Eug17 v Minister for Immigration

[2018] FCCA 2657

FEDERAL CIRCUIT COURT OF AUSTRALIA

EUG17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2657

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority’s reasons were logical and open – whether the Authority’s reasoning was inadequate – whether the Authority complied with its statutory obligations – no jurisdictional error made out – amended application dismissed.

Legislation:

Acts Interpretation Act 1901 (Cth), s.25D

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

Applicant: EUG17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORTY

File Number: SYG 3331 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 G Foster

Solicitors for the Applicant: Sentil Solicitor & Barrister

Solicitors for the Respondents: Mr A Keevers
Sparke Helmore

ORDERS

1. Grant leave to the applicant to file in Court the Notice of Address for Service.

2. Grant leave to the applicant to rely upon the arguments advanced in the applicant’s submissions prepared by counsel purportedly in support of ground 2 to ground 5.

3. The amended application is dismissed.

4. The applicant 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 3331 of 2017

EUG17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORTY

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 as an unauthorised maritime arrival on 13 October 2012. The applicant was found to be a Tamil of Hindu faith from the Northern Province. The applicant claimed to fear harm by reason of his Tamil race and imputed pro-Liberation Tigers of Tamil Eelam (“LTTE”) political opinion, membership of a particular social group, being Tamils with family links to persons who were in the LTTE and Tamils from the north of Sri Lanka and a returned Tamil asylum seeker.

3. On 29 November 2016, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

4. On 2 December 2016, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. Submissions were provided by the applicant’s representative dated 23 December 2016.

5. The Authority also took into account the applicant’s submissions in response to an invitation to comment sent to the applicant on 29 March 2017 and responded by submissions dated 11 April 2017. The Authority summarised the applicant’s claims and that prior to leaving Sri Lanka in 2012, the applicant had only travelled outside Sri Lanka to India in 2009 and 2010 and stayed about a month each time.

6. The Authority in its reasons 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 took into account submissions advanced on behalf of the applicant and considered the extent to which the new information met the requirements of s 473DD of the Act.

7. The Authority referred to the applicant’s brother, K1, joining the LTTE and being killed in an attack on 15 April 2009. The Authority referred to the applicant’s sister, K2, who taught during the war and still lives in Sri Lanka. The Authority referred to the applicant’s claim that in 2007, his father found one of his younger brothers, V1, hanging dead from a ceiling in their house and the family believes it was made to look like suicide, but that he was targeted and killed by the Sri Lankan Army (“SLA”) because of K1’s involvement with the LTTE. Reference was made to V1 studying at the time and that the SLA were also at that time seeking out members of the LTTE and their family members.

8. The applicant also claimed that in 2009, one of his brothers, K3, was kidnapped and taken away by the SLA. The applicant believed K3 was kidnapped because of K1’s involvement and that the family still do not know the whereabouts of K3. The Authority also referred to the applicant claiming he was arrested, beaten and returned home in 2009.

9. The Authority referred to the applicant claiming that in 2010, the SLA came to his house and ordered him to go with them to a particular camp and that they threatened him and asked him to admit his involvement with the LTTE and that they hit him before letting him go. The applicant left Sri Lanka and travelled to Malaysia in February 2012 until he went to Indonesia in August 2012 and claimed his father told him that the SLA continued to visit their house to enquire about his whereabouts.

10. The Authority accepted the applicant’s father found his brother, V1, dead and hanging in his room in early 2007. The Authority accepted the applicant and the applicant’s family believe the SLA was responsible but found there was no direct evidence to support the family’s belief that the SLA was involved as no one saw what happened. Further, the Authority referred to the fact that if the SLA entered the house that night and killed V1 because of K1’s involvement with the LTTE, the Authority did not consider it plausible that the SLA would simply ignore the rest of the family, particularly the applicant who was a young Tamil male in the house. The Authority referred to country information, referring to reports that Sri Lankan authorities claim suspicious deaths in custody were due to suicide. The Authority noted V1 was not in custody and that country information does not suggest that the Sri Lankan authorities engaged in faking suicides in people’s homes. It was in those circumstances the Authority was not satisfied on the evidence that V1’s death is linked to the SLA, whether because of K1’s involvement with the LTTE or otherwise.

11. The Authority accepted that K3 was abducted in 2009 before the war and remains missing. The Authority was not satisfied the SLA was responsible for the abduction of K3.

