Esq17 v Minister for Immigration

[2018] FCCA 2589

FEDERAL CIRCUIT COURT OF AUSTRALIA

ESQ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2589

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to apply the relevant test – whether the Authority had a real and genuine engagement with the applicant’s submissions – whether the Authority’s adverse findings lack an evident and intelligible justification – whether the Authority misconstrued s 473DD of the Act – whether the Authority failed to consider the applicant’s evidence – no jurisdictional error made out – application dismissed.  

Legislation:

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

Applicant: ESQ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3273 of 2017

Judgment of: Judge Street

Hearing date: 12 September 2018

Date of Last Submission: 12 September 2018

Delivered at: Sydney

Delivered on: 12 September 2018

REPRESENTATION

Counsel for the Applicant: Mr A Kumar
Direct basis

Counsel for the Respondents: Mr J Kay Hoyle

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application is dismissed.

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

DATE OF ORDER: 12 September 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3273 of 2017

ESQ17

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 29 September 2017 affirming a decision of the delegate not 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 is a young male of Tamil ethnicity from the Eastern Province of Sri Lanka. In 2011 the applicant was elected secretary of the Tamil National Alliance (“TNA”) council in his local district and in that role the applicant organised TNA meetings and recorded minutes of meetings and talked to people in his village about the TNA activities.

3. The applicant alleges that in the run up to the September election in 2012 he began to receive threats and that unknown unarmed men in plain clothes came to his family home in August 2012 on two occasions when he was absent and threatened him with serious harm if he continued to be engaged in TNA activities or continued his role as council secretary. The applicant alleges he filed a complaint with the police but they could not help him. The applicant alleges after the election he went to stay with a Reverend from his church for a month and that during that period unknown men came to his parents’ house on two further occasions looking for him and threatening him with harm. The applicant alleges on one of these occasions his father was beaten. The applicant left Sri Lanka illegally by boat and arrived in Australia as an unauthorised maritime arrival on 14 November 2012.

4. The applicant believes he is well known as a person who is politically active and a supporter of the TNA and that if he returned to Sri Lanka he would be re-elected to a position within the TNA ‘by the people’ and continue to be at risk of harm from members of opposing political parties, the government, the Criminal Investigation Department (“CID”) and/or other unknown armed groups. The applicant also feared harm by reason of being a failed asylum seeker.

5. In the applicant’s statement that he provided in support of his protection claims he referred to the fact that the president of the TNA branch when he first began to attend was his mother’s cousin’s brother. The applicant alleged in that statement that he had admired him because he had shown himself to be an honourable person and that that person received money from Tamils living overseas and used it for the benefit of the local Tamil community.

6. Under the heading “What I fear may happen to me, by who and why, if I return to that country”, the applicant identified fearing the CID, the Sri Lankan government and unknown armed groups if he returned to Sri Lanka. The applicant explained that he feared he would be targeted by these groups because he was a known supporter of the TNA and served as secretary of the council in his district and was known for his involvement. The applicant then referred to his cousin’s brother, K, who is still the TNA local parliament member. The applicant then stated:

   Because of my involvement I was threatened. My parents were also threatened and beaten.

7. On 26 July 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

8. On 1 August 2017, the Authority wrote to the applicant explaining 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. 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 dated 15 August 2017.

9. The Authority, after reviewing to the background to the visa application and having regard to the material given by the Secretary under s 473CB of the Act expressly referred to those written submissions. To the extent that the submissions engaged in argument with the delegate’s decision based on information before the delegate, the Authority had regard to the same.

10. The Authority identified that there were a number of pieces of information sourced from country information reports about the situation in Sri Lanka which were not before the delegate and which therefore the Authority identified as being new information. The Authority said the new information is either undated or dated prior to the delegate’s decision. The Authority referred to this new information being country information rather than personal information. The Authority noted no reasons had been provided as to why the new information either could not have been provided before the date of the delegate’s decision or why it should be considered credible personal information. The Authority was not satisfied that the requirement of s 473DD(b) of the Act are met in regard to any of the new information provided. The Authority referred to the applicant and his representative having already had an opportunity to provide information on all the matters in question, and in those circumstances the Authority found that it was not satisfied that there were exceptional circumstances to justify considering new information.

