API17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 1027
•17 July 2020
FEDERAL COURT OF AUSTRALIA
API17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1027
Appeal from: API17 v Minister for Immigration & Anor [2019] FCCA 3275 File number: WAD 579 of 2019 Judge: GLEESON J Date of judgment: 17 July 2020 Date of publication of reasons: 23 July 2020 Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia –– whether IAA failed to consider claim of real chance of detention if appellant returned - whether IAA erred in failing to consider whether appellant’s brother’s death linked to Sri Lankan Army – whether IAA erred in making a finding that was illogical, unreasonable – no jurisdictional error made out – appeal dismissed Legislation: Federal Court Rules 2011 rr 4.12, 4.15 Date of hearing: 17 July 2020 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 39 Counsel for the Appellant: The appellant appeared in person Counsel for the First Respondent: Ms C Taggart
Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The second respondent did not appear ORDERS
WAD 579 of 2019 BETWEEN: API17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGES:
GLEESON J
DATE OF ORDER:
17 JULY 2020
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GLEESON J:
These are my reasons for dismissing the appellant’s appeal from a decision of a judge of the Federal Circuit Court of Australia (FCCA). By that decision, the FCCA judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority (IAA), affirming a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a safe haven enterprise visa (SHEV).
The notice of appeal states the following single ground of appeal:
The Primary Judge didn’t adequately examine the evident that was placed there by didn’t exercise the Court’s proper Jurisdiction.
When the notice of appeal was filed, the appellant was self-represented.
In February 2020, McKerracher J determined that the appellant be referred for legal assistance under r 4.12 of the Federal Court Rules 2011.
On about 14 April 2020, Hamish Glenister of Cathal Smith Legal accepted the referral.
On 30 June 2020, Jessica Tran, a solicitor acting for the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), informed the Court (with Mr Glenister’s agreement) that Mr Glenister had made a number of attempts to contact the appellant regarding availability for a test call in anticipation of the appeal hearing on Microsoft Teams and had not received a response.
On 2 July 2020, the Court’s Registry sent an email to the appellant informing him that, pursuant to r 4.15, permission was granted for Mr Glenister to cease to provide legal assistance to the appellant, effective immediately.
This appeal was initially listed for hearing on 9 July 2020, by Microsoft Teams. On the morning of the hearing, the appellant did not appear at the Court in Perth as had been arranged, but sought to appear by telephone. The Court did not permit the appellant to appear by telephone as he had requested the assistance of a Tamil interpreter, who was located at the Court in Perth. The matter was stood down to allow the appellant time to attend the Court but the appellant again did not appear at the Court. The matter was then adjourned for hearing on 17 July 2020, with arrangements made for the appellant to attend the Court in Perth.
On 17 July 2020, the appellant appeared at the hearing of the appeal, with the assistance of a Tamil interpreter. The hearing was adjourned while the Minister’s written submissions were read by or translated for the appellant.
The appellant did not file any written submissions in support of the appeal. As appears below, the appellant made brief oral submissions.
BACKGROUND FACTS AND PROTECTION CLAIMS
The appellant is a Sri Lankan male national of Tamil ethnicity, aged 33, who arrived in Australia as an unauthorised maritime arrival on 8 November 2012.
On 23 December 2015, the appellant was invited to apply for a temporary protection visa or a SHEV.
On 21 April 2016, the appellant applied for a SHEV with the assistance of Craddock Murray Neumann Lawyers. In the covering letter to the application, Craddock Murray Neumann summarised the bases for the appellant’s claim for protection as follows:
•Imputed political opinion (opposition to the government of Sri Lanka)
•Membership of the particular social group of Tamils from the area formerly controlled by the Liberation Tamil Tigers of Eelam (LTTE) – that is, Northern Sri Lanka; and
•Membership of the particular social group of failed asylum seekers.
The IAA later noted that submissions accompanying the application dealt with the persecution of perceived LTTE supporters and the use of country information generally, but did not make specific claims or arguments in relation to the appellant.
By letter dated 29 November 2016, the appellant was informed that the delegate had refused his application.
By letter dated 5 December 2016, the appellant was informed that the delegate’s decision had been referred to the IAA for a review.
By letter dated 13 January 2017, the appellant was informed that the IAA had decided to affirm the delegate’s decision. It appears from the IAA’s decision record that the appellant did not supply any additional material to the IAA in support of his application.
The appellant applied to the FCCA for judicial review of the IAA’s decision in 2017. By an amended application filed on 2 November 2019, the appellant raised the following three grounds:
(1)The IAA committed jurisdictional error by not considering the claim that there is a real chance of the applicant being detained, potentially indefinitely, because of a possible renewed interest by Sri Lankan security agencies. This claim arises as a result of the cumulative effect of his previous suspicion, his imprisonment and his illegal departure.
