FYS18 v Minister for Immigration

[2019] FCCA 3350

FEDERAL CIRCUIT COURT OF AUSTRALIA

FYS18 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3350

Catchwords:

MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: FYS18

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 612 of 2018

Judgment of: Judge Vasta

Hearing date: 6 September 2019

Date of Last Submission: 6 September 2019

Delivered at: Perth

Delivered on: 6 September 2019

REPRESENTATION

Counsel for the Applicant: Mr M. Gao

Solicitors for the Applicant: Estrin Saul Lawyers

Counsel for the First Respondent: Mr P. MacLiver

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. That a writ of certiorari issue directed to the Second Respondent quashing its decision dated 2 November 2018.

2. The First Respondent pay the Applicant’s costs, fixed in the sum of $7,467.00.

3. A writ of Mandamus issue directed to the Second Respondent requiring it to determine the Applicant’s application dated 3 March 2016 according to law.

IT IS NOTED:

A.That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 612 of 2018

FYS18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 2 November 2018 the Immigration Assessment Authority (“the IAA”) affirmed the decision not to grant the Applicant, FYS18, a protection visa.  On 15 November 2018, the Applicant filed an originating application in this Court asking this Court to review that decision. 

2. The circumstances of the matter are that the Applicant claims to be a Sri Lankan Tamil of Christian faith from Mannar in the Northern Province of Sri Lanka. His father, mother and sister live in Mannar. He claims he used to go fishing with his father and uncle, who were fishermen, and that they were assaulted on a daily basis by the Sri Lankan Navy. His family were not members of the LTTE but they helped the LTTE during the war.

3. He said that from late 2009, he and his father transported LTTE cadets who had fought the Sri Lankan government forces and who were hiding and trying to escape to India.  He said that they had no real choice but to use their boat to transport them. 

4. He claims that the Criminal Investigation Department came to know about what they had done and then had come to the family’s house in March or April of 2012, arrested his father, arrested his uncle and arrested him. The CID took them all to the CID office in Mannar. He said that his uncle was taken to Colombo, while he and his father remained at the office where they were interrogated about links to the LTTE and what information they had. He said they were assaulted by the CID officers.

5. And he claims that his mother made a complaint to the Human Rights Commission and approached the village headman and the Reverend Father from their church, which seems to be a reference to a Parish Priest. He said that those two approached the officer in charge at the station and, because of their interventions, the Applicant and his father were released on conditions.

6. He claimed that he was arrested a second time and again released with these same conditions.  He said that his uncle remained in custody in Colombo.  He said that a few days after his release, the CID came to the house, again looking for him.  He was not there so they arrested his father and his father was tortured and beaten at the CID office. 

7. He said that the CID then took his cousin and interrogated his cousin and beat him while in detention.  He said that the cousin was released. After a few days, the cousin collapsed and died due to the beatings he received from the CID authorities. 

8. Because of this, he remained in hiding.  He said he was unable to stay in his village and he moved to Jaffna at the end of September 2012 to hide with relatives.  He said he could not stay there for long because he knew he would be found by the authorities.  He had heard that his first cousin had been arrested by the authorities and he told the authorities here that the cousin’s body was found in August 2013. 

9. He said that, in September 2012, he went from his village to India by boat illegally.  He tried to register as a refugee in India but was refused; he was allowed to live outside the camp; and that he left by boat from India in October 2012, arriving in Australia on 3 November 2012.

10. He said, in 2013, another uncle was taken and his dead body was found in the ocean. 

11. He claimed that he had conflict with Muslims in the neighbouring village and this may happen again. 

12. He claims that if he returned to Sri Lanka he will be persecuted because he is a young Tamil male from the north; because of his family links to the LTTE; his imputed support of the LTTE; and, as a failed asylum seeker returning from a western country who left Sri Lanka illegally by boat to go to India and then his illegal departure from India to Australia. 

13. He claims that he will be questioned at the airport, the authorities will be advised of his previous links to the LTTE and he will be questioned in relation to those suspicions.  He claims that he will be tortured and he will not be able to escape the revenge of the police, the CID or any other of the Sri Lankan authorities.

