SZQLS v Minister for Immigration

[2018] FCCA 767

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZQLS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 767

Catchwords:
MIGRATION – International Treaties Obligations Assessment – whether the assessor failed to assess an essential integer of the applicant’s claim – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 477

Applicant: SZQLS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: GREG SCOURSE, ON SHORE PROTECTION WA, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

File Number: SYG 2932 of 2017

Judgment of: Judge Street

Hearing date: 28 March 2018

Date of Last Submission: 28 March 2018

Delivered at: Sydney

Delivered on: 28 March 2018

REPRESENTATION

Counsel for the Applicant: Ms E Grotte

Solicitors for the Applicant: Michaela Byers, Solicitor

Counsel for the Respondents: Ms J Davidson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Grant leave to the applicant to file in Court the affidavit of Michaela Byers affirmed on 28 March 2018.

2. Pursuant to s 477 of the Migration Act 1958 (Cth), time for commencing the proceedings in respect of the ITOA dated 10 March 2015 is extended up to and including 20 September 2017.

3. The application is dismissed.

4. The applicant to pay the first respondent’s costs fixed in the amount of $6,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2932 of 2017

SZQLS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

GREG SCOURSE, ON SHORE PROTECTION WA, DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ and declarations within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of an International Treaties Obligations Assessment (ITOA) made on 10 March 2015.

2. Proceedings were originally commenced within time under s 477 of the Act seeking relief challenging the ITOA assessment. However, those proceedings were discontinued in circumstances that have been the subject of evidence given before this Court. As a result of that evidence, which included a satisfactory explanation for the circumstances in which the earlier proceedings were discontinued, and the time that elapsed thereafter under a mistaken apprehension as to the process that would apply to this particular applicant, the Court found that it was appropriate to extend time under s 477 of the Act in respect of these proceedings, which were commenced on 20 September 2017.

3. These proceedings are seeking to challenge the ITOA assessment that had earlier been the subject of proceedings commenced within time and discontinued as a result of the mistaken apprehension that the client would be invited to seek a Safe Haven Enterprise visa. The Court notes the first respondent did not require reasons in respect of the order extending time and the Court accepted affidavit evidence and oral evidence of Ms Byers, the solicitor for the applicant which provided a satisfactory explanation.

4. In those circumstances, the Court was satisfied that it was necessary in the interests of the administration of justice to extend time in respect of these proceedings which have been raised in earlier proceedings within time which had been discontinued as a result of the erroneous understanding as to what would occur in relation to this particular client. That erroneous understanding was reasonable in the context of the communications that were put before the Court.

The ITOA

1. The applicant was found in the ITOA assessment to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant entered Australia on 2 October 2009 as an irregular maritime arrival. A Refugee Status Assessment on 14 January 2010 found the applicant not to be a refugee. An Independent Merits Review on 20 April 2010 found the applicant not to be a refugee. A second Independent Merits Review on 7 June 2011, following a decision of the High Court of Australia on 11 November 2010 identifying error in the earlier review, again found the applicant not to be a refugee. The applicant sought to challenge that decision in the Federal Court by commencing proceedings on 22 July 2011.

2. A further ITOA assessment was carried out on 31 January 2012 and found there was no unique or exceptional circumstances. On 17 July 2012, the applicant’s proceedings in the Federal Court were dismissed. On 6 August 2012, the applicant appealed to the Full Court of the Federal Court. On 12 November 2012, the appeal was dismissed by the Full Court of the Federal Court. 

The ITOA interview

1. An interview was held with the applicant on 18 November 2014 for the ITOA assessment. At that time, the applicant had the benefit of an interpreter. The applicant’s legal representative was not present but the applicant had a support person present. Prior to the holding of that oral interview, submissions had been advanced to the assessor on behalf of the applicant and following that interview, further submissions were advanced on behalf of the applicant, identified in the ITOA assessment.

2. In the course of that interview on 18 November 2017, the applicant was asked questions in relation to his claims that had been submitted by his representative. The interviewer identified the first claim to be that the applicant feared persecution for reasons of an imputed political opinion, and that this covered his claim of being a Tamil and that he would be imputed with an LTTE association, to which the applicant responded, “Yes.” The interviewer identified that political opinion, or imputed political opinion, also covered the applicant’s participation in a protest, and the applicant being seen on TV. The interviewer identified that political opinion, or imputed political opinion covered the concern in relation to the data breach and the applicant’s recent court case in Australia, to which the applicant again responded, “Yes.”

3. The interviewer then identified the applicant’s claim of persecution from being a member of a particular social group, and that that social group was identified as young Tamil males from the north, and the applicant responded, “Yes.” 

