EVS17 v Minister for Immigration

[2018] FCCA 1066

FEDERAL CIRCUIT COURT OF AUSTRALIA

EVS17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1066

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority made a dispositive finding in respect of a “clearly articulated” claim – no jurisdictional error made out – amended application dismissed.

Legislation:

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

Applicant: EVS17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3380 of 2017

Judgment of: Judge Street

Hearing date: 1 May 2018

Date of Last Submission: 1 May 2018

Delivered at: Sydney

Delivered on: 1 May 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr A Fisher
HWL Ebsworth

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,250.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3380 of 2017

EVS17

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 18 October 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 was found to be a Tamil of Hindu faith from the Eastern Province of Sri Lanka. The applicant arrived in Australia on 21 October 2012. The applicant applied for a Safe Haven Enterprise visa on 29 February 2016.

3. The applicant claimed to fear being killed, tortured and arrested if he returned to Sri Lanka because he is a Tamil and because his family supported the Tamil National Alliance (“TNA”). The applicant claimed his grandmother, uncle and cousin were shot and killed in their family home in 2008 and that as a result he was often detained, questioned and mistreated by the Sri Lankan authorities. On 15 December 2016, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

The Authority

1. By letter dated 21 December 2016, the Authority wrote to the applicant informing the applicant that the application for the protection 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. No such documents were provided by the applicant to the Authority.

2. The Authority in its reasons identified the background to the visa application and had regard to the material referred under s 473CB of the Act. The Authority also identified taking into account updated country information consistent with s 473DE(3)(a) of the Act. The Authority summarised the applicant’s claims that he feared he would be killed, tortured, arrested if he returns to Sri Lanka because he is a Tamil and because his family supported the TNA and that his grandmother, uncle and cousin were shot in the family home in 2008 and as a result he was detained, questioned and mistreated by the Sri Lankan authorities.

3. The Authority referred to the applicant’s background and the time spent in Qatar, which he went back to in October 2005 until May 2008, and that he has lived in Colombo from May 2008 until August 2009, and then in the Batticaloa district from August 2009 until sometime in late 2012. The Authority referred to the applicant having three brothers and four sisters living in Sri Lanka and referred to his education and completion of a mechanical engineering craft certificate in 2001 and 2002. The Authority referred to the area where the family home was in Batticaloa as being controlled by the Liberation Tigers of Tamil Eelam (“LTTE”) at different times during the war, and that the applicant and his immediate family had no involvement with the LTTE and that he and his family supported the TNA.

4. The Authority referred to a claim by the applicant that in around March 2009, he was called to the Sri Lankan Army (“SLA”) camp and questioned why he was late home from work when his workplace was only 24 kilometres away. The applicant believed he was suspected of assisting the LTTE, fixing vehicles. The applicant alleged the SLA hit him with rifle butts and he has had problems standing straight ever since and he went to hospital afterwards and reported to police. The SLA asked him to report to camp again and his father went in his place. The SLA questioned his father about what the applicant had told the hospital about his injuries. The applicant hid for a few days before his aunt told him that the SLA had taken his father. The applicant went with his aunt to the SLA camp and they released his father but the applicant was held that night and the next day. The applicant claimed that he was tortured on that occasion, with chilli being placed in a cut in his knee and an injury to his big toe and that he was questioned about what he told the hospital staff. The applicant did not go through hospital after this incident but was treated at home.

5. The applicant alleged that he was sent for by a Jeep at his workplace by the SLA and that he was again beaten. The applicant alleged that after this incident where he was tortured by the SLA and left at the school, he did not return home but went to Colombo for about three months and then he started working for a Chinese company in Urani. The applicant alleged he was chased by men on motorbikes, and that this occurred sometime in 2009 after he joined the Chinese company. The applicant alleged he was beaten three times from 2009 to 2012 by Cheddipalayam forces because he did not go and help them repair their trucks. The applicant claimed that in July 2012 an armed group went to his family home looking for him and that this made him leave Sri Lanka.

6. The Authority referred to United Nations Commissioner for Refugee (“UNHCR”) country information in relation to suspected LTTE links. The Authority accepted that the applicant’s three relatives were shot by gunmen in November 2008. The Authority was prepared to accept that the applicant and his family received telephone threats because of their support at the time for a relative who was running as a TNA candidate in the 2008 election and that the deaths of the three relatives are connected to that support. The Authority accepted that the applicant supported the TNA up to 2010 and also accepted the applicant provided election campaign support for the TNA in setting up stages and handing out notices. The Authority, in relation to the applicant’s voluntary assistance, was satisfied the applicant provided low level election campaign support to the TNA after 2010. The Authority referred to a letter provided by the applicant but found little weight to be placed on the same.