11. The Authority summarised the applicant’s claims. The Authority then turned to the evidence and expressly referred to the applicant’s mother’s cousin’s son, K, who was and continues to be an active member of the TNA and president of his local TNA branch. The Authority referred to no other family member, other than the applicant, as being involved in any political activities or political parties in Sri Lanka. The Authority noted that the applicant has had no contact with K or any member, associate or supporter of the TNA since his departure from Sri Lanka.

12. The Authority identified the relevant law. The Authority further referred to the applicant’s mother’s cousin’s son, also referred to as the cousin’s brother, being a person called K, who was a president of the local branch of the TNA in a different village, but in the same district. The Authority accepted that the applicant attended meetings of his local TNA with some of his friends, participated in discussions, put up posters and handed out pamphlets from time to time. The Authority referred to the applicant’s claim that he was elected Secretary of the local TNA council in his district in 2011 and he remained in that post for less than a year. The Authority referred to the nature of the activities undertaken in that role.

13. The Authority referred to what occurred at the Safe Haven Enterprise visa interview with the delegate and the Authority placed weight on the fact that the applicant was unable to provide any detail about the TNA’s policies when he claims part of his role as local council Secretary was to talk to other villages about TNA policies and what the TNA could do for them. The Authority, nonetheless, accepted that the applicant was elected Secretary of the local TNA council and that he engaged in the activities described with the help of others. The Authority accepted it is possible to engage in such political activities whilst only possessing rudimentary understanding of the party with which he was aligned.

14. The Authority however was not satisfied that the applicant’s political profile within the district was particularly significant or that he was a high profile member of the Alliance or that his activities as described would have attracted the adverse attention of the authorities to the extent that the applicant claims. The Authority noted that the applicant does not claim to have spoken against the government or any other political parties, and has not claimed to have any association with the LTTE.

15. The Authority referred to the applicant’s claim that he may be elected by the people if returned to Sri Lanka. The Authority noted that the applicant consistently stated he has not had contact with any TNA associates or members. The Authority referred to the applicant saying he had no contact with anyone in Australia associated with a Sri Lankan political party or movement. The Authority noted that the applicant stated clearly that he wanted nothing further to do with the TNA or politics after his experience in Sri Lanka. It was in those circumstances that the Authority was not satisfied the applicant would be elected by the people to another position in the TNA on return to Sri Lanka.

16. The Authority referred to the applicant’s claims concerning the lead up to the elections. The Authority was not satisfied that in the context of a predominantly Tamil village where the majority of residents support the TNA, that the applicant’s role of Secretary of his local TNA council was particularly significant or high profile. The Authority referred to the mother’s cousin’s son, K, having been an active member of the TNA for many years in a senior position, being president of his branch and a member of parliament. The Authority noted that the applicant recently had spoken to his father who reported that K continues to be an elected representative. The Authority noted that the applicant has not claimed that K was ever persecuted or threatened with harm as a result of his political activities or membership of the TNA, yet he is a far more significant and high profile position than that of the applicant. The Authority noted that the applicant stated that he organised meetings and sometimes with the help of friends, yet has not indicated that either the president or any other office bearers or volunteers at his local branch of the TNA were harassed, threatened or harmed in any way. The Authority noted that the applicant has not offered any explanation as to why he personally was singled out for harassment and threats in the way described in his written statements.

17. It was in those circumstances, taking into account country information about the situation in Sri Lanka, that the Authority was not satisfied the applicant came to the adverse attention of the Sri Lankan authorities, unarmed groups, members of opposing political parties or any other persons as a result of his activities and/or role in the TNA during August/September 2012 or at any other time. The Authority did not accept that unidentified armed groups of people went to his family home looking for him and threatened him with harm if he continued his activities or role. The Authority did not accept that the applicant’s father was threatened or beaten.

18. The Authority did not accept that the applicant, who the Authority found had a low profile position in the TNA in 2011/2012, would be identified as someone of adverse interest to the authorities or other political groups because he is known to have been a TNA supporter five years ago. The Authority was not satisfied that the applicant would be of adverse interest to the authorities in Sri Lanka, or other persons, if he were to return now or in the reasonably foreseeable future.

