AAM18 v Minister for Immigration

[2020] FCCA 312

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAM18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 312

Catchwords:
MIGRATION – Immigration Assessment Authority – application for Temporary Protection Visa (subclass 785) – whether the Authority failed to consider certain integers of the applicant’s claims leading to a failure to exercise jurisdiction – whether the Authority misconstrued the real risk test and arrived at a conclusion that was not supported by evidence before the Authority – whether the Authority made a jurisdictional error – no jurisdictional error made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss,5AAA, pt.7AA. 36. 473DD

Federal Circuit Court Rules 2001 (Cth), r.21.07

Cases cited:

Abebe v Commonwealth (1999) 197 CLR 510

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB

[2004] HCA 32

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCAFC 10

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94

FCR 28

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

(1994) 52 FCR 437

SZTFI v Minister for Immigration and Border Protection (2015) 231 FCR 222

Applicant: AAM18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTILCULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 10 of 2018

Judgment of: Judge Humphreys

Hearing date: 28 January 2020

Date of Last Submission: 28 January 2020

Delivered at: Parramatta

Delivered on: 28 January 2020

REPRESENTATION

Solicitors for the Applicant: Ms Okereke-Fisher

Solicitors for the Respondents: Ms Graycar, HWL Ebsworth Lawyers

ORDERS

1. The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. The application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $11,573.50.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 10 of 2018

AAM18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from transcript)

Introduction

1. The applicant is a citizen of Sri Lanka of Tamil origin from the Eastern Province of Batticaloa. On 16 January 2017, the applicant applied for a Temporary Protection Visa (Subclass 785).

2. A delegate of the Minister for Immigration and Border Protection (“the Delegate”) refused to grant the visa on 2 May 2017. The applicant was referred for merits review to the Immigration Assessment Authority (“the Authority”).

3. In a decision dated 12 December 2017, the Authority affirmed the decision of the Delegate not to grant the applicant a Temporary Protection Visa. The applicant now seeks judicial review of the Authority’s decision.

Background

1. The matter was initially listed for hearing in this Court on 10 July 2019. Orders had been made previously that the applicant, who was then represented by Counsel and who now appears in the matter on a direct access basis, file and serve submissions and a list of authorities 14 days prior to the hearing date of 10 July 2019.

2. On 2 July 2019, outside the 14-day time period set by the Court’s Orders, the applicant filed but did not serve an outline of submissions, a list of authorities and an affidavit affirmed by the applicant on 1 July 2019. That included a Draft, Further Amended Application for judicial review, which contained two additional grounds, neither of which have been raised in earlier iterations of the application.

3. On 10 July 2019, the Minister sought an adjournment of the hearing on the basis that due to the non-compliance by the applicant with orders of the Court, in relation to the filing and serving of submissions and the fact that the submissions contained two new grounds of review, they were unable to adequately respond to the matter. Leave was granted by the Court for the applicant to rely on the Amended Application dated 2 July 2019 and the matter was adjourned until today for a substantive hearing.

4. The issue of costs was reserved, including the costs for the adjournment, costs thrown away and whether the costs thrown away should be paid by Counsel for the applicant, pursuant to r 21.07 of the Federal Circuit Court Rules 2001 (Cth). Two issues are thus before the Court for determination. The first relates to the substantive application for review of the Authority’s decision and the second relates to the issue of costs as a result of the adjournment on 10 July 2019 and costs of the hearing today.

5. The Court dealt with the first matter and then heard further submissions in relation to the matter of costs.

Immigration Assessment Authority’s Decision

1. At paragraph 1 of its decision, the Authority notes that the applicant claims fear of harm from Sri Lankan authorities because of his actual or perceived support of the former Liberation Tigers of Tamil Eelam (“LTTE”). At paragraph 5 of its decision, the Authority noted the number of concerns raised by the applicant in respect of the Delegate.

2. These included that the Delegate refused to accept from the applicant, “documents of country information of Sri Lankan human rights situation”, at the conclusion of the Temporary Protection Visa interview. The Authority also noted the Delegate had listened to the recorded interview and there was no evidence on the recording of any attempt by the applicant to introduce country information. A further complaint was made that the Delegate was unfit to decide the applicant’s protection claim because he was sick and in pain and had to stand in the interview and made notes in an exercise book.

