ERQ17 v Minister for Immigration

[2018] FCCA 3909

FEDERAL CIRCUIT COURT OF AUSTRALIA

ERQ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3909

Catchwords:

MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the Authority erred in failing to discern a Convention nexus – whether the Authority erred by failing to find the applicant would be imputed with an LTTE profile – whether the Authority erred in considering only part of the country information – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.473DC, 473DD, pt.7AA

Cases cited:

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Other materials cited:
Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967)

Applicant: ERQ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3255 of 2017

Judgment of: Judge Smith

Hearing date: 6 December 2018

Date of Last Submission: 6 December 2018

Delivered at: Sydney

Delivered on: 6 December 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms J Strugnell, Minter Ellison

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3255 of 2017

ERQ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Immigration Assessment Authority made on 29 September 2017.  The Authority affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.

2. The applicant is a citizen of Sri Lanka, although he has not been in that country for many years, having fled the country with his family during the civil war.  He arrived as an unauthorised maritime arrival in Australia on 25 June 2013.  On 31 October 2016 he lodged a protection visa application.  The claims he made in support of that application were summarised by the Authority in [11] of its reasons as set out below:

   ·He is an ethnic Tamil and Hindu from the Northern Province.

   ·Since he was born there has always been conflict between the LTTE[1] and SLA and the Tamils where he grew up in Kilinochi were affected by the conflict as the main office of the LTTE was situated in his area.

   [1] Liberation Tigers of Tamil Eelam.

   ·He was continually living in fear of bombings and shellings in his area when he was a young child.

   ·He witnessed the death and killing of many Tamil people as a child.

   ·He and his family were regularly displaced and forced to move due to the war and targeting of Tamils by the SLA[2].

   [2] Sri Lanka Army.

   ·Many people in Kilinochi were part of the LTTE and his family members were well known for supporting the LTTE. His family members were well known as a LTTE family due to his family member’s [sic] active involvement supporting the LTTE.

   ·His father used to run a small food stall and provided food to the LTTE members.

   ·His step-brother P was a member of the LTTE for six years during the war. His mother told him that he held a senior position and was responsible for managing a base camp situated in Kilinochi. P later moved to Colombo.

   ·His stepsister V had two sons who were also involved with the LTTE. One of her sons was killed during the war. While V and her family were displaced during the war and moved to a camp in Vavuniya, the SLN[3] took her other son and poured acid over him and killed him. This incident was in the newspapers.

   [3] Sri Lanka Navy.

   ·V’s youngest daughter was told to join the LTTE and later imprisoned by the SLA as a suspected member of the LTTE.

   ·In November 1996 when he was about 13 years old, the applicant and his family left Sri Lanka illegally and went to India. Not all of his family went with him. He left with his parents, three of his siblings, L, M and C.

   ·On 13 November 1996 they were caught by the SLN and arrested. They were detained for a day and details recorded that they had attempted to leave Sri Lanka. He was sexually assaulted by SLN officers.

   ·They were sent to Pesalai Refugee Camp for Tamils on Mannar Island operated by the UNHCR. It was an open camp and members of the SLA and non-uniformed LTTE would come into the camp. His parents feared for the safety of his sister and their family and after less than a week his family left the camp and fled to India.

   ·His family lived as refugees in a camp in Ramaeswaram from about 1996 to 2000 and then moved to a refugee camp in Coimbatore.

   ·In about 2009 he was involved in a protest by the Sri Lankan refugees in India against the mistreatment of Tamil people who had been rounded up at the end of the war by the SLN in Northern Sri Lanka. He went on a hunger strike and demanded that the SLA not kill the Tamil people. The media and TV were covering the protest.

   ·In February 2014 the DIBP leaked his personal details on their website and he fears that the disclosure of this information would put him at greater risk.

   ·He fears harm form [sic] the police and the armed forces in Sri Lanka as they believe that all Tamils support the LTTE even though it has been disbanded.

   ·Given his family’s LTTE background he fears that he may have a profile with the Sri Lankan authorities and this risk would be heightened due to his absence from Sri Lanka for many years.

   ·Having been a refugee in India and an asylum seeker in Australia will increase the suspicion that he has been involved in activities against the Sri Lankan government and hold anti-government political opinions.

   ·Given the trauma that he has suffered as a result of being sexually abused as a child by the SLN, any interrogation will cause him severe psychological harm.

3. On 21 March 2017 a delegate made a decision to refuse to grant the applicant a protection visa and the matter was referred to the Authority for review under the terms of pt.7AA of the Migration Act 1958 (Cth). The applicant sent a submission to the Authority which was received on 11 April 2017. In that submission, the applicant included a number of further details about some of the claims made by him and also included a number of new claims including that he had participated in protest marches and that he might be perceived by the Sri Lankan authorities as opposed to the government. The Authority made its decision on 29 September 2017.

4. After dealing with the question of what information it had before it and what it could consider, the Authority made its findings about the applicant’s claims.  Those findings are summarised accurately by the Minister in his written submissions at [6] through to [10]:

   6.The Authority accepted much of the applicant’s account, including that his step-brother and his step-sister’s three children were involved in the LTTE, and that the step-sister’s two sons had been killed and her daughter was detained (CB 205: [16]). It also accepted that the applicant and his family had been displaced and relocated to India in November 1996, and that the applicant had been sexually assaulted (CB 205: [17]).