12. The Authority referred to the applicant, while living in Malaysia, claiming his father informed him the SLA continued to visit his father, but noted the applicant has not claimed that the SLA or other Sri Lankan authorities made further enquiries about him or his whereabouts beyond the time he was living in Malaysia. It is in these circumstances the Authority was satisfied there had been no enquiries by the SLA or the Sri Lankan authorities as to the applicant’s whereabouts since he left Malaysia in August 2012. The Authority referred to the applicant leaving Sri Lanka legally on 25 February 2012 using his own passport.

13. The Authority accepted that the applicant and members of his family lived and worked in areas controlled at times by the LTTE. The Authority accepted the applicant’s brother, K1, joined the LTTE and was killed in 2009. The Authority accepted the applicant’s sister, K2, taught in the LTTE primary school, and that the LTTE tried to take away one of the applicant’s brothers in around 2000. The Authority accepted in around 2005, the applicant went to get his ID and was detained for a day and beaten before his mother negotiated his release. The Authority also accepted that the applicant was arrested, beaten and returned home by the SLA in 2009, and accepted that in 2010, the SLA regularly visited the family’s house to take the applicant to their camp and asked about his whereabouts. The Authority also accepted that the SLA visited the family’s home and asked about the applicant’s whereabouts whilst living in Malaysia from February to August 2012.

14. The Authority referred to taking into account the United Nations High Commissioner for Refugees (“UNHCR”) guidelines and other information and did not accept the applicant to be at risk of harm for reason of any links to the LTTE or any imputed political opinion now or in the reasonably foreseeable future for a culmination of reasons.

15. The Authority then summarised those reasons, first referring to the applicant residing in an LTTE-controlled area and that this does not of itself give rise to a need for protection and referred to the fact that the applicant himself was not involved with the LTTE. The Authority further referred to the fact that although K1 was a member of the LTTE, the applicant was not sent to prison or rehabilitation as an identified or suspected LTTE supporter. Further, the Authority referred to the applicant’s family having been harassed, questioned and mistreated on various occasions, but that neither the applicant nor his family members were every charged, including K2 who taught at a LTTE primary school.

16. The Authority referred to the fact that when the applicant did attend the SLA camp, he was always released. The Authority also referred to the fact that the applicant was able to depart legally, using his own passport, through the airport when he left for Malaysia in 2012. The Authority also took into account that no further enquiries have been made showing any interest in the applicant since 2012. The Authority found the applicant does not have a profile that country information suggests the applicant is at risk of harm from the Sri Lankan authorities, now or in the reasonably foreseeable future, for any links to the LTTE or any imputed political views. The Authority considered the Sri Lankan authorities would not have any adverse interests in the applicant other than as part of the former government’s then general monitoring of Tamils in the north had he remained in Sri Lanka.

17. The Authority referred to country information in relation to killings, disappearances and abductions and placed greater weight on the country information provided by the Department of Foreign Affairs and Trade (“DFAT”). The Authority was satisfied the applicant will not face a real chance of persecution from the Sri Lankan authorities due to any real or perceived links to the LTTE, for any imputed political opinion and/or by reason of being a Tamil male from the north if returned to Sri Lanka now or in the reasonably foreseeable future.

18. The Authority accepted the applicant would be considered by the authorities to be a failed asylum seeker. The Authority did not accept the applicant would be at risk of adverse attention from the Sri Lankan authorities when scrutinised on arrival at Sri Lanka. The Authority was not satisfied there was a real chance the applicant would face harm on his return to Sri Lanka as a failed Tamil asylum seeker now or in the reasonably foreseeable future.

19. Considering the applicant’s circumstances and profile as a whole and the country information, the Authority was not satisfied the applicant faced a real chance of persecution now or in the reasonably foreseeable future. The Authority found the applicant does not have a well-founded fear of persecution under the meaning of s 5J of the Act.

20. The Authority found the applicant does not meet the requirements of the definition of refugee in s 5H(1) of the Act and found the applicant failed to meet the criterion under s 36(2)(a) of the Act.

21. The Authority found there are not substantial grounds for believing that, as necessary and foreseeable consequence of the applicant being returned from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm. The Authority found that the applicant did not meet the criterion under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

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

   2. The IAA erred in not considering that the applicant is at risk of harm for reason of any links to the LTTE, or any imputed political opinion, now or in the foreseeable future (para 40).