3. The Authority noted that it listened to the recorded interview and indicated that the Delegate conducted the interview professionally, with respect and allowed the applicant full opportunity to put forward his claims. A submission to the Authority refers to country information that was not before the Delegate by reference to a citation at footnote 17. No copy of this document was provided to the Authority, although a brief extract was provided. That information appeared to predate the Delegate’s decision.

4. The Authority determined it was not credible personal information. The Authority was not satisfied that either of the matters in s 473DD(b) of the Migration Act 1958 (Cth) (“the Act”) were satisfied, nor were there any exceptional circumstances to justify consideration of the new information.

5. Paragraph 7 of the Authority’s decision sets out the applicant’s claims and can be summarised as follows:

   ·Several members of his extended family, by either blood or marriage, had been killed, abducted and all were presumed dead, killed by Sri Lankan security authorities on account of being, or suspected of being LTTE.

   ·After leaving school in 2005, the applicant provided food and transportation to the LTTE.

   ·The applicant claims that he and his father were detained several times in Sri Lankan Army (“SLA”) camps, tortured and interrogated about LTTE support.

   ·In 2007, the applicant claims he was abducted in a white van, detained in a camp by unknown persons who he suspect were the Karuna Group. The applicant claims he was tortured and held without food and they forced him to undergo weapons training but he was refused and was released.

   ·The applicant obtained a job as a bus conductor working for the Sri Lankan Government Ceylon Transport Board between 2008 and 2010. The applicant claims that he was arrested and accused of being LTTE. The applicant claims that he had to resign because of this harassment.

   ·From 2008 and onwards, the applicant and his family became supports of the TNA political party. In August 2012, the applicant claims his house was attacked and front door damaged. The applicant claims that Sri Lankan authorities suspect all TNA supporters of being LTTE.

   ·On 11 March 2010, the applicant claims, while travelling on a motorbike with a friend, they were shot at by pro-government militias. The applicant claims his friend was killed and he was thrown off the motorbike and injured.

   ·On 3 September 2011, the applicant claims he was abducted and threatened if his family continued to support the TNA. The applicant claims he went into hiding.

   ·The applicant left Sri Lanka on 17 September 2012, boarded a boat without a passport and arrived in Australia 3 October 2012.

   ·In Australia the applicant converted from Hinduism to Christianity.

   ·The applicant also fears harm on the basis of being a failed asylum seeker.

6. At paragraph 9 of its decision, the Authority accepts that the applicant’s elder sister’s father-in-law, was killed by Sri Lankan authorities in 1985. The Authority accepted the applicant’s sister’s father-in-law and cousins were abducted and killed by unknown persons. The Authority notes however, there is no credible evidence before it that these people were active LTTE members or supporters and it does not accept that they were.

7. At paragraph 10 of its decision, the Authority finds the applicant’s evidence of his family’s support the LTTE thin. The applicant originates from an area that was at times under LTTE control prior to the ceasefire in 2002. At paragraph 11 of its decision, the Authority accepts the applicant’s uncle, KS, provided food and transport to the LTTE when they came to the village and required it. The Authority does not accept that KS was an LTTE cadre but that he provided low-level support to the LTTE when demanded. The Authority accepted the applicant’s evidence that KS was shot dead in 1997 by security forces.

8. At paragraph 13 of its decision, the Authority treats, with scepticism, the applicant’s claim that he helped the LTTE and was a transporter for them. The applicant gave no evidence of having any vehicles to provide the LTTE with transport. The Authority does not accept the applicant did so. The Authority finds the applicant’s claims regarding his support for the LTTE have escalated with each iteration.

9. At paragraph 14 of its decision, the Authority notes that the applicant had a job working for the Sri Lankan Government. The applicant has not given any evidence that he has been arrested by authorities and charged with LTTE support. The applicant never claims to have been sent to rehabilitation and neither have any members of his family. The Authority finds that the applicant and his family may have given food when demanded by the LTTE when they came to the village, primarily before and during the ceasefire.

