EOH19 v Minister for Immigration

[2020] FCCA 1144

FEDERAL CIRCUIT COURT OF AUSTRALIA

EOH19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1144

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa (Subclass 790) – whether the Authority addressed all issues required to complete the review – whether the Authority failed to consider integers of the applicants claim – whether jurisdictional error was made out – no jurisdictional error made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36(2)

Immigrants and Emigrants Act (No.20) of 1948

Cases cited:

Minister for Immigration and Border Protection v BBS16 [2017] 257 FCR 111

Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

NABE v Minister for Immigration and Multicultural and Indigenous Affairs

(No 2) [2004] 144 FCR 1

Applicant: EOH19

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2999 of 2019

Judgment of: Judge Humphreys

Hearing date: 12 May 2020

Date of Last Submission: 12 May 2020

Delivered at: Parramatta

Delivered on: 5 June 2020

REPRESENTATION

Counsel for the Applicant: Mr Godwin

Solicitors for the Applicant: Stephen Hodges Solicitors

Counsel for the Respondents: Ms Lloyd

Solicitors for the Respondents: Hwl Ebsworth Lawyers

ORDERS

1. The application is dismissed.

2. The applicant to pay the first respondent’s costs fixed in the amount of $7467

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 2999 of 2019

EOH19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a Sri Lankan citizen of Tamil ethnicity and Hindu faith.

2. The applicant first arrived in Australia on 4 June 2013. The applicant returned to Sri Lanka on 27 June 2013.

3. On 19 July 2013, the applicant arrived in Australia for a second time and has not returned to his home country. The applicant lodged an application for a Safe Haven Enterprise Visa (“SHEV”) in September 2017.

4. In September 2019, a delegate of the Minister for Immigration, (“the delegate”) refused the applicant a protection visa.

5. The matter was referred to the Immigration Assessment Authority (“the Authority”) for merits review.

6. In a decision dated 23 October 2019, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.

7. The applicant now seeks judicial review of the Authority’s decision not to grant him a protection visa.

The Immigration Assessment Authority’s decision.

1. The applicant claims can be summarised as follows:

   ·    The applicant claimed in his visa application that he was born and lived in the town of P, as a young child with his family.

   ·   In 2002, the applicant was sent to another town to live with his aunt and to attend school there.

   ·   In 2009, the Liberation Tigers of Tamil Ellam (“LTTE”) forcibly recruited the applicant’s older brother (“B1”) into the LTTE.

   ·   On 20 April 2009, the applicant’s parents were both killed by shelling in the final stages of the war.

   ·   After the war ended in 2010, the applicant returned to P and resided there with his brother, B1. They drew interest from local authorities. It was suspected that during the applicant’s absence, he had been serving as a member of the LTTE.

   ·   As a consequence of suspicions against the applicant, he was frequently questioned by local Sri Lankan Army personnel at a nearby army camp.

   ·   Between 2010 and May 2013, the applicant estimates that he was detained and interrogated 10 to 15 times per year. During this, the applicant was frequently mistreated, and twice required medical attention. The applicant was required to report to the army every two weeks.

   ·   In May 2013, the applicant decided that he could no longer live in Sri Lanka. B1 had a friend who worked as an agent, who arranged for the applicant to travel to Australia.

   ·   The applicant arrived in Australia on 4 June 2013, but was returned to Sri Lanka on 27 June 2013.

   ·   On the applicant’s return, he was detained by the Sri Lankan Police Criminal Investigation Department (“CID”), held overnight, questioned and mistreated.

   ·   The applicant was taken before a Court in Colombo and charged with illegal departure. B1 provided surety for the applicant’s release.

   ·   As a condition of the applicant’s release, he was required to recommence regular reporting to Sri Lankan authorities at the army camp and at the Colombo Court. The applicant was advised that he would be required to attend Court in approximately three months.

   ·   After the applicant’s Court appearance, he did not return home to live with his brother but instead, went to live with his aunt. The applicant’s brother, re-established contact with the agent, who advised that the applicant could travel again to Australia. The applicant departed Sri Lanka for the second time, on 7 July 2013 and arrived in Australia on 19 July 2013.

