EYU17 v Minister for Immigration

[2018] FCCA 1071

FEDERAL CIRCUIT COURT OF AUSTRALIA

EYU17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1071

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to discern a Convention nexus – whether the Authority erred by not considering country information – whether the Authority’s decision is unreasonable – no jurisdictional error made out – amended application dismissed.

Legislation:

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

Applicant: EYU17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3463 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

Solicitors for the Applicant: Mr E Rajadurai
Divine Lawyers

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Mills Oakley

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed 24 April 2018.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,300.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3463 of 2017

EYU17

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 26 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 male who originated from northern Sri Lanka. The applicant left Sri Lanka by boat when aged eight years and resided in refugee camps in Tamil Nadu, India. The applicant arrived in Australia on 25 April 2013 as an unauthorised maritime arrival. The applicant made the application for a Safe Haven Enterprise visa on 5 July 2016.

3. The applicant claimed to fear harm if returned to Sri Lanka for reason for his Tamil ethnicity, his religion, his family links to the LTTE and the fact that he departed Sri Lanka illegally. On 1 March 2017, the delegate found the applicant failed to meet the criteria for the grant of a protection visa.

The Authority

1. On 7 March 2017, the Authority wrote to the applicant identifying that the application for a 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.

2. Submissions were provided to the Authority dated 27 March 2017, 21 June 2017, and 21 July 2017, all of which were referred to in the Authority’s reasons and considered by the Authority in accordance with s 473DD of the Act. The Authority’s reasons reflected consideration of both limbs in relation to the new information and the Authority found there were not exceptional circumstances to justify considering the new information. The Authority in its reasons identified taking into account the material provided under s 473CB of the Act and set out the background to the visa application and summarised the applicant’s claims.

3. The Authority found the applicant to be a Tamil Hindu. The Authority was not satisfied on the basis of the evidence that any difficulties the applicant would encounter in terms of want of family support would constitute any form of serious harm amounting to persecution, or that they would be for the essential and significant reason of his ethnicity. The Authority found there was no credible evidence to support a finding that the applicant faces a real chance of any kind of serious harm from individuals or from the Sinhalese population at large because of his Tamil ethnicity, or from Sri Lankan Tamils as a Tamil who has lived for a long time in India. The Authority was not satisfied there is a real chance the applicant will be subjected to any kind of harm on return to Sri Lanka for reasons of his religion, including any restriction on his ability to practise his faith.

4. The Authority referred to the applicant’s claims that his brother and uncle were Liberation Tigers of Tamil Eelam (“LTTE”) fighters who were shot by the Sri Lankan Army (“SLA”) in 1989 and 1990. The Authority did not accept that this family connection would lead the applicant to be suspected of personal involvement of any kind with the LTTE or that it would result in monitoring and investigation amounting to serious harm on return to Sri Lanka. The Authority provided detailed reasons in support of those findings. Firstly, the Authority considered it highly unlikely that the Sri Lankan authorities would now have any record of the circumstances of the deaths of the applicant’s brother or uncle, or possess any information to indicate that they were LTTE fighters. The Authority further reasoned that, even if the authorities were aware that these relatives had fought with the LTTE over 20 years ago and had been killed, the Authority was not satisfied that this is a relevant connection which might cause the applicant to be of adverse interest to the authorities now.

5. The Authority did not accept the submission that the applicant had a strong connection to the LTTE, given the length of time that has passed and the fact that the applicant was a child of eight years of age or younger when his relatives were killed. It was in those circumstances, the Authority considered it extremely unlikely that the authorities would suspect the applicant himself had any involvement with the LTTE. The Authority found the authorities would not think the applicant would have any useful knowledge about the involvement of his relatives in the LTTE organisation itself.

6. The Authority was not satisfied the applicant would be imputed to hold a political opinion favourable to the LTTE, or to have any connection with the LTTE, merely on the basis of his family relationship with LTTE fighters who were involved in the organisation more than 20 years and who were killed when the applicant was a child of eight years of age. The Authority did not accept the applicant would be imputed to be a member or a supporter of the LTTE because he resided for most of his life in a refugee camp in India. The Authority found the applicant’s family fit the profile of an ordinary refugee family fleeing from Sri Lanka and that the presence of the applicant in India over a long period of time would not give rise to a suspicion that he was connected with the LTTE, even accepting that he had relatives who were LTTE fighters prior to 1990. The Authority noted that the applicant had not claimed he was involved in any way with pro-LTTE activities in India, or activities that might be regarded as indicating support for the LTTE.

7. The Authority referred to country information relating to Tamil returnees from India who have come under suspicion of LTTE links and found that evidence refers to people who have been hiding in India and that they were not living openly in refugee camps and subject to surveillance and restrictions as the applicant claimed to have been. The Authority was not satisfied that the incidents of detention and torture of returnees from India as reported indicate the existence of a real chance that the applicant would be subjected to similar suspicion and mistreatment. The Authority was satisfied there was no basis for the Sri Lankan authorities to have any particular reason to suspect the applicant had supported the LTTE from India even having regard to his family connection to the LTTE soldiers long dead. The Authority was satisfied there is no real chance the applicant would be imputed to hold pro-LTTE opinions on return to Sri Lanka, taking into account his ethnicity, his family connections and his residence in India.