4. The applicant was also asked a question about his membership of the group Non-Government Organisation Workers in Sri Lanka, to which the applicant responded in the affirmative. The applicant was also asked a question as to his membership of the group failed Tamil asylum seekers, to which the applicant again responded, “Yes.” 

5. The interviewer referred to the applicant’s current and previous mental health issues as a reason why the applicant could not return, to which the applicant responded, “Yes.” The interviewer expressly referred to the proposition that the interviewer had covered all of the applicant’s claims and that the interviewer would be corrected by the applicant’s agent if that was wrong, and the applicant responded, “Yes.” 

6. Whilst I accept that the applicant’s representative was not present at the time of the interview, it is apparent that further submissions were put on immediately after the interview. None of those submissions suggested any error in the identification of a particular social group in the course of that interview. 

ITOA assessment 10 March 2015   

1. The assessor referred to the applicant’s claim that he would be targeted by the authorities because he worked for a non-government organisation (NGO) at a hospital in Vavuniya. which meant that it could be argued the applicant was a member of a particular social group of NGO workers in Sri Lanka.  The assessor observed that that definition was somewhat vague and ill-defined and had concerns regarding the cognoscibility of such a particular social group within Sri Lankan society. The assessor referred to that issue being better addressed under the Convention ground of political opinion (imputed), as the essence of the claim revolves around the client being imputed with a political opinion adverse to that held by the Sri Lankan Government due to his employment with an NGO and of possibly having LTTE links due to his interaction with Tamil patients.

2. The assessor turned to the issue of political opinion and was satisfied the applicant was not the subject of any adverse interest by Sri Lankan authorities due to his participation in the protest, and the limited involvement in the publication of media articles. The assessor referred to the applicant not having been detained or questioned about his involvement in the demonstration or his media involvement, and that this factor was in line with the country information presented to the applicant for comment. The assessor’s reasoning was strengthened by the fact the applicant was able to lawfully obtain a passport in March 2008 at a time of heightened tensions and increased fighting between the LTTE and the government.

3. The assessor accepted the applicant had some involvement with the NGO called CCWD, and accepted that he may have been checked by the authorities on entering the hospital to visit patients, but did not accept that these checks were more than routine checks, and found the applicant was not of particular adverse interest to the Sri Lankan authorities.

4. The assessor referred to the visits by the Tamil Congress while the applicant was in detention and did not accept the applicant’s claims in relation to being suspected by the Sri Lankan authorities of remitting money back to Sri Lanka in order to support the LTTE due to the fact that the applicant is not an LTTE supporter and has no political profile within Sri Lanka. The assessor found the applicant did not have a political profile within Sri Lanka either real, or imputed that was of interest to the Sri Lankan authorities. The assessor referred to the incidents that occurred to the applicant since his arrival in Australia not having raised his profile in such a way that he would be at a real risk of harm from the Sri Lankan authorities on return to Sri Lanka for his political opinion, imputed or otherwise.

5. The assessor expressly referred to the particular social group of young Tamil males from the north. The assessor referred to the submissions that were provided and the suggestion that the applicant would be suspected of some level of involvement with the LTTE because he originated from the north. The assessor referred to the UNHCR’s advice from December 2012 that while all persons residing in an LTTE controlled and administered area at the height of the LTTE’s influence would have had contact with the LTTE in their daily lives, originating from such an area does not in itself result in a need for protection in present day Sri Lanka. The assessor took into account the other findings made and found the applicant is not at risk of serious harm on return to Sri Lanka due to his membership of a particular social group, being young Tamil males from the north.

6. The assessor also addressed the particular social group, being Sri Lankan failed asylum seekers, and found the applicant did not have a well-founded fear of being persecuted by state authorities or pro-government paramilitary groups within the reasonably foreseeable future on return to Sri Lanka for his membership of a particular social group, being Sri Lankan failed asylum seekers.

7. The assessor found the applicant’s fear of persecution was not well-founded. The assessor also found the applicant had not satisfied the assessor that he has a real risk of being subject to significant harm should he be returned to Sri Lanka.