   ·   The applicant believes, that if he was returned to Sri Lanka, he would be accused by both the army and the CID of being an LTTE sympathiser and supporter, because he is a young Tamil male, who was born and resides in the Northern Province and further, he would be a failed Tamil asylum seeker, returning to Sri Lanka.

2. At paragraphs 11 and 12 of its decision, the Authority noted country information about credible reports of mistreatment of persons in custody or during questioning. The Authority notes however, that the war took place during a period when the applicant was aged between 8 and 16.The applicant returned to the town of P, at age 16 and lived in Sri Lanka until he was 19 years of age.

3. While there was evidence that the LTTE recruited child soldiers, it does not seem plausible that it would be necessary for the army or CID to interrogate a person between 30 to 45 times, in order to determine whether the applicant had provided any support, or, had been a member of that organisation.

4. At paragraphs 19 and 20 of its decision, the Authority concluded that it was not satisfied that the discrepancies in the applicants various versions of events were a result of poor memory, but rather, that he had largely fabricated his account in order to improve his chances of being granted a protection visa. The Authority concluded that, at the time of the applicant’s first departure from Sri Lanka, he was not of any interest to authorities in his home country.

5. Paragraphs 21 to 25 of the Authority’s decision deal with the applicant’s return to Sri Lanka on 27 June 2013. The Authority notes that the applicant claims that he was detained at the airport by the CID, interrogated, mistreated and then the next day, taken before a Court and charged with illegal departure. The applicant says that his brother bailed him out and that he was advised that he would have to return to the Court again in around three months.

6. The applicant did not go back to live with his brother in the township of P, rather, he went into hiding in his aunt’s house. The applicant made arrangements to again depart Sri Lanka illegally for a second time.

7. The applicant stated that the army visited B1 twice in order to determine why the applicant had not reported to authorities as required. The applicant says that on the second visit, B1 informed the Sri Lankan authorities that the applicant had returned to Australia. The applicant says his brother was arrested and detained due to his absence.

8. The Authority notes at paragraph 24 of its decision, a claim which was made by the applicant, that when he was first returned to Sri Lanka, he was coerced by the CID into signing a confession that he had been a member of the LTTE. However, by September 2017, when the applicant submitted his Safe Haven Enterprise visa (Subclass790) application, all mention of the LTTE confession had been omitted.

9. At paragraph 25 of its decision, the Authority accepted that the applicant was detained upon his return to Sri Lanka in 2013. The Authority did not accept that the applicant was forced to sign a confession that he was a LTTE member. Nor did the Authority accept that the applicant’s brother was detained due to the applicant failing to report to the Sri Lankan authorities upon his release.

10. It is not necessary to deal, in great detail, with the balance of the Authority’s decision, suffice it to say, that at paragraph 39 of its decision, the Authority was not satisfied that the applicant would face a real chance of harm arising from his status as a young Tamil or that he would be imputed with an anti-government or pro LTTE political opinion.

11. Paragraphs 40 through to 50 of the Authority’s decision deal with issues related to the applicants return to Sri Lanka on a second occasion, as a failed asylum seeker.

12. At paragraph 43 of its decision, the Authority accepts that the applicant will again be charged with breaches of the Immigrants and Emigrants Act 1948 No. 20 and that he would be detained upon arrival, processed, and placed before the Court.

13. At paragraph 44 of its decision, the Authority notes that most people who plead guilty are released on payment of a fine. Where a person pleads not guilty, they are usually granted bail on the basis of personal surety or guarantee from a family member. The Authority also noted that, based on the applicant’s own account, he admitted his illegal departure the first time he returned to Sri Lanka and had not suggested that he would not make a similar admission if return for a second time.

14. At paragraph 46 of its decision, the Authority concludes that the applicant’s failure to remain in Sri Lanka after his first return would lead to a harsher sentence the second time around, however, it was not satisfied that the applicant would suffer a custodial sentence. The Authority was not satisfied that he would suffer a real chance of serious harm arising from his illegal departure a second time, if returned to Sri Lanka.

15. At paragraph 47 of its decision, the Authority notes that as the charges under the Immigrants and Emigrants Act 1948 No. 20, laws of general application that apply to all Sri Lankans equally, the Authority was not satisfied that any processing that the applicant may face upon return to Sri Lanka because of his illegal departures, would constitute persecution.