   7.The Authority accepted that the applicant did not want to stay in Sri Lanka due to the psychological trauma of the sexual assault and that he had a subjective fear of Sri Lankan military officers (CB 207: [22]). However, having regard to country information (CB 206–207: [19]–[21]), the Authority was satisfied that the applicant would not suffer serious harm on account of the sexual assault in 1996 (CB 207: [22]). Further, it was satisfied that if he were to suffer psychological trauma as a result of any interaction with Sri Lankan authorities, it would not involve any systematic discriminatory conduct as required under the Act (CB 207: [22]).

   8.In relation to the remainder of the claims, and on the basis of country information, the Authority made the following key findings:

   (a)it did not consider the applicant would be imputed with pro-LTTE opinions, or be suspected of having been LTTE himself (CB 208: [23]);

   (b)it was not satisfied the applicant would have attracted the adverse attention of authorities for his participation in a protest in 2009 (CB 208: [24]);

   (c)it was not satisfied the applicant would face a real chance of serious harm from any Sri Lankan authority or anyone else as a young Tamil male from the Northern province or an area formerly controlled by the LTTE (CB 208: [25]); and

   (d)it did not accept the applicant would be harmed as a result of the data breach (CB 208: [26]).

   9.In relation to the applicant’s illegal departure, the Authority found that any experiences or penalties on return would not amount to serious harm and that he would face a ‘law of general application’ (CB 209: [27]–[30]). The Authority did not accept the applicant would face harm as a failed asylum seeker (CB 210–211: [31]–[32]).

   10.For those reasons, the Authority found that the applicant did not meet the requirements of the definition of ‘refugee’ in subsection 5H(1) of the Act (CB 211: [33]). For the same reasons, the Authority found that the applicant did not satisfy the complementary protection criterion (CB 211: [36]). The Authority also found that the applicant would not face significant harm on account of his illegal departure (CB 211: [37]), psychological trauma (CB 211–212: [36], [38]) or the sexual assault (CB 212: [38]).

5. In his application for judicial review, the applicant raises three grounds.  Before dealing with those grounds, I will mention briefly submissions made by the applicant at the hearing today. 

6. The applicant appeared for himself and essentially made submissions that he would face harm upon return to Sri Lanka, particularly in light of the fact that he had not lived in that country for some time and his brother, who had been a high level member of the LTTE, would be known to the Tamil people if he returned to the Tamil area from Colombo.

7. The role of this Court is not to determine whether or not the applicant will face harm if he returns to Sri Lanka.  That is the task of the Authority.  The question for the Court is only whether the Authority undertook that task with a proper understanding and application of the law, whether it had afforded procedural fairness to the applicant within the meaning under the terms of the Act and whether it acted reasonably: reasonably in the sense that its decision was made according to reason and its findings of fact were based upon inferences available from the material before it. 

8. In light of the limitation on the Court’s role, the submissions made today by the applicant do not assist his case.  However, I will consider the grounds in his application.

9. The first ground is that the Authority made a “jurisdictional error by failing to discern a Convention[4] reason”.  There are two particulars to the ground.  The first is that the Authority failed to find that the applicant was an anti-Sri Lankan government propagandist and a pro-LTTE activist.  The second particular is that the Authority failed to discern a Convention nexus, namely that the applicant would be imputed with an LTTE profile. 

   [4] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967).

10. Expressed in the way that this ground is, these are contentions ultimately that only attack the merits of the Authority’s findings.  What the applicant appears to be saying is that the Authority should have found that the applicant would be imputed with various political opinions.  For reasons I have endeavoured to explain, that is beyond the scope of the role of this Court.  However, the grounds might reasonably be understood to suggest that the Authority fell into legal error in determining the two issues which are particularised and I will address the grounds on that understanding.

11. The first particular concerning the anti-Sri Lankan government propagandist arose from the submissions given by the applicant to the Authority after the delegate’s decision. As they were not made to the delegate they could, at their highest, constitute new information within the meaning of s.473DC of the Act. As such, unless the Authority was satisfied of the matters in s.473DD, the Authority was unable to consider those matters.

12. Section 473DD relevantly states:

    Considering new information in exceptional circumstances

    For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

    (a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

(Emphasis in original)

1. The Authority relevantly dealt with this issue at [9] of its reasons. That paragraph reveals that the Authority had regard to the questions raised by both sub-paragraphs (a) and (b) in s.473DD of the Act. In particular, it was not satisfied that the information was credible personal information or that it could not have been provided to the delegate prior to a decision being made.

2. I am not satisfied that the Authority fell into any error in considering the issues under s.473DD. The consequence of that is that the Authority was not required to consider the issue concerning the propagandist claim and there was no error in its failure to do so.