14. The IAA did thoroughly look at all of those claims.  For the purposes of this review I will not go through what it is that the IAA found with relation to those claims, bar one. 

15. The IAA came to the view that the Applicant was not a person who would be imputed with any links to the LTTE and that he was not of interest to the Sri Lankan authorities or the CID or the Sri Lankan Navy or for any other reason. 

16. The IAA did not accept that the Applicant was detained by the CID and the CID was looking for him.  The IAA was not satisfied that the Applicant’s two uncles and two cousins have been detained, harmed and killed.  The IAA was not satisfied that one of his uncles is still in custody and was not satisfied that the father was detained and physically mistreated by the CID.

17. The IAA went through the country information as to what would occur to the Applicant upon his return to Sri Lanka and found that he may be charged with an offence under the I&E Act, but would only be fined for such an offence. 

18. The IAA found that the Applicant would not be targeted for any harm, particularly by Muslims or others because he is a Christian.

19. After coming to all of those conclusions, the IAA did not find that the Applicant met the criteria as a refugee.

20. The IAA then looked at the criteria for complementary protection. It also found that the Applicant did not meet those criteria.  Having come to that conclusion, the IAA affirmed the decision not to grant the Applicant the protection visa. 

21. The grounds of this application are as follows:

    1. The Immigration Assessment Authority erred by failing to consider or by misunderstanding the Applicant’s claim he would face a real chance of serious harm arising from the fights he had previously had with Muslims in his nearby village.

    2. The IAA erred by failing to consider the Applicant’s claim that he would face a real risk of significant harm arising from the fights he previously had with Muslims in his nearby village. 

22. Those two grounds really coalesce in many ways and are correlated to the point where I agree with the submission by counsel for the Minister that if ground one fails, ground two must necessarily fail, but if ground one succeeds, it really has already subsumed ground two.

23. This ground stems from a conversation between the delegate and the Applicant during the Safe Haven Enterprise Visa interview.  Even though it is somewhat wordy, I will read the exchange into the record.  It is at page 9 of the transcript.  It appears appended to the affidavit of Ms Thick sworn on 9 July 2016.  It starts at line 270.  The Delegate asked:

    What is your religion?---Christian.

    Have you ever experienced problems in Sri Lanka due to your religious beliefs?---Yes. 

    Can you tell me about that?---Yes.

    Can you tell me now about the problems you’ve experienced due to your religion?---Mostly people.  They living adjoining to our village and there was some conflict between them and us.

    Did you experience any personal conflict with anyone?---Yes.  Myself and my friend.  We fight with them.

    Yes.  When did this happen?---I can’t remember.  I think 2010.  Like, that.  ’10 or ’11.

    What was the nature of the conflict?---We practice a different religion and they practice a different religion.

    Okay.  What did it eventuate in? What happened?---When we were talking about the religious matters and it leads to a conflict.

    Okay.  Was there a physical altercation?---Yes.

    Okay.  Does this incident – would you say that it is linked to the reasons why you cannot return to Sri Lanka, or it’s something completely different?---This is also one reason, and also they are still living in that area and in our country.  This problem – there is a religious conflict.

    What do you fear would happen to you because of this religious conflict?---They are still living in our adjoining village, so there might be possible – there might be some conflicts.  Possibility for conflicts.

    What type of harm do you fear for this reason?---My enemies, that means those who conflict with me, they still live there so it will lead for fights and (indistinct).

    What was that?---Cuts and (indistinct)

24. That conversation was summarised by the IAA at paragraph 28 of their reasons, and at paragraph 28 it reads:

    28. During the SHEV interview the Applicant was asked whether he ever experienced problems in Sri Lanka due to his religious beliefs and he said yes.  The Applicant claimed Muslim people live in the adjoining village to his village and there was some conflict between them.  He claimed he and his friend would fight with them.  He said he could not remember when exactly, but around 2010/2011 and they fought because they practice a different religion.  He claimed when talking about religious matters it quickly led to physical conflict.  When asked if this conflict was linked to the reasons why the Applicant cannot return to Sri Lanka, the Applicant said it was one reason.  He said the Muslims still live in that area and there is religious conflict in his country and it may be possible there will be conflicts.  The Applicant did not elaborate on the fighting, however the Applicant’s evidence was convincing.  I am satisfied the Applicant, a Christian, fought with Muslims in his neighbouring village about religious matters when in conversation with them about a year or two before he departed Sri Lanka.

