FLY17 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1400

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FLY17 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1400

File number:

SYG 3880 of 2017

Judgment of:

JUDGE D HUMPHREYS

Date of judgment:

18 December 2024

Catchwords:

MIGRATION – Immigration Assessment Authority – refusal of Safe Haven Enterprise Visa (SHEV) (Subclass 790) visa – whether the Authority committed jurisdictional error by failing to apply the well-founded fear test – whether the Authority failed to consider the prevalence of torture in Sri Lanka – no jurisdictional error – application dismissed.  

Legislation:

Migration Act 1958 (Cth) ss 5H(1), 5J 36(2)(aa), 46A(1), 46A(2), 473CB.

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347

Division:

Division 2 General Federal Law

Number of paragraphs:

45

Date of hearing:

5 December 2024

Place:

Parramatta

Solicitor for the Applicant:

Self-represented litigant

Solicitor for the First Respondent:

Ms Saunders (Australian Government Solicitors)

Solicitor for the Second Respondent:

Submitting appearances, save as to costs

ORDERS

SYG 3880 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FLY17

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	18 DECEMBER 2024

THE COURT ORDERS THAT:

1.The name of the First Respondent be amended to ‘Minister for Immigration and Multicultural Affairs’.

2.The application is dismissed.

3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $7,000.00.

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 D HUMPHREYS

BACKGROUND

1. The applicant is a citizen of Sri Lanka. He is of Tamil ethnicity.

2. On 1 May 2013, the applicant arrived in Australia as an unauthorised maritime arrival. He was initially prevented by s 46A(1) of the Migration Act 1958 (Cth) (“the Act”) from lodging a valid application for any visa while in Australia.

3. On 22 June 2016, the applicant was notified that the Minister had exercised the power under s 46A(2) and lifted the prohibition on him applying for a visa.

4. On 22 August 2016, the applicant lodged an application for a Safe Haven Enterprise Visa (“SHEV”) (Subclass 790). The applicant claimed to fear harm from the Sri Lankan authorities because of his past involvement with the Liberation Tigers of Tamil Eelam (LTTE).

5. On 28 April 2017, a delegate of the Minster for Immigration and Border Protection (“the delegate”) refused to grant the applicant the SHEV.

6. The matter was referred to the Immigration Assessment Authority (“the Authority”). On 16 November 2017, the Authority affirmed the decision not to grant the applicant a SHEV.

7. The matter is now before this Court for judicial review. For the reasons outlined below, the application must be dismissed.

   THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION

8. The Authority noted the material it had before it, given by the Secretary under s 473CB of the Act.

9. The Authority received a statement, dated 22 May 2017, from the applicant which addressed the delegate’s decisions and its findings. The Authority ultimately held that this statement did not constitute new information, but did have regard to it to the extent that it addressed the findings in the decision. The statement also referred to reports and media articles that the Authority was not satisfied contained credible personal information, or that it could not have been provided prior to the delegate decision. The Authority was not satisfied that exceptional circumstances existed that warranted it to consider the new information.

10. At [6], the applicant’s claims are summarised as follows:

    •The applicant is a Tamil from Jaffna, Northern Province, Sri Lanka.

    •The government controlled Jaffna from 1995. As the applicant was growing up he was aware of army soldiers arresting and killing Tamils. Due to the civil war the family was displaced for some periods.

    •The LTTE demanded support from Tamil families and the applicant's father paid money to the LTTE to avoid the applicant's older siblings being recruited by the LTTE. During the ceasefire period from 2002, the LTTE visited the applicant's school to talk to students and to recruit members.

    •From 2007 civil war fighting escalated in the Vanni area near Jaffna District and the LTTE increased efforts to recruit fighters; youths were abducted to fight for the LTTE. Initially the applicant refused to join the LTTE but as he could speak Sinhala, which was valuable to the LTTE, they threatened to abduct him if he did not support them.

    •From March 2008 the applicant joined a group with five others to provide assistance to the intelligence unit in Jaffna. The applicant's role was to report navy and army movements and provide other information of interest to the LTTE. The group met regularly, around once per week, to share information. Three members of this group also joined the LTTE as fighters. In 2008, over a period of six months, the applicant undertook self-defence training provided by the LTTE. The LTTE were not able to pass checkpoints and enter Jaffna to purchase items, so the applicant also bought food on occasions which he gave to the LTTE intelligence officers at their meetings. He continued his studies and because he was a student he did not come to adverse attention from the authorities.

    •In 2009 the army became aware of the planned meeting of the group at a temple, shot at the group and killed the two members at that meeting. The applicant and the other group members were delayed and did not attend that meeting. After this incident the applicant avoided meeting the other group members. The LTTE did not call him very much after the shooting. Another group member went into hiding after this incident and was later killed. The applicant was concerned for his safety as the army, and the paramilitary Eelam Peoples Democratic Party (EPDP) were actively pursuing LTTE members and supporters.

