FPU17 v Minister for Immigration
[2018] FCCA 1804
•15 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FPU17 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1804 |
| Catchwords: MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether it was legally unreasonable for the Authority not to exercise its powers under s 473DC of the Act – whether the adverse findings by the Authority were illogical or unreasonable – whether the Authority failed to correctly apply the relevant law – whether the Authority failed to consider relevant issues – no jurisdictional error made – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5H, 36, 473CB, 473DA, 473DB, 473DC, 473DD, 476. |
| First Applicant: | FPU17 |
| Second Applicant: | FPV17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3961 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 3 July 2018 |
| Date of Last Submission: | 3 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Sinnarajah Divine Lawyers |
| Counsel for the Respondents: | Mr J Kay Hoyle |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The amended application is dismissed.
The first applicant pay the first respondent’s costs fixed in the amount of $7,328.00.
DATE OF ORDER: 15 November 2018
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3961 of 2017
| FPU17 |
First Applicant
| FPV17 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
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 6 December 2017 affirming a decision of the delegate not to grant the applicants Safe Haven Enterprise visas.
The applicants were found to be citizens of Sri Lanka and their claims were assessed against that country. The first applicant is the father of the second applicant dependent son, and the second applicant has been included as a member of the family unit. The applicants were found to be Tamil Hindus born in Batticaloa in the Eastern Province of Sri Lanka. The applicants arrived in Australia on 1 May 2013 as unauthorised maritime arrivals.
The first applicant claims to fear harm on the basis of his political opinion as a result of violence from political opponents, his Tamil ethnicity, as a member of a particular social Group, and for being failed asylum seekers returning to Sri Lanka.
The first applicant claimed he was detained by the Liberation Tigers of Tamil Eelam (“LTTE”) after refusing to pay them money but was released after he subsequently paid. In the 1990s the first applicant alleged he was beaten up by the Sri Lankan Army (“SLA”) when someone had thrown an explosive at an army vehicle near his shop. The first applicant said the army came and rounded up everyone and the first applicant was one of those who were beaten by them.
The first applicant is a goldsmith who owned his own jewellery shop in Batticaloa. In 2012 the local Tamil National Alliance (“TNA”) candidate, Mr X, asked for the first applicant’s campaign support for the 2012 provincial elections, and he did this because of the first applicant’s contacts with the local community through his business. The first applicant door-knocked with Mr X and put up posters and attended party meetings. The TNA won the election with Mr X as their leader.
On 7 October 2012, the first applicant was taking his son to school on a motorbike when he was flagged down by three people who he suspected were from the Pillayan Group. Those people asked the first applicant why he had assisted the TNA to victory and told him never to be involved again or they would kill him. On 8 October 2012, the same men threatened the first applicant again, saying they would shoot him and his son if they saw him a third time. The first applicant thought the threats of violence were credible based on his past experience of violence in the 1990s. The first applicant alleged he went into hiding for 18 to 20 days and began making arrangements to sell his shop and leave Sri Lanka with his son on 20 November 2012.
The men twice attended the first applicant’s home seeking the first applicant while he was in hiding. The first applicant says he left for Australia, and the men have visited his wife on a further six or seven times, and the last time before the protection visa interview, being in September 2016. The three men, possibly from the police intelligence unit, also visited the first applicant’s wife on 6 April 2017, allegedly asking about his location.
The first applicant fears being forced to return to Sri Lanka because he will be shot by members of the Pillayan Group for supporting the TNA. The first applicant fears being tortured by the Sri Lankan authorities on return for being a failed asylum seeker, a Tamil and a suspected LTTE supporter based on his Tamil ethnicity.
In 2014, the first applicant was affected by a data breach at the Department of Immigration and Border Protection and believes that the Sri Lankan authorities will use the information against him.
The delegate identified concerns with the first applicant’s claims in relation to the absence of evidence that he was involved in the claimed elections in 2012. The delegate identified inconsistencies in the first applicant’s claims and did not accept that the first applicant was threatened or intimidated by members of the Karuna and/or Pillaiyan Group as claimed. The delegate found there was no credible evidence that the first applicant was involved in political activities or has a profile affiliated with the TNA or any other political parties in Sri Lanka for which he would be pursued in the claimed manner.
