Fic17 v Minister for Immigration and Border Protection
[2024] FedCFamC2G 115
•14 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FIC17 v Minister for Immigration and Border Protection [2024] FedCFamC2G 115
File number(s): SYG 3755 of 2017 Judgment of: JUDGE CAMERON Date of judgment: 14 February 2024 Catchwords: MIGRATION – Protection Visa – refusal – review of Immigration Assessment Authority (“IAA”) decision Legislation: Migration Act 1958 (Cth), ss 5, 5H, 5J, 36, 473BB, 473CA, 474
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, sch. 4
Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292
Plaintiff M1 of 2021 v Minister for Home Affairs (2022) 96 ALJR 497
Division: Division 2 General Federal Law Number of paragraphs: 30 Date of hearing: 31 January 2024 Place: Sydney Counsel for the Applicant: Mr G. Forster Solicitor for the Applicant: Sentil Solicitor Counsel for the First Respondent: Ms K. Hooper Solicitor for the First Respondent: Minter Ellison Lawyers Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 3755 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FIC17
Applicant
AND: MINISTER FOR IMMIGRATION & BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
14 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Cameron
INTRODUCTION
The applicant is a citizen of Sri Lanka who arrived in Australia by boat in late 2012. On 10 May 2016 he lodged an application for a subclass 790 Safe Haven Enterprise Visa (SHEV) protection visa with what is now the Department of Home Affairs (Department), alleging that he feared persecution in Sri Lanka because of his Tamil ethnicity and imputed political opinion supportive of the Liberation Tigers of Tamil Eelam (LTTE). On 14 August 2017 a delegate of the first respondent (Minister) refused the applicant’s application and referred it to the second respondent (IAA) for review. He was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA’s decision.
In this judicial review proceeding the Court’s task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth) (Act); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
FAST TRACK REVIEW LEGISLATIVE FRAMEWORK
On 18 April 2015 the Act was amended to provide for a “fast track review” process in relation to certain unauthorised maritime arrivals: sch.4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
Definitions
Section 5(1) of the Act relevantly defines a “fast track applicant” as a person:
(i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii)who has made a valid application for a protection visa in accordance with the determination…
The applicant is a fast track applicant.
Section 5(1) also defines a “fast track decision” as a decision to refuse to grant a protection visa to a fast track applicant. A “fast track reviewable decision” is relevantly defined as a fast track decision in relation to a fast track review applicant: s. 473BB of the Act. Certain fast track applicants are excluded from the fast track review process but it has not been suggested that the applicant was such an applicant.
Fast Track Process and Procedures
Part 7AA of the Act sets out the IAA fast track process and procedures.
Section 473CA is found in pt.7AA and provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. There is no provision for a fast track applicant to apply to the IAA for a review.
STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA
Since 18 April 2015, the Act has prescribed the conditions for the grant of a protection visa relevantly in the following terms:
36 Protection visas—criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…
(2A) A non-citizen will suffer significant harm if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non-citizen; or
(c)the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
…
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
…
(b)the persecution must involve serious harm to the person; and
…
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)a threat to the person’s life or liberty;
(b)significant physical harassment of the person;
(c)significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
…
BACKGROUND FACTS
In its decision the IAA summarised the facts alleged in support of the applicant’s claim for protection. The applicant provided submissions dated 9 July 2017, which supplied country information, and two further submissions, of 1 August 2017 and 14 August 2017. He also attended a protection visa interview conducted by the Department on 10 July 2017. As summarised by the IAA, the applicant relevantly made the following claims:
(a)the applicant was a Sri Lankan Tamil Christian from Mannar District. After leaving school in around 2003, he did various “chores” for the LTTE such as building bunkers, using his skills as a seaman to transport goods and later people, and preparing food;
(b)in 2007, he was summoned to train with the LTTE for a month, following which the Sri Lankan army came to the area. On 6 June 2007, he was detained by the Criminal Investigation Department (CID) for a week and tortured;
(c)in July 2007, he left Mannar for the countryside to avoid the LTTE as he was not an LTTE supporter.He returned in June 2008, by which time the Sri Lankan army was in control of his home area;
(d)after the war ended in May 2009, he was taken in for questioning by the CID. He was accused of helping the LTTE because he lived in an LTTE-controlled area. They wanted him to confess to having served as a soldier; he was slapped and then hit with a big stick. He claimed that on one occasion they came for him and kept him for a day. Thereafter, this recurred at least monthly and sometimes more often. The interrogations lasted about two hours each time;
(e)the applicant attempted to leave Sri Lanka at the end of 2009 but he was caught and imprisoned for a period. Every month after his release, he had had to return to the Court in Colombo and pay 10,000 Sri Lankan rupees;
(f)an unresolved court matter would cause problems for him if he returned because he would be arrested;
(g)until 2012, the CID came to his house and questioned him every time there was a problem. In October 2012, he again departed Sri Lanka illegally;
(h)the applicant’s claimed fear did not arise out of any personal profile with the Sri Lankan government but because there were supposedly many “loose cannons around”, they being past or present members of the armed forces or the police, or civilians who had participated in the civil war as members of unofficial militias, and who had not given up the fight against the LTTE or against people suspected of supporting the LTTE; and
(i)the applicant claimed that if he returned to Sri Lanka he would be abused, abducted, beaten or killed by an official militia, the army or the police - who were still trying to implicate him in fighting during the civil war - and he feared that the authorities would not protect him.