   Particulars

   a. The IAA accepted (para 39):

   i. the applicant and members of his family lived and worked in areas controlled at times by the LTTE during the war;

   ii. the applicant's brother Kl joined the LTTE sometime in the 1990s and was a captain in the Sea Tigers, worked for a time as a tutor at the LTTE school, openly returned to the family home for a time during the ceasefire period from 2003, and was killed during shelling on 15 April 2009;

   iii. the applicant's sister K2 taught at a LTTE school in the V during the war;

   iv. the applicant was arrested beaten and returned home by the SLA in 2009;

   v. the applicant was detained for 1 day and was beaten before his mother negotiated his release from the SLA camp around 2005;

   vi. in 2010 the SLA came to his house and took the applicant to their camp where he was threatened and told to admit he was in the LTTE and was beaten when he denied it; he was released;

   vii. SLA regularly visited his house to take him to their camp and asked after his whereabouts;

   viii. SLA visited his family's house and asked after his whereabouts while he was living in Malaysia

   b. The IAA referred to UNHCR 2012 Guidelines for Sri Lanka (para 34), noting (Bullet point 6) the category: ‘Persons with family links who are dependent on or otherwise closely related to persons with the above profiles’

   c. The above profiles would include his brother and noting that K2 was a teacher in the LTTE and so presumably a supporter of the LTTE;

   d. The applicant would fit the Bullet point 6 category and it could not be said that he was not considered to be a person of adverse interest to the SLA or Sri Lankan authorities when looking at his history;

   e. The IAA noted as party of its reasons in not considering that the applicant is at risk of harm for reason of any links to the LTTE, or ay imputed political opinion, now or in the foreseeable future, that ‘Additionally, the Sri Lankan authorities have made no further enquiries about, or shown any interest in, the applicant since August 2012' (para 41) and 'The applicant has not claimed that the SLA or other Sri Lankan authorities made any further enquiries about his or his whereabouts beyond the time he was living in Malaysia' (para 22), when these statements are contrary to the evidence (see applicant's Entry Interview) and claims made by the applicant, and are incorrect rendering the IAA's conclusions about the applicant invalid and affected by jurisdictional error;

   f. IAA noted as part of its reasons that it was not satisfied that the applicant's brother's death is linked to the SLA whether because of Kl 's involvement with the LTTE or otherwise, that 'Country information does not suggest that Sri Lankan authorities engaged in faking suicides in peoples' homes'. No discussion or engagement with this issue was made, nor reference to what Country information on this topic is, was given or disclosed, by the IAA and accordingly the IAA failed to give proper reasons as to why it made this comment, or otherwise took into account a matter that was irrelevant to the decision making the decision invalid and subject to jurisdictional error.

   3. The IAA erred in not being satisfied that the applicant's profile is not one that places him at risk of harm, or that there is a real chance that the applicant would face harm on his return to Sri Lanka, or that the applicant faces a real chance of persecution now or in the reasonably foreseeable future, or that he does not have a well founded fear of persecution (paras 49-51)

   Particulars

   a. The Applicant repeats paras a - f above.

   4. The IAA erred in finding the Applicant does not face a real chance of persecution or harm in for reason of any links to the LTTE, or any imputed political opinion, now or in the reasonably foreseeable future.

   Particulars

   a. The Applicant repeats paras a - f above.

   5. The IAA erred in finding the Applicant does not face a real chance of persecution from the Sri Lankan authorities due to any real or perceived links to the LTTE, for any imputed political opinion and/or as a Tamil male from the north, if returned to Sri Lanka now or in the reasonably foreseeable future.

   Particulars

   a. The Applicant repeats paras a - f above.

   6. The IAA failed to give the applicant the benefit of the doubt where the IAA found evidence otherwise unconvincing;

2. Mr Foster of counsel on behalf of the applicant confirmed that grounds 1, 7, 8 and 9 were not pressed.

Ground 2

1. In relation to ground 2, Mr Foster submitted that the reasoning of the Authority in relation to the applicant’s claimed fear of harm by reason of family links and imputed political opinion as an LTTE supporter were legally unreasonable. Mr Foster took the Court to the Authority’s reasons and in particular the combination of matters accepted by the Authority in paragraph 39. Mr Foster accepted that there was no integer or aspect of the applicant’s claimed belief that it was not considered by the Authority. It was submitted that the reasoning that followed in paragraphs 40 to 43 did not support the adverse finding.