The delegate found the first applicant was not a truthful witness, and found that the first applicant was not of adverse interest to any of the paramilitary Groups including Karuna and/or Pillaiyan Group or anyone else in his country for any reason or that he will be on harmed return to Sri Lanka for the claimed reasons. The delegate did not accept that the applicant was of any interest to any paramilitary Groups including Karuna and/or Pillaiyan Group or the authorities for any reason in the past or will be in the future for the claimed reasons.
The delegate did not accept that the first applicant continues to be of interest to opposition groups since his departure for Australia, and found the first applicant’s claims in this regard not credible and dismissed them in their entirety. The delegate concluded that the first applicant did not meet the criteria for the grant of a Safe Haven Enterprise visa.
On 17 May 2017, the Authority wrote to the applicants explaining that the application for the visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information. The letter provided an attached fact sheet and Practice Direction, giving the applicants an opportunity to put on new information and submissions. The first applicant did put on submissions and new information that were identified and considered by the Authority in the Authority’s reasons in accordance with the provisions of s 473DC and s 473DD of the Act.
The Authority identified the background to the visa application and had regard to the material referred by the Secretary under s 473CB of the Act. The Authority identified that the first applicant’s submissions provided a new incident of alleged intimidation of the first applicant’s wife alleged to have occurred on 6 April 2017 after the delegate’s decision was made. The submission relevantly said:
On 6 April 2017 three Sinhalese people came to our house and threatened my wife asking where I am. My wife believes that they are from the Intelligence unit. My wife said that she does not know where I am. They came in a jeep. My wife telephoned and said this to me.
The Authority found that there were exceptional circumstances to justify considering this new information and, that insofar as the submission engaged with the delegate’s decision, it did not constitute new information. The Authority identified other new information and, after considering both limbs of s 473DD of the Act, found that there were not exceptional circumstances to justify considering the same.
The Authority set out the first applicant’s claims and evidence. The Authority accepted that the first applicant’s claimed events in 1990 occurred. The Authority referred to the first applicant’s accounts of his political interest and support during the election in 2012 and found they were inconsistent. The Authority accepted the first applicant knew Mr X and that he made introductions on his behalf as part of the TNA campaign. The Authority did not accept the first applicant was heavily involved in the campaign or the TNA, or that he knew much about the elections.
The Authority accepted, based on country information, that the Pillayan Group was politically active in carrying out threats of violence in 2012. The Authority found that although there were aspects of the first applicant’s claims that were not plausible. The Authority accepted the first applicant was threatened on 7 and 8 October 2012 and that this was likely to be part of a pattern of intimidation by the Pillayan opposition party. The Authority accepted that it was plausible that the first applicant kept a low profile after being intimidated, but did not accept that he was in hiding prior to his departure based on the first applicant’s vague and inconsistent account.
The Authority found the first applicant’s description of visits by men to his wife varied in consistency. The Authority found the frequency of the threats was not commensurate with the first applicant’s role in the election and if the Pillayan Group were going to harm the first applicant’s family, it would have already done so without visiting multiple times. Taking into account country information, the Authority did not accept that the Pillayan Group was continuing to threaten the first applicant’s family.
The Authority did not accept that three men from the police intelligence unit visited the first applicant’s wife on 16 April 2017 as no plausible or credible explanation had been offered for the visit. The Authority noted it was not clear how the first applicant’s wife determined that they were intelligence officers and that no explanation had been offered as to why they wanted to know where the first applicant was, particularly since he left the country five years earlier. The Authority found this claim was made to strengthen the first applicant’s application and his claim that it was not safe for him to return to Sri Lanka.
The Authority referred to the data breach and accepted that the applicants were in detention in 2013 so that they may have been affected. The Authority found if the applicants were affected by the breach, information about their identity in detention would have been accessible on the internet for a period of time. The Authority accepted it was possible it could have been accessed by Sri Lankan authorities. The Authority found that there was no information to suggest that any of the applicant’s claims for protection were included in the data that was the subject of the data breach.
The Authority referred to the first applicant’s fears of being killed by the Pillayan Group because of his support for the TNA, and noted that the Authority had accepted some involvement in the 2012 Provincial Council elections and that the first applicant was involved in canvassing door-to-door in support of the TNA and Mr X. The Authority considered the applicant’s political profile to be low and that he has not indicated that he has been involved in any other political activity since the election campaign in 2012.
