FGY17 v Minister for Immigration

[2018] FCCA 2810

FEDERAL CIRCUIT COURT OF AUSTRALIA

FGY17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2810

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to consider an integer of the applicant’s claims – whether the adverse findings by the Authority were illogical or unreasonable – no jurisdictional error made out – amended application dismissed.

Legislation:

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

Applicant: FGY17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3741 of 2017

Judgment of: Judge Street

Hearing date: 27 September 2018

Date of Last Submission: 27 September 2018

Delivered at: Sydney

Delivered on: 27 September 2018

REPRESENTATION

Solicitors for the Applicant: Mr S Tambimuttu
Hodges Legal

Solicitors for the Respondents: Mr K Eskerie
Sparke Helmore

ORDERS

1. Grant leave to the applicant to rely upon the amended application annexed to the submissions filed 14 September 2018 and the Court dispenses with the need for the filing and service of the amended application.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 27 September 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3741 of 2017

FGY17

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 17 November 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 Hindu born in a particular village in the Trincomalee District of Sri Lanka, who has spent most of his life in Tamil Nadu, India. The applicant arrived in Australia on 25 April 2013 as an unauthorised maritime arrival.

3. The applicant claimed to fear harm because he would be suspected as an Liberation Tigers of Tamil Eelam (“LTTE”) supporter and, also by reason of his having joined a particular Tamil Eelam cricket team in Australia, and as a result of a data breach and the applicant being an illegal departee who had sought asylum in Australia.

4. On 2 May 2017, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

5. On 15 May 2017, 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. The applicant did put on submissions and new information dated 22 May 2017 that were expressly referred to as having been received by the Authority on 23 May 2017, and the Authority took the same into account insofar as the submissions engaged with the delegate’s decision. The Authority was not satisfied in respect of the country information referred to in the applicant’s submission that predated the delegate’s decision that it met either limb of s 473DD(b) of the Act.

6. The Authority identified that there were errors in the submission in relation to what was before the delegate, and referred to the applicant making a claim about the implications of his membership of the Tamil Eelam Cricket (“TEC”), and that accompanying his submission was 71 pages of news and social media articles about the applicant’s membership of TEC between July 2016 and May 2017.

7. The Authority also referred to the media coverage predating the applicant’s Safe Haven Enterprise visa application and predating the delegate’s decision of May 2017. The Authority also referred to the letter of support by the founder of the TEC dated 11 May 2017. The Authority found that the applicant attempted to raise this issue at the Safe Haven Enterprise visa interview and, accordingly accepted the same satisfied the requirements of s 473DD of the Act and had regard to that new information.

8. The Authority identified the background of the visa application had regard to the material referred by the Secretary under s 473CB of the Act. The Authority summarised the applicant’s claims including reference to the applicant having joined the TEC in January 2016 while living in Australia and being very successful, and there had been printed online coverage by Tamil and English newspapers and SBS and on Facebook. The Authority referred to summarising the applicant’s claim that families whose name or image appear on Facebook have experienced harassment from the Sri Lankan authorities because they are viewed as being affiliated with Tamil separatism or the LTTE, and that the applicant fears harm on this basis should he be required to return to Sri Lanka.

9. The Authority accepted that the applicant and his family fled to India because his father was fearful of further detention and torture by the Sri Lankan Army (“SLA”). The Authority referred to the applicant’s account of life in refugee camps in Tamil Nadu, and considered the applicant’s difficulties in Tamil Nadu were localised and related to being a refugee there.

10. The Authority noted that the information before the Authority did not confirm that in 2014 the applicant was actually affected by the data breach at the Department of Immigration and Border Protection. The Authority found that there is no information to suggest that any of the applicant’s claims for protection were included in that data breach.

11. The Authority referred to the letter from the founder of the TEC dated 11 May 2017 and the reference that families of some players whose name or images appear on their Facebook page have experienced harassment from the Sri Lankan authorities because of their membership of the cricket club. The Authority referred to the media clippings from the SBS, Tamil newspapers and social media printouts from Facebook that provide details of TEC, photographs of the applicant with his name and details, and the success of his team, the ‘Cool Boys’. The Authority noted that the SBS website states that TEC was formed in 2015 and is an international not-for-profit organisation to promote and support participation in cricket as a unifying link between the Tamil homeland and various diaspora communities, and that it also provides a means of strengthening cultural identity.

