ADN17 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

ADN17 v Minister for Home Affairs [2019] FCA 1037

Appeal from: ADN17 v Minister for Immigration & Anor [2018] FCCA 3606
File number: WAD 580 of 2018
Judge: MORTIMER J
Date of judgment: 4 July 2019
Catchwords: MIGRATION – appeal from decision of Federal Circuit Court affirming decision of Immigration Assessment Authority to refuse Safe Haven Enterprise (Subclass 790) visa – whether Authority failed to consider claim made by appellant – whether jurisdictional error – appeal allowed
Legislation:

Migration Act 1958 s 473CA, Pt 7AA

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
Cases cited:

ADN17 v Minister for Immigration & Anor [2018] FCCA 3606

ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 214 CLR 496

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1

Singh v Minister for Home Affairs [2019] FCAFC 3
Date of hearing: 27 May 2019
Date of last submissions: 20 May 2019
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 41
Counsel for the First Appellant: Mr F A Robertson
Solicitor for the First Appellant: AUM Legal
Counsel for the First Respondent: Ms A Ladhams
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: The Second Respondent submits to any order the Court may make save as to costs

ORDERS

WAD 580 of 2018
BETWEEN:

ADN17

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

MORTIMER J

DATE OF ORDER:

4 JULY 2019

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The orders made by the Federal Circuit Court on 4 December 2018 be set aside.

3.In lieu thereof order:

(a)the decision of the second respondent made on 7 December 2016 be set aside;

(b)the matter be remitted to the second respondent, differently constituted, for determination according to law; and

(c)the first respondent pay the applicant’s costs of and incidental to the application for judicial review.

4.The first respondent pay the appellant’s costs of and incidental to the appeal to be fixed by way of a lump sum.

5.In the absence of the Court being notified on or before 4pm on 18 July 2019  of any agreement between the parties as to an appropriate lump sum for the appellant’s costs of the appeal, the matter of an appropriate lump sum be referred to a Registrar for determination.

Note:   Entry of orders is dealt with in…

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Details
Case
[2019] FCA 1037
Decision Date

CaseChat Overview and Summary

In ADN17 v Minister for Home Affairs, the appellant, a citizen of Sri Lanka of Tamil ethnicity, appealed against a decision of the Federal Circuit Court that affirmed a decision of the Immigration Assessment Authority (IAA) to refuse his application for a Safe Haven Enterprise (Subclass 790) visa. The appellant had arrived in Australia by boat in 2012 and applied for a protection visa in 2016. The IAA affirmed the delegate's decision to refuse the visa, and the appellant sought judicial review of that decision. The Federal Circuit Court dismissed the application, and the appellant appealed to the Federal Court.

The central issue in the appeal was whether the IAA made a jurisdictional error by failing to consider the appellant's claim that he feared being detained if he returned to Sri Lanka due to his association with the Liberation Tigers of Tamil Eelam (LTTE). The appellant argued that the IAA did not properly consider his submissions and the relevant country information, which suggested that returning Tamils with LTTE connections faced significant risks of detention and harm.

The court held that the IAA did indeed fail to properly consider the appellant's claim and the associated country information. The appellant had clearly expressed his fears and the grounds for those fears to both the delegate and the IAA. The IAA accepted some aspects of the appellant's narrative but did not adequately address the specific risk of detention based on his LTTE association. The court found that the IAA's failure to properly consider these aspects amounted to a jurisdictional error.

Accordingly, the appeal was allowed. The decision of the Federal Circuit Court was set aside, and the matter was remitted to the IAA, differently constituted, for redetermination according to law. The Minister was also ordered to pay the appellant's costs of and incidental to the application for judicial review and the appeal. If the parties could not agree on the lump sum for the appeal costs within a specified timeframe, the matter would be referred to a Registrar for determination.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders made by the Federal Circuit Court on 4 December 2018 be set aside.

3. In lieu thereof order:

(a) the decision of the second respondent made on 7 December 2016 be set aside;

(b) the matter be remitted to the second respondent, differently constituted, for determination according to law; and

(c) the first respondent pay the applicant’s costs of and incidental to the application for judicial review.