    •The war ended in May 2009 and the applicant continued his studies. After the war the police were recruiting Tamil police officers. In 2010 the applicant joined the police force.

    •The other police officers were mainly Sinhalese and the applicant experienced discrimination as a Tamil; the few Tamil officers were required to undertake the menial tasks and were rostered on for long 12 hour shifts. He was told not to speak in Tamil when working and to only speak Sinhala, even when policing Tamil speakers. The Sinhalese police used him to speak to Tamils to demand bribes for them. He could not report this behaviour as his Sinhalese superior officers would not believe him. Despite this discrimination, the applicant enjoyed his work and was disappointed to leave the police force when he departed Sri Lanka.

    •In his SHEV interview the applicant advanced claims of events in 2011 that differ from those stated in his SHEV application. He explained that he had not advanced these claims previously as he was concerned they may be relayed to the authorities in Sri Lanka. He stated that the representative who assisted him complete his SHEV application was a Tamil and he was not willing to disclose all his claims to another Sri Lankan. After being advised by the delegate about privacy provisions he was now confident he could reveal his claims.

    •Sometime in 2011 the applicant was telephoned by Karan, a member of the LTTE intelligence group he had been part of during the war. Karan had also been an LTTE fighter and even though the war had ended there were still people carrying on the work of the LTTE. Karan was associated with those people. Karan had LTTE weapons he wished to hide and he told the applicant he had to help him by storing weapons at the applicant's home. He told the applicant he would come to his property two days later to hide the weapons. On that day the applicant took his mother to stay with relatives. When the applicant returned to the family home he noticed an area near the well that had been dug up. He does not know if anyone came back to check on the weapons; he did not see anyone and if anyone came, they came at night.

    •Karan made further contact with the applicant and arranged to meet him. Karan did want to come to the police station and arranged to meet the applicant where he was on duty in the town. Karan did not come to meet the applicant that day as there was an army round up exercise; the army continued to conduct regular checks and round ups even though the war had ended.

    •The applicant did not hear from Karan again. He later learned that Karan had been arrested after he was found in possession of his LTTE membership card. He believes that Karan has provided information to the authorities about the weapons and the applicant's role with the LTTE during the war and police colleagues with who is friendly have warned him that he was under suspicion because of his links to Karan. Neighbours told him that the army and Criminal Investigation Department (CID) came to the family home to look for him and spoke to the neighbours and asked questions about him.

    •The applicant was concerned for his safety and was fearful the authorities would kidnap and kill him. He applied for leave from his police work and went to stay with his brother. That night the CID came armed with weapons to kidnap him. They were not in uniform and did not identify themselves. They banged on the door, asked where the applicant was and searched the house. When they could not find him they left.

    •The applicant decided to leave Sri Lanka. He already had a passport and drove to Colombo using his brother's car. His brother worked for the Lottery Board and because the then President's son was linked to that Board, the cars of Lottery Board staff were able to pass checkpoints without being stopped.

    •In December 2011 the applicant departed Sri Lanka and travelled to Singapore. He did not require a visa to enter to Singapore, so he was able to leave quickly before being detected. From Singapore, he travelled to Malaysia where he registered with the United Nations High Commissioner for Refugees (UNHCR). From Malaysia he travelled to Indonesia where he boarded a boat to Australia. The applicant departed Sri Lanka legally using his own passport. He no longer has this passport as he lost it Indonesia when he mislaid the bag containing it.

    •The CID visited the applicant's father in 2012 to enquire about the applicant's whereabouts. The authorities casually ask his parents about him and his father tells them they have had no contact with him and do not know where he is.

    •The applicant left Sri Lanka without having completed the compulsory service of three and half years with the police force.

    •The applicant fears on return to Sri Lanka he will be arrested and killed by the authorities. He believes the authorities are still interested in him and he only managed to evade them in 2011 because he left the country quickly, before they could capture him.

11. The Authority accepted the following in making its factual findings of the applicant’s claims:

    ·The applicant’s identity was as stated, and Sri Lanka is the receiving country for the purposes of the review.

    ·The applicant grew up in government-controlled Jaffna and was displaced for some time due to the civil war. During the period from 1995 there were regular arrests and deaths of Tamils by authorities [8].

    ·The LTTE actively recruited for members in Jaffna; the applicant’s father paid money to the LTTE to avoid his older siblings being recruited by the LTTE [9].

    ·That the applicant knew other students who joined the LTTE.

    ·That the applicant faced discrimination and bullying on the police force as a Tamil.

12. The Authority did not accept the following:

    ·In March 2008, members of the LTTE came to the applicant’s school in government-controlled Jaffna on a recruitment drive, threatened to abduct him if he did not support the movement; that the applicant agreed to support the LTTE by purchasing food or passing information on [11] and [14].

