EZC17 v Minister for Immigration

[2018] FCCA 1110

FEDERAL CIRCUIT COURT OF AUSTRALIA

EZC17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1110

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider relevant facts of the applicant’s claims – whether the Authority made error on grounds of procedural fairness – whether the Authority misinterpreted and misconstrued the applicant’s claims – no jurisdictional error made out – application dismissed.

Legislation:

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

Applicant: EZC17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3477 of 2017

Judgment of: Judge Street

Hearing date: 3 May 2018

Date of Last Submission: 3 May 2018

Delivered at: Sydney

Delivered on: 3 May 2018

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr R White
Mills Oakley

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3477 of 2017

EZC17

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 23 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 arrived in Australia as an unauthorised maritime arrival on 14 October 2012. The applicant lodged an application for a Safe Haven Enterprise visa on 8 February 2016.

3. The applicant claimed to fear harm by reason of his ethnicity as a Tamil and by reason of an imputed political opinion as a pro-Liberation Tigers of Tamil Eelam (“LTTE”) and anti-Government. The applicant also claimed to fear harm by reason of being a failed asylum seeker who departed Sri Lanka illegally. On 9 January 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

The Authority

1. On 24 January 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could receive new information and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. The applicant took advantage of that opportunity and submissions dated 14 February 2017, were provided to the Authority and were expressly considered in the Authority’s reasons. The Authority also had regard to the information given by the Secretary under s 473CB of the Act and identified the background to the visa application.

2. In relation to the applicant’s submissions, the Authority identified new information and found that there were not exceptional circumstances to justify considering the same. On the face of the Authority’s reasons, the Authority took into account both limbs of s 473DD of the Act. There is no proper basis to infer that the Authority adopted an erroneously narrow meaning of “exceptional circumstances” or that the Authority misconstrued the provision. The Authority was satisfied there were exceptional circumstances to justify considering the Department of Foreign Affairs and Trade report on Sri Lanka dated 24 January 2017 cited in the submissions. The Authority also referred to a new claim that the applicant’s family was questioned at their home while the applicant had not yet reached Australia and then again approximately six weeks after his departure. The Authority correctly identified the same to be new information and found it to contradict the applicant’s submissions in his Safe Haven Enterprise visa interview, in which he stated there had been no visits to his home after he left. On the face of the Authority’s reasons, the Authority took into account both limbs of s 473DD of the Act in finding that the new information did not satisfy the requirement of exceptional circumstances to justify considering the same.

3. The Authority summarised the applicant’s claims and made reference to the applicant travelling frequently between particular locations to visit his family and that he had to register his details with the Sri Lankan Army (“SLA”). The Authority referred to the applicant alleging that he was 16 years of age at the time and that they would have thought he was receiving LTTE training. This is a clear reference by the Authority to the substance of what was said in paragraph 9 of the applicant’s statement dated 8 February 2016, where the applicant said he had trained in karate from year 10 and looked like he was training in combat and alleged that this increased the army’s suspicion of him, to which the Authority expressly referred. The Authority referred to the applicant working for Halo Trust, a landmine clearing organisation and that the Trust became under suspicion of supporting members of the LTTE in 2006.

4. The Authority referred to a 2008 mortar explosion near the applicant’s house and that the applicant alleged he was suspected of being involved because of his work for the Trust and the proximity of the blast to his home. The applicant alleged he was taken to a Sri Lankan army camp and repeatedly beaten to extract a confession but that he denied involvement. The applicant alleged that he was released and he spent two days in hospital recovering from injuries. The applicant alleged that a condition of his release was that he register at the camp every day and that after that he was afraid to travel alone and took his wife and child with him everywhere. The applicant alleged that eight months after his release, he was travelling home from work when he was surrounded by a special team of eight men on motorcycles from a particular camp and that he was searched and beaten and then let go. The applicant alleged that after he returned from working in Qatar he was taken for questioning by the Sri Lankan army and released on condition again that he sign regularly. The applicant alleged he was still required to sign when he started to make arrangements to leave Sri Lanka and come to Australia.

5. The applicant claimed to fear harm from the SLA, the Criminal Investigation Department (“CID”) and the Eelam People’s Democratic Party (“EPDP”) and was concerned that the government could not protect him. The Authority referred to the applicant’s claim to have attracted the attention of the Sri Lankan authorities and in particular his training and physical appearance allegedly increasing interest from the SLA. The Authority placed little weight on that claim and provided a logical reason in support of the adverse finding being that as the applicant had not referred to it in his Safe Haven Enterprise visa interview. Accordingly, the Authority placed little weight on the claim to have been targeted because of his physical appearance.