4. The first respondent pay the appellant’s costs of and incidental to the appeal to be fixed by way of a lump sum.

5. In the absence of the Court being notified on or before 4pm on 18 July 2019 of any agreement between the parties as to an appropriate lump sum for the appellant’s costs of the appeal, the matter of an appropriate lump sum be referred to a Registrar for determination.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons set out below, the appeal will be allowed.Relevant background The appellant is a citizen of Sri Lanka and is of Tamil ethnicity. The appellant arrived in Australia by boat on 13 October 2012. There is then a gap of several years in the chronology, which is unexplained by the evidence. The situation changed in late 2015 when it appears the “bar” was lifted and on 10 December 2015 the appellant was permitted to apply for a protection visa. The appellant applied for a Safe Haven Enterprise (Subclass 790) Visa on 7 April 2016, and was interviewed by a delegate of the Minister on 24 August 2016. The appellant’s visa application was rejected in a decision made on 2 November 2016 and was referred to the Authority in accordance with s 473CA of the Migration Act 1958 (Cth). The appellant’s migration agent made submissions to the Authority on behalf of the appellant on 24 November 2016. The appellant has been represented throughout the process before the Authority and the Federal Circuit Court. On 7 December 2016 the Authority affirmed the decision of the delegate of the Minister not to grant a protection visa. The appellant applied for judicial review of the Authority’s decision on 2 January 2017. There was further delay, and orders were not made until 4 December 2018, dismissing the application. The appellant appealed by notice of appeal filed 12 December 2018. There is a single ground of appeal:The primary Judge erred in not finding that the decision of the Immigration Assessment Authority (‘IAA’) was vitiated by jurisdictional error in that it failed to consider the applicant’s claim that he fears that if he is forced to return to Sri Lanka (SL), he will be detained either at the airport or on return to his village on grounds that he did not come forward to identify himself as a person who had been with LTTE. Where necessary for the resolution of the appeal, I refer to the nature of the appellant’s claims, the Authority decision and the Federal Circuit Court reasons below.The aspects of the Authority’s reasoning impugned on the appeal As the appellant set out in his written submissions at [6], the Authority accepted some substantive aspects of the appellant’s narrative about what had happened to him in Sri Lanka before he left. It accepted he had involvement with the LTTE between January and March 2009, when he was recruited as a child soldier by them, escaped and was recaptured before surrendering himself to the Sri Lankan army. This aspect of the Authority’s fact-finding is important to the resolution of the appeal, and I return to it below. The Authority also accepted that it was “plausible” the appellant’s family had to provide food to the LTTE during the conflict. It accepted the appellant’s father gave assistance to the LTTE (digging bunkers and providing food), and further found it was, again, “plausible” that, after the conflict, the appellant’s father was physically mistreated by the Sri Lankan authorities due to his association with the LTTE. As I read its reasons, the Authority’s finding was that the appellant’s father was mistreated because he had, in fact, been associated with the LTTE. It also found the appellant, and his father, were questioned following the end of the conflict. There were also some aspects of the appellant’s narrative that the Authority did not accept, but they are not relevant to the ground of appeal.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Against that background of factual findings, the appellant contends the Authority should have, but did not, consider and determine the claim as set out in the ground of appeal. There is no dispute the appellant did indeed express such fears both to the delegate and to the Authority. Before the Authority, these fears were reiterated in submissions made on his behalf by his migration agent. Those submission relevantly stated:We make submissions that the delegate having accepted that the applicant and his father had links with LTTE has made the following errors:1.Failed to consider the applicant’s claim that he fears that if he is forced to return to Sri Lanka (SL) he will be detained either at the airport or on return to his village, on grounds that he did not come forward to identify himself as a person who has been with LTTE for a week.…5.The delegate failed to consider whether the applicant’s circumstances coupled with his father’s circumstances (working for LTTE digging trenches and bunkers/pits), enhances the risks of detention and risks of suffering significant harm from the Sri Lankan Intelligence (be it police or army intelligence units) on his forceful return.…The applicant gave evidence that:a.He did not turn himself in despite requested to do so by the SL authorities to all LTTE members and supporters.b.Members of paramilitary group and former LTTE members who had become informants assisting the intelligence officers in identifying anyone with past links with the LTTE at the airport and his village will identify him to the Sri Lankan Intelligence.c.His friends in a similar situation have been detained.2.The delegate accepted that the applicant's father dug trenches and built bunkers for LTTE and he had been constantly taken and beaten, and as a consequence suffered and is still suffering from serious spinal/back injury which has affected his mind functionality as a result of the trauma he had been through. If the applicant returns to SL now, his background will be checked and the fact that his father worked for LTTE will be revealed, coupled with the fact that he is a failed asylum seeker gives rise to reasonable chance of detention for further investigation by the SLA.…5.LTTE suspects were and are still being detained under the SL Prevention of Terrorism Act which allows for detention for an unlimited time and extraction of confession by torture.…8.DFAT 2015 also reports that while the majority of the low profile (low risk) former LTTE members have already been released following their detention, any other low−profile LTTE members who came to the attention of the Sri Lankan authorities would be detained and may be sent to the remaining rehabilitation centres.The delegate relied heavily on the current country information from UK, Canada, US and Australia in putting to the client that under the current Sirisena Government, the applicant is at no risks of harm. However, we submit that the delegate failed to consider the following country information that came from the same sources that the delegate claims to have noted.…F1.11 - Military surveillance are conducting fresh registrations of people living in Batticaloa district6.3.6 In March 2016 Tamil net reported that intelligence operatives and military surveillance officers are conducting fresh ‘registrations’ of people living across the 14 divisions of Batticaloa district. It further noted that ‘Regardless of their release after prolonged detention and so-called military rehabilitation, they are being again subjected to questions for their presence in Vanni, whether they had received training from the LTTE, did they participate in combat, where they are employed now and how they receive money.’…F1.15 Sri Lankan security Forces are actively looking for Tamils returning home from abroad in order to torture them6.5.2 The Immigration and Refugee Board of Canada reported in February 2015 that: ‘Sources report that individuals returning from abroad are particularly subject to screening. 36 A July 2015 International Truth & Justice Project (JTJP) Sri Lanka report on Sri Lanka’s Survivors of Torture and Sexual Violence 2009-2015 stated that: ‘A security force insider testified since the presidential election in 2015 that military intelligence officials from Joseph Camp were actively looking for any Tamils returning home from abroad in order to interrogate them. The witness stated that the intention was to abduct, detain and torture themConclusionsThe risk of significant harm of returning Tamils suspected of having connections with LTTE is very high. The applicant is not seeking protection based solely on the fact that he is a Tamil from the North or East of Sri Lanka but for the profile he possess listed above.He faces a high risk of being detained at the airport for interrogation and even if not detained at the airport, he on return to his home area in [REDACTED], risks arrests and abduction by the SL security forces in the highly militarized area. The above country information states that there is 1 army personnel for every 6 residents in these areas. In such areas it is difficult to go on with your daily life without coming in contact with the security forces. This risk particularly heightens with a failed asylum seeker returning to this place.

Ratio Decidendi

Legal Principle Established

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