FHC17 v Minister for Immigration
[2018] FCCA 3382
•23 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FHC17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3382 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the Authority erred by failing to take into account relevant considerations – whether the Authority properly applied sub-s.36(2)(a) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, pt.7AA |
| Cases cited: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 |
| Applicant: | FHC17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3744 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 20 August 2018 |
| Date of Last Submission: | 20 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr E Rajadurai and Mr S Sinnarajah |
| Solicitors for the Applicant: | Divine Lawyers |
| Solicitors for the Respondents: | Mr A Keevers, Sparke Helmore |
ORDERS
The applicant has leave to file an amended application to include the grounds contained in his written submissions filed on 6 August 2018.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3744 of 2017
| FHC17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority dated 8 November 2017. The Authority affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.
The applicant was born in Tamil Nadu, India, to Sri Lankan parents. He is a citizen of Sri Lanka although he has never been to that country. He arrived in Australia on 25 June 2013 and lodged an application for a protection visa on 13 April 2016. His claims were summarised by the Authority in its reasons[1] as follows:
[1] At [15].
· He is a young single male, Tamil Hindu born in Tamil Nadu. He is unemployed and dependent upon his parents.
· He has never been to Sri Lanka.
· If he returns to Sri Lanka he would be seriously harmed because of his Tamil ethnicity, imputed political opinion as a supporter of the LTTE and membership of the social group of Sakkiliar caste and Tamil people who have lived overseas for an extended period. He fears harm from the Sri Lanka authorities, Sinhalese and other Tamils.
· In Sri Lanka, the applicant’s uncle did not return from work one day and they believe he is no longer alive. At that time Tamils did not go out after 6pm or they would be beaten and men also crept into people’s homes and assaulted women. Tamil men were disappearing between their homes and workplaces and the applicant’s father stopped going to work because of these incidents. The applicant’s parents left India after their home was bombed and burned. His mother was also burned.
· In India, the applicant was treated badly due to his Sakkiliar caste. Whenever there were thefts, the police would suspect the applicant’s father and older brother and took them away many times. They also had great difficulty finding a place to rent and had to live in secluded places. If the applicant went out with money or mobile phone people would snatch it from him.
· A week before they left India, three Indian men entered their home and attempted to assault and remove the clothes of the applicant’s 12 year old sister. The applicant’s mother shouted and they ran off. The following day the applicant’s mother and sister tried to hang themselves. He does not recall saying in his arrival interview that, the incident happened three months before they left India.
· His parents did not report the incident because it would make it difficult for his sister to ever marry.
· The applicant’s friends who have moved back to Sri Lanka are Sakkiliar and they say things are bad for them and they are harassed by police because of their caste. He fears the same if he returns to Sri Lanka.
· He fears authorities will suspect his parents of LTTE involvement as they fled during the war, the uncle went missing during that time and they lived overseas for many years. He is worried that authorities might also be suspicious of him and harm, imprison and beat or kill him.
· Due to the immigration data breach where the family’s names were published online he worries people will know he sought asylum and that the Sri Lankan government will be more suspicious of them and his family are at greater risk. If suspected as LTTE, there is no safe place for them.
· As Sakkiliar caste they would be discriminated against by the authorities, Sinhalese, or other Tamil people wherever they live in Sri Lanka. On Facebook, he sees and hears about people getting beaten and killed when they return to Sri Lanka and fears the same will happen to him.
· While he attended school in India, he was discriminated against and not allowed to sit or play with other children and had to clean the kitchen and had to eat after others were served.
· He has no identity documents as his Indian birth certificate and school record were left on the boat. He has contacted his school for a copy but they would not provide it if he could not prove who he was. He does not have any other way of proving his identity.
· At his protection interview the applicant added that men attacked his sister in law the day after his sister was attacked.
On 4 April 2017 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the matter was referred to the Authority for review under pt.7AA of the Migration Act 1958 (Cth).
The Authority made its decision on 8 November 2017 affirming the delegate’s decision.
Authority’s decision
The Authority’s reasons for its decision were accurately summarised as follows in the Minister’s written submissions at [11]-[18], which I set out below:
11The Authority accepted that the applicant was born in Tamil Nadu to Sri Lankan parents, and found that the applicant was a citizen of Sri Lanka (CB 626-627 at [16], [20]). The Authority also accepted that the applicant was a Tamil Hindu of the Sakkiliar caste, that his parents had fled to India from Sri Lanka, that their home had been bombed in Sri Lanka and that the applicant’s mother had been burned as a result (CB 628 at [25]). The Authority noted that the applicant held a refugee identity card (issued by the Indian authorities) and so was not without documentation (CB 626, 632 at [16], [55]).
