EQQ17 v Minister for Immigration

[2018] FCCA 2007

FEDERAL CIRCUIT COURT OF AUSTRALIA

EQQ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2007

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider integers of the applicant’s claims – whether the Authority’s adverse findings were irrational, illogical or unreasonable – no jurisdictional error made out – amended application dismissed.

Legislation:

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

Applicant: EQQ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3230 of 2017

Judgment of: Judge Street

Hearing date: 24 July 2018

Date of Last Submission: 24 July 2018

Delivered at: Sydney

Delivered on: 24 July 2018

REPRESENTATION

Solicitors for the Applicant: Mr S Hodges
Hodges Legal

Solicitors for the Respondents: Mr J McGovern
Clayton Utz

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed 23 July 2018.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3230 of 2017

EQQ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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 22 September 2017 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 arrived in Australia on 27 November 2012 as an unauthorised maritime arrival. The applicant claimed to fear harm from a former employer, S, who assaulted and threatened the applicant. The applicant claimed to fear harm on account of his political opinion and association with the United National Party (“UNP”) and claimed that he and his family has received threats from the Sri Lanka Freedom Party (“SLFP”) due to his involvement in the September 2012 elections. The applicant also claimed to fear harm because he alleged he was detained and beaten by the Criminal Investigation Department (“CID”) upon his return from Sri Lanka in October 2011. On 24 February 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

The Authority

1. By letter dated 28 February 2017, the Authority wrote to the applicant informing the applicant that the application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. No such submissions or new information were provided to the Authority.

2. The Authority identified the background to the visa application and had regard to the material referred by the Secretary under s 473CB of the Act. The Authority summarised the applicant’s claims and evidence and set out the relevant law. The Authority accepted that the applicant had an extended stay in India and returned to Sri Lanka on 2 March 2011. The Authority also accepted the applicant attempted to travel to India again on 26 October 2011 and was refused entry and returned to Sri Lanka the following day.

3. The Authority referred to the applicant’s evidence concerning the circumstances that led to the applicant to travel to India and why the applicant was detained there was unconvincing. The Authority in that regard referred to two inconsistencies. The first inconsistency concerned the applicant alleging he was employed by the particular person, S, who he claimed to fear, as a fisherman, and the Authority identified that at the earlier entry interview of 17 December 2012, the applicant stated he was employed as a cook on the boat and specifically stated that he was not a fisherman.

4. The second inconsistency identified by the Authority concerned the circumstances in which the applicant was allegedly detained. The first referred to the boat having stopped working and being detained by the Indian Navy because of a border breach, and the second referred to the allegation that two Sinhalese persons had captured two Indian Navy personnel from a gun boat and that the applicant was captured by the Indian Navy and later imprisoned because the authorities were angry about the incident involving the capture of their personnel.

5. The Authority proceeded to identify other inconsistencies and implausibility’s in relation to the applicant’s account of events that occurred following his return to Sri Lanka in March of 2011. The Authority provided seven inconsistencies in that regard, and found the inconsistencies and the implausibility led the Authority to conclude that the applicant was not recalling a genuine personal experience in relation to these events that he claims led to his decision to leave Sri Lanka.

6. The Authority accepted as plausible that the applicant was imprisoned in India for fishing in Indian waters for six months followed by a requirement to report for nine months to a police station. Whilst the Authority accepted as plausible that following the period of imprisonment the applicant was required to report as claimed, in light of the other concerns in relation to the applicant’s evidence, the Authority did not accept that upon return to Sri Lanka the applicant came to the adverse attention of the employer, S, or persons connected to S for reasons relating to S’s daughter’s relationship with a tuition teacher or for any other reason. The Authority rejected the applicant’s claim that when he returned to Sri Lanka, he spent most of his time in hiding, that he went to India in October 2011 for the purposes of escaping from S, and that he was detained by the CID when he returned from India in late 2011.

7. The Authority was not satisfied the applicant faced a real chance of harm due to the time he spent in India, due to his previous interactions with the Indian Navy or the Indian judiciary, or for reasons associated with his previous employment as a cook or fishermen, upon his return to Sri Lanka, now or in the reasonably foreseeable future. The Authority was not satisfied the applicant faced a real chance of harm from S or persons connected to him.