7. The Authority accepted the applicant’s brother was hit by a vehicle exactly a month after his three family members were shot. The Authority was not satisfied that the brother being run over and injured by a vehicle is connected to the family support for the TNA. The Authority accepted that the applicant and his family were not involved in the LTTE but that distant relatives were.

8. The Authority referred to the discrepancies in the applicant’s other evidence. The Authority found those discrepancies to be not insignificant changes and inconsistencies in the applicant’s evidence about the incidents he was involved in from 2009 onwards. The Authority was satisfied the applicant had exaggerated, embellished and fabricated his evidence of the incidents from 2009 onwards in order to boost his claims for protection. The Authority rejected the applicant’s claims that men from an armed group chased him from his workplace with the Chinese company in 2009 and went to his family home in search of him in July 2012. The Authority accepted the applicant moved back to his family home in July 2012 from where he commenced his journey to Australia.

9. The Authority rejected the applicant’s claim that he was detained, questioned and beaten by the SLA in March 2009, that they subsequently detained his father and that he turned himself in to secure his father’s release and was then tortured by the SLA. The Authority was prepared to accept that between 2002 and 2005 the SLA on some occasions attended the garage where the applicant worked and beat him and others and asked them to work on SLA vehicles. The Authority rejected the applicant’s claims that on three occasions between 2009 and 2012 he was beaten by the Cheddipalayam forces because he refused to work on their trucks. The Authority was satisfied that if the applicant returns to Sri Lanka he will not experience any harm from societal discrimination or be forced to work on vehicles again.

10. The Authority referred to the UNHCR Eligibility Guidelines and referred to other country information. The Authority accepted that the applicant was beaten at work and asked to work on SLA vehicles and that on one occasion he was taken to a broken down vehicle by the SLA and beaten. The Authority, having regard to the UNHCR guidelines and other information before the Authority, did not consider the applicant to be at risk of harm for reason of any perceived links to the LTTE or any imputed political opinion now or in the reasonably foreseeable future. The Authority provided detailed reasons in support of those findings. The Authority was satisfied the applicant will not face a real chance of persecution from 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 east if returned to Sri Lanka now or in the reasonably foreseeable future.

11. The Authority referred to the shooting of the three family members and found the applicant was not the subject of any adverse interest or incidents because of his support for the TNA or because of his relationship to the Member of Parliament, other than the phone threats, after the 2008 shooting incident even though he continued to provide low level assistance to the TNA up to and including 2010 election campaign and continued to live in Sri Lanka until October 2012. The Authority was satisfied that the chance that the applicant will experience any harm because of his or his family support for the TNA, or his family connection to the TNA politician Member of Parliament if returned to Sri Lanka now or in the reasonable foreseeable future is remote.

12. The Authority accepted that the applicant departed Sri Lanka illegally. The Authority was satisfied the applicant’s profile is such that he will not be of interest to the Sri Lankan authorities if returned to Sri Lanka. The Authority did not accept the applicant would be at risk of adverse attention from the Sri Lankan authorities when scrutinised on arrival in Sri Lanka. The Authority was not satisfied there is a real chance the applicant would face harm on return as a failed asylum seeker.

13. The Authority found the Immigrants and Emigrants Act 1948 (Sri Lanka) to be a law of general application and that it is not selectively enforced or applied in a discriminatory manner. The Authority found the investigation, prosecution and punishment of the applicant by the Immigrants and Emigrants Act 1948 (Sri Lanka) would be the result of a law of general application and does not amount to persecution under s 5H(1) and s 5J of the Act. The Authority was not satisfied the applicant faced a real chance of persecution on the basis of being a failed Tamil asylum seeker who departed illegally now or in the reasonably foreseeable future. The Authority was not satisfied that the applicant faces a real chance of persecution now or in the reasonably foreseeable future and found the applicant does not have a well-founded fear of persecution within the meaning of s 5J of the Act.

14. The Authority found the applicant failed to meet the definition of refugee in s 5H(1) of the Act and that the applicant failed to meet the criteria under s 36(2)(a) of the Act.

15. The Authority was not satisfied there are 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 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. On 4 December 2014, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. The applicant filed an amended application.

2. The ground of the amended application is as follows:

   The IAA fill into jurisdictional error in failing to consider or make a dispositive finding in respect of a substantial, clearly articulated claim (Dranichnikov v MIMA (2003) 197 ALR 389).

