Etv17 v Minister for Immigration
[2018] FCCA 2643
•18 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ETV17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2643 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for Safe Haven Enterprise visas – whether the Authority failed to genuinely engage with the first applicant’s claims – whether the Authority failed to consider integers of the first applicant’s claims cumulatively – whether the Authority failed to give genuine and realistic consideration to the applicant’s employment – whether the adverse findings by the Authority were based on insignificant inconsistencies – whether the Authority misunderstood or misconstrued the first applicant’s claims – no jurisdictional error made out – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 476 |
| First Applicant: | ETV17 |
| Second Applicant: Third Applicant: Fourth Applicant: Fifth Applicant: | ETW17 ETX17 ETY17 ETZ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3311 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 18 September 2018 |
| Date of Last Submission: | 18 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 18 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar Direct basis |
| Solicitors for the Respondents: | Mr A Keevers Sparke Helmore |
ORDERS
Grant leave to the applicants to rely upon the amended application filed on 22 May 2018.
The amended application is dismissed.
The first and second applicants pay the first respondent’s costs fixed in the amount of $5,800.00.
DATE OF ORDER: 18 September 2018
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3311 of 2017
| ETV17 |
First Applicant
| ETW17 |
Second Applicant
| ETX17 |
Third Applicant
| ETY17 |
Fourth Applicant
| ETZ17 |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
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 16 October 2017 affirming a decision of the delegate not to grant the applicants Safe Haven Enterprise visas.
The first applicant claimed to fear harm from the Sri Lankan authorities because he is a young Tamil male from the North and has familial Liberation Tigers of Tamil Eelam (“LTTE”) links and also fears his wife’s family, including her former husband, will seriously harm him or will get the Criminal Investigation Department (“CID”) to do so on their behalf. The second to fifth applicants were included as members of the family unit. The applicants were found to be citizens of Sri Lanka and the first applicant’s claims were assessed against that country.
On 20 March 2017, the delegate found that the first applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa and that refusal included the other applicants as members of the family unit.
On 23 March 2017, the Authority wrote to the first applicant explaining that the application for the Safe Haven Enterprise visa had been referred to the Authority for review. The letter provided an attached fact sheet and practice direction giving the first applicant an opportunity to put on new information and submissions. The first applicant did put on submissions dated 6 April 2017, which the Authority in its reasons expressly referred to and took into account. A further email was sent by the applicants’ representative on 11 April 2017, which was also expressly referred to and taken into account by the Authority in its reasons.
The Authority identified the background to the visa application and had regard to the material provided by the Secretary under s 473CB of the Act. The Authority found that there were exceptional circumstances to justify consideration of new material that was provided.
The Authority summarised the first applicant’s claims. That summary included a claim that the first applicant’s aunt was abducted by the LTTE, a claim concerning the CID taking the first applicant to their camp a few days later and allegedly interrogating him and torturing him about his aunt and accusing him of being a LTTE supporter. The first applicant was ordered to report to the CID camp two or three times a day and claims he was mistreated. The first applicant claims he lost his job because of problems with the CID. The first applicant escaped to Vavuniya in March 2009 and married his wife five days later. The first applicant claims they were unable to register the marriage because the former husband was not confirmed as deceased, with whom the first applicant’s wife had had two children. The first applicant alleged following the wedding that he remained hiding in case the CID found him.
The first applicant alleged in 2012 the CID began searching for those who had breached their reporting requirements. The first applicant alleges someone came to his house on 10 January 2013 and threatened to kill the second, third and fourth applicants. The first applicant alleges the family then went to Colombo and remained in hiding and departed Sri Lanka illegally by boat in May 2013.
The first applicant alleges that since his arrival in Australia, his uncle, who had previously been detained in an LTTE camp, had told the first applicant that his father had gone missing. The first applicant also claimed that his wife’s family are using the CID to get revenge on the first applicant and the second applicant because the first applicant is from a lower caste. The first applicant also claims the CID continue to search for him and have his photograph.