The IAA’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the IAA was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2) of the Act. The IAA’s decision was based on the following findings and reasons.
The IAA accepted that the applicant:
(a)was a Tamil Christian and that, from 2003 until 2007, he did “chores” for the LTTE as well as a month of training with them in 2007;
(b)was not an LTTE combatant or a political supporter of the LTTE and only did the tasks and the training because he had been compelled to;
(c)had been detained once by the CID in June 2007 and, after the war’s end, also by Sri Lankan authorities for a day of questioning about the LTTE; and
(d)had been questioned by Sri Lankan authorities concerning the LTTE, although these events did not result in detentions exceeding a day, terrorism related charges being laid, detention under the Prevention of Terrorism Act or despatch to a rehabilitation camp for former LTTE-cadres.
The IAA did not accept:
(a)that the applicant had been detained in June 2007 for the week that he alleged, and tortured, because this allegation had not been a consistent feature of his various accounts of his experiences, as might have been expected;
(b)that the applicant had been questioned every month after the war ended because his interview responses in respect of this claim had sometimes been evasive and general. The IAA did not accept the applicant’s claim that until 2012 the CID would question him every time there was a “problem” because he had not provided any explanation or examples of the “problem” incidents or details regarding the CID’s treatment and questioning of him;
(c)that the applicant had a profile with the Sri Lankan authorities as an LTTE member or supporter and found that his brief experiences of detention and questioning were merely part of routine harassment and detention of Tamil males from LTTE-controlled areas;
(d)that the applicant had been detained for 45 days in 2009 as a result of an attempt to depart Sri Lanka illegally or that there was an outstanding court matter that would cause him problems upon his return. The IAA found that the applicant had not raised these claims in his arrival interview despite having been given ample opportunity;
(e)the genuineness of a court letter which purported to be evidence supportive of the applicant’s claim to have been involved in an ongoing court matter in Sri Lanka which would lead to him being arrested were he to return. The IAA found that the applicant had had difficulty answering questions about the document at the protection visa interview and that his account of when the letter had been issued and where and by whom it had been received lacked consistency and clarity. The IAA found that the purported letter was not credible evidence of a court matter and no more credible was the applicant’s claim made in connection with it, that he had attempted to depart the country illegally in 2009 as a result of which he was detained for 45 days. The IAA found that the applicant had exaggerated his claim for protection on the basis of a fake document; and
(f)the applicant’s further claim that he had departed the country in an illegal fashion in October 2012 because he had been at risk of being caught at an airport. The IAA found that the applicant’s conduct was not consistent with this explanation, noting he had obtained his driver’s licence two months before October 2012. The IAA found that this was not the likely behaviour of a person who was attempting to avoid the attention of authorities.
The IAA considered the applicant’s claimed fear of persecution and found that:
(a)a DFAT Country report of January 2017 indicated that under the leadership of the then-president, the Sri Lankan government was focused on post-conflict reconciliation, justice, governance, and economic reform.DFAT reported less military involvement in civilian life and a significant reduction in the monitoring and harassment of Tamils in their day-to-day lives;
(b)DFAT had reported that the Tamil National Alliance political party (TNA) had won 16 of 225 seats in the August 2015 national election and, at that time, held the majority of seats in the Northern Provincial Council, which took in the Mannar district.
(c)a UK Home Office report of March 2017 indicated that being a Tamil in Sri Lanka did not warrant international protection. The UK Home Office reported that for a person to be at risk, they would have to have had, or be perceived to have had, a significant role in the LTTE or be active or perceived to be active in post-conflict Tamil separatism. The IAA was not satisfied that the applicant was such a person. The IAA noted that this finding was supported by the applicant’s evidence that he had not and did not support the LTTE and that he had not been politically active at any point during his time in Australia;
(d)a further UK Home Office report of March 2017 recorded that the TNA had told the Home Office in July 2016 that there had been change and that there was no longer a climate of fear or the same harassment as previously;
(e)the IAA was not satisfied that the applicant faced a real chance of serious harm for reasons of his Tamil ethnicity, his origins in a former LTTE-controlled area and his past LTTE links and interactions with Sri Lankan authorities. The IAA also considered the applicant’s religion and found no risk of harm in relation to this;
(f)the applicant would probably be detained on arrival or soon after arrival for having departed Sri Lanka illegally, the consequences of which departure would most likely be a fine and, although there was a risk of detention, any such period would be expected to be very short. The IAA found that those consequences, if they were to occur, would not be discriminatory in nature;
(g)it was not persuaded that the applicant would be handed to the CID or any connected group for questioning; and
(h)the evidence did not support a finding that Sri Lankan authorities would target a person for being an asylum seeker.