6. The Authority referred to the applicant’s claim to be a person of interest because of his previous employment with the Trust. The Authority accepted that the applicant worked with the Trust from 17 February 2003 until 19 October 2005. The Authority noted that in the Safe Haven Enterprise visa interview, the applicant responded spontaneously to the delegate’s questions and appeared able to expand naturally on his own written claims. Written claims is a reference to the statement of the applicant that addressed both the applicant’s fear and historical alleged events. The Authority found the applicant gave evidence that was overall consistent with the written statement provided with his Safe Haven Enterprise visa application. The Authority found the applicant to be generally a credible witness.

7. The Authority referred to the applicant having been detained and questioned on return from Qatar as being a claim that was not made in his written statement submitted with his Safe Haven Enterprise visa. The Authority noted the applicant returned from Qatar in July 2011. The Authority referred to country information and noted that the applicant referred to being questioned after his return from Qatar in his entry interview on 4 January 2013. Notwithstanding the applicant’s failure to make a claim in his written statement, the Authority accepted that the applicant was briefly detained and questioned on his return from Qatar. The Authority noted that on that occasion the applicant was questioned only and was not subjected to any mistreatment.

8. The Authority identified concern in relation to the applicant’s claims that he was subject to a reporting condition which he breached by leaving for Australia. The Authority was prepared to accept that following questioning by the SLA in 2011 on his return from Qatar that the applicant was required to report once a month. The Authority noted the applicant’s evidence at the Safe Haven enterprise visa interview was that there had been no visits to his home after he left Sri Lanka. The Authority found this demonstrates that the applicant was not a person of interest at the time he left Sri Lanka and found that the requirement to report was part of the routine monitoring of Tamils to which many were subject at the time rather than an indication of any interest in, or suspicion of, the applicant personally.

9. The Authority did not accept that the authorities targeted the applicant personally because of his work for the Trust. The Authority provided reasons in support that it would have expected the applicant to have experienced some kind of adverse interactions with the authorities. The Authority referred to the applicant’s submissions concerning the LTTE and found that there was no information to support that Trust employees were suspected of involvement in such a serious matter of transporting weapons for the LTTE. The Authority found that even if the Authority were to accept Trust employees were suspected of being involved in transporting weapons for the LTTE, the Authority was not satisfied that this resulted in any suspicion by authorities that the applicant was involved or that the Sri Lankan authorities believed the applicant to have any link to the support of the LTTE as a result of his work for the Trust. The Authority referred to the UNHCR guidelines and did not accept that the applicant fits any humanitarian profiles as identified in the guidelines.

10. The Authority accepted the incident the applicant experienced in 2008 and that he had been subjected to scrutiny at checkpoints. The Authority found the applicant was able to obtain a legal passport which permitted him to travel to Qatar without experiencing anything more than routine questioning at the airport. The Authority did not consider that the applicant’s assertion that he may miss his flight would have been sufficient to deter authorities from further investigating him if he was in fact a person of interest for any reason.

11. The Authority referred to the applicant’s activities as an air-conditioning mechanic and that he continued to live at home and did not claim any further incidents of harm or mistreatment. The Authority accepted that the applicant’s experiences may have impacted on his mental health, but found that the applicant does not have a profile with the authorities beyond a general level of suspicion to which many Tamils were subjected during the war. The Authority did not accept the applicant would be imputed with alleged links to the LTTE.

12. The Authority rejected the applicant’s submissions that he had previous links to LTTE activity. The Authority was not persuaded that the applicant was singled out for mistreatment, or that it was because he had a profile with the authorities either because of his trips between particular locations or because of his profile as a Trust employee. The Authority referred to the mortar blast incident and found this incident was attributable to more of a general security situation that prevailed during the war and particular general suspicion attaching to Tamils, rather than because the applicant had a profile with the authorities.

13. The Authority found the applicant was not personally of adverse interest or suspicion at the time of his departure. The Authority was not satisfied the applicant has a well-founded fear of persecution as a Tamil male from a former LTTE controlled area. The Authority was not satisfied there is a real chance of the applicant experiencing serious harm on return to Sri Lanka or in the reasonably foreseeable future on the basis of his Tamil ethnicity, his gender, age, imputed pro-LTTE political opinion, his past employment with the Trust, or previous detention and mistreatment, or his residence in the Northern Province.