The Authority referred to having accepted that the threats made in September 2016 are consistent with the Pillayan activity in the post war period and around elections in Batticaloa. It is apparent on a fair reading of the Authority’s reasons that what was accepted was that there were threats made in October 2012. No other threats were accepted by the Authority and, indeed, the Authority expressly found that it did not accept, in paragraph 25, that the Pillayan Group are continuing to threaten the first applicant’s family in Sri Lanka. The reference to September 2016 is clearly a typographical error, and the applicant’s representative accepted that to be the position. The Court notes that is also consistent with the reference to the Pillayan activity in the post-war period and the reference to around the elections which would not have otherwise have application to 2016. The Authority also noted that the first applicant and his son, his wife and other children were never harmed by the persons who made the threats to do so in October 2012.
The Authority considered the first applicant’s political profile was low and that he had not been involved in any political activity since the 2012 election. Based on country information, the Authority noted that the political and security situation in Sri Lanka had changed considerably since the applicants left Sri Lanka in 2012. The Authority noted that the paramilitary groups are less active and are being held to account, and that the TNA is well established and that the 2015 general election was reported as being generally peaceful.
The Authority concluded that neither the first applicant nor any member of his immediate family were ever harmed by the Pillayan Group, and found that the prospect of any harm in the future was no more than remote. In respect of the applicant’s Tamil ethnicity, the Authority accepted that the SLA may have imputed an association with the LTTE to the first applicant in 1990, but the first applicant had not reported any other issue since 1990.
The Authority viewed extensive country information, including information concerning torture. The Authority noted almost all cases of torture involved Tamils detained on suspicion of having personal or family ties to the LTTE. The Authority stated the first applicant had no reported association with the LTTE or any other political activity since 2012.
The Authority found the country information suggests that the situation for Tamils has improved considerably and that the monitoring and harassment of Tamils had decreased significantly. The Authority did not accept the first applicant faces a real chance of any harm on the basis of his past support of the TNA, or that the second applicant faced such harm by reason of the first applicant’s TNA support. The Authority did not accept that either of the applicants would be imputed to have an association with the LTTE or be of interest to the Sri Lankan authorities for criminal or national security reasons. The Authority was not satisfied the applicants were at risk of serious harm by reason of being failed asylum seekers. The Authority was not satisfied the applicants face a real chance of serious harm on the basis of their Tamil ethnicity or any imputed association with the LTTE should they return to Sri Lanka.
The Authority found that the Immigrants and Emigrants Act 1949 (Sri Lanka) are laws of general application that apply to all Sri Lankans equally, and are not discriminatory in terms and were not applied in a discriminatory manner or selectively enforced. The Authority was satisfied any process or penalty the applicants may face on return to Sri Lanka because of their illegal departure would not constitute persecution for the purpose of the Immigrants and Emigrants Act 1949 (Sri Lanka). The Authority found the applicants do not face a real chance of serious harm from Sri Lankan authorities due to their illegal departure, travel to Australia, or for any other reason.
The Authority found the applicants failed to meet the requirements of the definition of “refugee” in s 5H(1) of the Act and that the applicants did not meet the criteria under s 36(2)(a) of the Act.
The Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being returned from Australia to Sri Lanka, there is a real risk the applicants will suffer significant harm.
The Authority found the applicants did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.
The grounds
The grounds of the application are as follows:
Ground One
IAA is in breach of procedural fairness by failing to invite the Applicant to a hearing as there were special circumstances to investigate a new claim by the Applicant.
Particulars
After the hearing with the delegate Applicant claimed that his wife was visited by unknown persons. IAA acknowledged a claim made by the Applicant after the delegate’s decision: CB 231: at 4 On 7 June 2017 the Applicant provided a submission to the IAA. The submission claims a new incident of intimidation of the applicant’s wife which he says occurred on 6 April 2017 after the delegates decision was made. ...if true, these events represent a potential development in the applicant’s claim beyond his control...there are exceptional circumstances to justify considering the new claim.
Having considered the claim, CB 236: at 25, 26 IAA speculated and made its own finding rather than inviting the Applicant for a hearing. See discussion in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 commencing at [43]; 88 ALJR 52; 303 ALR 64.
Ground two
IAA made a jurisdictional error.
Particulars
IAA misapplied the well-founded fear test as it failed to recognise threats made to the applicant as serious harm.
Submissions
Applicant contends that the threats give rise to well-founded fear although there was no harm perpetrated. IAA accepted that: I have accepted that the threats made in September 2016 are consistent with Pillayan activity in the post war period and around elections in 2016. I also note that the applicant, his son, his wife and other children were never harmed by these men despite the threats do so. CB 237: at 31
It is submitted on behalf of the Applicant that threats are sufficient to give rise to a well-founded fear of being persecuted, and there is no harm required.
