AHS17 v Minister for Immigration, Citizenship and Multicultural Affairs

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs as assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 This is an appeal from orders made by a judge of the Federal Circuit Court of Australia, now Division 2 of the Federal Circuit and Family Court of Australia, dismissing an application for judicial review of a decision of the Immigration Assessment Authority (also referred to as the IAA). The Authority had affirmed a decision of a delegate of the first respondent Minister not to grant the appellant a Safe Haven Enterprise Visa (SHEV), a kind of protection visa. 2 It is convenient to reproduce the primary judge's summary of the claims made by the appellant in his visa application, of the delegate's finding about those claims, and of the Authority's findings about those claims and certain additional claims, omitting only peripheral claims that are not the subject of this appeal, and omitting footnotes. Claims for protection [6] The applicant stated his claims for protection on a number of occasions. It would be convenient if I first set out the claims the applicant made in his application for a SHEV; and they are as follows: a) The applicant is a Tamil, and a Hindu. He was born in Jaffna. b) The applicant halted his studies because there were always long periods of disturbances, and the school would regularly close. The applicant then worked at a store as a shop assistant. His father worked at a different store three to four kilometres away; and he would drop off the applicant at his work, and collect him from his work after the applicant's father finished his work. c) In June 2006 there was a "claymore mine attack" in Jaffna, Manakora Junction, where the applicant's father worked. The Sri Lankan Army (SLA) took the applicant's father on suspicion of being involved in the bomb blast. He was beaten as a result of which he was hospitalised. The applicant attached a newspaper article about the bomb blast in which the applicant claims his father's name appears. d) After this the applicant's father was interrogated regularly, and on one occasion the applicant was with his father and was consequently detained by the SLA. The applicant's father was hit in front of the applicant. The applicant was released at night after the applicant's mother pleaded for the applicant to be released. e) Approximately six days later the applicant's father returned home injured. The applicant's father arranged for the applicant to live at a different address because he feared the applicant would be taken away. The applicant moved to "Uravakaturai" where he lived with his relatives, and worked in a grocery store at "Urukavaturai". The applicant, however, was regularly interrogated there by the CID (that is, the Criminal Investigation Department), the EPDP (that is, the Eelam People's Democratic Party), and the SLA. He was continuously asked about the operations of the LTTE (that is, Liberation Tigers of Tamil Eelam) in the applicant's area. f) In early 2009 the applicant obtained a national ID card and moved to Colombo. He there worked as a shop assistant. Police regularly visited the applicant to check he was registered with a police station. On the first occasion he was checked, the applicant was taken to the police station. The police called the applicant to the police station at "Urkavaturai" after the applicant provided his national ID card, and the police from "Urkavaturai" informed the police at Colombo "about the case that was on file about" the applicant and his father. At that time the applicant and his father were separately taken to a police station and investigated. The police viewed the applicant with suspicion because he had come to Colombo, and they accused the applicant of being involved with the LTTE and doing errands for them. The applicant's boss, who was a fellow village man, paid "a large bribe" to have the applicant released. g) After this the applicant feared staying in Pettah and, through an agent, in May 2009 he secured a passport, but the agent cheated the applicant. Later in the year the applicant moved to "Kurungala [sic]" where the applicant registered with the authorities. The applicant did so "under the pretence that" the applicant's father "was a different man", M, "to avoid any problems, as" the applicant's father "was continuing to face problems". h) In early 2012 the CID took the applicant for enquiries. They asked the applicant who was his father. When the applicant said the name "M", the CID said the applicant was lying. The way the CID were speaking suggested to the applicant that they wanted a bribe; so the applicant paid them a bribe and he was released. The applicant did not remain in one place. He did casual work changing locations and shops at which he worked. i) A month or two later M informed the applicant that the applicant was being searched for. The applicant feared for his safety, and he left Sri Lanka by boat. [7] At his interview before the delegate (SHEV interview) the applicant additionally claimed that his father had been missing since 2013; M was the applicant's uncle and M had confessed to the applicant's real identity when M was questioned by the authorities in 2012, and the applicant attended identification parades as part of interrogations at "Uravakaturai". The applicant also claimed that between 2009 and 2012 the applicant paid bribes to police in Colombo and in Kurunegala. After the SHEV interview the applicant's representative provided a submission in which it was claimed there was scarring on the applicant's body which may expose him to a real chance of mistreatment on his return to Sri Lanka. … Before the Authority [10] After the matter was referred to the Authority the applicant's representative provided to the Authority written submissions. With those submissions the representative provided what purports to be a letter dated 4 December 2016 from an "ex-member of Parliament". The ex-parliamentary member claimed the applicant is an ardent supporter of the Tamil National Alliance (TNA), that in 2010 the applicant was helping the purported ex-parliamentary member in the election campaign, and that the applicant was helping the LTTE. The letter also claimed the applicant could not live peacefully in Sri Lanka, and, for that reason, he left Sri Lanka. The letter also stated that the EPDP and the SLA visit the applicant's house to make enquiries about his whereabouts. The letter also referred to advice given by Amnesty International and by the foreign minister of Switzerland that those who intend to return to Sri Lanka should not do so; and that recently six or seven deportees had been taken into custody at Katunayake Airport on their return to Sri Lanka. … [13] The Authority then made a number of findings. The Authority: a) accepted the applicant was detained with his father in