12. The Authority referred to the applicant joining the TEC and accepting that his name, image and information about the TEC could have been accessed by Sri Lankan authorities. The Authority found there is no information, aside from the applicant’s assertions and the TEC founder’s statement that families of members of TEC have been harassed by the Sri Lankan authorities, to support the applicant’s claim that players returning to Sri Lanka would be identified or harmed on that basis.

13. The Authority identified the relevant law. The Authority accepted but expressed concern about the explanation in relation to the father’s detention in a military detention camp during the civil war. The Authority noted that the applicant claims that neither he nor his father have been involved in any LTTE activity or have any links to the LTTE, which the Authority accepted.

14. The Authority referred to Department of Foreign Affairs and Trade country information and the applicant’s claimed fear having spent most of his life in Tamil Nadu, but did not accept that there is a real chance that the applicant will face harm as a result of this.

15. The Authority referred to the applicant’s claimed fear of being identified as having an affiliation with the LTTE because he plays cricket with TEC. The Authority referred to the applicant’s name and image being identified in media from July 2016, and that these events occurred prior to the making of his Safe Haven Enterprise visa application in September 2016, and that the applicant did not raise any fear of harm on this basis in the application. The Authority found that depictions of the applicant in the media and his cricket success suggests that the applicant enjoys playing cricket with TEC and did so for purposes other than to strengthen his claim to be a refugee.

16. The Authority referred to there being some material that involvement in certain diaspora activities may give rise to adverse attention for Sri Lankan authorities. The Authority referred to country information that some Tamil groups continue to hold public demonstrations in their countries of residence to support a separate Tamil state in Sri Lanka and that high profile leaders of pro-LTTE diaspora groups may come to the attention of the Sri Lankan authorities as a result of their participation.

17. It was in this context that the Authority referred to the words “Tamil Eelam” and the image of the tiger on the logo as to the possibility of suggesting an affinity with the LTTE. The Authority, found, however, there was nothing in the materials before the Authority to suggest that TEC supports the LTTE or the establishment of a separate Tamil State. The Authority expressly referred to the purpose of TEC being an international not-for-profit organisation to promote and support participation in cricket as a unifying link between the Tamil homeland and various diaspora communities. The Authority also referred to the cricket team being a means of strengthening cultural identity. The Authority found the organisation does not raise funds or promote support of the LTTE. It was in those circumstances that the Authority was not satisfied that TEC or persons involved in TEC such as the applicant would be perceived by the Sri Lankan authorities to be engaging in, or supportive of separatist activities or as a threat to national security. The Authority did not consider the applicant’s membership of TEC and his published involvement in a cricket team will identify him as a Tamil separatist.

18. The Authority did not accept the applicant would be socially isolated, marginalised, or face harm due to his ethnicity, religion or language. The Authority was not satisfied there was a real chance that the applicant would face harm given his ethnicity, race, religion or his language, or for being a Tamil returnee from Tamil Nadu, his connection to his father, or involvement more recently with TEC.

19. The Authority referred to the applicant’s illegal departure and was not satisfied that the applicant faced a real chance of a custodial sentence. The Authority was satisfied that the imposition of a fine would not of itself constitute serious harm. The Authority was not satisfied that any process or penalty the applicant may face on return to Sri Lanka because of his illegal departure would constitute persecution for the purpose of the Act. The Authority found the applicant does not face a real chance of serious harm from Sri Lankan authorities due to his illegal departure, travel to Australia, or for any other reason.

20. It was in those circumstances the Authority found that the applicant did not have a well-founded fear of persecution within the meaning of s 5J of the Act, and found that the applicant did not meet the criteria of the definition of refugee in s 5H(1) of the Act.

21. 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 affirmed the decision under review.

Before this Court

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

   1. The second respondent (the IAA) erred in failing to make a finding on the applicant’s claim, or integer of a claim, that relatives of members of the Tamil Eelam Cricket club (TEC) had been harassed by the Sri Lankan authorities.

   2. The IAA’s finding that, “there is nothing in the materials before me to suggest that TEC supports the LTTE or the establishment of [a] separate Tamil state” was legally unreasonable.

   Particulars

   (a) The IAA accepted that the TEC carried the name of the state sought to be established by the LTTE, and used the LTTE logo as part of its own.

   (b) The TEC was issued printed material that overtly supported the LTTE and the establishment of a separate Tamil state.

   (c) The IAA also accepted that the “name image and information” about the TEC could have been accessed by the Sri Lankan authorities.

   (d) In those circumstance the impugned finding was not open on the evidence, and was contrary to the evidence.