As IAA has accepted that threats have been made as late as 2016, it can be inferred that there are still threats made to the applicant.
Ground three
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 but failed to recognise the existence of ongoing torture in the country.
IAA stated: More recently, in 2017 DFAT stated that it is aware o reported instances of torture carried about by police and assesses that torture in Sri Lanka, perpetrated by the military, intelligence and police forces, is not presently systemic or state sponsored. CB 239: at 41
It is submitted that these instances ca be committed by persons associated with the Pillaiyan group.
IAA stated:
DFAT states that reports of abductions and disappearance have dropped considerably and are no longer a common occurrence. CB 239: 41
It is submitted that although abductions and disappearance are not common occurrence these may still occur.
IAA stated:
More broadly, the most recent country information from DFAT states the situation for Tamils in the Eastern Province has improved considerably... CB 239: 43
It is submitted that ‘improvements’ do not mean that the situation is back to normal.
Ground four
IAA failed to consider a relevant issue.
Particulars
IAA failed to consider that Pillayan and Karuna group members were operating secretly.
This ground alleges that country information is at times silent as to who exactly is committing harm.
IAA stated:
DFAT states that reports of abductions and disappearance have dropped considerably and are no longer a common occurrence. CB 239: 41
It is unclear from the above passage as t who is committing harm. Nevertheless there is clear evidence that Pillaiyan group has resorted to such activities.
I have accepted that the threats made in September 2016 are consistent with Pillayan activity in the post war period and around elections in 2016. I also note that the applicant, his son, his wife and other children were never harmed by these men despite the threats do so. CB 237: at 31
Ground 1
In relation to ground 1, Mr Sinnarajah took the Court to the Authority’s reasons at paragraphs 4, 25 and 26 and submitted that it was legally unreasonable for the Authority not to exercise its powers under s 473DC of the Act, not to invite the applicants to provide further information or to an interview in respect of the new claim concerning the intimidation of the wife on 6 April 2017. Mr Sinnarajah submitted that the Authority had engaged in speculation and made its own findings rather than inviting the applicants to a further hearing.
The Authority’s reasons, as summarised above at paragraphs 16 to 19, do not reflect speculation but rather a reasoned adverse finding in respect of the new information that was open to the Authority for the reasons given by the Authority. Those reasons referred to the absence of a plausible and credible explanation for the alleged visit in 2017 and were in the context of the Authority having rejected that the first applicant’s wife had been the subject of ongoing visits and threats since 2012. The Authority also referred to the difficulty in identifying why the first applicant’s wife asserted they were intelligence officers and found that no explanation had been provided as to why they wanted to know where the first applicant was, and the Authority also took into account in that regard that it was five years since the first applicant had left the country.
The adverse finding by the Authority in those circumstances cannot be said to be illogical or unreasonable. The issue of threats to the first applicant’s wife had been raised before the delegate and the delegate had made adverse findings. The Authority had given the applicant an opportunity to put on new information and submissions. No submission was made inviting the Authority to exercise its power under s 473DC of the Act, and, in the circumstance of the present case, given the letter dated 17 May 2017, it cannot be said that it was legally unreasonable for the Authority not to invite or not to expressly consider inviting the applicants to give further information or to an interview before making adverse findings in respect of the alleged intimidation on 6 April 2017 to the first applicant’s wife. The applicants had an opportunity to put on new information and submissions and, accordingly the absence of express consideration cannot be said to lack an evident and intelligible justification.
It was a matter for the applicants to determine what information the applicants sought to put on in support of the alleged incident. The information put in the present case was contained in the submission referred to above and in the context of the review under Part 7AA of the Act and, in particular, s 473DA and s 473DB of the Act. The applicants had been given the opportunity, pursuant to the letter dated 17 May 2017, to put on new information and submissions. In the circumstances, it was not legally unreasonable for the Authority to proceed to make findings in respect of the new information that the Authority had regard to in respect of the alleged intimidation of the first applicant’s wife in 2017. No jurisdictional error as alleged in ground 1 is made out.
Ground 2
In relation to ground 2, Mr Sinnarajah initially sought to advance that the Authority had accepted that threats had been made in September 2016. When the context of the Authority’s findings was raised with Mr Sinnarajah, Mr Sinnarajah accepted that this was a typographical error and that the only threats the Authority had accepted were the threats in October 2012.