The Authority identified the relevant law. The Authority accepted the first applicant was from the Northern Province and accepted that he was raised by his paternal aunt because his parents were both with the LTTE, and that he had not seen them since he was a young child. The Authority found that since the first applicant has been in Australia, his uncle has been released from a former LLTE supporters camp. The Authority referred to the first applicant claiming that his aunt was also an LTTE supporter and the Authority accepted that the first applicant was also an LTTE supporter during the civil war and received some combat training. The Authority found the first applicant’s involvement with the LTTE to be low level.
The Authority, referring to the first applicant and his aunt’s LTTE support in the context of country information, considered it implausible that the first applicant did not know his parents history with the LTTE until after his arrival in Australia. The Authority accepted that the first applicant worked for an international de-mining group from 2007 until 2009 clearing land mines.
The Authority also accepted that in January 2009 that the LTTE forcibly recruited the first applicant’s aunt and that he does not know what happened to her. The Authority accepted that the first applicant, several days later, was detained by the CID and interrogated. The first applicant indicated to the delegate he was never charged with an offence and was not required to pay bail. The Authority referred to the first applicant’s claim that after his release, he was required to report to the CID camp two or three times a day and that that was clarified at the Temporary Protection visa (“TPV”) interview and the Authority accepted that it was once a day.
The Authority accepted the first applicant was mistreated and that the first applicant still has scars as a result of that mistreatment. The Authority accepted that threats were made to the first applicant by the CID and during that period the first applicant was required to report to the CID camp and that he was unable to work for the entity that he had been working for. The Authority referred to the first applicant’s claim that he was forced to sign a paper, however the Authority found the first applicant’s evidence in this regard, unlike other aspects of his evidence, to lack detail and to be unconvincing. The Authority accepted the first applicant’s photos but was not satisfied that the first applicant was forced to sign a confession, as claimed.
The Authority accepted the first applicant relocated to Vavuniya and that he met his wife in 2006, and that when the first applicant arrived in Vavuniya he moved into the house with her and they were married a few days later. The Authority accepted that the marriage could not be registered with the authorities because the uncertainty surrounding the whereabouts of the first applicant’s wife’s former husband.
The Authority identified having serious concerns about the first applicant’s claims that he was in hiding during the extended period he lived in Vavuniya with the second applicant. The Authority referred to the first applicant’s evidence given to the delegate at the TPV interview in this regard being vague and contradictory. The Authority referred to the first applicant’s claim that he knew no one in Vavuniya and then retracting this evidence and claiming that the village administrative officer knew that he was living in Vavuniya and that he had obtained the marriage slip from him.
The Authority referred to country information and that the first applicant was re-employed from January to December 2012 by his former employer. The delegate raised with the first applicant during the interview his working and the first applicant indicated he would often work although while he was working he often had to go into hiding to avoid to the CID who were looking for him. The Authority did not find it credible that if the first applicant feared the authorities were looking for him because he had breached his reporting requirements in Jaffna, he would have taken up this employment in Vavuniya.
The Authority took into account country information and found it implausible that the CID did not pursue the first applicant after he failed to report, as required, noting that he had not been charged with any offence. It was in those circumstances that the Authority considered that if the first applicant had remained a person of interest to the CID in Jaffna, they would have been able to locate him in Vavuniya prior to 2012. The Authority found the fact that the CID did not do so, indicates the first applicant was not a person of ongoing interest.
The Authority also expressed concerned in relation to the first applicant’s claims regarding the first applicant’s wife’s family, including her former husband. The Authority referred to the wife being from a higher caste than himself and her family disapproving of their marriage. The Authority referred expressly to the post-TPV written submission in relation to country information concerning strict caste hierarchy in Tamil community of Northern Sri Lanka. The Authority found the first applicant’s evidence regarding his treatment by the second applicant’s family to be problematic.
The Authority referred to the second applicant’s employment history and the Authority referred to the first applicant during the Safe Haven Enterprise visa interview saying that the second applicant’s brother financially supported them until 2013, which is when her family discovered their relationship. The Authority did not consider it credible that the second applicant’s parents, who live in Jaffna, would not have discovered she had re-married for four years. The Authority also referred to the fact that the second applicant had indicated that they married where her parents reside and not Vavuniya. The Authority considered the inconsistencies to be significant and that they detracted from the first applicant’s overall credibility.