3. The second particular concerns the imputation of any LTTE profile.  The Authority set out a summary of country information before it concerning the imputation of LTTE support.  At [19], it said in summary (without alteration):

   ... Neither in general would a person who evidences past membership or connection to the LTTE unless they have or are perceived to have a significant role in relation to post-conflict Tamil separatism or appear on a ‘stop’ list at the airport.  However, there is evidence that the security forces continue detain individuals who they suspect of having LTTE connections and each case should be considered on the evidence provided.

4. At [23], the Authority set out its conclusions in respect of this issue:

   On the evidence before me, I accept that during the conflict the applicant suffered harassment on the basis of his Tamil ethnicity while he resided in Sri Lanka. At his TPV interview he said that his brother was part of the LTTE around 1989 or 1990. When asked what had happened to him, he said that he had moved to Colombo, married a Sinhalese lady and was now living there with another brother of his. He said that no other siblings of his were involved with the LTTE. He had two cousins who were involved in the LTTE and were killed during the conflict in 2009. He currently has two older sisters and an older brother who has gotten married and is also living in Sri Lanka. One other sister is residing in India. I do not consider the applicant would be imputed to hold pro-LTTE opinions, or be suspected of ever having been involved with the LTTE himself. Even taking into account that his family members were associated with the LTTE during the war, viewing the evidence together, I am not satisfied that he would now or in the reasonably foreseeable future be viewed as having been a member been imputed to have been a supporter or have any connections to the LTTE.

5. The findings in that paragraph were critical to the Authority’s reasons, and in particular, appear to be the basis for the Authority’s higher level conclusions at [25] and [36] which themselves were critical to the determination of whether the criteria for the grant of the visa was satisfied.

6. Given the centrality then of the conclusions in [23], the findings in it had to have been rationally based upon the evidence before it.  The Authority is obliged to give reasons which set out its material findings of fact such as those contained in [23], as well as stating its reasons for its decision.  Although similar requirements have been construed not to require a decision-maker to give a line by line explanation of each finding of fact, the importance of a particular finding of fact may require such reasons to be given.

7. If no reasons are given, the Court may infer that there are in fact no reasons and from that conclude that the Authority has fallen into jurisdictional error.  The question is whether that is the case here. 

8. On its face, the only express reason given by the Authority for its conclusion about the imputation of LTTE support is the fact that the Authority has viewed the evidence together. Given the apparent conflict in the country information referred to at [19] of its reasons, that is not a very satisfactory reason. However, that finding must be seen in light of the balance at [23]. There are four matters which appear to support the Authority’s conclusions and which also appear to support the inference that the Authority is applying the country information referred to at [19].

9. I note in particular that the information there suggested that each case should be considered on the evidence provided.  That is what the Authority appeared to be doing in [23] of its reasons.  The four things in [23] which precede and support the Authority’s conclusions are the following.  First, that the applicant had said that his brother was part of the LTTE around 1989 or 1990.  It is not necessary to give any explanation for the fact that that was a long time ago and well before the conclusion of the civil war.

10. Secondly, the applicant explained that his brother had moved to Colombo, had married a Sinhalese lady and was now living there with another brother of his.  The inference may be drawn from that, that in spite of his own previous involvement in the LTTE, the applicant’s brother was living safely in Colombo, as was his other brother. 

11. The third matter is that the applicant had no other siblings who were involved in the LTTE and his two cousins who had been involved in that organisation had been killed. The fourth matter is that the applicant had an older brother who was married and was living in Sri Lanka. It is not entirely clear whether that is different to the first two brothers mentioned in [23]. If it is different then that provides an additional reason for the Authority’s conclusion. If not, it goes to further explain the first reason set out above.

12. Once the Authority’s conclusions in [23] are understood in the context of the whole of that paragraph it is clear that the Authority, as I have mentioned, was applying the country information referred to by it at [19] and doing so by reference to the applicant’s own particular evidence.  For that reason, although I am troubled by the sparsity of the Authority’s reasoning process, I am satisfied that it did make a finding according to reason. For that reason, the second particular in ground 1 must be rejected.

13. The second ground is, in effect, the same as the second particular of the first ground, and it is rejected for the same reasons that I have given in respect of that particular. 

14. The third ground is that the Authority fell into error by blindly following only part of the country information. One of the particulars in that ground is that there was information suggesting that persons like the applicant will be persecuted on return to Sri Lanka. I could not see any information that expressed a view with such certainly. However, as I have observed, the Authority was aware of information that supported the applicant’s claims about potential harm and summarised that information at [19]. Ultimately, given the way in which the Authority applied itself to that country information and the applicant’s claims, I do not accept that the Authority simply “blindly” followed one piece of information over another.

1. The Authority appeared to resolve the conflict between several pieces of information by addressing the particular circumstances of the applicant as suggested in the information.  In other words, it did so on a rational basis.  If the applicant was suggesting by this ground that the Authority ought to have accepted some other piece of information in his favour, then once again that argument would fall to be described as an attack on the merits of the decision and be inconsistent with a long line of authority that says that the question of what information to be followed by the decision-maker is a matter for the decision-maker alone: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13].

Conclusion

1. For those reasons, I am not satisfied that the Authority’s decision was affected by jurisdictional error.  The application must be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       15 January 2019