In a written submission dated 1 August 2017, the applicant’s representative contended that during the departmental interview the applicant had repeatedly been asked who or what exactly it was that he feared and had consistently answered that “anything can happen”. The IAA observed that the applicant’s claim was not that he had a distinct profile known to the Government but that there were many potentially threatening “loose cannons” who, it was said, were civil war participants who had not given up the fight against the LTTE. The IAA found in that connection that DFAT’s assessment of Sri Lankan state protection did not indicate that the state was unable or unwilling to protect Tamils from the north who might face serious harm for reason of their ethnicity, religion or imputed political opinion.
The IAA was not satisfied that the applicant faced a real chance of harm by reason that the situation in Sri Lanka was one that advantaged people with a grudge. The IAA was not satisfied of this claim as the applicant had provided no evidence to support it.
The IAA also considered the Act’s complementary protection criteria but was not satisfied that the applicant faced a real risk of significant harm, in that he would not, in consequence of his unlawful departure, suffer the death penalty, arbitrary deprivation of life, or torture.
THE PROCEEDING IN THIS COURT
In his amended application the applicant alleged:
The IAA erred by not being satisfied that the Applicant faces threats from vigilante attacks, that 'anything can happen', that he has a profile with the government, that there are many loose cannons around (in Sri Lanka) present or former members of the armed forces or police or civilians who participated in the civil war as member of unofficial militias and who have not given up the fight against the LTTE or anyone they suspect of being an LTTE supporter, that the Sri Lankan government lacks the ability and perhaps the will to prevent this type of vigilante action, that the threats are of many kinds and is everywhere (in Sri Lanka) which cannot be reduced to a specific threat in a specific place or time.
Particulars
1.IAA decision at paragraphs 28, 37-8;
2.The Applicant's agent Provisa Australia wrote to the Department of Border Protection at and claimed that inter alia the Applicant faces threats from vigilante attacks, that 'anything can happen', that he has a profile with the government, that there are many loose cannons around (in Sri Lanka) present or former members of the armed forces or police or civilians who participated in the civil war as member of unofficial militias and who have not given up the fight against the LTTE or anyone they suspect of being an LTTE supporter, that the Sri Lankan government lacks the ability and perhaps the will to prevent this type of vigilante action, that the threats are of many kinds and is everywhere (in Sri Lanka) which cannot be reduced to a specific threat in a specific place or time. 'the Applicant's claims';
3.The agent then stated 'The question to be asked is whether the fear [the applicant] expressed is well founded. The country information provided clearly indicate that it is.';
4.The agent had earlier submitted country information which indicated many instances of violence and fear suffered by Tamil civilians which support the Applicant's claims;
5.The IAA considered the Applicant's claims at 36 - 39;
6.The IAA made no real attempt to consider any of the country information provided by the agent, yet came to the conclusion that it was not satisfied of the Applicant's fears at 28;
7.The IAA's analysis did not engage in the Applicant's claims above except in the most perfunctory manner and so failed to consider his claims in any real sense;
8.In not taking into consideration the very relevant material contained in the attached reports, the IAA committed jurisdictional error.
9.In dealing with the Applicant's claims set out in paragraph 2 above, the IAA failed to engage in any form of intellectual process, and again committed jurisdictional error.
10.In so doing the IAA did not take into consideration relevant material, thereby committing jurisdictional error.
(references omitted)
Ground 1
The first, and principal, allegation is that the IAA erred by not being satisfied that:
(a)the applicant faced threats from vigilante attacks;
(b)“anything can happen”
(c)the applicant had a profile with the government;
(d)there were many “loose cannons” around in Sri Lanka;
(e)the Sri Lankan government lacked the ability and perhaps the will to prevent this type of vigilante action;
(f)the threats were omnipresent and of many kinds.
That allegation invites a review of the IAA’s findings on the facts of the matter and the merits of the applicant’s visa claim. The Court has no power to do that.
Ground 2
The second allegation is found in the particulars of the first allegation and is to the effect that the IAA failed to consider any of the country information that the applicant’s representatives had provided to the Department on 9 July 2017.
The applicant’s representatives’ letter of 9 July 2017 providing information summarised that information’s significance in the following terms:
The material consists of a number of recent newspaper articles which paint a worrying picture of the impunity with which individuals or state authorities persecute Tamils in various parts of Sri Lanka. In addition, Tamils are denied proper protection particularly by the police but also by the army for reason of their ethnicity and/or imputed political opinion. These materials are evidence of all of these aspects of life in Sri Lanka which lead [the applicant] to fear persecution should he be forced to return.