8. The Authority referred to the applicant being a failed asylum seeker and expressly took into account United Nations High Commissioner for Refugees (“UNHCR”) eligibility guidelines for assessing international protection needs of asylum seekers from Sri Lanka. The Authority was not satisfied that the applicant, having sought asylum in Australia, would cause the Sri Lankan authorities to view him with any additional suspicion. The Authority was satisfied that the possibility of the applicant being investigated and charged in relation to security offences is extremely remote.

9. The Authority made express reference to the applicant’s circumstances and the applicant’s profile as a whole and also to the long ago links to the LTTE, his period of residence in Tamil Nadu, and that he had fled as a child, and the fact he does not claim to have been involved in pro-LTTE diaspora activities in India. The Authority found the applicant had no involvement in any activities of which the authorities would be suspicious and that the applicant would be identified as a failed asylum seeker on return to Sri Lanka. In those circumstances, the Authority was not satisfied there is a real chance the applicant would be at risk of harm on return as a person suspected of supporting the LTTE for any reason on the evidence before the Authority.

10. The Authority referred to the applicant’s illegal departure. The Authority noted the country information in relation to bail being granted on personal surety or having to wait to be collected by a family member if returned if required to have a family member as guarantor. The Authority noted the applicant has submitted that because he has no family members in Sri Lanka he would be held indefinitely because there would be no one who could act as guarantor for him. The Authority, however, considered that in these circumstances the Court would not require a family member as guarantor and would instead grant bail on the applicant’s own recognisance. In those circumstances, the Authority did not accept there is a real chance that the applicant would be subjected to torture as a suspected LTTE supporter or for any other reason during a longer than usual period of detention.

11. The Authority found that the procedures under which the applicant as a returnee would be dealt with, and any penalties to which he may be subjected, will be applied on a non-discriminatory basis under a law of general application and did not constitute persecution for the purpose of s 5H(1) and s 5J(1) of the Act.

12. Having regard to all the individual circumstances of the applicant and the country information, the Authority was not satisfied there is a real chance the applicant will face serious harm amounting to persecution for any of the reasons claimed. The Authority was not satisfied the applicant would be imputed to support the LTTE because of his Tamil ethnicity, his family relationship to dead LTTE fighters, his period of residence as a refugee in India, or the fact that he sought asylum in Australia. The Authority was not satisfied there is a real chance the applicant faces serious harm amounting to persecution because of his illegal departure from Sri Lanka, including if he were prosecuted. The Authority was not satisfied the applicant faces discrimination reaching the threshold of serious harm either as a Tamil, a Tamil who has resided in India for a long time, or because of his Hindu religion.

13. The Authority found the applicant did not meet the definition of refugee in s 5H(1) of the Act and found the applicant failed to meet the criteria under s 36(2)(a) of the Act.

14. In considering complementary protection grounds, the Authority made express reference to the applicant having not lived in Sri Lanka since he was a child of about eight. The Authority found that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia to Sri Lanka, 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. The grounds in the amended application are as follows:

   1. IAA made a jurisdictional error in that it failed to discern a Convention nexus.

   Particulars

   Applicant claimed his brother and uncle were in the LTTE and they were shot and killed. There was country information to support that persons like the Applicant were persecuted in Sri Lanka. IAA failed to discern a Convention nexus, with the Convention reason being Applicant will be imputed with LTTE opinion because of his familial connections as his brother and uncle, fighters in the LTTE.

   2. The Authority’s reasoning is infected with jurisdictional error.

   Particulars

   Aspects of the Authority’s reasoning is

   a. Not supported by evidence – no evidence rule Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 and/or

   b. Irrelevant Craig v South Australia [1995] 184 CLR 163 and/or

   c. Giving rise to jurisdiction fact argument

   3. The Authority’s Decision is unreasonable.

   Particulars

   Applicant in this case has not been in the receiving country, Sri Lanka, since he was 8 years old. He has no relatives in the receiving country.

   The Authority has made findings to effect that he will have problems with his identification and subsequent settlement and employment.

   The question is whether it is reasonable to return the Applicant to the receiving country absent persecution.

Ground 1

1. In relation to ground 1, Mr Rajadurai, the solicitor on behalf of the applicant, submitted that the Authority had failed to discern a Convention nexus in the circumstances where the applicant’s brother and uncle were shot and killed as LTTE fighters. Mr Rajadurai referred to the country information and the findings of the Tribunal and submitted that the Authority should have in the circumstances, found that the applicant would be imputed with an LTTE opinion.

