ABI18 v Minister for Home Affairs & Anor [2018] FCCA 3448 (26 November 2018)

Last Updated: 28 November 2018

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABI18 v MINISTER FOR HOME AFFAIRS & ANOR

[2018] FCCA 3448

Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.473DD

Cases cited: Minister for Immigration v Li [2013] HCA 18; (2013) 297 ALR 225 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration [2004] FCAFC 10 SZTAL v Minister for Immigration; SZTGM v Minister for Immigration [2017] HCA 34; (2017) 91 ALJR 936

Applicant:

ABI18

First Respondent:

MINISTER FOR HOME AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 29 of 2018

Judgment of:

Judge Driver

Hearing date:

26 November 2018

Delivered at:

Sydney

Delivered on:

26 November 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms A Zinn of Mills Oakley

INTERLOCUTORY ORDERS

(1) Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
(2) The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY

SYG 29 of 2018

ABI18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 5 December 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant to the applicant a protection visa. Background facts concerning the applicant’s claims for protection and the decisions of the delegate and the Authority on them, are set out in the Minister’s outline of submissions.
2. The applicant is a male citizen of Sri Lanka and a Hindu Tamil.^[1] He arrived in Australia at Cocos (Keeling) Islands on 3 November 2012 as an unauthorised maritime arrival,^[2] and lodged a valid application for a Safe Haven Enterprise Visa (SHEV) on 15 September 2016.^[3]
3. In a statement provided with his SHEV application,^[4] the applicant claimed he mainly worked as a farmer in Sri Lanka but had to move frequently due to the war and after the Sri Lankan Army (SLA) moved into each area. In 2006, the applicant and his family were displaced and moved to Mallavi where the applicant was approached by the Liberation Tigers of Tamil Eelam (LTTE) to be a driver for them. He claimed he was unable to refuse and started transporting food for the LTTE.^[5]
4. In the middle of 2008, the applicant and his family were displaced and moved to Mullativu District. The war was bad at the time and they often had to hide in bunkers for shelter, but the applicant continued working for the LTTE as a driver.
5. In 2009, the applicant and his family surrendered to the SLA and were taken to an Internally Displaced Persons (IDP) camp. After returning to his village in early 2011, the SLA discovered that the applicant had worked as a driver for the LTTE and required him to report to them every day.^[6]
6. After three months of daily reporting, the applicant moved to Mannar in early 2012. Whilst there, the applicant’s wife informed him that members of the SLA came to their house two or three times looking for him. Members of the SLA also referred his matter to the local police who confiscated the applicant’s tractor and told his wife they had commenced court action against him for leaving his village without permission.^[7]
7. The applicant claimed the police were still looking for him since his arrival in Australia.^[8] He also claimed that his cousin and his wife’s niece were involved with the LTTE and were killed during the conflict.^[9] The applicant feared that if he returned to Sri Lanka he would be harmed by the police as they would know he worked for the LTTE and also because he departed Sri Lanka illegally.^[10]

The delegate

8. By a letter dated 23 February 2017, the applicant was invited to attend an interview with the delegate scheduled for 15 March 2017,^[11] which he attended.^[12]
9. On 9 October 2017, the delegate refused to grant the applicant a SHEV.^[13] The delegate accepted the applicant’s claims about his involvement with the LTTE but did not accept he was of interest to the police or there was a warrant issued for his arrest.^[14] On the basis of relevant country information, the delegate was not satisfied there was a real chance or real risk he would suffer serious or significant harm.^[15]