The Authority did not accept that in late 2012 residents of Mathuvil, or the second applicant’s family, advised the CID that the first applicant was living in Vavuniya because they disapproved of the marriage. The Authority did not accept that in January 2013 an unknown person came to the first applicant’s house in Vavuniya and threatened the wife and sons unless the first applicant’s whereabouts was revealed. The Authority did not accept that night the applicants left for Colombo and remained there in hiding for four months. The Authority expressly referred to the validity of the first applicant’s claim that the second applicant had to sell land and other property in order to finance the family’s journey to Australia as being inconsistent with the credibility of these claims by the first applicant.
The Authority referred to the first applicant’s lack of profile and did not consider it credible that the CID would resume an interest in the first applicant in late 2012 or early 2013 because he had breached his reporting requirements prior to the end of the civil war in May 2009. The Authority did not accept the first applicant’s photo is now in circulation amongst the Sri Lankan Army (“SLA”) and CID network in Sri Lanka. The Authority was satisfied the first applicant did not have a record arising from his interactions with the CID in Jaffna in January 2009, and that this allowed him to settle in Vavuniya and reside there for four years without any issues with the authorities.
The Authority referred to the first applicant’s claims in relation to the second applicant’s former husband. The Authority found the first applicant’s evidence in this regard lacks credibility. The Authority found the first applicant is not of any interest to the Sri Lankan authorities and did not accept the CID would torture his friend at the request of the first applicant’s wife’s former husband or that he would harm the first applicant if he returned. The Authority did not accept because the first applicant and second applicant are from different castes, people in the community want them to disappear. The Authority was not satisfied that the first applicant faces a real chance of harm from the family of the first applicant’s wife, including her former husband, because they are from different castes, because the first applicant is the step father of the first and second applicant’s sons, or for any other reason.
The Authority referred to the 2012 United Nations High Commissioner for Refugees (“UNHCR”) Guidelines and that individuals originating from an area where the LTTE were previously active, such as the first applicant, do not require protection solely on that basis unless there were additional relevant factors which may give rise to a profile of risk.
The Authority referred to the risk profiles and accepted that the first applicant’s parents, as well as his paternal uncle and aunt were involved in the LTTE. The Authority referred to having accepted that in January 2009 the CID detained the first applicant overnight and interrogated him about his aunt. The Authority referred to accepting the first applicant was required to report every day to the CID camp until his decision to leave in March 2009. The Authority found the first applicant’s evidence regarding his time in Vavuniya to be contradictory and found his claims that in 2012 the authorities resumed an interest in him and had been targeting him since, not to be credible.
The Authority was satisfied that at the time of the first applicant’s departure from Sri Lanka that the CID did not have any ongoing interest in him for reason of his own, or his family’s involvement with the LTTE. The Authority further referred to the UNHCR guidelines and the 2016 UK Home Office assessment. The Authority was not satisfied the Sri Lankan authorities have, or will have, any continuing interest in the first applicant because of his Tamil race, his age, his origins, his familial LTTE links, his low level LTTE assistance, his failure to report as required in 2009, or his scarring.
The Authority was not satisfied the family of the first applicant’s wife, including her former husband, have given information to the Sri Lankan authorities about the first applicant. Overall, the Authority found the first applicant does not face a real chance of harm for any of these reasons should he return to Sri Lanka. The Authority was not satisfied the relationship of the second to fifth applicants with the first applicant, or on account of being Tamils from a former LTTE area, would face a real chance of serious harm.
The Authority referred to the applicants being returned asylum seekers and was not satisfied that the applicants faced a real chance of harm on account of having sought asylum in Australia. The Authority found the first applicant does not have a profile with the authorities and there are no credible reasons why the authorities would target the first applicant at Colombo airport or afterwards.
The Authority did not accept that the applicants would face a greater scrutiny or penalty upon return than other illegal departees. The Authority was not satisfied that any routine questioning at the airport upon return amounts to serious harm.
The Authority found the Immigrants and Emigrants Act 1949 (Sri Lanka) applies to all Sri Lankan citizens and it is not discriminatory on the face of its application. The Authority was not satisfied the treatment the applicants will face as a consequence of the application of the Immigrants and Emigrants Act 1949 (Sri Lanka) is persecution within the meaning of s 5(J)(4) of the Act, with the exception of the third applicant who did not depart illegally.