2. In substance, Mr Rajadurai’s submissions invited this Court to engage in impermissible merits review. This Court does not have power to review the merits. The adverse findings by the Authority in relation to the applicant’s claim of being imputed with an LTTE opinion were open to the Authority for the reasons given by the Authority as summarised above. The reasons above took into account the young age of the applicant at the time of their deaths and the implausibility of records conveying the same. Those reasons were logical and rational and cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 1 in the amended application.

Ground 2

1. In relation to ground 2, Mr Rajadurai raised three separate arguments. The first argument was one in relation to paragraph 40 of the Authority’s reasons in respect of which Mr Rajadurai submitted that the Tribunal had erred by making findings unsupported by evidence. This was a reference to the Tribunal’s characterisation of the applicant’s family long ago links to the LTTE. That was a finding that was open to the Authority in the circumstances of the present case where the persons were shot back in 1989 and 1990 and at a time where the applicant was very young. There is no basis to hold that that was a finding that was not open to the Authority or that it was a finding unsupported by evidence. It was a matter for the Authority to making findings in relation to the applicant’s claims and the characterisation of the links being long ago was open to the Authority and cannot be said to be unsupported by evidence, unreasonable or irrational.

2. The second no evidence ground in paragraph 40 of the Authority’s reasons was the finding made by the Authority that the applicant has not claimed to have been involved in pro-LTTE diaspora activities in India. Again, that was a finding that was open to the Authority to make in circumstances where no such claim was advanced by the applicant. The Authority’s reasoning in this regard was open to it and was reasonable. The no evidence ground in relation to paragraph 40 of the Authority’s reasons is not made out.

3. The second series of errors alleged under ground 2 particular b are the taking into account of irrelevant considerations in paragraphs 33, 36 and 40 of the Authority’s reasons. None of the matters identified in those paragraphs can properly be characterised as irrelevant considerations that the Authority was not entitled to take into account in carrying out its statutory review. The applicant’s submissions refer to paragraph 33 of the Authority’s reasons as advancing a proposition that the authorities would not now have any record of the circumstances of the applicant’s brother’s and uncle’s deaths as being a no evidence ground. That was a finding that was open to the Authority and cannot be said to be one that was unsupported by evidence.

4. To the extent that that ground was advanced as being irrelevant, that was a relevant consideration for the Authority to take into account. Next, the fact that the applicant did not claim to have been involved in pro-LTTE diaspora activities was not an irrelevant consideration for the Authority to take into account and it was reasonable for the Authority to do so. Further, the observation in relation to whether the applicant had a useful knowledge, given his age, was also a finding that cannot be said to be irrelevant and was open to the Authority. It is also submitted that the reference to rejecting the applicant’s submissions that it was a strong connection was irrelevant. That was a submission advanced on behalf of the applicant. It was open to the Authority to make a finding rejecting that submission.

5. The next submission was that the reference to the country information being characterised by reference to people who had been in hiding in India was irrelevant. It was a matter for the Authority to determine what weight to give country information and it was open to the Authority to identify the circumstances in which the Authority found the country information supported LTTE links in relation to people who had been in hiding, in circumstances where the applicant was living openly in a refugee camp and was subject to surveillance and restrictions in that camp. They were relevant distinguishing matters for the Authority to take into account when considering country information and cannot be said to be irrelevant or a finding that was not reasonably open. No jurisdictional error is made out in relation to the proposition of the Authority taking into account the relevant considerations in ground 2 particular b.

6. The third category advanced by Mr Rajadurai of error in relation to ground 2 was an alleged jurisdictional fact in relation to finding that the applicant would be able to obtain bail and would not be held indefinitely. Mr Rajadurai referred to the applicant having no family and that it would be a discretionary matter for the Court to determine whether or not to grant bail. In the circumstances of the present case, the Tribunal expressly considered the submissions in relation to the applicant having no family members and made a finding that was open to the Authority that the Court would not require a family member to act as guarantor and would instead grant bail on the applicant’s own recognisance. That was a finding was both logical and reasonable. There was no jurisdictional fact the subject of error by the Authority in its reasoning in that regard.

7. No jurisdictional error as alleged in ground 2 of the amended application is made out.

Ground 3

1. In relation to ground 3, Mr Rajadurai submitted that given the time the applicant had spent in India and the young age that he had left Sri Lanka that it was unreasonable for the applicant to be returned to Sri Lanka. Mr Rajadurai acknowledged that the Court does not have power to review the merits of the application. It is apparent from the Authority’s reasons, including paragraph 5 and paragraph 56, that the Authority took into account the applicant’s age at the time that he left Sri Lanka. Ground 3 is in substance an invitation to this Court to engage in impermissible merits review. The young age of the applicant at the time of departure from Sri Lanka does not make the Authority’s findings illogical, irrational or unreasonable. No jurisdictional error as alleged in ground 3 of the amended application is made out.

Conclusion

1. Accordingly, the amended application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  12 June 2018