19. The Authority referred to the applicant’s claims of being a young Tamil male originating from the Eastern Province. The Authority referred to the applicant having been employed on his family farm, in his brother’s construction business and for some months in 2012 he was an employee in a post office. The applicant did not claim any serious harm or that he personally suffered serious discrimination because of his ethnicity. The Authority referred to the area in which the applicant lives as being a predominantly Tamil area and noted that, apart from the applicant’s claim concerning his activities in the TNA, he has not claimed that other members of his family or community suffered serious harm as a result of their Tamil ethnicity, gender or youth, imputed association with the LTTE or any combination of these factors.

20. The Authority referred to country information and found that it was not satisfied that the applicant would be imputed to have been a member or supporter of the LTTE by the Sri Lankan authorities as a result of his ethnicity, residence in the Eastern Province, support for and involvement in the TNA or any combination of these factors. The Authority was not satisfied that there is a real chance that the applicant would suffer serious harm as a result of his imputed association and/or support for the LTTE.

21. I find that on a fair reading of that finding that the Authority was making a finding in respect of both the applicant’s involvement in the TNA as well as support for the LTTE.

22. The Authority was not satisfied that the applicant being questioned and detained for a few days constitutes serious harm, having regard to s 5J(5) of the Act and was not satisfied that the imposition of a fine constitutes serious harm. The Authority was not satisfied that the applicant, having spent a substantial period of time in Australia or his claim for asylum would lead to authorities having an adverse interest in the applicant should he be returned to Sri Lanka.

23. The Authority referred to having considered the applicant’s claims individually and cumulatively as a young Tamil male from the Eastern Province who attended TNA meetings from 2008 and was elected Secretary of his local branch of the TNA in 2011 and engaged in low level political activities for the Alliance, who departed Sri Lanka illegally by boat, spent a period of time abroad and claimed asylum in Australia and will be returning to Sri Lanka where he will likely be questioned and detained for a brief period by the Sri Lankan authorities. The Authority in considering these matters cumulatively and having regard s 5J(5) of the Act, was not satisfied that there was a real chance of the applicant facing serious harm on his return or subsequently in the reasonably foreseeable future from Sri Lankan authorities or any other persons.

24. The Authority found the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and that the applicant did not meet the criteria in s 36(2)(a) of the Act.

25. The Authority was not satisfied 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 as follows:

   Ground 1

   The Authority erred in failing into account relevant considerations and/or failed to give realistic consideration to the Applicant's claims threat owing to TNA association and/ political activities (IAA at [13]) and family links and thereby committed jurisdictional error. The Authority's ignorance in all the circumstances and / or decision is irrational and / or illogical and / or unreasonable and erred in not engaging with s 473DC in seeking new information in failing to properly exercise its jurisdiction.

   Particulars

   (a) The Authority was aware that the delegate had not dealt with the Applicant's central claims of the Applicant that the Applicant was under threat owing to TNA association and / political activities (IAA at [13]).

   (b) The Authority should have sought information from the Applicant.

   (c) The Applicant had family links (uncle K; IAA at [14]) as having connections to family link.

   (d) This is relevant to the consideration of the risks under the various guidelines.

   (e) Such links is directly relevant in consideration of the Applicant's political opinion / imputed political opinion and assessing the risks to the Applicant upon return (in particular Applicant having resided in Western country was not undertaken).

   (f) Erred when it failed to consider individually or cumulatively these were exceptional circumstances.

   (g) The Authority has not properly considered and applied the discretion rather placing emphasis on failure to previously submit the information.

   (h) The Authority erred in rejecting and/ or ignoring these as exceptional circumstances.

   (i) The Authority failed to address whether the claims gave rise to complementary protection.

   (j) The Authority has asked incorrect question and has failed to ask the correct question and address a claim or integer of claim.

   (k) The Authority ignored the central claims as the delegate had not dealt with it.

   (l) the Authority thereby committed jurisdictional error.

   Ground 2

   The Authority fell into jurisdictional error in failing to properly exercise its jurisdiction in respect of information submitted to the Authority (IAA at [3]); failed to ask correct questions and / or asked incorrect questions and irrational / illogical and / or denied procedural fairness and / or misconstrued ss 473DC and 473DD of the Act.

   Particulars

   2.1 The Authority ignored the information.

   2.2 The Authority failed to take into account the information.

   2.3 The Authority failed to properly classify that the information was new information;

   2.4 The Authority erred in consideration of the section s 473DD in the circumstances. The Authority failed to consider whether the delegate should have considered the relevant information in any event (such that there was no need to apply exceptional circumstances test).