The Authority found the applicants do not face a real chance of serious harm either now or in the reasonably foreseeable future as a result of being returning asylum seekers who departed illegally or being a relative of such persons.
The Authority found the applicants do not meet the requirements of the definition of refugee in s 5H(1) of the Act and found the applicants do not meet the criteria in s 36(2)(a) of the Act.
The Authority found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being returned to Sri Lanka from Australia, there is a real risk the applicants will suffer significant harm. The Authority found the applicants do not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.
Before this Court
The grounds in the amended application are as follows:
Ground 2
The Authority accepted that the father and uncles were involved with LTTE (IAA at [291 - [31]). The Authority has failed to engage with the LTTE activities of the father and give cumulative consideration of the risk to the Applicant and ask the correct question. The Authority has committed jurisdictional error.
Particulars
(a) The Authority accepted the Father's involvement with LTTE.
(b) The IAA accepted that the Applicant's aunt was abducted, detained and interrogated in January
2009;
(c) The IAA accepted that the Applicant was abducted detained and interrogated in January 2009;
(d) Father had gone missing;
(e) The Applicant's other family members were involved with LTTE (see particulars to Ground 2).
(f) The Authority has failed to give cumulative consideration to the LTTE activities and did not ask correct questions.
(g) The Authority fell into jurisdictional error.
Ground 3
The IAA made a jurisdictional error in considering the Applicant’s return. The First Applicant was required to report daily and someone who had LTTE connections (parents, auntie) who left Sri Lanka illegally. The Applicants (in particular First Applicant) are not ordinary persons returning to Sri Lanka who had left illegally (IAA at [54]). The Applicant’s role with the NGO was not given realistic consideration. The finding that the First Applicant did not have a profile (IAA at [50] is illogical, irrational and/or unreasonable.
Particulars
(a) The [AA accepted the applicant was required to report daily prior to his departure from Sri Lanka illegally and had various familial link (and thus made findings that were different to the delegate' s findings constituting new information that would be reason, or a part of the reason for affirming the fast track reviewable decision.
Ground 4
The IAA's rejection of the Applicant's claims turned on trivial matters. The IAA made a jurisdictional error in considering the Applicants credibility.
Particulars
(a) The IAA's finding the Applicants were not credible on minor inconsistencies such as time of marriage and where the applicants lived (IAA at [33).
(b) The IAA committed jurisdictional error in affirming the fast track reviewable decision.
Ground 5
The IAA misconstrued the Applicant’s claim and misdirected its inquires (IAA at [31] – [36]. The IAA erred in rejection of the Applicant's claims. The question was not whether one was high case and one low caste but the problem that arose between the inter-caste marriage that the Applicants claimed. The IAA has not dealt with whether the brother was supporting solely or supplementing the Applicant.
Particulars
(a) The IAA misconstrued / misdirected itself as to the correct question.
(b) The Applicants' claim turned on the fact there was friction in finding the Applicants were not credible on minor inconsistencies such as time of marriage and where the applicants lived (IAA at [33].
(c) The IAA committed jurisdictional error in affirming the fast track reviewable decision.
Mr Kumar of counsel, on behalf of the applicants, confirmed that grounds 1 and 6 were abandoned.
Ground 2
In relation to ground 2, Mr Kumar submitted that the Authority had failed to genuinely engage with the applicant’s claims in relation to his fear of harm as an LTTE supporter, and that the Authority had failed to consider those integers of this claim cumulatively. Mr Kumar took the Court both to the submissions advanced on behalf of the first applicant in respect of his and his family’s LTTE involvement as well as to the reasons of the Authority.
In relation to genuine engagement with the applicant’s claims in respect of his LTTE involvement, Mr Kumar referred to the UNHCR guidelines identified on the second page of the submissions dated 3 April 2017. The Authority’s reasons explicitly refer to the UNHCR guidelines and expressly refer to the second and fifth applicants. There is no proper basis to infer that the Authority did not take into account and give genuine, realistic consideration to the first applicant’s claims and submissions. The Authority’s reasons as summarised above reflect a detailed consideration of the first applicant’s claims in relation to both his and his family members’ involvement in the LTTE and a consideration of the first applicant’s profile, and the circumstances of the first applicant after relocating and his ability to continue to live in a particular location for four years without adverse attention. The Authority’s reasons reflect a real and genuine engagement with the applicant’s claim and submissions.