2. The Authority gave a combination of reasons, as summarised above, in support of the adverse finding that the applicant will not face a real chance of persecution from Sri Lankan authorities due to any real or perceived links to the LTTE or any imputed political opinion and/or as a Tamil male from the north. Those reasons included the applicant not having been sent to prison or any rehabilitation as an identified or suspected LTTE supporter; the applicant having not himself being involved with the LTTE; the applicant’s family members not having been charged; the applicant being able to leave Sri Lanka using his own passport in 2012; and the absence of enquiries since August 2012. In those circumstances, the adverse finding by the Authority cannot be said to lack an evident and intelligible justification. The Authority’s reasons in support of the adverse finding were open and logical. No jurisdictional error arises by reason of the adverse finding in paragraph 43.

3. Mr Foster of counsel submitted that the Authority had taken into account the relevant consideration in paragraph 20 as to whether or not V1 was in custody. The reference to V1 not being in custody was in the context of the discovery of V1 in the family home and the suspicion that the family believed it was the SLA and the Authority’s reasoning as to why the Authority rejected that belief. The reasoning in that regard included that it was not plausible that the SLA would ignore the rest of the family, and included reference to country information in relation to authorities claiming suspicious deaths in custody were due to suicide but that the country information did not support Sri Lankan authorities engaging in faking suicides in people’s homes. In those circumstances, the reference to the fact that V1 was not in custody was logical, rational and relevant.

4. Mr Foster submitted that in considering ground 2, the Authority had given inadequate reasons in relation to the finding in paragraph 20 that V1’s death was not one that the Authority was satisfied was linked to the SLA. Attention was drawn to the requirement of the Authority to provide reasons under s 473EA of the Act and also in relation to the requirements of s 25D of the Acts Interpretation Act1901 (Cth). The Authority, on a fair reading, identified the evidence and made findings based on the evidence that were open to the Authority as summarised at paragraph 10 above. Those findings were logical and reasonable. There was no inadequate reasoning in relation to the Authority’s finding that it was not satisfied on the evidence that the SLA were linked to V1’s death.

1. It was further submitted in support of ground 2 that the Authority should have given the applicant the benefit of the doubt in relation to the claims concerning V1 and K3. There is no legal principle requiring the Authority to give the applicant the benefit of the doubt in relation to the applicant’s claims and evidence. Section 5AAA of the Act makes clear that it is for the applicant to provide sufficient evidence to establish the claims. The Authority’s reasons do not reflect speculation but rather a logical assessment in relation to the applicant’s belief in relation to his brother, V1, and the Authority also provided logical and rational reasons in relation to K3. As to V1, these findings were open for the reasons given above and do not reflect any doubt in the Authority’s findings. As to K3, the applicant only knew what his sisters had told him and it was his sisters’ belief that it was the SLA that had abducted K3. The Authority noted there had been no report that the abductors were the SLA. The adverse finding was open to the Authority in relation to K3 for the reasons given by the Authority and that finding cannot be said to be illogical or unreasonable. There was no doubt in the findings by the Authority as to K3.

2. Mr Foster also submitted that there had been an overly stringent approach adopted in relation to the adverse findings. The Authority’s reasons do not reflect the Authority doing other than approaching the review with an open mind, reasonably capable as to persuasion as to the merits. The Authority’s reasoning process supports finding an open mind reasonably capable of being persuaded as to the merits. The adverse findings are not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Authority might not bring an independent and impartial mind to determine the review on the merits. The Authority’s reasoning does not reflect an overly stringent approach. Indeed, the Authority accepted many of the applicant’s claims. No jurisdictional error as alleged in ground 2 or in the applicant’s submissions in support of ground 2 is made out.

Grounds 3 to 6

1. Grounds 3 to 6 are, in substance, an expansion of ground 2 in relation to the adverse findings in respect to the applicant’s LTTE claims albeit expressed in slightly different language. The Authority correctly identified the relevant law and, on the face of the Authority’s reasons, correctly applied the relevant law in relation to the Refugees Convention. The adverse findings by the Authority in relation to the applicant’s claim of LTTE links and imputed political opinion were open for the reasons given by the Authority as summarised above. Those reasons cannot be said to be illogical or irrational, or otherwise legally unreasonable for the reasons given above. Nothing in grounds 3 to 6 make out any jurisdictional error.

Conclusion

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

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 15 November 2018