16. The Authority accepted at paragraph 50 of its decision, that if the applicant returned to his home town of P, he may be the subject of monitoring for a period of time by Sri Lankan authorities, but the Authority does not accept, that this would constitute harm. The Authority does not accept that any social stigma that the applicant may face as a failed asylum seeker, would amount to serious harm.

17. Accordingly, the Authority found the applicant did not meet the requirements of a refugee in s 5H(1) or s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”).

18. Paragraphs 52 to 56 of the Authority’s decision deal with complimentary protection considerations. For the same reasons, the Authority was not satisfied that the applicant met the criteria under s 36(2)(aa) of the Act.

Grounds of Appeal

1. Two grounds of appeal are relied upon as follows, verbatim:

   Ground 1

   The IAA has failed to complete the review as it did not address the issue of whether, on return to Sri Lanka and being charged with the legal departure, the applicant would be released on bail in circumstances where he is in breach of the bail conditions previously imposed upon him.

   Particulars

   a)The applicant claimed that on his return to Sri Lanka he was detained, charged with illegal departure and released to return to court in three months.

   b)The applicant further claimed that his brother lodged a surety for his release.

   c)The applicant claimed that he was required to commence regular reporting to the army camp and to the court.

   d)The IAA did not consider if the applicant would on return to Sri Lanka (for the second time) he would be released on bail in circumstances where it was for a second offence and when the previous bail conditions were not met in that the applicant did not report to the army camp and to the court as required and did not attend court in three months.

   Ground 2

   The IAA failed consider integers of the applicant’s claim.

   Particulars

   a)The applicant claimed that on his return to Sri Lanka he was detained, charged with illegal departure and released to return to court in three months.

   b)The applicant further claimed that his brother lodged a surety for his release.

   c)The applicant claimed he was required to commence regular reporting to the army camp and to the court.

   d)The IAA did not consider if the applicant would on return to Sri Lanka (for the second time) would be released on bail in circumstances where it was for a second offence and when the previous bail conditions were not met in that the applicant did not report to the army camp and to the court as required and did not attend court in three months.

The Applicant’s Submissions

1. Counsel for the applicant submitted that the applicant’s case was always that he was charged and released upon bail, when he was returned to Sri Lanka. The applicant has expressly claimed that he has an outstanding criminal charge because of his earlier illegal departure. The applicant also claimed that he absconded whilst on bail. The applicant claimed that an arrest warrant had been issued against him. These were central aspects of the applicant’s claims. The Authority was obliged to deal with them (see Minister for Immigration and Border Protection v BBS16 [2017] 257 FCR 111 (“BBS16”) per Kenny, Tracey and Griffiths JJ).

2. The Authority accepted that Sri Lankan authorities had made enquiries after the applicant, when he failed to report following his release. Counsel for the applicant submits that this indicates the Authority accepts that the applicant was under an obligation to report, which arose from the charges that were laid against him. Such reporting obligation only arose as a condition of bail. If the applicant had pleaded guilty, then his interaction with the justice system would have been at an end.

3. At no stage, contrary to what the Authority states, did the applicant admit his illegal departure the first time. At no time did the applicant say that he plead guilty or received fine. The applicant claimed he was charged and released on bail. This meant, that the applicant had entered a plea of not guilty. There is nothing to indicate any suggestion by the applicant that he had in fact pleaded guilty.

4. In BBS16, at [79], their Honours indicated clearly that in an inquisitorial review process, where there is a claim for protection under s 36(2)(a) of the Act, the Authority must not only consider and determine any case articulated by the applicant for protection, but also do so, in relation to an unarticulated claim, which is nevertheless clearly or squarely raised on the material before it.

5. Counsel for the applicant submits that the Authority failed to address the whole of the applicant’s claim, about having an outstanding criminal charge and having absconded on bail, with an arrest warrant as a consequence. This was an integer of the applicant’s claim, which was required to be considered.

6. Counsel for the applicant also relied upon NABE v Minister for Immigration and Multicultural and Indigenous Affairs (no 2) [2004] 144 FCR 1, where at [63], the following was said:

   It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.