   Particulars

   a. On page 164 of the court book I gave three reasons why I thought I will be harmed or mistreated if I returned to my country;

   b. My third reasons was that “I was trying to find out the people who killed my uncle. The unknown people must have come to know this”;

   c. Both the delegate and the IAA accepted that my uncle had been shot dead; and

   d. Both the delegate and IAA failed to consider this substantial and clearly articulated claim or make a dispositive finding.

3. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Authority’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness. The Court explained that it was considering in that regard whether the Authority’s decision was unlawful or unfair. The Court explained that it would take into account the ground alleged in the applicant’s amended application to the effect that the Authority had failed to deal with an alleged clearly articulated claim. The Court explained that if satisfied the Authority’s decision was unlawful or unfair the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Authority’s decision was unlawful or unfair or not satisfied that the ground in the amended application was made out, the amended application will be dismissed with costs.

4. The Court explained it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.

The applicant’s submissions from the bar table

1. From the bar table, the applicant maintained that the Authority had not listened to all his problems. The applicant maintained that he had suffered an injury and that he had relatives who had been killed. The applicant contended that he had provided all the evidence and referred to problems with his knee and that there were papers that he provided during the interview that were not in the court book.

2. Upon inquiry by the Court of the applicant to what he was referring to, the applicant produced some medical records relating to medical treatment of the applicant in 2014. Notwithstanding that the applicant did not put that material on in an affidavit, the Court is prepared to accept the applicant’s evidence that a copy of this material was provided to the delegate. The material on its face cannot be said to be credible, relevant and significant information for the applicant’s claims.

3. There was in this case no reason for the Authority to make express reference to the medical records as to treatment in 2014and it is apparent that the Authority took into account the applicant’s pain in relation to the alleged incident in 2009 where the applicant alleged he was physically injured, including the injury to his knee and toe. The documents marked Exhibit B do not identify any relevant information that required any express finding by the Authority, nor are the documents capably said to be credible, relevant and significant insofar as they were documents not provided to the Authority by the Secretary under s 473CB of the Act. No jurisdictional error arises by reason of the applicant’s reference to the documents in Exhibit B that were not included in the court book. The Authority did take into account the relatives who had been killed but found that claim did not meet the criteria for the grant of the visa. The Authority’s reasons in support of those findings were rational and logical. The adverse findings were open to the Authority for the reasons it gave and were not unreasonable.

The sole ground

1. The ground of the applicant’s amended application to the effect that the Authority failed to take into account a clearly articulated claim, is based upon a part of the information provided by the applicant in answer to question 94 of the application for a Safe Haven Enterprise visa, which asked for details of mistreatment in relation to whether the applicant believed he would be harmed or mistreated if he returned to Sri Lanka. The applicant set out:

   i)I will be arrested and tortured by intelligence, Army people and the people who were chasing me.

   ii)Why they would harm me? Refer question 89.

   iii)I was trying to find out the people who killed my uncle. The unknown people must have come to know this.

2. The applicant’s response lists question 89 of the application for a Safe Haven Enterprise visa, which asked the applicant why the applicant left the country and the applicant had three propositions set out there under:

   i)I faced life threatening problems by Army, police and specifically unknown Armed groups.

   ii)In 2008 Nov 25 my uncle (father’s brother), his son and my Grandma were shot dead by same unknown Armed group (we all support TNA political group) I continued to support TNA until 2010.

   iii)From 2008 to 2012 I had problems with unknown armed groups. In 2009 - Armed Group were chasing me and 2012 July they came home in search of me. The situation made me leave the country.

3. The reference to the unknown people in answer to question 94 was on a fair reading linked back to the answer to question 89 of the application for a Safe Haven Enterprise visa in relation to the unknown groups and it is apparent from the findings of the Authority referred to above, that the Authority took into account the applicant’s claims in that regard and made dispositive adverse credibility findings in respect of the applicant’s claims in respect of the incidents from 2009 onwards. The Authority provided logical and rational reasons in support of those adverse findings. To the effect that the relatives’ deaths related to support for the TNA campaign running in the 2008 elections, the Authority found the applicant provided low level support and did not accept that applicant was subject of incidence in and from 2009. The Authority concluded further that this problem was embellished. Those adverse findings were open for the reasons given by the Authority and cannot be said to lack an evident and intelligible justification.

4. There is no failure by the Authority to deal with the applicant’s claims or an integer of the applicant’s claims. Whilst the Authority did not expressly refer in its reasons to the third proposition in answer to question 94 of the application for a Safe Haven Enterprise visa. The Court finds for the above reasons that the Authority’s reasons reflect taking into account the applicant’s claims in respect of the unknown people and the alleged problems and made adverse credibility findings that were dispositive of those claims.

Conclusion

1. No jurisdictional error as alleged in the amended application is made out. Accordingly, the amended application is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 4 July 2018