   3. The IAA’s findings:

   (i) that it was not satisfied that; “…the TEC or persons involved in the TEC such as the applicant would be perceived by the Sri Lankan authorities as engaging in, or supportive of separatist activities or as a threat to national security.” And,

   (ii) That it did, “… not consider that the applicant’s membership of the TEC and his published involvement in a cricket team will identify him as a Tamil separatist”

   were legally unreasonable.

   Particulars

   (a) The IAA accepted that the TEC carried the name of the state sought to be established by the LTTE, and used the LTTE logo as part of its own.

   (b) The TEC issued printed material that overtly supported the LTTE and the establishment of a separate Tamil state.

   (c) The IAA also accepted that the “name, image and information” about the TEC could have been assessed by the Sri Lankan authorities.

   (d) In those circumstances the obvious inferences to be drawn were the TEC and members of the TEC would be perceived and identified as supporting the establishment of a separatist Tamil state.

Ground 1

1. In relation to ground 1, Mr Tambimuttu, solicitor on behalf of the applicant, identified at the commencement of the hearing that he sought to rely upon his written submissions. In reply, Mr Tambimuttu foreshadowed that he wanted to expand on ground 1. When asked by the Court whether there was something new not addressed in his submissions in support of ground 1, Mr Tambimuttu confirmed there was nothing new that he wished to advance.

2. In relation to ground 1, Mr Tambimuttu submitted that there was a failure to make a finding on an integer or claim put forward in the applicant’s representative’s submissions at page 131 of the Court Book. Page 131 referred to a proposition of a failure by the delegate to consider a central integer of the applicant’s claim referred to as being a legitimate sur place claim as a result of the applicant’s membership of the cricket team.

3. There was no claim articulated at page 131 that relatives of members of TEC had been harassed by Sri Lankan authorities as a claim advanced by the applicant to fear harm.

4. The submissions advanced on behalf of the applicant referred to documents suggesting that relatives of TEC players had been harassed by the Sri Lankan authorities. In that regard, the letter written by the club’s founder dated 11 May 2017 identified the purpose of the team and expressly referred to it not being a political concept of the kind that arose during the Sri Lankan Civil War. The letter did refer to some comments that suggest:

   … our players may been seen by some in Sri Lanka as being affiliated with Tamil separatism or the LTTE.

5. It was in that context in the penultimate paragraph there was a reference to the proposition that:

   Families of some of our players whose name or image appears on our Facebook page have experienced harassment from the Sri Lankan authorities in Sri Lanka because of their membership to our cricket club. We are gravely concerned about the possibility that our team members could have harm on the basis of their involvement with our club if they were to be returned to Sri Lanka in the future.

6. It was based on this statement that it was submitted that there was an integer of the applicant’s claim as to the harassment of relatives or members of the cricket club that should have been the subject of a finding.

7. No such claim was advanced by the applicant to fear harm in respect of the reference to relatives of members of TEC. Rather, the applicant claimed to fear harm by reason of his membership. That was the subject of express findings by the Authority, as summarised in paragraphs 15 to 18 above, that were logical and rational and cannot be said to lack an evident and intelligible justification. There was no failure to address an integer of the applicant’s claim as are mentioned in ground 1. No jurisdictional error as submitted in ground 1 is made out.

Ground 2

1. In relation to ground 2, Mr Tambimuttu took the Court to paragraph 32 of the Authority’s reasons, as well as to media articles and a photograph seeking to contend in relation to the reasoning of the Authority in paragraph 32 that it was illogical or unreasonable to say there is nothing in the materials before the Authority to suggest that TEC supports the LTTE or the establishment of a separate Tamil State.

2. The finding of the Authority, as summarised above, was open. None of the media articles establish that TEC supports the LTTE or the establishment of a separate Tamil State. The media articles were not by the TEC, and the photograph to which Mr Tambimuttu referred was attached to his submissions and was not the subject of any submission advancing its significance or explaining the same.

3. The adverse finding by the Authority was one in which the Authority recognised the potential for an affiliation because of the words and the logo, but made a finding that was open to the Authority on the material before the Authority for the reasons given by the Authority. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Mr Tambimuttu submitted that the last two sentences in paragraph 32 were legally unreasonable in the context of the media articles referred to and the letter from the founder as well as the logo and image.

2. The Authority expressly referred to the fact that the organisation does not raise funds or promote the LTTE. In those circumstances, the Authority’s findings in the last two sentences of paragraph 32 cannot be said to lack an evident and intelligible justification. The Authority’s adverse findings summarised above at paragraphs 15 to 18 were not legally unreasonable or illogical. No jurisdictional error of the kind alleged in ground 3 is made out.

Conclusion

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

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  23 November 2018