12Having regard to the inconsistency over time in the applicant’s evidence regarding the attack on his sister, as well as the lack of detail in his evidence, the Authority was not satisfied that the applicant’s sister was harmed, as claimed (CB 627 at [22]).
13The Authority accepted that the applicant’s uncle had gone missing during the civil war and was presumed dead, but was not satisfied on the evidence before it that this was because the uncle was associated, or suspected of being associated, with the LTTE (CB 628 at [26]). Having regard to the circumstances of the applicant’s family, the Authority was not satisfied that they would be accused of being members of the LTTE if they went to Sri Lanka (CB 628-629 at [27]-[28]). The Authority had regard to country information that indicated that Tamils did not face a real chance of suffering harm solely on account of their ethnicity, and while accepting that some Tamils might face harm for reason of their actual or imputed LTTE links, did not find that the applicant had such a profile (including by reason of his former residence in Tamil Nadu (CB 632 at [53]-[56])). Accordingly, the Authority was not satisfied that the applicant would suffer harm for this reason (CB 629 at [31]-[34]).
14The Authority also considered whether the applicant would suffer harm for reason of his caste. While the Authority accepted that the applicant was treated badly in India because of his caste, it did not accept that the theft of his money or phone was because of his caste or for Convention reasons (CB 629-630 at [36]-[37]). Nor was the Authority satisfied that social discrimination faced by the applicant in India amounted to serious harm (CB 630 at [40]). In any event, having regard to country information before it, the Authority considered that the situation that the applicant would face in Sri Lanka by reason of his caste was “very different” to that in India, whether the caste system was “much stronger” (CB 630 at [41]). The Authority did not accept that any social discrimination faced by the applicant in Sri Lanka would constitute serious harm, and was ultimately not satisfied that the applicant would face serious harm for reason of his caste (CB 631-632 at [45]-[52]).
15The Authority did not consider that having been subject to the data breach would raise the applicant’s profile, considering that neither the applicant nor his family were of interest to the authorities and that, in any event, the authorities would be able to identify the applicant as a failed asylum seeker for reason of the circumstances of his putative return to Sri Lanka (CB 632-633 at [58]).
16As the applicant was born in India and had never been to Sri Lanka the Authority found he did not depart Sri Lanka illegally and did not accept he had committed an offence under the Immigrants and Emigrants Act. The Authority accepted the applicant may be questioned upon his return to Sri Lanka but found he did not have a profile that would “arouse suspicion or concern” and was not satisfied he would face any harm as a result upon return to Sri Lanka (CB 633, [62]). Having regard to country information before it and the applicant's personal circumstances, the authority was not satisfied that the applicant would face harm as a failed asylum seeker (CB 633 at [60]-[63]).
17Having regard to these matters, the Authority found that the applicant did not satisfy the Convention criterion in s. 36(2)(a) of the Act (CB 633-634 at [65]).
18In considering the complementary protection criterion, the Authority relied on its anterior findings of fact (CB 634 at [67]). Further, the Authority also considered whether any discrimination that the applicant may face for reason of his caste, including his ability to re-settle in Sri Lanka, would constitute significant harm, but found that it would not (CB 634 at [70]-[72]). Having regard to the balance of the applicant’s claims that it had considered, considered singularly and cumulatively, the Authority was not satisfied that the applicant faced a real risk of suffering significant harm in Sri Lanka (CB 635 at [74]). Accordingly, the Authority affirmed the decision under review.
Consideration
At the hearing of this matter the applicant sought leave to amend his application. In essence, the amendment simply sought to particularise the 2 grounds in the original application. For that reason, the applicant will be granted leave to file an amended application to include the grounds contained in his written submissions filed on 6 August 2018.
First ground: failure to take into account relevant considerations
The applicant’s written submissions contain 5 particulars of this ground.
Failure to consider whether the applicant’s age, together with the applicant’s Tamil ethnicity would result in the imputation of a particular profile
The applicant submitted a statement made by his father for the purposes of his protection visa application. In that statement, the applicant’s father stated that he worried that the Sri Lankan authorities may suspect his sons because “they are at the age where they might be considered potential militants or recruits for anti-government groups”[2]. However, the applicant himself never made that claim. In light of that, the Authority was not required to consider it: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1.
[2] Exhibit A p.150.
In any event, the claim was dealt with by the Authority. The claim was that, being a young Tamil male gave the applicant a profile that imputed him with support, or potential support for the LTTE[3]. At [27] the Authority noted that the Sri Lankan authorities had “sophisticated intelligence in respect of persons with anti-government sentiments and profiles” and it did not accept that the applicant had such a profile.