25. It seems to me that is an extremely accurate summary of the conversation that I have previously read out, and it is an example of how thoroughly IAA has looked at the matter. 

26. When the IAA came to assessing the claims, it said this at paragraph 44:

    …while DFAT reports the existence of religious tensions in Sri Lanka, including documented attacks against Christians, Buddhists were the perpetrators of most of the reported incidents, followed by Hindus and, to a lesser extent, Catholics against other Christian denominations.  Country information does not support a finding that Muslims are targeting Christians for any harm for religious reasons.  However, DFAT reports that in November 2017, some Muslim businesses were temporarily boycotted because of tensions between the Tamil and Muslim communities in Batticaloa and on 6 March 2018, the Government declared a nationwide state of emergency for 12 days in response to incidents of communal unrest between members of the Sinhalese Buddhists and minority Muslim communities in Kandy District, Central Province, which resulted in the deaths of four people and dozens of people being injured.  However, country information indicates the State is willing to intervene quickly to protect people from communal violence and to stop it from escalating.

27. Paragraph 45:

    …I was satisfied that Applicant, a Christian, fought with Muslims in his neighbouring village about religious matters when in conversation with them about a year or two before he departed Sri Lanka.  Considering country information and the Applicant’s own evidence, I am not satisfied there is a real chance the Applicant would be targeted for any harm by Muslims or others because he is a Christian.

28. The point the Applicant makes is that the last sentence of paragraph 45 that considers the country information and the Applicant’s evidence still does not deal with the claim that the Applicant is making. 

29. The Applicant was not making a claim that because he is a Christian, he is a target or that he would be, as it were, the subject of violence by Muslims simply because of the fact that he is a Christian.  His claim was that there are particular persons who are Muslim in a neighbouring village.  Those particular persons are people that he and his friend talked to. Because, in such talks, issues of religion arise, this causes conflicts.  Those conflicts have led to physical altercations.

30. It is that claim that if returned to Sri Lanka, he will still be in contact with those people with whom, if he talks, there will be an argument and that argument will lead to physical altercation. That was not addressed by the IAA.

31. Whilst it may be said that there really is very little substance in such a claim, that is not the point. The point is that the IAA must still engage with the claim that has been made. The claim that was made specifically was about those persons who were Muslim who would talk to him. It seems to me that what the IAA did was look at that particular aspect and expand it.

32. There is nothing wrong with the conclusion that they came to that:

    …considering country information and the Applicant’s own evidence, I am not satisfied there is a real chance the Applicant would be targeted for any harm by Muslims or others because he is a Christian.

33. That is a proper finding and one that merely arises from what had been said but, as I said during the course of the exchange between Bench and Bar, it seems to me that there is a sentence missing in paragraph 45; a sentence that could have disposed of this claim very easily by saying something of the sort that “the Applicant has not detailed that there would be any significant harm given to him on account of the fact that he might talk to these persons if returned to Sri Lanka”, or something of that nature that would have shown that there was an engagement with the claim.

34. It may be that the claim has very little merit, but again, that is not the point.  It still must be a claim that is engaged with by the IAA. 

35. For that reason, I am of the view that there has been established, to my satisfaction, a jurisdictional error in that the IAA had failed to consider the Applicant’s claim that he would face a real chance of serious harm arising from the fights he previously had with Muslims in his nearby village.

36. In finding that ground 1 succeeds, there is no need to look at ground 2 because it is subsumed in that ground.  Therefore, I grant the application and I will quash the decision of the IAA and issue the appropriate writs.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  27 November 2019