(2)The IAA erred in failing to consider the possibility that the appellant’s second brother’s death was linked to the Sri Lankan Army (SLA).
(3)The IAA erred in making a finding that was illogical or unreasonable.
The appellant was represented at the FCCA hearing by a solicitor.
FCCA JUDGE’S REASONS
At [4]-[24], the FCCA judge recorded various matters concerning the IAA’s reasons for affirming the delegate’s decision.
The FCCA judge dealt with the first ground of review as follows:
[25] .... No such claim was made on the material before the Authority. No such claim fairly arose on the material before the Authority. No jurisdictional error relating to ground 1 is made out.
His Honour addressed the second ground of review as follows:
[26] In relation to ground 2, Mr Hodges submitted that at paragraph 13 of the Authority’s reasons, the Authority made a finding that was the subject of doubt. No such doubt is expressed in the language of the Authority. No jurisdictional error is made out in respect of ground 2.
Paragraph 13 of the IAA’s reasons states:
I accept that the applicant has a genuine belief that his second eldest brother was also taken by the SLA, however, the applicant’s evidence is that this brother was driving a truck between Jaffna and Colombo in 2007 and failed to return home. The applicant has not claimed that the SLA or any other organisation came looking for this brother or that this brother had any links to any paramilitary organisation. I am satisfied that this brother is missing and most probably deceased but I am not satisfied on the evidence before me that this can be attributed to the SLA as the applicant believes.
As to the third ground of review, the FCCA judge identified two arguments made on behalf of the appellant, namely:
(1)an argument based on alleged illogicality and unreasonableness flowing from para 13 of the IAA’s reasons; and
(2)an argument to the effect that there was an integer of the appellant’s claim that he feared harm from the SLA that had not been the subject of a finding by the IAA.
The FCCA judge rejected the first argument for the following reasons (at [28]-[30] of his Honour’s judgment):
[28] In relation to the proposition that the finding in paragraph 13 of the Authority’s reasons was illogical or unreasonable, this is, in substance, an invitation to the Court to engage in merits review. The adverse finding by the Authority in respect of the applicant’s assumption that his brother had been taken by the SLA was a finding that was open to the Authority and cannot be said to lack an evident and intelligent justification. The evident and intelligible justification is revealed by the Authority’s reasons as summarised above, including the release of the applicant and the finding that the applicant is not now a person of adverse interest. The submission that the applicant’s circumstances, including what occurred to his brother, gave rise to the Authority’s ultimate findings in respect of the 1951 Refugee Convention or complementary protection being illogical or unreasonable are, again in substance, an invitation to the Court to engage in merits review. The Authority’s findings were open, logical and rational.
[29] The proposition that there was no logical reason why the Authority could find the eldest brother was taken by the SLA while the second brother was not is without merit. The Authority identified that the first brother was taken for interrogation by the SLA almost 10 years earlier. Further, the Authority referred to what occurred in relation to the second brother as not reflecting circumstances where he was taken for interrogation by the SLA, but one where he had been driving a truck between two particular locations and failed to return home.
[30] The Authority also took into account a logical and rational further reason in respect of the absence of the SLA or any other organisation looking for the applicant’s second brother, and the absence of any links by this brother to any paramilitary organisation. In these circumstances, the adverse finding in paragraph 13 of the Authority’s reasons cannot be said to lack an evident and intelligible justification. Accordingly, so far as the first limb of ground 3 is concerned, the adverse finding in paragraph 13 of the Authority’s reasons was not illogical and unreasonable, nor can it be said that the Authority’s adverse finding in relation to the criteria under the 1951 Refugee Convention and/or in relation to complementary protection was illogical or unreasonable.
As to the second argument, the FCCA judge did not accept that there was any integer of the appellant’s claim that was not the subject of a dispositive finding. In particular, his Honour concluded that the adverse finding in para 23 of the IAA’s reasons subsumed the appellant’s claimed fears in respect of the same thing happening to him as happened to his brother. That finding was:
… DFAT assesses that high-profile persons (‘high risk’ or ‘hardcore’) are at the highest risk of monitoring, arrest, detention or prosecution. Low-profile person (including former members) may be monitored but are generally not prosecuted. There is nothing in the information contained in the agent’s submissions that runs counter to this general position. As I am satisfied that the applicant has not and will not be imputed with membership of the LTTE, I find that he is at the lowest end of the low-profile risk. I am satisfied that any risk the applicant may face is remote. I am satisfied that the applicant does not face a real chance of serious harm on the basis of an imputed anti-government/pro-LTTE opinion, or real or imputed links to the LTTE or persons involved with the LTTE.