10. At paragraph 15 of its decision, the Authority rejects the claim that the applicant had a nickname in Sri Lanka and notes it was raised for the first time in his pre-interview submissions and that he gave no evidence about this at his interview. At paragraph 18 of its decision, the Authority finds there is no credible evidence that any of the family of the applicant was specifically discriminated against by authorities because of the activities of KS. The Authority notes in particular the applicant obtained a government job, which is inconsistent with him being suspected of being an active LTTE supporter.

11. At paragraph 20 of its decision, the Authority found that it accepts the applicant’s evidence of employment as a bus conductor and that, in the course of his employment, he may have been questioned and harassed by security forces and militias at checkpoints. The Authority does not accept, however, the applicant was specifically singled out for treatment because of any particular aspect of himself or his family.

12. At paragraph 21 of its decision, the Authority accepts the applicant’s evidence that his house front door was damaged by supporters of a rival political party. The Authority does not accept that the applicant alone was specifically targeted. At paragraph 22 of its decision, the Authority was willing to accept that an unknown person shot at a motorbike, carrying the applicant and his friend, who was then killed. The Authority, however, finds that there was no credible evidence that the shooting was by a militia member or of which of the two was being shot at and why.

13. At paragraph 23 of its decision, the Authority does not accept the applicant was abducted on a motorbike by the Criminal Investigation Department (“CID”) or the Terrorism Investigation Department (“TID”) officers, beaten and threatened as described.

14. At paragraph 24 of its decision, the Authority does not accept the applicant was in hiding for a year prior to leaving Sri Lanka illegally without proper documentation. At paragraph 25 of its decision, the Authority accepts that security authorities may have come to check on the applicant at his home on two occasions after his departure, but this was part of the overall treatment of Tamils in the area at the time by authorities and not because of any particular suspicion of the applicant.

15. The Authority did not accept that Sri Lankan police demanded that the applicant be handed over to them should he return, nor did the Authority accept that the authorities are presently waiting for this to happen. At paragraph 29 of its decision, the Authority summarises the applicant’s claims but does not accept that the applicant is regarded as a person of adverse interest by Sri Lankan authorities. Whilst the Authority accepted that the applicant is fearful he will be harmed in a country that discriminates against Tamils, the Authority found the objective evidence does not support his fear as being well-founded.

16. At paragraph 38 of its decision, the Authority was not satisfied that the applicant faces a real chance of serious harm upon return to Sri Lanka on the basis of prior abduction by the Karuna Group. At paragraph 40 of its decision, the Authority is not satisfied the applicant will be imputed with an adverse political opinion or a profile of significant LTTE affiliation, all because he is now a Christian Tamil male from a former LTTE controlled area or because of his family associations.

17. At paragraph 41 and onwards of its decision, the Authority notes that the applicant may be detained and questioned upon his return as being an illegal departee from Sri Lanka. The applicant may be placed in detention for a short period of time. The Authority accepts that the applicant would be fined for breaching Sri Lankan laws for departing the country illegally but is not satisfied that he will be harmed as a result of any data breach by Australian authorities.

18. The Authority found that the applicant would not be subjected to serious harm during his period of detention. The Authority accordingly finds that the applicant he does not meet the definition of a refugee. ‘

19. At paragraph 53 and onwards of its decision, for similar reasons, the Authority finds the applicant does not meet the criteria for complementary protection under s 36(2)(a) of the Act.

Grounds of Appeal

1. Two grounds of appeal are contained in the Amended Application filed on 2 July 2019. They are as follows:

   1)The Authority failed to consider certain integers of the Applicant’s claims leading to a failure to exercise jurisdiction. Particulars.

   Particulars:

   The Authority failed to exercise jurisdiction by failing to consider the following claims:

   (i)The Applicant and his family became displaced as refugees (IDPS) on 20 January 1990 due to attacks by the Sri Lankan Armed Forces and Police Special Task Forces (STF). 

   (ii)If he returns to Sri Lanka, he will be taken to the Terrorism Investigation Division Detention Centre where he would will be subjected to torture and abuse, he will be accused of “acting in a manner prejudicial to national security” by applying section 6 of the Prevention of Terrorism Act 2002.

   2)In construing the applicable test under the complementary protection criterion, misconstrued the real risk test and arrived at a conclusion that was not supported by evidence before the Authority, thereby falling into jurisdictional error.