The Authority

10. On 12 October 2017, the matter was referred to the Authority.^[16]
11. On 7 November 2017, the applicant provided a submission to the Authority in which he raised new claims for protection. The applicant claimed that: in addition to working as a driver with the LTTE, he was also a fighter with the LTTE; he was involved in the Velli Oya Trincomalee confrontation and killed several SLA soldiers; he managed to escape from the LTTE with the help of an LTTE intelligence officer; and he was taken to Chattikulam Detention Centre and placed in a section housing the general public. He claimed his physical characteristics were unusual to any normal Tamil and would help identify him as an LTTE fighter.^[17]
12. On 5 December 2017, the Authority affirmed the delegate’s decision not to grant the applicant a SHEV.^[18]
13. The Authority found the claims made in the submission dated 7 November 2017 were not before the delegate and constituted new information.^[19] The applicant’s explanation for not mentioning that he was an LTTE fighter to the delegate was, “at the time I came to Australia there was rumours that if a person tells that he was in the LTTE and fighting for them he will be detained for a long time”. The Authority accepted this may have been a factor against the applicant disclosing this information at the entry interview, but found that at the time of the SHEV application (some four years later) the applicant was no longer in immigration detention and was residing in the community. The Authority found: the applicant was assisted by the Refugee Advice and Casework Services in preparing his application; the delegate provided numerous opportunities for the applicant to provide any additional information; and the applicant was informed at his SHEV interview that it was his responsibility to provide all relevant information in support of his claims.^[20]
14. The Authority noted the applicant had consistently referred to working as a driver with the LTTE and denied training or participation as a fighter. It found the new information regarding his purported involvement was “general in nature” and lacked specificity regarding, for example, how the applicant came to be recruited into the LTTE. The Authority found it was implausible that the applicant would be able to avoid detection as a person who participated as an LTTE fighter during the six months he was detained in a detention centre. Accordingly, the Authority was not satisfied the new information provided a genuine account of events in which the applicant was involved. The Authority was also not satisfied that the new information could not have been provided before the delegate’s decision or that the information was credible personal information. The Authority found there were no exceptional circumstances to justify consideration of the new claims.^[21]
15. The Authority accepted that the applicant was a national of Sri Lanka from the Northern Province and a Tamil Hindu.^[22] The Authority found the applicant provided a broadly consistent account of his circumstances in Sri Lanka and accepted that: the applicant and his family relocated on a number of occasions to avoid the conflict; they later surrendered to the SLA and were detained in an IDP camp for a period of about six months;^[23] the applicant worked as a driver transporting food for the LTTE from 2006 to 2008;^[24] and two of the applicant’s relatives were involved with the LTTE and died during the conflict.^[25]
16. The Authority also accepted on the basis of country information that when the applicant returned to his home village he was identified by the SLA as having involvement with the LTTE and was required to report to the army camp every day for about three months, after which time he was required to report once a week. The Authority accepted that during the early days of reporting, the applicant was questioned and beaten on occasion. The Authority noted that no further details had been provided regarding the nature of the SLA’s treatment of the applicant but accepted that by early 2012 the frequency of reporting reduced to once a week.^[26]
17. The Authority also accepted that the applicant ceased reporting in breach of his reporting conditions and the SLA made enquiries at the applicant’s home, but it did not accept that after a number of visits the police attended the applicant’s home and made enquiries about him. The Authority found the applicant’s evidence regarding his tractor being confiscated and a warrant being issued for his arrest was “vague and unconvincing”. The Authority did not accept that the police took an interest in the applicant when he left the village and found it was implausible their interest would continue some four years after the applicant departed Sri Lanka. The Authority found the applicant’s evidence was unsupported by documentary evidence and did not accept that: the applicant’s tractor was confiscated; a warrant was issued for his arrest; there was an outstanding court matter against him; or the police had regularly been visiting the applicant’s home.^[27]
18. The Authority cited extensive country information regarding the situation for Tamils in Sri Lanka and specifically for Tamils with links to the LTTE.^[28] On the basis of the applicant’s own accepted evidence, the Authority found that although the authorities were aware of his role as an LTTE driver, he was never formally arrested or sent for rehabilitation and was permitted to return home on each occasion after reporting. The Authority was satisfied that the authorities were aware of his involvement with the LTTE and had ample opportunity to detain him. It accepted the applicant’s claims regarding his involvement with the LTTE but found that by the time he left his village for Mannar in early 2012, interest in him had decreased as evidenced by the decrease in the frequency of reporting required. The Authority did not accept that the authorities continued to have an interest in the applicant beyond early 2012 and was not satisfied he would appear on any “stop list” at the airport or be at risk of harm as a result.^[29]
19. The Authority also considered country information regarding relatives of LTTE members but found there was no indication in the available evidence that whilst the applicant was in Sri Lanka, his relationship to his cousin or niece were a cause of adverse attention. The Authority did not accept that on his return the applicant would be of adverse interest on account of his relatives’ LTTE membership.^[30] The Authority was not satisfied the applicant faced a real chance of harm as a Tamil male with personal and family links to the LTTE.^[31]
20. The Authority accepted that the applicant left Sri Lanka illegally and would be returning as a failed asylum seeker.^[32] The Authority cited country information regarding the procedures for returnees,^[33] and accepted the Sri Lankan authorities would infer that the applicant sought asylum in Australia due to the manner of his return.
21. The Authority accepted some asylum seekers with links to the LTTE may be at risk of harm during arrival processing but, as it had already found the applicant did not have a profile that would attract the adverse attention of Sri Lankan authorities, did not accept he would be of adverse interest to the authorities or detained for having sought asylum on his return to Sri Lanka.^[34]
22. The Authority accepted that the applicant may be detained at the airport for a short period or in a prison for several days, but found this would not constitute serious harm. The Authority was also satisfied there was a real chance that the applicant would incur a fine, but found this also did not amount to serious harm. Accordingly, the Authority was not satisfied there was a real chance that the applicant would suffer serious harm as a returned asylum seeker^[35] or that the processing and penalties he might face would amount to systematic and discriminatory conduct.^[36]
23. Having found the applicant did not have a real chance of any harm because he was a Tamil with personal and family links to the LTTE or for seeking asylum in Australia, and as “real chance” and “real risk” involved the same standard, the Authority was also not satisfied there was a real risk of significant harm for these reasons.^[37] In addition, the Authority was not satisfied that the treatment of the applicant during airport processing, the imposition of a fine, detention or poor prison conditions would constitute significant harm. The Authority found there was no evidence there was any intention on the part of Sri Lankan authorities to inflict pain or suffering, severe pain or suffering or to cause extreme humiliation. The Authority’s reasoning is consistent with precedent.^[38]