    ·That the LTTE had contact with the applicant and enlisted his support from March 2008, that the LTTE operatives travelled regularly to obtain information from a group of teenage schoolboys which included the applicant, that the applicant would have had regular meetings on a weekly basis with LTTE intelligence officers and that the applicant was involved in an information sharing group with students who supported the LTTE [12]-[15].

    ·The applicant was contacted by former LTTE fighter ‘Karan’ who asked the applicant to hide weapons on his property, that Karan was working with people who were still involved in the LTTE and that the applicant’s association with Karan would have resulted in authorities have any adverse interest in him [17] and [20].

    ·The applicant would have been able to evade the Sri Lankan authorities and travel from Jaffna to Colombo if he had been of interest to the authorities [19].

13. The Authority had regard to the criterion under s 5H(1) and s 5J of the Act in assessing the applicant’s refugee claims.

14. It noted at [26], that although the applicant raises concerns about the treatment of Tamils during and after the war, there has been a significant change in Sri Lanka since he departed Sri Lanka in 2011. This change has resulted in less Tamils being held in detention and there is greater political cooperation since the election of the Sirisena government in 2015.

15. At [28]-[29] the Authority noted that available country information indicates that people with a past LTTE connection may face harm on return in Sri Lanka. However, the Authority did not deem that the applicant was imputed with a LTTE profile at the time he left Sri Lanka and will not be perceived as such upon return. The UK Home Office Report noted that four categories of person were at risk including those with a significant role in post-conflict Tamil separatism, journalists/human rights activities, those who gave evidence to the Reconciliation Commission and those whose names appear on a “stop” list if there is a court order or arrest warrant out for them. The applicant did not fall into one of these categories and there was not a real chance he would be harmed as a Tamil upon return to the receiving country.

16. There have been improvements in the police force including an increase in the number of Tamils and Tamil speakers. Whilst the Authority noted that the applicant would still be in the minority as a Tamil in the police force, should he return, any discrimination he would face is not likely to amount to serious harm or systematic and discriminatory conduct. The Authority did not find that the applicant had a well-founded fear of serious harm on this basis [30]-[31].

17. The Authority was not satisfied there was any real chance the applicant would face any harm as a returning failed Tamil asylum seeker given that he did not have an actual or imputed profile of LTTE links [33].

18. In undertaking the complementary protection assessment, the Authority found that:

    (a)The applicant’s experience of discrimination in the police force would not amount to serious harm.

    (b)The applicant would also not face harm in Sri Lanka as a Tamil.

    (c)The applicant would not face harm on the basis of not completing his compulsory police service, any penalty he would face is faced by the population of the country generally and not personally.

    (d)There is not a real chance the applicant would face harm on the basis of being a Tamil, or for seeking asylum in Malaysia and Australia.

19. The Authority found that the applicant did not meet s 36(2)(aa) and affirmed the decision not to grant the applicant a protection visa.

    GROUNDS OF JUDICIAL REVIEW

20. The applicant’s two grounds of judicial review are contained in an Originating Application filed on 14 December 2017. They are as follows:

    Ground 1

    IAA made a jurisdictional error by constructively falling to apply the well-founded fear test.

    Particulars

    IAA failed to discern a Convention nexus as Applicant, as a police officer, fled Sri Lanka creating suspicion.

    IAA failed to discern that Applicant will suffer harm in future.

    Ground 2

    IAA made a jurisdictional error in that it failed to take into account torture prevalent in Sri Lanka.

    Particulars

    IAA referred to improvements in Applicant's home country.

    Nevertheless there was information of ongoing torture.

    THE APPLICANT’S SUBMISSIONS

21. The applicant appeared before the Court unrepresented. He was assisted by an interpreter.  Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the first respondent's written submissions had been translated to him.  The Court also ensured the applicant had access to a pen and paper so he could take notes during the course of the hearing should he wish to.

22. At the commencement of the hearing, the Court explained it was undertaking judicial review, not merits review and the difference between the two types of review.  The Court also explained the procedure by which the hearing would be undertaken.

23. Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case.  The applicant told the Court that due to his experience as a police officer, he understood matters better than the general population. He stated he knew how much they (the authorities) tortured people who had similar allegations against them. The authorities do not follow the rules correctly and due to political interference, lower ranks within the police force have to do things like torture.

24. He stated that as a Tamil minority, in Sri Lanka most high-ranking positions are given to Sinhalese people and they treat Tamils like slaves. You cannot take complaints anywhere.

25. He said although he does not have any evidence, he has seen torture been committed. When he graduated from the police academy, the firing pin was taken out of their weapons as there was no trust in any Tamil recruits.