   2.5 The claim of the Applicant's uncle was involved with TNA was critical claim.

   2.6 There were exceptional circumstances which was ignored.

   2.7 The Authority committed jurisdictional error.

   Ground 3

   The Authority fell into error by failing to assess the actual link between the Applicant's uncle who is a MP. The Authority's consideration of the Applicant's claims thereby resulted in jurisdictional error.

   Particulars

   3.1 The Authority ignored the claims regarding the link between the Applicant and the Applicant's uncle.

   3.2 The Authority erred in consideration of the Applicant's link to TNA in that the Authority failed to address whether the Applicant could be subject of harm upon return to Sri Lanka and failed to take into account the relevant guidelines (including UNHCR guidelines) and other information in respect of and failed to assess if the Applicant was at risk (thereby failing to ask correct question or asking incorrect questions and failed to give these claims realistic consideration and thereby committed jurisdictional error.

   3.3 The Authority failed to consider the Applicant's link and the risk because of the link.

   3.4 The Authority finding (IAA at [25]) is a result of failing to constructively consider the Applicant’s claims.

   3.5 The Authority committed jurisdictional error.

1. Mr Kumar of counsel, on behalf of the applicant, confirmed that ground 4 was abandoned.

2. Mr Kumar also confirmed that insofar as ground 1 referred to a submission based on a failure to invite the applicant to give new information or to attend a further interview under s 473DC of the Act that that part of ground 1 was not pressed.

Ground 1

1. In relation to ground 1, Mr Kumar of counsel advanced in substance three submissions. First, an alleged failure by the Authority to engage in a real chance test in relation to the applicant’s association with the TNA and his political activities and family links. Second, an argument that there was a failure by the Authority to have a real and meaningful engagement with the applicant’s submissions in relation to his TNA association, political activities and family links. Thirdly, that the adverse finding by the Authority that the applicant was not a person of interest to the authorities because of his TNA association, political activities or family links was legally unreasonable.

2. In relation to the first submission concerning the failure to apply the real chance test, Mr Kumar relied upon the absence of reference in paragraph 29 in the last sentence expressly to the TNA. The Authority’s reasons are to be read as a whole without a keen eye for error. In the context of the reasons as a whole and the reference to the applicant’s claims relating to actual and imputed opinion as a result of the applicant’s support, activities and membership of the TNA and the adverse findings made in paragraph 25 and the reference to the TNA in paragraphs 28 and 29, a fair reading of the last sentence of paragraph 29 reflects an application of the real chance test in respect of both the applicant’s involvement for the TNA as well as support for the LTTE.

3. The language in paragraph 25 refers to the future: “would be of adverse interest”. The language in paragraph 29 refers to “will suffer serious harm”. The Authority correctly identified the relevant law and the findings ultimately made in paragraph 36 expressly refer to the reasonably foreseeable future, consistent with a correct application of the relevant law. I do not accept that there was any error as alleged in ground 1 to correctly apply the real chance test in relation to the applicant’s claims.

4. The second submission advanced is based on the applicant’s family links, being the mother’s cousin’s son, K, who has been an active member of the TNA for many years in a senior position as president of his branch and member of parliament. The Authority’s reasons, as summarised above, clearly identify engaging with the applicant’s claims in evidence in respect of his feared harm by reason of his association or involvement with the TNA and refer to K.

5. The Authority’s reasons, as summarised, above, clearly reflect taking into account the applicant’s evidence and submissions in respect of his TNA association, his political activities and in respect of his claimed fear of harm arising from his association with the TNA. The Authority took into account the evidence as to the existence of the mother’s cousin’s son, K, as summarised above. In that regard, K was referred to in paragraphs 9, 10, 14 and 20 of the Authority’s reasons. I do not accept that there is any proper basis to infer that the Authority failed to have a real and genuine engagement with the applicant’s submissions concerning his claim to fear of harm by reason of his association with the TNA and his political activities and his evidence referring to his mother’s cousin’s son, K.

6. Mr Kumar took the Court to the applicant’s statement as well as to the applicant’s submissions both to the delegate and to the Authority and, in particular, page 136 in the applicant’s submission dated 25 July 2017 to the delegate under a summary of the “reasons for persecution” referring to real or imputed political opinion as a member or supporter of the LTTE in opposition to the unitary state of Sri Lanka for reasons including:

   (1) His involvement with Tamil National Alliance (TNA).