14. The Authority referred to the applicant’s illegal departure being a failed asylum seeker. The Authority did not accept that the applicant will face adverse action for having departed when under an existing reporting requirement and did not accept that returning Tamil asylum seekers are, for that reason alone, imputed with a pro-LTTE or anti-government political opinion. The Authority referred to the period for which the applicant may face detention and was not satisfied that would amount to serious harm.

15. The Authority found the Immigrants and Emigrants Act 1948 (Sri Lanka) is not discriminatory, but rather the application of the law that applies to all Sri Lankans. The Authority found the investigation, prosecution and punishment of the applicant for illegal departure under 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 the meaning of s 5J(4) of the Act. Taking into account the overall circumstances, the Authority was not satisfied the applicant faces a real chance of serious harm amounting to persecution on the basis of being a returning Tamil asylum seeker who departed Sri Lanka illegally, now or in the reasonably foreseeable future.

16. The Authority expressly referred to taking into account all the applicant’s circumstances cumulatively in determining whether there is a real risk of serious harm. The Authority found the applicant’s lack of profile, taking into account country information, meant that the Authority was not satisfied that there is a real chance of serious harm to the applicant if he returns to Sri Lanka now or in the reasonably foreseeable future. The Authority found that the applicant has no particular profile that would draw the interest of the authorities. The Authority found the applicant failed to meet the requirements of the definition of refugee in s 5H(1) of the Act and found the applicant did not meet the criteria under s 36(2)(a) of the Act.

17. The Authority was not satisfied there is a real risk the applicant will suffer significant harm on return to Sri Lanka on the basis of his Tamil ethnicity, or imputed political opinion, his gender, age, previous employment with an NGO, his detention in 2008, or his residence in the Northern Province. The Authority, taking into account the entirety of the applicant’s background and personal circumstances and the country information, was not satisfied that if the applicant is returned to Sri Lanka that the applicant is at risk of significant harm now or in the reasonably foreseeable future.

18. The Authority found there were 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 will suffer significant harm. The Authority found the applicant failed to meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. On 14 December 2017, a Registrar of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were put on by the applicant.

2. At the commencement of the hearing the Court explained to the applicant this was a final hearing to determine whether the Authority’s decision was effected 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 will also take into account the five grounds of alleged error in the applicant’s application. The Court explained that if satisfied the Authority’s decision was effected by relevant legal error, the Court would set aside the decision and send it back for further review. The Court explained that if not satisfied the Authority’s decision was effected by relevant legal error the application would be dismissed with costs.

3. The Court explained that 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 submitted that the Authority had misunderstood his circumstances in relation to his return from Qatar. The applicant alleged that he had been clear in explaining his circumstances and that they had been misunderstood. The Authority’s reference to the applicant’s return from Qatar as referred to above, does not identify any misunderstanding of the applicant’s circumstances. Nothing said by the applicant in relation to the Authority’s findings in relation to his return from Qatar identify any relevant legal or finding error. The Authority’s reasons in relation to the applicant’s return from Qatar as summarised above are logical and reasonable. The adverse finding does not reflect any lack of an evident and intelligible justification.

2. The applicant alleged that he had lots of problems and suggested that there had been an issue with the interpretation at the time of his interview. When asked what the error was the applicant alleged that the questions had asked him in fact what had happened before he left Qatar and that it had been interpreted as to what was his current issues. The applicant was given an opportunity to put on affidavit evidence. No such evidence was put on. The Authority’s reasons reflect the Safe Haven Enterprise visa interview as being one that was consistent with the applicant’s statement of claims and those statement of claims included historical matters that are not consistent with the alleged error by the applicant. In any event, the Court accepts the first respondent’s submission that the asserted error cannot be said to have been material in the circumstances of the present case. Further, the Court does not accept any such error occurred. The applicant had earlier described the errors as being small errors. The applicant maintained that he had clearly provided the nature of his claims and submitted supporting evidence. The applicant’s reference to his claims including his physical appearance, in substance, invited the Court to engage in merits review. The Tribunal made logical and reasonable adverse findings in relation to the applicant’s claim concerning his application as summarised above. This Court does not have power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds in the application are as follows:

   1. The Respondents made an error in not taking into consideration the relevant fact that my physical appearance led to my arrests followed by suspicion and torture by the Sri Lankan Army.