26. At the conclusion of the respondent's oral submissions, the applicant was asked if he wished to state anything in reply.  He answered that he takes issue with the submission that serious harm would not arise in him being involved in the transportation of weapons. If weapons get into the wrong hands, they can be used for the wrong purposes.

    THE FIRST RESPONDENT’S SUBMISSIONS

27. In oral submissions, the first respondent submitted that the applicant’s complaints regarding the findings of the Authority merely expressed disagreement with those findings and did not raise jurisdictional error.

28. The Authority found at [31] that although Tamils were a minority, any discrimination would not amount to serious harm. The Authority gave extensive reasons at [10] – [22] as to why it did not accept the applicant’s claims and made adverse findings by reference to country information. The findings arrived at by the Authority were open to it on the evidence for the reasons given.

1. The first respondent argues that ground one of the application, is unsubstantiated for two reasons.

2. First, the Authority’s reasonings expressly consider the applicant’s claim that he will face harm as a Tamil police officer, in that they accepted the discrimination faced in the police force on the basis of being Tamil at [16], but found that in light of this, the treatment towards Tamils has improved and the applicant would not face the same level of discrimination upon return. Additionally, the Authority accepted that the applicant left the police force before completing his compulsory service, but found that any disciplinary action or penalty would be one of a general application and would not amount to persecution under ss 5H(1) and 5J(1).

3. Secondly, the Authority had regard to the applicant’s other claims regarding his fear of harm upon return to Sri Lanka at [39], [30] and [33] of its reasonings but ultimately was not satisfied of the applicant’s claims given the weight of the country information before it.

4. Ground two is a complaint that the Authority failed to take into account that torture is prevalent in Sri Lanka. The first respondent submits that, first, the Authority took into account the risk of harm suffered by Tamils in Sri Lanka however found the applicant was not in the category of persons at risk of this harm: this is exemplified at [28]-[29] of the Authority’s decision. Second, the choice and weight given to the country information was a matter squarely for the Authority; (see: NAHI v Minister for Immigration and Indigenous Affairs [2004] FCAFC 10 at [11] “NAHI”). The applicant cannot ask the Court to make its own assessment of the truth or weight to be given to that country information without inviting it to engage in impermissible merits review.

   CONSIDERATION

5. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:

   … an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister.  The Court does not consider the merits or wisdom the decision; nor does it remake the decision.  The task of the Court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.

6. It is well established the Authority is not required to accept uncritically any and all claims made by an applicant; (see: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451).

7. Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out; (see: Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at 348).

8. It is well settled that the country information and the weight it gives to that information is a matter for the Tribunal or Authority; (see: NAHI).

9. It is for the applicant to satisfy the Authority, being the relevant decision maker, that the applicant meets the criteria for being a refugee; (see: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]).

   Ground one

10. Ground one is a general claim that the Authority made jurisdictional error by constructively failing to apply the well-founded fear test. The particulars detail the particular harm the applicant may face as a police officer who fled Sri Lanka and a failure to discern that the applicant was suffer harm in the future.

11. These claims cannot be supported. The Authority accepted that the applicant was a member of the police force and fled prior to his compulsory period of service being completed. It accepted that he experienced discrimination in the police force on the basis that he was a Tamil. However, with that the Authority found at [31], based on country information, the improved treatment of Tamils and initiatives were now in place to increase Tamil representation within the police force. Further, the Authority considered the applicant’s other claims of fear upon return but was not satisfied that these can be made out based on country information.

12. The matters put to the Court by the applicant in his oral submissions did not identify any jurisdictional error, rather they only went to the merits of the decision of the Authority. In the Court’s view, ground one does not raise any jurisdictional error and it merely expresses vehement disagreement with the factual findings of the Tribunal. Ground one has no merit.

    Ground two

13. Ground two is an assertion that the Authority failed to take into account the torture prevalent in Sri Lanka. At [28] – [29] the Authority set out for categories of people who would be at risk upon return. These included those with a significant role in post-conflict Tamil separatism, journalists/human rights activists, people who gave evidence to the reconciliation commission implicating the Sri Lankan security forces and those whose name appears on a “stop” list of those against whom there is an extant order by a Court or an arrest warrant. The Authority was not satisfied the applicant fell into one of these four categories and accordingly, would not be at risk of a real chance that he would be harmed as a member of any one of these categories or as a Tamil upon return.

14. These findings were based on relevant country information. The Court accepts the assertion of the respondent that the selection of and weight to be given to relevant country information is a matter for the Authority.

15. Again, the applicant’s complaints, such as they are, merely go to the merits of the findings of the Authority and do not raise any jurisdictional issue. Ground two has no merit.

16. As the applicant is unrepresented, the Court has carefully perused the Court Book together with the Tribunal’s decision. It is unable to ascertain any unarticulated jurisdictional error.

    DETERMINATION

17. In these circumstances, the application must be dismissed.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys.

Associate:

Dated:       18 December 2024