Mr Sinnarajah submitted that the threats fell within the scope of meaning of “serious harm” in s 5J(5)(a) of the Act and that the Authority had misapplied the statutory provision. The Authority correctly identified the relevant law. The Authority’s reasons do not support the submission of any misapplication or misconstruction. The Authority expressly found that the first applicant, his son, his wife, and other children were never harmed despite the threats to do so in October 2012.
Accordingly, it is not correct that the Authority accepted that threats were made as late as 2016 as advanced in this ground and, in substance, there is no basis to find that the Authority failed to correctly apply the relevant law that the Authority had correctly identified. No jurisdictional error as alleged in ground 2 is made out.
Ground 3
In relation to ground 3, Mr Sinnarajah took the Court to references in country information referred to in the delegate’s reasons relevantly at page 168 and 169 of the Court Book, as well as referring to the Authority’s reasons and country information in paragraphs 41 and 43.
The Authority’s reasons reflect taking into account country information and in particular the Department of Foreign Affairs and Trade (“DFAT”) 2017 report of instances of torture carried out by police and the assessment that torture in Sri Lanka perpetrated by the military intelligence and police forces is not presently systemic or state sponsored. The Authority referred to DFAT assessing that the risk of torture from these authorities has decreased since the end of the conflict.
The Authority referred to the fact that the first applicant, apart from the incident in 1990, had no reported association with the LTTE, either directly or through family, and had not been involved in any political activity, separatist or otherwise, since his support of the TNA in 2012. The Authority also referred to country information that DFAT states the situation for Tamils in the Eastern Province has improved considerably under the Sirisena government. The Authority referred to DFAT assessing that the monitoring and harassment of Tamils in day-to-day life has decreased significantly and that the UK Home Office report gives the view that since the end of the civil war in 2009 a person being of Tamil ethnicity would not, in itself, warrant international protection.
The Authority referred to the first applicant not having pointed to any harm being caused to any member of his family still residing in Sri Lanka on the basis of their Tamil ethnicity. It was in those circumstances that the Authority did not accept the applicants faced a real chance of any harm on the basis of the first applicant’s past support for the TNA should the applicants return to Sri Lanka. The Authority found the applicants would not fit the profile of Tamil returnees who had been imputed to have an association with the LTTE or be of interest to the Sri Lankan authorities for criminal or national security reasons.
Mr Sinnarajah submitted that abductions and disappearance still occur and that the situation was not back to normal. These submissions do not identify any relevant legal error by the Authority. It was a matter for the Authority to determine what country information to accept. The submission otherwise in substance invites the Court to engage in impermissible merits review. No jurisdictional error is made out by ground 3.
Ground 4
In relation to ground 4, Mr Sinnarajah referred to the submissions dated 7 June 2017 which expressly said:
Initially when Karuna was resorting to violence they did it secretly, with the assistance of Sri Lankan forces. Now the same picture emerges. They do it in such a way that they will not be seen as the perpetrators.
The Authority’s reasons expressly identify having regard to the submissions in relation to their engagement with the delegate’s reasons. There is no basis to infer that the Authority did not take into account the submissions dated 7 June 2017 insofar as they engaged with the delegate’s reasons, including the reference referred to above to the Karuna Group resorting to violence and doing it secretly. No separate claim was advanced by the applicants in relation to a fear of harm from the Pillayan and Karuna Group operating secretly.
The applicant’s claimed fear of harm arose from the threats that the Authority accepted in October 2012 and alleged further threats thereafter. The Authority rejected the making of further threats thereafter by the Pillayan Group in its reasons in the last sentence of paragraph 25. The Authority rejected the alleged threat in March 2017 to the first applicant’s wife.
The Authority expressly referred to the political and security situation in Sri Lanka improving considerably since the applicants left the country, and found that neither the applicants nor any other member of their immediate family were ever harmed by the Pillayan Group so the prospect of them being harmed in the future is no more than remote.
This ground also referred to the typographical error suggesting an acceptance of claims in September 2016 which were not, in fact, accepted by the Authority. It was a matter for the Authority to determine what country information the Authority accepted. There is no relevant issue that the Authority failed to consider. The Authority made adverse findings in relation to the applicants claims as referred to above that were open to the Authority for the reasons given as summarised above. No jurisdictional error as alleged in ground 4 is made out.
Conclusion
As the amended application fails to make out any jurisdictional error, accordingly the amended application is dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 15 November 2018