   Particulars

   The Second Respondent in its decision and reasons, erred in placing little weight on my submission that due to my physical appearance, the Sri Lankan Army suspected I was an LTTE cadre for the mere reason that I did not refer to this relevant submission during my SHEV interview. The fact is this submission was made in the statement of claim.

   2. The Respondent made an error on the grounds of procedural fairness by not requesting me to make written submissions as to the persecution I faced on my return from Qatar and further, failed to give me the opportunity to explain in detail during the SHEV interview as to the persecution that I faced before I fled to Australia including whenever I attended to register at the camp.

   Particulars

   The Second Respondent failed to take into consideration the condition imposed on me to register everyday and later every month at the camp. The Respondents gave little weight to the persecution that I faced in the hands of the authorities every time I attended the camp to registered as ordered. The Respondents failed to give me the opportunity to provide details of my harassment during this period of time whenever I attended to register at the camp. If they provided me with that opportunity, they would have placed more weight on the reasons for my fear of persecution in Sri Lanka if I return.

   3. The Second Respondent made an error when it misinterpreted and misconstrued my claims in relation to the harassment faced by the employees of the Halo Trust including me due to the LTTE involvement with the Halo Trust.

   Particulars

   The Second Respondent failed to take into consideration my statement of claim where I submitted that I was suspected as an LTTE cadre because of my work colleagues' involvement in transporting arms using the Halo Trust's vehicles and which came to the knowledge of the authorities. Further, the Second Respondent failed to place emphasis on the fact that my physical appearance, which looked like an LTTE cadre, prompted the authorities to suspect and follow me wherever I travelled during my trips between particular locations. The Second Respondent also made an error in failing to take into consideration that the Halo Trust, as an organisation, came under suspicion of being supporters of the LTTE. The Second Respondent also made an error by failing to take into account that the LTTE was controlling a particular location at that point in time and my travel between particular locations had led the authorities to suspect that I was an LTTE supporter transporting arms between particular locations using the Halo Trust's vehicles.

   4. The Respondent used excessive authority in rejecting my claims on the grounds that I failed to give evidence in relation to the transport of arms by the LTTE using the Halo Trust’s vehicles.

   Particulars

   As a minority Sri Lankan Tamil, I am not in a position to obtain any evidence from my authoritative, government or intelligence source regarding the Halo Trust and its employees’ involvement in transporting arms to the LTTE. To expect me to produce such evidence is unrealistic and reflects the Respondents’ lack of understanding about what information and evidence a minority Sri Lankan Tamil can access in Sri Lanka. To reject my claim merely on the basis for failing to produce credible evidence that that Halo Trust and its employees are involved in transporting arms to the LTTE is a blatant exercise of excessive authority.

   5. The Respondents made a factual error when they failed to take into consideration that I did not obtain my passport direct from the Department but rather obtained my passport to travel to Qatar with the assistance of an agent.

   Particulars

   The Tamils fear to approach the government authorities to obtain passports due to interrogation, which is why I approached an agent to obtain my passport to flee to Qatar in the interim pending a permanent peace in Sri Lanka. Because I fled during the height of the tensions, I hoped that should the LTTE be captured (which eventually occurred), the tensions would subside and I could return to Sri Lanka and no longer face persecution. Which I returned, I was arrested at the airport and I was ordered once again to report at the camp. When I was assaulted thereafter, I had to flee from the country. These above facts were ignored by the Respondents which led to an erroneous finding under the Convention.

Ground 1

1. In relation to ground 1 it is apparent that the Authority took into account the applicant’s claim in respect of his physical appearance and provided logical and rational reasons for giving the same little weight. It is also apparent that the applicant’s personal circumstances cumulatively were taken into consideration in the dispositive findings made by the Authority. Those dispositive findings as summarised above were open to the Authority and cannot be said to lack an evident and intelligible justification.

2. The reference to his physical appearance is one that the Authority expressly took into account in its summary of the applicant’s claims including the applicant’s concern of increased suspicion. It was a matter for the Authority to determine what weight to give to the applicant’s evidence and the Authority made an adverse finding dispositive of that claim. The adverse finding in that regard was open to the Authority. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, the review by the Authority under Part 7AA of the Act is not one that required the Authority to request new information or to interview the applicant other than in the circumstances identified in Div 3 of the Act. The applicant was given an opportunity to put on submissions and new information and in fact did so. The applicant’s complaint of a denial of procedural fairness by not requesting him to make written submissions as to persecution faced on his return to Qatar does not identify any denial of procedural fairness given the statutory regime and the steps taken by the Authority which gave the applicant an opportunity to put on submissions and new information as referred to above.