   Particulars:

   (i)The Authority accepted that on arrival to Sri Lanka, the Applicant will be detained for up to 24 hours or more.

   (ii)With respect to torture in detention, the Authority cited DFAT report that states “….torture might be carried out by police in regular criminal investigations and that this poses a risk which can increase when there is a perceived threat to national security”. The Authority proceeded to cite further DFTA report “…I note that DFAT reports the improvement in the security situation has resulted in a decrease in Tamils held in detention and that under the more conciliatory Sirisena Government torture in Sri Lanka, perpetrated by either military, intelligence or police forces is not presently systemic, has reduced in recent years and pertains to only a relatively small number of cases relative to the population of Sri Lanka

   (iii)Finally, the Authority concluded that ‘Based on country information, it was not satisfied that there is a real risk that of the Applicant being subjected to mistreatment whilst in police custody”.

The Applicant’s Submissions

1. It was first submitted that the applicant claimed in his application for a protection visa, that he fears he will be arrested on arrival and subjected to torture, serious harm and possibly death by Sri Lankan Armed Forces. The applicant also suggests that he and his family were previously recognised as refugees in 1990. It was submitted that the applicant’s claims in relation to the Internally Displaced Person (“IDP”) and torture claim were not dealt with or addressed in the Authority’s decision.

2. It was submitted that the subject matter of the torture claim is separate from the claim of possible torture, as stated in the attachment to the applicant’s visa application. The gravity of the failure to deal with the torture claim is further heightened by the Department of Foreign Affairs and Trade (“DFAT”) report that torture may be carried out by police in regular criminal investigations and this poses a risk “which can increase if there was a perceived threat to national security”.

3. The Court was referred to the matter of SZTFI v Minister for Immigration and Border Protection (2015) 231 FCR 222 at [53] where Perry J said:

   A failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a “substantial, clearly articulated argument” that, if accepted, might establish a well-founded fear of persecution for a Convention reason.

4. Reference was also made to Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at page 63, where Merkel J said there is authority for the proposition that the Tribunal:

   …is not to limit its determination to the ‘case’ articulated by an applicant if the evidence and the material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant.

5. In relation to ground two, it is submitted that a critical aspect to the applicant’s claims was that if he returns to Sri Lanka, he will be subjected to torture and abuse and accused of acting in a manner prejudicial to national security. In essence, it was submitted that the DFAT country information reports do not support the view that the risk of significant harm is remote. It is submitted the Authority arrived at an erroneous conclusion, which was not supported by the material and the evidence before it and such, a jurisdictional error arises.

The First Respondent’s Submissions

1. In relation to ground one, it was submitted that not every factual statement or comment made by the applicant in the course of his application constitutes an integer of a claim which must be expressly dealt with. It is conceded that the applicant claimed that he and his family became displaced as refugees in 1990, however, it was noted that this claim was not further elaborated. No submission was made as to how this statement, effectively, or his family history during the time of the war in Sri Lanka, is said to have legal relevance to any aspect of the statutory definition, which governs the application for a TPV application.

1. It was submitted that the applicant referred to this aspect of his claim merely as a matter of historical fact. It was submitted that s 5AAA(2) of the Act provides that it is the responsibility of an applicant for protection to:

   …specify all particulars of his or her claim…and to provide sufficient evidence to establish that claim.

2. It was submitted that at all times the applicant appears to be contending that the Authority was under some obligation to seek to have the applicant elaborate this statement. It is submitted this is simply inconsistent with s 5AAA of the Act and indeed the entire scheme under Part 7AA of the Act. It is submitted that the contention that the Authority failed to deal with the torture claim, has no substance. There was no obligation on a decision-maker to refer to every matter put by the applicant (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (“Applicant WAEE”) at [46] - [47].

3. In this case, the Authority found that the applicant was not of any interest to authorities upon his return, outside his liability from being an illegal departee from Sir Lanka, under a law of general application. This was because the Authority found the applicant did not have a profile that would put him at relevant risk. Indeed, the Authority noted country information that no returnee from Australia has been prosecuted under the Prevention of Terrorism Act 2002.