The present proceedings

24. These proceedings began with a show cause application filed on 5 January 2018. The applicant continues to rely upon that application. There are two grounds in it:
    • Ground 1
    • IAA made a jurisdictional error by misapplying well-founded fear test.
    • Particulars
    • IAA failed to conclude that the Applicant will be imputed with LTTE profile for his contribution to the LTTE.
    • LTTE suspects are still persecuted in Sri Lanka.
    • Ground 2
    • IAA made a jurisdictional error.
    • Particulars
    • IAA failed to consider the country information that persons suspected of LTTE connections are still persecuted.
25. The application is supported by a short affidavit filed with it which I received.
26. I also have before me as evidence the court book filed on 6 March 2018.
27. Only the Minister filed written submissions in advance of today’s hearing.
28. I invited oral submissions from the applicant this afternoon. His overriding concern is that he was not granted a protection visa. That is consistent with the grounds in his application which appear essentially directed to the merits of the authority decision. He is also concerned that he has not been given a Medicare card. That is beyond the scope of this proceeding. The applicant was not in a position to articulate any legal arguments.
29. I called for oral submissions from the Minister’s solicitor in relation to the Authority’s assessment for the purposes of s.473DD of the Migration Act 1958 (Cth). That assessment appears in the decision record from [5] through to [8]. In my view, and consistently with the Minister’s submissions, the Authority has succeeded in avoiding error in its analysis of whether it should receive the new information proffered. No other available argument of legal error is apparent.
30. The Minister’s submissions address the grounds of review. I agree with those submissions.

