Authority made on 27 July 2018 affirming a decision of the Minister’s delegate made on 13 April 2018 to refuse the applicant a protection visa.

2. The applicant is a Tamil Hindu from Northern Province in Sri Lanka.  His claims, in summary, are that he is a Tamil male of Hindu faith and that he had family members and members of his extended family who were involved with the Liberation Tigers of Tamil Eelam (“LTTE”) and who had died.  He said his wife had received compulsory training with the LTTE.  He said that he had assisted the LTTE by providing transport and, on occasion, attended meetings held by the LTTE.

3. He said that he was present in 2006 when demonstrators set fire to a Sri Lankan Army camp.  He said that in 2007 he was arrested and questioned about his LTTE involvement after the Sri Lankan Army discovered that LTTE members were riding his motorbikes.  He said he was questioned, beaten and released but forced or required to report to police or the army three times a day.

4. He feared that he would be murdered.  He sought the intervention of the Sri Lankan Human Rights Commission, who accompanied him to a Sri Lankan Army camp where he was being asked to surrender to undergo rehabilitation.  It seems that he was held in protection or in a prison for some period but under the protection of the Human Rights Commission.  He said that after his release he was afraid he would be caught by the Sri Lankan Army, so he hid.  He said that he tried to commit suicide by consuming poison at one point.  He said that in 2009 he was stopped by Sri Lankan Army officers while travelling in Sri Lanka but paid a bribe so he would be released.  He said he came to Australia in 2012.  He said that since then the Sri Lankan Army has threatened to abduct his son.

5. In March 2017, in Australia, he was charged with murder of a Sri Lankan Muslim man but the charge against him was dropped.  I infer the charge was dropped for lack of evidence or perhaps because the police subsequently decided that they had the wrong person because someone else was ultimately charged.

6. The Authority accepted a number of the applicant’s claims and accepted that he had had some involvement with the LTTE.  Not as a fighter though but at a relatively low level in the same way that many people in Sri Lanka had had dealings with the LTTE in areas occupied by the LTTE.

7. The Authority was prepared to accept that he had been present at a demonstration in 2006 when a Sri Lankan Army camp was set fire.  It accepted that he had been questioned, accepted that he had been held in prison for a period under the protection of the Human Rights Commission but was subsequently released.  It accepted that the applicant may have attempted suicide.  It did not accept that the applicant was stopped in 2009 at a roadblock because he was recognised by a Sri Lankan Army officer.

8. In general terms, the Authority was not prepared to accept that the applicant was at risk of harm because of those matters, and further because of the election in 2015 of the Sirisena government which, according to the Authority, had seen a marked improvement in conditions for Sri Lankan Tamils.

9. In relation to the murder charge in South Australia, the applicant said that because the victim of the killing was a Sri Lankan Muslim the fact of the allegations or initial allegations against the applicant was known within the Muslim community in Sri Lanka.  Because of that he was at risk of harm should he be returned to Sri Lanka.

10. I asked the applicant how I was to interpret his single ground of review:

    The applicant was denied procedural fairness by the Immigration Assessment Authority to adduce part of the applicant’s claim, and this fails to take into account a relevant consideration.

11. I asked him what he was referring to there and what had not been taken into account.  He told me that what he was talking about was the Authority’s treatment of his claims about the murder charge.  The Authority, in fact, dealt with that issue in a degree of detail, as did the delegate.

12. Principally, the delegate had pointed out that under South Australian law there is a suppression order, or there was a suppression order in this case, which suppressed publication of the applicant’s name.  That suppression order also acted retrospectively.  The applicant said, nevertheless, that his name was associated with this killing in Sri Lanka.

13. The delegate asked him to produce any evidence he may have had to support that claim and none was produced.  The delegate also said that she had searched in Sri Lankan newspapers, presumably online, to see if there were any mentions of the applicant’s name and she had found none.  The applicant said that there had been Facebook communication about it in Sri Lanka, and again, the delegate asked if the applicant had any evidence to support that claim and none was produced.

14. In my view, the criticism of the Authority’s reasoning on that point is not made out.  The Authority was in my view justified on the material in front of it, or in the absence of any countervailing material from the applicant, to conclude that the applicant’s name had not been publicised in Sri Lanka and that it did not constitute a risk of harm should the applicant be returned to Sri Lanka.

15. I have read the balance of the Authority’s reasons and no error is apparent to me.  The single ground of review is a template ground and does not in my view identify in its terms any error.  The alleged error identified by the applicant, in my view, does not constitute error.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  2 April 2020