   (2) His imputed and/or actual political opinion to be against the Sri Lankan government for being a Tamil male from the Eastern Province who departed Sri Lanka illegally and claimed asylum in a Western country; and

   (3) Membership of a particular social group, namely: as a failed asylum seeker returning to Sri Lanka from a Western country after leaving Sri Lanka.

7. Under the heading “Summary of Claims” the applicant’s submissions refer to “why he believes he is perceived as being an LTTE sympathizer and someone who possesses anti-government ideologies”. There is a reference in the second dot point to the applicant’s first cousin, K, being a member of the Eastern Provincial Council. The Court finds there was no separate claim to fear harm advanced by the applicant expressly or on a fair reading of the material before the Authority to fear harm because of having a first cousin, K. The Authority did, in its findings, consider the applicant’s association in the context of including the fact that the applicant had a first cousin who had been involved in the Eastern Provincial Council and, indeed, continued to hold such a position. No jurisdictional error as alleged in the second submission of ground 1 is made out.

8. The third submission advanced by Mr Kumar is that the adverse finding in paragraph 25 as to not accepting that the applicant is someone who would be of adverse interest because of his association, role and activities, and family links in the TNA. The Authority’s reasons identify the absence of contact by the applicant with TNA associates or members, the applicant wanting nothing to do with the TNA, a finding that the applicant would not be elected by the people to a position in the TNA, a finding that if the applicant in his political profile was not particularly significant and he was not a high profile member. The Authority also made reference to the lack of harm to K and others as referred to in paragraph 16 above. Those are logical and rational reasons in support of the adverse finding made in paragraph 25, together with the other matters summarised above.

9. The Authority’s reasons in these circumstances cannot be said to lack an evident and intelligible justification in respect of the adverse finding concerning the applicant’s claimed fear of harm owing to his association with the TNA. There was no legal unreasonableness in the adverse finding in that regard. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Kumar challenged the Authority’s findings in relation to the application of s 473DD of the Act in respect of what was said to be new information by the Authority. Mr Kumar submitted that the material identified as new information was not new information.

2. I reject that submission. The Authority clearly identified, in the Authority’s reasons in paragraph 3, material that was not before the delegate and that was either undated or dated prior to the delegate’s decision. The Authority was correct to find that that was new information. The Authority identified that information as being information referred to in the submission sourced from country reports about the situation in Sri Lanka. The Authority did not fail to take into account the nature of the information in these circumstances in the preliminary assessment under s 473DD of the Act. Nor could it be said that the Authority ignored the information or failed to properly consider the information found to be new information.

3. It is relevant in that regard that the applicant was represented and no submissions made addressing the new information identified in the submission or seeking to address the limbs of s 473DD of the Act in respect of that new information. On a fair reading of the Authority’s reasons, the Authority took into account both limbs of s 473DD of the Act in determining whether there were exceptional circumstances to justify considering the new information.

4. Insofar as there is a reference to the new information being country information rather than personal information, Mr Kumar submitted that this indicated that the Authority had misconstrued s 473DD of the Act and had applied a requirement that the new information should be personal information. The Authority’s reasons are not to be read with a keen eye for error. I do not accept that the Authority misconstrued s 473DD of the Act in that regard. The reference to the new information being country information rather than personal information was descriptive and does not reflect the Authority misunderstanding or misapplying the statutory provision. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Mr Kumar advanced that the link between the applicant and his mother’s cousin’s son, K, was an integer of the applicant’s claim to fear harm that should have been the subject of express findings. For reasons earlier given, I do not accept that any such claim fairly arose on the material. In respect of the claim of fear of harm by reason of his association with the TNA, the Authority took into account the applicant’s evidence in relation to the existence of his mother’s cousin’s son, K, as summarised above. There was no separate claim to fear harm that fairly arose in respect of the link between the applicant’s mother’s cousin’s son, K, and the applicant.

2. The Authority’s reasons reflect giving a real and genuine consideration to the applicant’s evidence in relation to the applicant’s claims to fear harm by reason of association with the TNA and there was no ignoring of the applicant’s evidence or failure to consider the applicant’s evidence by the Authority. Further, there was no constructive failure by the Authority to exercise its jurisdiction. No jurisdictional error as alleged in ground 3 is made out.

Conclusion

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

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  23 November 2018