The First Respondent’s Submissions

1. Counsel for the first respondent states that it is convenient to consider both grounds of the application together, as they allege that the Authority erred in its consideration of the applicant’s claim to fear harm, as a failed asylum seeker, who had committed a second offence and was in breach of the bail conditions previously imposed upon him.

2. Counsel for the first respondent notes that at paragraphs 21 – 24 of the Authority’s decision, the applicant’s claims were set out, which included at paragraph 21, that the applicant was charged with illegal departure and given bail by the Court and advised he would have to attend Court again in around three months. Given this, Counsel for the first respondent submits that the Authority was clearly aware of and took into account all relevant integers of the applicant’s claim.

3. In the context of the Authority’s reasons, it is submitted by Counsel for the first respondent, that it can be inferred that the Authority accepted that the applicant had been charged and released “presumably on bail”, with reporting conditions and that Sri Lankan authorities had made enquiries when he did not comply with those requirements, having left the country again.

4. At paragraph 46 of its decision, the Authority specifically found that upon return, the applicant would face additional charges for further breaches of the relevant legislation. The Authority stated:

   I conclude that his failure to remain in Sri Lanka after his first return would lead to a harsher sentence a second time around. Nevertheless, the country information before me indicates that passengers on people smuggling ventures are not held in custody for this reason and so I am satisfied that the applicant would not suffer a custodial sentence. Having considered all the evidence, I am not persuaded that any fine or short period of detention at the airport would amount to serious harm. I am not satisfied that the applicant would face a real chance of serious harm arising from their illegal departure if returned to Sri Lanka.

5. In relation to whether or not the applicant entered a plea of guilty on the first occasion, Counsel for the first respondent submits that the applicant contends that at no time did he do so.

6. The Authority appears to have found at paragraph 46 of its decision that the applicant did plead guilty. Counsel for the first respondent submitted that, although the Authority’s basis for finding that the applicant did plead guilty is not clear, even that would merely constitute an error of fact, which does not give rise to a jurisdictional error. Further, the applicant did not expressly claim at any time, that he would plead not guilty to any offence on his return.

7. In any event, it is submitted by Counsel for the first respondent that this issue was subsumed into the Authority’s findings, of greater generality that the applicant was not of any further interest to the Sri Lankan authorities, notwithstanding the fact that he failed to report in 2013 and that, although the applicant would face a harsher sentence on his return for a second time, he would not suffer a custodial sentence. The fact that the applicant may be the subject of an arrest warrant, was subsumed by this greater finding.

8. Further, at paragraph 47 of its decision, the Authority concluded that any action taken against the applicant would not be discriminatory in that his offence was a law of general application that applied to all Sri Lankans equally and that therefore, it did not constitute persecution.

9. At paragraph 54 of its decision, the Authority considered the claims by reference to the complimentary protection criterion and found that the applicant would “likely be subject to a fine and associated costs and bail”, concluding that he would not face a real risk of significant harm.

Consideration

1. Ground one asserts that the Authority did not consider particular integers of the applicant’s claims, as set out above. From the material set out in the applicant’s submissions above, it is clear that the Authority did take into account the fact that the applicant would be returning for a second time, as an illegal departee from Sri Lanka.

1. The Authority noted at paragraph 46 of its decision, that although the applicant may have received a harsher sentence for a second offence, he was unlikely to receive a gaol sentence and accordingly, it was not satisfied that he was at real risk of harm if returned. Further, as the relevant legislation was a law of general applicability, in that it applies to all persons of Sri Lankan nationality, it cannot be said that the applicant meets the requirements of a refugee under s 36(2)(a) of the Act.

2. The Authority also considered the matter under the complimentary protection requirements, but was not satisfied that the applicant met the requirements under s 36(2(aa) of the Act.

3. The Authority gave particular attention to the fact that the applicant would be returning as a failed refugee for a second time, but was satisfied that he would not receive a goal term. That is a finding of fact, which was open to the Authority based on the country information that it had before it. The manner in which the Authority deals with country information is a matter for the Authority and does not give rise to jurisdictional error.