The picture that emerges from the country information attached is that early optimism following the election of the Sirisena government has, to a considerable extent, dissipated.
In their second submissions, dated 1 August 2017, the applicant’s representatives stated:
A careful review of the country information submitted on 9 July will explain what he was saying. His problem is not that he has a “profile” with the Government. It is that there are many loose cannons around – present or former members of the armed forces or police or civilians who participated in the civil war as member of unofficial militias and who have not given up the fight against the LTTE or anyone they suspect of being an LTTE supporter.
The Government lacks the ability and, perhaps, the will to prevent this kind of vigilante action. It affects overwhelmingly the Tamil population, in particular any young Tamil male who is suspected for any reason or for no reason of being a former LTTE militant. It is a situation which can easily assist a person with a grudge or who wants to remove a Tamil man from his farm or his fishing grounds.
The country information submitted is replete with examples of such things happening…
(emphasis added)
Although the IAA said:
I have considered the country information before the Department …
an assertion of that sort does not necessarily conclude the matter and the question remains whether the merits have been given consideration in any real sense: BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292 at 302 [35]. In this case, the IAA’s reasons make it clear that it considered the applicant’s 1 August 2017 written submissions, and from that I conclude that it had also had regard to the 9 July 2017 submissions which the later submissions cited. That conclusion is also supported by the Tribunal’s reference to, and citation of information contained in, a 2016 US State Department Report that had been quoted in the 9 July 2017 submission.
Accepting as I do that the IAA did not overlook the 9 July 2017 submissions, the question then becomes whether its failure to refer to them more specifically than it did indicates a failure to engage properly with them. The IAA’s reasons indicate that it placed decisive weight on country information that was more recent than the 2015 and 2016 information supplied in the 9 July 2017 submissions, as it was entitled to do. It should be inferred that the IAA did not refer to much of the material in the 9 July 2017 submissions because it did not rely on it, preferring the more recent DFAT and UK Home Office reports. Given those circumstances, the Act did not require the IAA to refer to the information in the 9 July 2017 submissions to a greater degree than it did and so I conclude that its decision not to do so with any particularity arose out of the information’s irrelevance to its decision. Error is not apparent in that conduct.
Ground 3
The third allegation is also found in the particulars of the first allegation and is to the effect that the IAA failed to consider, in the sense of engaging intellectually with, the applicant’s claims to fear persecution in Sri Lanka by reason of the matters mentioned in the first allegation: vide. Plaintiff M1 of 2021 v Minister for Home Affairs (2022) 96 ALJR 497. I reject that submission and rely in that connection on the following passages from the IAA’s reasoning:
28. …Nor am I satisfied for the reasons given below, that the applicant faces a real chance of harm from vigilantes, unofficial militia or ‘loose cannons’.
…
36.… In a post-interview written submission dated 1 August 2017, the agent submitted that during the interview the applicant was asked on a number of occasions what or who exactly it was that he feared, and he consistently answered “anything can happen” or words to a similar effect. His problem is not that he has a “profile” with the Government. It is that there are many loose cannons around – present or former members of the armed forces or police or civilians who participated in the civil war as members of unofficial militias and who have not given up the fight against the LTTE or anyone they suspect of being an LTTE supporter. The claim is that the government lacks the ability and, perhaps, the will to prevent this kind of vigilante action. It affects overwhelmingly the Tamil population, in particular any young Tamil male who is suspected for any reason or for no reason of being a former LTTE militant. It is a situation which can easily assist a person with a grudge or who wants to remove a Tamil man from his farm or his fishing grounds. The threat is of many kinds and is everywhere; it cannot be reduced to a specific threat in a specific place or time.
37.DFAT’s assessment of Sri Lankan state protection in terms of the military, police, and judiciary, identifies a balance of strengths and weaknesses, but does not indicate that the state is unable or unwilling to protect Tamils from the north who may face serious harm from vigilantes for reason of their ethnicity, religion, or an imputed political opinion as a former LTTE militant.
38.Further, the applicant claims that the situation in Sri Lanka is one which can easily assist a person with a grudge or who wants to remove a Tamil man from his farm or his fishing grounds. The applicant has not provided any evidence of his family members, who remain in Mannar, having their farm or fishing grounds taken from them. I am not satisfied that the applicant faces a real chance of harm on this basis.
I am not satisfied the applicant faces a real chance of harm from vigilantes, unofficial militia or ‘loose cannons’.
(emphasis added)
This allegation does not identify a reason to set aside the IAA’s decision.
CONCLUSION
Jurisdictional error on the part of the IAA has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 14 February 2024
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