Failure to consider that the applicant’s uncle went missing because he was a suspected member of the LTTE
[3] Liberation Tigers of Tamil Eelam.
If this particular is taken at face value then it cannot succeed. The Authority expressly considered this claim at [26] where it stated:
I accept the applicant’s uncle went missing during the war and is presumed deceased. However, I am not satisfied on the evidence before me that the applicant’s uncle was LTTE or suspected LTTE. ...
However, the applicant’s submissions appeared to make a different point. In them, the applicant wrote:
Authority failed to take a relevant consideration, namely during the way, young Tamil males were suspected of LTTE connections. Had it taken that consideration into account, it would have believed that Applicant’s uncle went missing because of LTTE suspicion. ...
It is far from clear that, had the Authority considered the fact that young Tamil males were suspected of LTTE connections, it would have come to a different conclusion about the cause of the uncle’s death. In any event, this contention amounts only to a suggestion that the Authority ought to have come to a different finding of fact. Given that the Authority gave reasons for its conclusion about the uncle, and the applicant did not contend that those reasons were illogical or irrational, the argument simply invites merits review and is rejected for that reason.
Failure to consider that Sri Lankan authorities target young Tamils from the North, or that the applicant would be perceived as a young Tamil male from the North
The reference to the “North” here is to the North of Sri Lanka. The applicant claimed, and the Authority accepted, not only that he did not
come from the North of Sri Lanka, but that he had never been to that country. The closest that the applicant came to claiming a profile as a result of his background was that his parents had fled overseas and spent considerable time away from Sri Lanka. The Authority considered that claim: [27].
Failure to consider that a person does not have to be involved in political protests or activism in order to be imputed with a pro-LTTE profile
This contention appears to be that the Authority proceeded on the basis that, in order to be imputed with a pro-LTTE profile, a person had to be involved in political protests or activism. That is not correct. The Authority referred to political protests and activism at [27] where it noted:
… Thirdly, the applicant was born in Tamil Nadu and has never been to Sri Lanka or involved in political protests or activism. …
Here, the Authority was giving one of the five reasons for which it concluded that the applicant did not have a profile that might give rise to adverse attention from the authorities. Although it considered that the applicant’s lack of political activity as relevant to his profile, it did not act on the basis that it was determinative of it. For that reason, the premise of this contention is incorrect.
All integers of Applicant’s case were important matters for the Authority. That “many are and have returned without harm” is irrelevant consideration
This particular is difficult to follow however, it appears that the applicant contends that the Authority erred in making the following statement:
… Fourthly, the country informationmany thousands fled to Tamil Nadu in similar circumstances and many are and have returned without harm.
(Without alteration)
I understand this contention to be that the fact that many people who had fled Sri Lanka to Tamil Nadu during the civil war and had returned safely, could not support a conclusion that the applicant’s parents might not be harmed for doing the same thing. That proposition must be rejected. Where a person claims that he or she will harmed because of particular past conduct, the fact that thousands of other people who have engaged in the same conduct but have not been harmed, tends to undermine that person’s claims. The logic of the claim is that the conduct leads to the harm. If there are many examples where conduct has not lead to the harm then, depending on whether there are other relevant factors, the logical connection between the conduct and harm is weakened.
These grounds are rejected.
Second ground: failure to properly apply sub-s.36(2)(a) of the Act
Sub-section 36(2)(a) of the Act provided that it was a criterion for the grant of a protection visa that the Minister (and, in this case, the Authority) is “satisfied Australia has protection obligations because the person is a refugee”. “Refugee” is defined for the purposes of the Act by s.5H(1) which relevantly requires that the person have a “well-founded fear of persecution.” The applicant contends that the Authority misunderstood this aspect of the definition of a refugee.
The particular to the ground is that there was information before the Authority that mistreatment and torture were still taking place in Sri Lanka and that, had the Authority applied the well-founded fear test in sub-s.36(2)(a), especially the objective limb of the test, it would have arrived at a different decision.
Once again, this contention invites the Court to enter into the merits of the Authority’s decision. Further, the Minister correctly submitted that the Authority accepted evidence to the effect that there was “continuing detention and torture” in Sri Lanka against Tamils who were suspected of being members of the LTTE or criminals: [28]. The difficulty for the applicant is that the Authority did not accept that the applicant would face such mistreatment because he was neither a member of the LTTE or a criminal.
This ground is rejected.
Conclusion
There is no jurisdictional error in the Authority’s decision. The application must be dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 23 November 2018
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