Before this Court

1. Ground 1 of the application is not pressed. The ground in the application is as follows:

   2. The second respondent fell into jurisdictional error in failing to consider a claim squarely put.

   Particulars

   a. On 1 October 2014 the second respondent sent a natural justice letter to the applicant's agent;

   b. The agent's submission in response to the natural justice letter is reproduced at pages 12 to 16 of the decision record;

   c. On page 14 at point 7 the agent makes a submission relating to Sri Lanka's sophisticated intelligence as to activities within Sri Lanka and in the diaspora;

   d. On page 15 at paragraph 1 the agent wrote that reasons that his activities would be of interest to Sri Lank.an authorities :

   i. Young Tamil male from the north who left Sri Lank.an illegally on 3 September 2009 during the Humanitarian Operation at the end of the civil war;

   ii. The applicant's date of departure at the end of the war itself raises suspicion of LTTE involvement; and

   iii. The particular social groups of "Young Tamil males from the north" and "Sri Lank.an failed asylum seekers" at page 34 there is no consideration as to the implications of the date of illegal departure from Sri Lanka.

2. Ms Grotte of counsel on behalf of the applicant, submitted that the applicant was in fact a member of a particular social group comprising young Tamil males from the north who left Sri Lanka illegally on 3 September 2009 during the humanitarian operation at the end of the civil war. It was submitted that this was a different social group that arose on the material before the assessor, even though no such particular social group was expressly identified.

3. Attention was drawn to the submissions that were set out in full in the assessor’s assessment which set out the applicant’s submissions dated 15 October 2014. Those submissions were in response to a letter inviting the applicant to comment on country information sent to the applicant on 1 October 2014. The applicant’s submissions which were included in the assessor’s reasons at page 510 of the Court book, relevantly provided “Protection claims on point 7” as follows:

   The applicant was a young Tamil male from the north who left Sri Lanka illegally on 3 September 2009 during the Humanitarian Operation at the end of the civil war. He would be suspected of some level of involvement with the LTTE and the Tamil Congress in Sydney and was a main application of a highly publicised High Court of Australia case that the then Australian Prime Minister commented on.

4. Those submissions from the applicant’s representative were sent after the applicant had been sent a letter on 5 September 2014 identifying the proposal to carry out an ITOA assessment. In response, a letter dated 11 September 2014 was sent by the applicant’s legal representative. That letter expressly identified the applicant’s protection claims and relevantly at page 308 of the Court Book, stated:

   He is a young Tamil male from Vavuniya, which is in north of Sri Lanka.

5. The invitation to comment on 1 October 2014, which referred to country information expressly referred in paragraph (c) on page 422 of the Court Book to the claim that the applicant feared persecution as a young Tamil male from the north. The assessor at page 526 of the Court Book, was prepared to accept that young Tamil males from the north may be regarded as a group of persons who share common characteristics, other than their risk of persecution, namely their race, gender, age, and place of origin. The assessor referred to the northern regions of Sri Lanka, being formally an LTTE stronghold, and was prepared to accept that young Tamil males from the north may be perceived as a group by the Sri Lankan authorities and society in general in Sri Lanka.

6. Ms Grotte of counsel submitted that, by reason of the circumstances that the applicant left in 2009, the applicant should be regarded as being in a particular social group that should have been addressed by the assessor as a result of the submission referred to above at [22] under Protection Claims on point 7 in the submission dated 15 October 2014. No express submission is advanced that the applicant was at a heightened risk of imputation of an LTTE connection because of his departure in 2009, nor was any submission advanced that there was a particular social group of the kind advanced in support of ground 2. No such claim was expressly made, and no such claim fairly arises on the material before the assessor. 

7. I do not accept that the assessor failed to address an essential integer in relation to the applicant’s claim or that there is a claim that the applicant belonged to a particular social group of young Tamil males from the north who left in 2009 during humanitarian operations that arose on the material and should have been the subject of its findings. The assessor did not fail to consider the applicant’s claims and made findings dispositive of the applicant’s claims.

8. The context of the departure date of the applicant, being that this was during the operation at the end of the civil war, was in relation to the applicant’s claim to fear harm by reason of being a young Tamil male from the north, and was not a separate claim that the applicant belonged to a particular social group. Moreover, it is apparent on the face of the assessor’s reasons, that the assessor took into account the applicant’s contextual circumstances and date of departure, which was expressly identified in the submissions set out in the assessor’s assessment.

9. It was not necessary for the assessor to expressly refer to each aspect of the submissions advanced in relation to the applicant’s claim to fear harm by reason of being a member of a particular social group, being a young Tamil male from the north. I accept the first respondent’s submission that the contextual circumstances of the applicant being a person that left Sri Lanka during humanitarian operations in 2009 at the end of the civil war was on the face of the assessor’s reasons, information taken into account by the assessor in determining the claim advanced that the applicant was a member of a particular social group, being young Tamil males from the north. The assessor made dispositive findings on the applicant’s claims and there was no integer of the applicant’s claims that was not subsumed in the adverse findings by the assessor. No jurisdictional error as alleged in ground 2 is made out.

10. Accordingly, the application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  4 May 2018