4. It is submitted that those findings clearly subsumed the need to make an express finding on the applicant’s claim to fear torture in detention on return, based on his unspecified contention that he will be subject to the Prevention of Terrorism Act 2002 or his unarticulated claim referred to in the submissions that he will be considered a terrorist.

5. In relation to ground two, the reference to torture and detention relates to “regular criminal investigations” whereas, in this case, all that might happen is that the applicant will be held in detention, pending a grant of bail or indeed a fine for his breach of the relevant Immigrants and Emigrants Act 1949 (“I&E Act”) as an illegal departee from Sri Lanka.

6. In coming to this conclusion, the Authority had reference to country information provided by DFAT. It is well established that the choice of country information and the weight to be given to it, is a matter for the decision-maker. It was submitted that this ground effectively goes no higher than to attempt to seek to have this Court find that the Authority should have made a different finding as to what would happen to the applicant in detention upon return. This effectively amounts to impermissible merits review.

Consideration

1. It is well established that the Authority is not required to accept, uncritically, any and all claims made by the applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]). Further, it is for the applicant to satisfy the Authority that he meets the criteria for being a refugee (see Abebe v the Commonwealth (1999) 197 CLR 510 at [187]). There is no general obligation for the Authority to investigate an applicant’s claims (see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [43].

2. The duty imposed on the Authority by the Act, is a duty to review, not a duty to inquire (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]. Jurisdictional error will only arise where there is an obvious failure by the make an obvious inquiry about a critical fact, the existence of which is easily ascertained.

3. In Applicant WAEE, the Full Court of the Federal Court of Australia, French, Sackville and Hely JJ stated as follows at paragraphs [46] – [47]:

   [46]  It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons … there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87] – [91]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant has a well-founded fear of persecution for a Convention reason. 

   [47]  The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is factual premise upon which a contention rests which has been rejected.

   Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

4. There is no dispute that the applicant claimed he and his family had been displaced as refugees on 20 January 1990 (see Court book page 42). However, I agree with the first respondent, in that the applicant’s claim is not further elaborated or how, in the overall context of the claims, it is said to have legal relevance to his claim for refugee protection. Even if it was a specific claim or integer, which the Court does not accept, the Court is satisfied that it has been subsumed by the finding that the applicant is of no adverse interest to Sri Lankan authorities, other than in relation to his illegal departure from Sir Lanka.

5. The same reasoning applies to the contention the Authority failed to deal with the torture claim. The Authority determined there was no evidence before it that the applicant will be treated as a terrorist, or indeed as a criminal upon his return. The applicant would be treated as an illegal departee. At its highest, it appears the applicant has a fear but that fear was rejected by the Authority as not being well-founded. Based on a fair reading of what are otherwise comprehensive reasons by the Authority, there is no material before the Court which would indicate that there were unarticulated claims that required the Authority to consider and give reason.

6. In this regard, I note the applicant was represented before the Authority and there was no evidence to indicate that he was denied an opportunity to fully put his claims and having them considered.

7. In my view, ground one must fail.

8. In relation to ground two, it is clear the DFAT country information that was relied upon by the Authority had included information as to the potential for torture to be used in “regular criminal investigations”.

9. There is no evidence before the Authority that the applicant had outstanding criminal matters in Sri Lanka. It was never raised by the applicant. The Authority specifically found that if the applicant returned to Sri Lanka, he will be subject to the usual questioning and possibly a short period of detention, in less than satisfactory conditions in a jail prior to being placed before a Magistrate as an illegal departee. The Authority noted DFAT advice that no returnee to Sri Lanka from Australia had been charged under the Prevention of Terrorism Act 2002. At paragraph 44 of its decision, the Authority noted specifically that:

   DFAT understands that no returnee who was merely a passenger on a people smuggling boat has ever been given a custodial sentence for departing Sri Lanka illegally, instead fines have been issued as a deterrent.

10. It is well accepted that country information and the weight to be given to it, is a matter for the Authority (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]). I agree with the first respondent in that this ground effectively goes no higher than to seek this Court to engage in merits review and to make a different finding than that of the Authority, as what could happen to the applicant upon his return. The ground asks the Court to engage in impermissible merits review. This ground must also fail.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 6 March 2020