8. The Authority was prepared to accept as plausible that the applicant had some low level involvement with a UNP candidate in 2012. The Authority found the chance of the applicant being seriously harmed in the reasonably foreseeable future because of his involvement in politics, both past and future, in Sri Lanka is remote. The Authority did not accept the applicant would not be able to access protection if he were threatened with harm from political opponents. The Authority found the applicant’s fears of persecution in Sri Lanka were not well founded.

9. The Authority referred to the applicant being of Tamil ethnicity, born in a particular district and province. The Authority referred to the situation of Tamils in Sri Lanka as having improved considerably since the end of the civil conflict in 2009. The Authority was not satisfied the applicant faced a real chance of harm due to his Tamil ethnicity, including an imputed LTTE profile, or for any other reason upon his return to Sri Lanka, now or in the reasonably foreseeable future.

10. The Authority referred to the applicant’s claimed fear of harm by reason of being a failed asylum seeker returned from Australia and by reason of his illegal departure from Sri Lanka. The Authority referred to the Immigrants and Emigrants Act 1949 (Sri Lanka) and that the applicant would be found to have committed an offence under that Act. The Authority referred to country information and found the applicant had no identification concerns and was not satisfied the applicant is a person with a criminal or security record that would raise the concern of these authorities.

11. The Authority was not satisfied the applicant would face a real chance of serious harm during the brief period of time spent in detention. The Authority found that the imposition of any fine, which could be paid by instalments, surety or guarantee would not in itself constitute serious harm. The Authority found that the provisions of the Immigrants and Emigrants Act 1949 (Sri Lanka) are laws of general application that apply to all Sri Lankan equally and are not discriminatory on their terms, and that the evidence indicates that the law is not applied in a discriminatory manner or selectively enforced. The Authority found the applicant does not face a real chance of serious harm from Sri Lankan authorities due to his illegal departure, travel to Australia, or for any other reason.

12. The Authority expressly referred to having considered the applicant’s claims individually and cumulatively, and found the applicant does not have a well-founded fear of persecution within the meaning of s 5J of the Act. 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 criteria under s 36(2)(a) of the Act.

13. The Authority turned to consider the applicant’s claims in relation to complementary protection. The Authority referred to the process to which the applicant would be subjected upon return to Sri Lanka, and was not satisfied that this amounts to harm as defined by the Act. The Authority referred to having regard to the applicant’s circumstances both individually and cumulatively, and found the applicant does not face a real risk of suffering significant harm.

14. 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 that the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

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

   1. The IAA committed jurisdictional error as it failed to consider essential elements of the applicant’s claim.

   Particulars

   c. The Applicant claimed to have returned to Sri Lanka in March 2011 [par 4].

   d. The Applicant claimed to have tried to return to India on 26 October 2011 [par 5].

   e. The Applicant left Sri Lanka illegally and travelled to Australia.

   h. The IAA accepted that the Applicant tried to travel again to India on 26 October 2011 [par 9].

   i. The IAA considered the risk to the Applicant to return to Sri Lanka as a failed asylum seeker [pars 34 and ff]

   j. The IAA did not consider the cumulative claims arising from the fact that the Applicant had been imprisoned in India for a period of 6 months, had departed Sri Lanka a second time and travelled to India and subsequently departed Sri Lanka illegally and sought asylum in Australia.

   2. The Authority committed jurisdictional error by making a finding that was irrational, illogical and unreasonable.

   Particulars

   a. At paragraph 4 of its decision, the authority outlined the applicant’s claims which included the following:

   i. In December 2009, the applicant was employed by a boat owner named S to fish with five other fishermen.

   ii. On one occasion, the engine of the boat stopped working and the men were intercepted by the Indian Navy. The applicant and his co-workers were told that they have breached the border and were brought to India where they were arrested and imprisoned.

   b. At paragraph 5 of its decision, the Authority noted that the applicant claimed in his SHEV interview that he and his co-workers were captured and imprisoned in connection with the capture of Indian naval personnel by two Sri Lankans.

   c. The Authority found, at paragraph 10, that the applicant’s evidence regarding his work on the boat and this circumstances of his arrest was unconvincing.

   d. The Authority reasoned, at paragraph 11, that the applicant had provided inconsistent descriptions of his role on the boat that was intercepted. Specifically, the Authority raised an issue with the applicant’s evidence in his entry interview that he was employed as a cook.

   e. In doing so, the Authority placed undue weight on a minor or trivial inconsistency in the applicant’s evidence at his entry interview and neglected to consider the consistency of the applicant’s claim in subsequent statements and applications.