late 2006 and released on the same day; b) accepted that in 2006 the applicant's father was held for six days during which he was physically assaulted, and that, following a number of bomb blasts the applicant's father was required to sign daily, and that he assisted the authorities to identify suspects; c) did not accept that following his one day of detention in late 2006 the applicant was a person of adverse interest to the CID, the police or any other authority, or that he quickly moved to "Urukavaturai" to evade those authorities, although the Authority did accept the applicant moved to "Urukavaturai" in early 2007; d) accepted that while in "Urukavaturai" the applicant was questioned by various authorities in relation to his involvement in LTTE activities; e) accepted that when he moved to Colombo the applicant did not follow registration protocols, as a consequence of which the applicant was viewed with suspicion and was required to sign at the police station daily for a period of time; f) did not accept the Colombo police contacted their counterparts in "Urukavaturai" who discovered the applicant and his father had a case on file; and that is because in his SHEV application the applicant said he was detained at Jaffna police station, not at "Urukavaturai" police station, and the applicant had been released from Jaffna police station three years prior in response to his mother's plea; g) accepted the applicant was briefly detained by Colombo police but found the applicant was not of significant concern to the Colombo police because he was released following the payment of a bribe, and because in May 2009 the applicant was able to obtain a passport that would enable him to depart the country; h) accepted it to be plausible that when he moved to Colombo the applicant registered with M, but it did not accept he had any difficulty registering at that time or that he did so under the pretence he was M's son; i) did not accept the applicant was arrested or tortured in around May 2012; j) did not accept the applicant left Sri Lanka in 2012 for the reasons he claimed because the applicant applied for a driver's licence in June 2012 and the applicant claimed at his entry interview on 2 January 2013 that his father commenced arrangements for his travel five to six months before he departed for Australia; k) found the applicant's oral evidence in relation to his being of interest to the Sri Lankan authorities and various groups between October 2009 and August 2012 to be "unconvincing, vague, and contradictory to information provided in his SHEV statement"; and, for these reasons, the Authority did not accept that while living in Kurunegala the applicant came to the adverse attention of the EDPD, the CID, the SLA, or the police because of any suspected links to the LTTE, or because of any suspected links between the father and the 2006 bombing, or because of his registration on M's household card, or for any other reason; l) was not satisfied the applicant's father is missing or hiding since 2013; and that is because in his SHEV application (which is dated March 2016) the applicant listed his father's contact address at a place in Jaffna; and the applicant did not claim in the SHEV application that his father was missing; and m) did not accept the authorities have been seeking the applicant at his home since his departure from Sri Lanka. [14] In the light of these findings the Authority was not satisfied the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future, because of his past experiences in Sri Lanka, or because of his family links, or because of having any adverse profile with the Sri Lankan authorities. Nor was the Authority satisfied that the applicant faces a real chance of serious harm, now or in the reasonably foreseeable future, because of his Tamil ethnicity. [15] Next the Authority considered the claim made by the applicant's representative that the applicant's scars constituted "additional profile factors" that put the applicant at risk if he returned to Sri Lanka because the scars would be exposed to the authorities. The Authority was not satisfied the applicant would be at risk of harm from the scars. The Authority relied on there being no information about how the applicant obtained the scars; the applicant's not having advanced in his SHEV application or at the SHEV interview a claim based on his having scars; the delegate's noting that the issue of scarring was not examined during the SHEV interview, and that the delegate had not noticed any visible scarring during the interview; and the applicant's representative not mentioning the scarring in the submissions he provided to the Authority. [16] The Authority then made a number of findings about what would occur to the applicant if he were to return to the Sri Lanka. The Authority accepted the applicant departed Sri Lanka illegally; that on his return he will be questioned by police and charged under the Immigrants and Emigrants Act and will be arrested at the airport in the course of which the applicant will be fingerprinted and photographed; he will be transported by police to the nearest Magistrate's Court at the first available opportunity once investigations are completed after which responsibility for the custody of the applicant would lie in the courts and prison; the applicant might be held in prison until a magistrate is available; the applicant will be fined; and that none of these matters constitute serious harm, and they, in any event, are matters that are applied generally to persons who have left Sri Lanka illegally. [17] Having made these findings, the Authority concluded the applicant did not meet the definition of "refugee" given in s.5H(1) of the Act [18] Finally, the Authority considered whether the applicant met the complementary protection criterion provided for by s.36(2)(aa) of the Act. Relying to a significant extent on the findings it had already made the Authority concluded there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk the applicant will suffer significant harm 3 The appellant raised four grounds of review in his original application filed in the then Federal Circuit Court, and a further six grounds of review in an amended application. The primary judge refused leave to rely upon any of the additional grounds of review in the amended application, a decision that is not challenged. Accordingly, it is only necessary to consider the original grounds of judicial review that are maintained on appeal. 4 Grounds 1 and 2 in the original application are maintained as appeal grounds 1 and 2 in an amended notice of appeal. The amended notice of appeal abandons appeal grounds 3 to 9, and adds appeal ground 10. Appeal ground 10 is a variation on appeal ground 1, dealing with the same subject matter but taking it a step further, such that it is convenient to deal with those two appeal grounds together.