The Authority’s reasons in relation to the applicant’s claims concerning fear of harm because of LTTE links are, on a fair reading, considered cumulatively by the Authority, and this is supported by paragraph 46 of the Authority’s reasons. The Authority made dispositive findings in respect of the whole of the integers of the first applicant’s claim concerning fear of harm from familial LTTE links. No jurisdictional error as alleged in ground 2 is made out.
Ground 3
In relation to ground 3, Mr Kumar submitted that there had been a failure by the Authority to take into account and give genuine and realistic consideration to the role of the employment entity with whom the first applicant had worked.
It is clear from the Authority’s reasons as summarised above that the Authority took into account the first applicant’s role in his period of employment and indeed his ability to obtain re-employment with that entity. There was no failure by the Authority to give genuine and realistic consideration to the employment history of the first applicant. There is no illogicality or irrationality on the face of the Authority’s reasons in that regard. The Authority’s reasons for finding that the first applicant does not face a real chance of serious harm by reason of his ethnicity and his familial LTTE links cannot be said to lack an evident and intelligible justification.
On the face of the Authority’s reasons, the Authority also took into account the daily reporting whilst the first applicant was at the camp before he left to go and live with the second applicant. It was open to the Authority for the reasons given to find that the first applicant would not face greater scrutiny or penalty upon return than other illegal departees. The Authority clearly referred to the applicant’s background in paragraphs 50 and 54. There is no illogicality, irrationality, or legal unreasonableness in the Authority’s assessment of the first applicant’s claims as a returning asylum seeker and in respect of the first, second, fourth and fifth applicants being illegal departees.
In substance, ground 3 reflects a disagreement with the adverse findings by the Authority. Those adverse findings were open to the Authority for the reasons given by the Authority. No jurisdictional error as alleged in ground 3 is made out.
Ground 4
In relation to ground 4, Mr Kumar submitted that the Authority had made adverse credibility findings based on trivial or insignificant inconsistencies. Mr Kumar took the Court to the Authority’s reasoning in paragraphs 31, 33 and 36. The Authority’s adverse credibility reasoning in relation to the first applicant’s claimed fear of harm from the second applicant’s family and her former husband identified logical and rational matters as summarised in paragraphs 14 to 18 and 21 above that cannot be said to be insignificant and trivial.
The role played by the second applicant’s brother in financially supporting them until 2013 as well as the place of their marriage, in respect of family knowledge, were matters that the Authority was entitled to find were significant inconsistencies detracting from the first applicant’s overall credibility. The Authority also in assessing the first applicant’s credibility took into account the first applicant’s claims in relation to a resumed interest by the CID in late 2012 and 2013, because he had breached his reporting requirement in May 2009. That was a further matter that cannot be said to be trivial or insignificant in support of the adverse credibility findings. No jurisdictional error as alleged in ground 4 is made out.
Ground 5
In relation to ground 5, Mr Kumar took the Court to the claims advanced by the applicant in relation to the first applicant being a lower caste than the second applicant and submitted that the Authority had misapprehended the claim to be that of a marriage to a higher caste rather than the problems created with the family of the second applicant.
The Authority’s reasons do not reflect any misunderstanding or misconstruction of the first applicant’s claims. The Authority made adverse findings in relation to the first applicant’s claims in paragraph 38 of the Authority’s reasons, expressly referring to the claimed fear of harm from the first applicant’s wife’s former husband, and by reason of being from different castes as well as for any other reason. No misconstruction or misdirection as alleged in ground 5 is made out.
On a fair reading of the Authority’s reasons as a whole, the Authority correctly understood the first applicant’s claims and made dispositive findings in respect of those claims. No jurisdictional error as alleged in ground 5 is made out.
Conclusion
As the amended application fails to make out any jurisdictional error, the amended application is dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 23 November 2018
1
0
2