4. Counsel for the applicant submitted that as there appeared to be a mistake of fact by the Authority, as to whether or not the applicant entered a plea of guilty on the first occasion of being returned, as a result, he was in breach of bail in relation to the charges brought against him upon his first return, there was a real risk that if returned on a second occasion, he might be denied bail and held in custody if he did not enter a plea of guilty.

5. Counsel for the applicant conceded that if he were to be held in custody, then that would be pursuant to a law of general application and would not constitute a reason for finding that the applicant was entitled to protection in Australia. The issue however, relates to whether or not the applicant might be the subject of torture, while in custody, because of his Tamil ethnicity and perceived LTTE links.

6. Firstly, it is unclear to the Courts mind whether or not the applicant did or did not enter a plea of guilty, when he was brought before the Court after his first return to Sri Lanka, following his illegal departure in 2013. What is clear, is that the applicant was released on bail and whilst on that bail, he absconded by travelling again to Australia.

7. At paragraph 25 of its decision, the Authority considered what had happened on the applicant’s first return. The Authority noted that it did not accept the applicant had been forced to sign an LTTE confession and it was not satisfied that he would be of further interest to authorities, in what the Court takes to be due to any perceived LTTE links. Whilst this is not entirely clear, the Court is satisfied as a reasonable inference, from the wording of the entire paragraph.

8. Counsel for the applicant made reference to country information that was relied upon in a submission that was made to the delegate that included information from 2014 and 2015, that returnees could be the subject of mistreatment in custody when returned to Sri Lanka (see Court Book page 156). The Authority however, relied on updated information from the Department of Foreign Affairs and Trade (“DFAT”) dated 23 May 2018.

9. The Authority accepted that the applicant would be charged for having departed Sri Lanka illegally and would be placed before the Courts. The Authority found that the applicant would not suffer a custodial sentence, notwithstanding the fact that this was a second offence.

10. The Authority specifically found at paragraph 46 of its decision that any final short period detention at the airport would not amount to serious harm.

11. Paragraph 47 of the Authority’s decision states:

    Accordingly, I am satisfied that any process the applicant may face on return to Sri Lanka because of his illegal departures would not constitute persecution for the purpose of the Act.

12. Based on the finding at paragraph 44 of the Authority’s decision, where the Authority stated, “based on the applicant’s own account, he admitted his illegal departure the first time he returned to Sri Lanka. He has not suggested he would not make a similar admission if returned a second time” the Court is satisfied that the Authority did indeed make a mistake of fact.

13. The Court is satisfied that at no point did the applicant clearly indicate that he entered the plea of guilty when returned on the first occasion. The Court accepts the submission that had he entered the plea of guilty, he would have received fine and that would have been the end of his involvement with the justice system.

14. Mistake of fact however, will not necessarily amount to jurisdictional error, unless it was dispositive of the applicant’s claims (see Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51). In this case, the Authority found that if returned and again dealt with by the justice system, even on the second occasion, although he the applicant may receive a harsher penalty, he would not receive a custodial sentence (see paragraph 46 of the Authority’s decision).

15. No evidence was presented that would indicate that simply because the applicant failed to appear at Court on the previous occasion if he entered a plea of not guilty, he would not be released again on bail. There was no evidence before this Court that the applicant would enter a plea of not guilty. Indeed, faced with the option of pleading not guilty and the possibility of being remanded in custody for a period until his matter came on for hearing, or entering pleas of guilty to both matters with the prospect of being released with a financial penalty, it seems difficult in the applicant circumstances, to understand why he might enter pleas of not guilty.

16. In any event, the Authority found that the applicant did not have an imputed LTTE profile with Sri Lankan authorities and has indicated that at paragraph 45 of its decision.

17. The Authority found that the applicant was not of any interest to Sri Lankan authorities at the time of his departure and that he would not be of any interest now if returned. In these circumstances, the Court is not satisfied that the Authority failed to consider an integer of the applicants claim. Thus, the applicant did not face a risk of torture, while in custody awaiting his Court appearance.

18. The Court rejects the assertion that the Authority failed to complete its review, as it did address the issue of the applicant being charged upon return. It was clearly considered but rejected as a basis for protection. All integers of the applicant’s claim were considered but were rejected. No jurisdictional error made out.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:

Date:  5 June 2020