   i. In the section of his SHEV application which refers to his travel history, at CB 48, the applicant clearly notes that his reason for visit was ‘work-fishing’.

   ii. In the section of his SHEV application which refers to his employment history, at CB 51, the applicant has clearly stated that his occupation between 1994 and 2012 was a ‘fisherman’.

   iii. In his Statutory Declaration, at CB 69, the applicant reiterates his claim that he worked as a ‘fisherman’.

   f. At paragraph 12, the Authority referred to inconsistencies in the applicant’s evidence regarding the reasons for the capture of the boat he was working on. Specifically, the Authority noted that, in his Shev interview, the applicant claimed that the boat was intercepted because two Sinhalese persons had captured two Indian naval personnel from a gun boat.

   g. In doing so, the Authority neglected to consider that, despite advancing a new claim at the SHEV interview, the applicant had continued to claim that the boat was initially intercepted because it had breached Indian borders.

Ground 1

1. Mr Hodges, the solicitor for the applicant, took the Court to the Authority’s reasons in paragraph 41 and submitted that the Authority had not in fact considered the applicant’s claims cumulatively. Mr Hodges relied upon the Authority’s reasons in paragraph 9, accepting that the applicant had made a second attempt to return to India as well as the period of imprisonment that the Authority accepted in paragraph 21, as well as taking the Court to the Authority’s reasons concerning the illegal departure of the applicant and being a returned asylum seeker. Mr Hodges submitted that paragraph 41 should not be read as reflecting a cumulative consideration of the applicant’s claims in the context of the applicant having made a second attempt to return to India and by reason of the period of imprisonment that the applicant had spent in India, as well as the applicant’s illegal departure and having sought asylum in Australia.

2. It is apparent from the summary of the Authority’s reasons above that the Authority expressly referred to each of the matters submitted by Mr Hodges not to have been the subject of cumulative consideration. The Authority’s reasons are not to be read with a keen eye for error. In relation to the events that occurred in India, the Authority gave the applicant the benefit of the doubt and accepted that the applicant had been detained and also had accepted that the applicant had attempted to depart a second time. The Authority nonetheless found that the applicant was not a person with a criminal or security record in Sri Lanka that would raise concern of the Sri Lankan authorities. The Authority made adverse findings in respect of each of the applicant’s claims that were open to the Authority. I do not accept the submission that the reasons do not reflect a genuine and real engagement with a cumulative consideration of the applicant’s claims. The Authority’s reasons as summarised above are inconsistent with the submissions advanced. No jurisdictional error as alleged in ground 1 of the amended application as made out.

Ground 2

1. In relation to ground 2, Mr Hodges focused upon the Authority’s reasons, specifically at paragraph 12 of the decision, and submitted that the inconsistencies identified by the Authority in paragraphs 11 and 12 in relation to not accepting the circumstances that led the applicant to travel to India were trivial or insignificant matters that did not support the adverse credibility finding. Specifically in relation to the first inconsistency concerning the applicant’s role on the fishing boat, Mr Hodges submitted that on a small boat the position was not material. I do not accept Mr Hodges’ submission. On the face of the applicant’s claim and, in particular, his alleged fear of S, his employer, the role he had and whether he was a fisherman in circumstances where he had specifically stated he was not a fisherman but was a cook was not an immaterial or insignificant inconsistency.

2. Mr Hodges also submitted that the alleged inconsistency in relation to the circumstances in which the applicant was detained were not, in fact, inconsistencies but were logical possibilities. I do not accept that submission. The breaking down of the boat and being detained for a border breach is materially different from being detained because authorities are angry about a particular incident involving capture of their personnel. The two are materially different and, on their face, cannot be characterised as trivial or insignificant inconsistencies. There was no illogicality or unreasonableness in the adverse findings. No other trivial or insignificant inconsistency was identified or advanced by Mr Hodges.

3. The Authority also clearly took into account in the adverse findings what were referred to as there being also a number of inconsistencies and implausibility’s about the events following the applicant’s return to India. The seven matters identified were logical and rational and were not otherwise the subject of any adverse submission. The reference to the interception of the boat or the breach of the Indian laws involving the applicant and the detention of the applicant does not render the findings of inconsistencies trivial or insignificant. There was no irrationality, illogicality or unreasonableness in the adverse findings by the Authority in respect of the circumstances that led the applicant to travel to India, including why he was detained there. No jurisdictional error as alleged in ground 2 is made out.

Conclusion

1. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 3 September 2018