APPEAL
Appellant’s submissions
The appellant made brief oral submissions, but they were not directed to the question whether the FCCA judge had made any appellable error.
The appellant noted that he has lived in Australia for a long time now; he works and pays taxes and has no criminal record. The appellant submitted that it is not possible for him to return to Sri Lanka and that he continues to have the same fears of returning to Sri Lanka. The appellant also stated that it was extremely difficult for him to understand the Minister’s submissions.
Minister’s submissions
The Minister submitted that the contention that the FCCA judge did not “adequately” examine the available evidence is, in effect, a complaint that the FCCA judge did not engage in merits review of the IAA’s decision (that is, a consideration of whether the IAA made the correct or preferable decision). If that is what is contended, then no error is established because it was impermissible for the FCCA judge to engage in such review.
In those circumstances, the Minister contended that there was no obvious or apparent error in the decision below.
Against the possibility that the appellant sought to re-agitate the grounds of review below, the Minister noted the following matters in relation to the first ground:
(1)The IAA specifically considered the appellant’s detention in Boosa Detention Camp in 2007 at paras 14 to 18 of its decision record. The IAA found (at para 16) that arrest and detention was a consequence of “the general security situation in Sri Lanka and … not indicative that the [appellant] was suspected of a particular involvement with the LTTE”. The IAA found this view was strengthened by the fact that despite being held for seven weeks, he was then released without charge or conviction and that he was not subject to any further arrests even though he returned to the north of Sri Lanka where police and security involvement was greater than in Colombo. The IAA made a specific finding that the appellant would not now be imputed to be an LTTE supporter “including on the bases of his previous arrest, detention or questioning” (para 17).
(2)The IAA’s findings at para 23 of its decision record, set out above.
(3)When considering the appellant’s claims as a returned asylum seeker, the IAA considered those claims on the basis of its finding that the appellant “is at the lowest level of the low-profile risk” (para 35). It considered the country information relevant to returned asylum seekers with a low profile. Thus, the IAA’s consideration of the appellant’s risk of serious harm as a consequence of being a returned asylum seeker was built upon its findings that his previous detention had not led to a profile as an imputed LTTE supporter.
(4)When considering the appellant’s claims under the complementary protection regime the IAA expressly stated that it had “regard to the cumulative circumstances and profile of” the appellant (para 51). There is no reason to disregard the IAA’s statement to that effect in light of the considered reasons in respect of the appellant’s profile and claims.
The Minister submitted that the first ground of review was, in reality, an invitation to the Court to engage in impermissible merits review. It was advanced on a basis which was never put by the appellant to either the delegate or the IAA. That is, the appellant had not made a claim that he was at risk of potentially indefinite detention as a consequence of renewed interest by Sri Lankan authorities. Furthermore, it appeared to be an exercise in speculation without reference to country information or evidence which was before either the delegate or the IAA in respect of any renewed interest.
Consequently, it could not be said to be an unarticulated claim which clearly emerged or arose squarely on the facts in the sense identified by the relevant authorities.
In relation to the second ground, the Minister contended that the IAA’s conclusion was plainly available on the materials before the IAA.
Consideration
The appellant has not identified anything which raises any doubt concerning the reasons of the FCCA judge. While the reasons given by the FCCA judge in relation to the first two grounds of review are curt, they are to the point and I am not persuaded that they involve any appellable error.
As to the third and fourth grounds of review, I am satisfied that the appellant did not identify any illogical or unreasonable finding by the IAA, or any aspect of the appellant’s claims for protection that was not addressed by the IAA.
The third ground of review concerned the IAA’s reasons in relation to the appellant’s claim that he will be imputed to support the LTTE. The circumstances in which the second brother disappeared was a matter relied upon by the appellant to contend that in Sri Lanka, he will be regarded as an LTTE supporter. The FCCA judge’s reasoning at [28] elide the questions of justification for the finding that the appellant would not now be imputed with support for the LTTE, and justification for the finding that the evidence was not sufficient to support a conclusion that the second brother was taken by the SLA. However, as the FCCA judge explained, it was open to the IAA to fail to conclude that the second brother was not taken by the SLA on the limited material available and, having regard to the significant differences between the material concerning the disappearances of the first and second brothers. Accordingly, I do not detect any appellable error in this aspect of the FCCA judge’s reasons.
Further, to the extent that the appellant suggested it, I was not satisfied that he was not given a sufficient opportunity to address the Minister’s submissions. In any event, the burden was on the appellant to demonstrate appellable error on the part of the FCCA judge.
CONCLUSION
The appeal must be dismissed. Costs should follow the event.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson. Associate:
Dated: 23 July 2020
0