2. Further, the reference to the alleged denial of procedural fairness by not being given an opportunity to explain during the Safe Haven Enterprise visa interview as to the persecution faced before the applicant fled to Australia suffers from the same deficiency. It is apparent that the applicant had provided a statement explaining the circumstances in which he left Afghanistan and it is apparent from the Authority’s reasons that the substance of that statement was addressed in the Safe Haven Enterprise visa interview and that the applicant was overall consistent with that written statement. Further, the applicant was given an opportunity by the Authority to provide submissions and new information which the applicant, through his legal representative, in fact did on 14 February 2017. There was in the circumstances of the statutory regime, no denial of procedural fairness by not giving the applicant an opportunity to further explain the persecution that he faced. The applicant was given such an opportunity in the Safe Haven Enterprise visa and had a further opportunity to put submissions and new information before the Authority.

3. To the extent that the applicant refers, in support of ground 2, to the Authority failing to take into account the alleged conditions, the Authority’s reasons as referred to above, expressly took into account the applicant’s claims in relation to having to register and report and made findings in that regard that were open to the Authority. Those findings do not reflect any failure to take into account the applicant’s claims and evidence. The criticism in relation to the weight given to the applicant’s evidence does not identify any jurisdictional error.

4. The assertion that the applicant was not given the opportunity to provide details of his harassment again, is inconsistent with the Authority’s reasons reflecting the applicant having been consistent with his statement provided in support of his Safe Haven Enterprise visa and reflects an opportunity having been given to the applicant at that stage, as well as the applicant having an opportunity to provide submissions and new information. Given the statutory regime and the steps taken by the Authority there is no denial of procedural fairness in relation to the opportunity given to the applicant to put on submissions and new information in relation to alleged harassment whenever he attended to register at the camp.

5. The applicant’s reference to persecution and registering requirements is in substance an invitation to this Court to engage in impermissible merits review. Nothing in ground 2, or the particulars to ground 2, make out any jurisdictional error.

Ground 3

1. In relation to ground 3, no misinterpretation or misconstruction of the applicant’s claims in relation to alleged harassment by employees of the Trust has been identified. The Authority clearly took into account the submissions in that regard and rejected the submissions. The Authority further made findings in that regard, even if the Authority was wrong in considering that matter as summarised above. The Authority clearly took into account the applicant’s claims of alleged involvement with the LTTE through the Trust and rejected the same as referred to above.

2. The Authority also expressly took into account the claims concerning the Halo Trust and made adverse findings that the applicant would not be imputed as being an LTTE supporter. Those adverse findings were logical and reasonable and open for the reasons given by the Authority as summarised above. There was no failure by the Authority to take into account the applicant’s claims. No jurisdictional error as alleged in ground 3 is made out.

Ground 4

1. Ground 4 reflects a disagreement with the adverse findings by the Authority in respect of the applicant being imputed as an LTTE supporter and does not identify any jurisdictional error. The proposition of excess authority has no substance. The Authority’s reasons reflect an orthodox approach to the conduct of the review and the making of dispositive findings in respect of the applicant’s claims. Those dispositive findings were open to the Authority. The adverse findings by the Authority 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 the determination of the matter on its merits. No case of excessive authority in the conduct of the review is made out. No jurisdictional error as alleged in ground 4 is made out.

Ground 5

1. In relation to ground 5, the Authority was entitled to take into account the applicant’s ability to obtain a passport to travel to Qatar in making adverse findings. The applicant’s disagreement with the adverse findings does not identify any jurisdictional error. The applicant’s claims as to what occurred on his return at the airport was the subject of consideration by the Authority in relation to country information. The Authority accepted when upon returning July 2011, that the applicant was questioned and required to sign for a period of time and made express reference to nothing happening to him between then and his leaving Sri Lanka, notwithstanding his frequent contact with the security forces. Those adverse findings that were open to the Authority.

2. Ground 5 in substance reflects a disagreement with the adverse findings. There was no failure by the Authority to take into account the applicant’s claims and evidence in the making of the adverse findings, which were dispositive of the applicant’s claims. Ground 5 fails to make out any jurisdiction error.

Conclusion

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

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  20 July 2018