Ground 1

31. Ground 1 contends that the Authority erred by misapplying the “well-founded fear test”. The particulars allege that the Authority “failed to conclude the applicant would be imputed with LTTE profile for his contribution to the LTTE”, and states that LTTE suspects are still being persecuted in Sri Lanka.
32. The Authority correctly identified the relevant law in relation to a well-founded fear of persecution^[39] as well as in the annexure to its decision titled “Applicable law”.^[40] The Authority plainly understood the correct test to be applied and the applicant’s bland assertion in ground one is baseless. Further, the Authority extensively considered whether the applicant would face harm due to his association with the LTTE,^[41] but found he would not be of any interest to authorities for this reason on his return. It had regard to country information which indicated that high profile individuals with links to the LTTE would continue to be of interest to Sri Lankan authorities^[42] but did not accept that authorities had any interest in the applicant beyond early 2012.^[43] It also did not accept the applicant would be of adverse interest to authorities on account of his claimed familial links to the LTTE and therefore was not satisfied he faced a real chance of harm from any group.^[44]
33. The applicant ultimately takes issue with the Authority’s factual conclusions about his claims, which were open to it on the material before it. Properly understood, ground one seeks impermissible merits review^[45] and reveals no arguable case of error in the Authority’s decision.

Ground 2

34. Ground 2 asserts the Authority erred by failing to consider country information that indicated persons suspected of having LTTE connections were still being persecuted.
35. The Authority did have regard to country information that indicated that since the end of the war, thousands of LTTE members had been arrested and detained in rehabilitation centres.^[46] However, the Authority found that despite the applicant having frequent interactions with the authorities in late 2011 and early 2012, and the authorities being aware of his role as an LTTE driver, he was never formally arrested or sent for rehabilitation. The Authority found that if the authorities regarded the applicant’s involvement with the LTTE as significant, then he would have been held in detention, arrested or sent for rehabilitation. For these reasons, the Authority did not accept that the Sri Lankan authorities continued to have an interest in the applicant beyond early 2012.^[47] The Authority’s conclusions flowed logically from the evidence and country information before it and could not be said to lack an “evident and intelligible justification”.^[48] The choice and weight to be given to country information was a matter for the Authority.^[49] Ground 2 also invites the Court to engage in impermissible merits review.
36. I conclude that the applicant is unable to advance an arguable case of jurisdictional error by the Authority.
37. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
38. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale. The applicant claims impecuniosity, but as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.
39. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 28 November 2018

---

^[1] Court Book (CB) 64
^[2] CB 17. The delegate and Authority erroneously record the applicant’s arrival date as 3 November 2011
^[3] CB 26-63
^[4] CB 64-70
^[5] CB 65
^[6] CB 66
^[7] CB 67
^[8] CB 69
^[9] CB 65
^[10] CB 68-69
^[11] CB 100-110
^[12] CB 117
^[13] CB 111-135
^[14] CB 118-122
^[15] CB 123-131
^[16] CB 136-137
^[17] CB 146-147
^[18] CB 148-167
^[19] CB 152 at [6]
^[20] CB 153 at [7]
^[21] CB 153 at [8]
^[22] CB 155 at [13]
^[23] CB 156 at [18]
^[24] CB 156 at [19]
^[25] CB 156 at [20]
^[26] CB 157 at [22]
^[27] CB 157-158 at [24]
^[28] CB 158 at [26]-[31]
^[29] CB 160 at [32]
^[30] CB 160 at [33]
^[31] CB 161 at [34]
^[32] CB 161 at [35]
^[33] CB 161 at [36]-[38]
^[34] CB 161-162 at [39]
^[35] CB 162 at [40]
^[36] CB 162 at [41]
^[37] CB 163 at [46]
^[38] SZTAL v Minister for Immigration; SZTGM v Minister for Immigration [2017] HCA 34; (2017) 91 ALJR 936
^[39] at CB 154-155 at [10]-[11]
^[40] CB 164-167
^[41] at CB 158-159 at [27]-[32]
^[42] at CB 159 at [28]
^[43] CB 160 at [32]
^[44] CB 160-161 at [33]-[34]
^[45] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272
^[46] CB 160 at [31]
^[47] CB 160 at [32]
^[48] Minister for Immigration v Li [2013] HCA 18; (2013) 297 ALR 225 at [76]
^[49] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]- [13]