AUM18 v Minister for Home Affairs

[2019] FCA 820

FEDERAL COURT OF AUSTRALIA

AUM18 v Minister For Home Affairs [2019] FCA 820

Appeal from:	AUM18 v Minister For Home Affairs & Anor [2018] FCCA 3328
File number:	WAD 11 of 2019
Judge:	MCKERRACHER J
Date of judgment:	4 June 2019
Catchwords:	MIGRATION – appeal from the Federal Circuit Court – judicial review of a decision of the Immigration Assessment Authority – single unparticularised ground of review – impermissible merits review – findings open on the material – weighting of material a matter for the decision-maker
Legislation:	Migration Act 1958 (Cth) s 473DC, Pt 7AA
Date of hearing:	27 May 2019
Registry:	Western Australia
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	26
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Counsel for the First Respondent:	Mr T Lettenmaier
Solicitor for the First Respondent:	Sparke Helmore
Counsel for the Second Respondent:	The Second Respondent submits to any order of the Court, save as to the question of costs

ORDERS

WAD 11 of 2019

BETWEEN:

AUM18

Appellant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:	MCKERRACHER J
DATE OF ORDER:	4 JUNE 2019

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent, to be assessed if not agreed. 

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

REASONS FOR JUDGMENT

MCKERRACHER J:

1. The appellant appeals a judgment of the Federal Circuit Court of Australia by which the Court dismissed an application for review of a decision of the Immigration Assessment Authority:  AUM18 v Minister For Home Affairs & Anor [2018] FCCA 3328. The Authority had agreed with the decision of the Minister’s delegate that the appellant should not be granted a visa.

2. The appellant is a citizen of Sri Lanka and applied for a Safe Haven Enterprise visa (the SHEV).  He attended an interview with the delegate.  After that interview, the appellant’s representative provided further written submissions and supporting documentation in relation to his cricket club, the relevance of which will be clarified below.  The delegate refused to grant the SHEV.  The matter was reviewed by the Authority, with the appellant’s representative providing written submissions, but the Authority affirmed the delegate’s decision. 

   BACKGROUND

3. The appellant is a Tamil Hindu from the Northern Province of Sri Lanka.  He alleged that his uncles and aunt fought with the Liberation Tigers of Tamil Eelam (the LTTE) and that he was displaced in an Internally Displaced Persons camp at the end of the war.  He was mistreated.  The appellant, his brother and his sister were able to escape the camp as a result of a bribe offered by his father to one of the officers, according to the appellant. 

4. The relevant claims advanced by the appellant were set out in the Authority’s decision (at [7]) and set out in the primary judge’s decision in the Federal Circuit Court as follows (at [3]-[10]):

   3.The [appellant] alleged that he was questioned at checkpoints in 2010 about his uncles. The [appellant] alleged that when he was on his way to cricket in December 2010 he was abducted in a van and taken to an abandoned warehouse where he was questioned about his involvement and his family’s LTTE involvement. The [appellant] alleged he was kicked, punched and hit and afterwards spent two to three days in bed.

   4.The [appellant] alleged that his maternal grandfather became involved in politics and ran for election for the Illankai Tamil Arasu Kachchi (“ITAK”) in March 2011. The [appellant] alleged he assisted his grandfather and that his grandfather received threats and that the [appellant] and his father were told to stop or they would face death.  The [appellant] alleged that he was taken by unknown men on two occasions who came to his school and told him to stop, and that on another occasion two men approached him while he was playing cricket and threatened to abduct him. The [appellant] alleged two weeks before the election they came to his family home and threatened the [appellant] and his father. On 17 March 2011, ITAK lost the election but the [appellant] alleged he continued his involvement with the youth wing of the ITAK, assisting with social and sporting events. 

   5.The [appellant] alleged in 2012 he was approached by two or three men on his way to school and they told him to stop supporting the Tamil National Alliance (“TNA”) of which the ITAK became a part. The [appellant] alleged the second time they told him if he did not stop they would take him. The [appellant] alleged that in May or June 2012 while riding his bike to cricket, he was stopped by a man and forced to an abandoned house where there were several men. The [appellant] alleged he was given a final warning about his background and connection with the LTTE and that he was accused of helping the LTTE, as well as being abused physically. 

   6.The [appellant] alleged a few days’ later, civilian-clothed men came to the family home and questioned the [appellant’s] father.  The [appellant] alleged his brother was stopped a few days later on his way to a tutor and was asked questions about his family. The [appellant] alleged his father was afraid for the family and that he sent the [appellant] into hiding at his grandmother’s place and that while hiding at a particular place, the Terrorism Investigation Division came to the family home and questioned the father and asked about the [appellant] and his brother. 

   7.The [appellant] alleged that his father then told him to flee the country.  The [appellant] flew to Chile where he stayed with an uncle for a week.  The [appellant] then returned to Sri Lanka and allegedly hid in the family home and then he went back to the place where he had been hiding and then to Galle where he took a boat on 2 September 2012.  The [appellant] alleged his father told him that the Terrorism Investigation Division had come to the house again to ask about where he was and it was alleged the Terrorism Investigation Division were monitoring calls and movements.

   8.In August 2015 the [appellant] joined the cricket club to further his cricketing skills. In November 2015 he competed in a national competition of a last man stands tournament. The [appellant] said the trip and the team generally had attracted significant attention in the Sri Lankan community and alleged his name and image has appeared in news and images of the team on a Facebook page. The [appellant] fears serious and significant harm, that he will be detained and questioned at the airport because he left without a valid passport, because of his family history of LTTE involvement and Tamil national politics and the attention he was receiving from the authorities prior to his departure. 

   9.The [appellant] claimed that it is likely he will be viewed as someone with LTTE connections and subject to torture and significant harm during questioning. The [appellant’s] claims are based on race, actual political opinion and in support of the TNA and the Tamil’s right to self-determination, imputed political opinion as a supporter of the LTTE and Tamil right to self-determination and by reason of being a failed Tamil asylum seeker who illegally fled Sri Lanka and sought asylum. 

   10.The [appellant] claimed to fear he will be punished for seeking asylum abroad and that they will know his involvement with the Tamil community in Perth, in particular the cricket club. 

5. The appellant’s claims were rejected by the delegate and the appellant sought review by the Authority. 

6. The unusual feature of the appellant’s case is that he contends he will be punished for seeking asylum abroad and because of his involvement with a cricket club he joined and which has received attention, including on social media. 

7. On 14 December 2017, the appellant’s migration agent provided written submissions to the Authority.  Those submissions were expressly referred to in the Authority’s reasons and, relevantly, concerned the appellant’s claims for protection based on his involvement with the cricket club.  The Authority observed (at [4]) the appellant’s migration agent ‘provided lengthy submissions, including lengthy post-interview submissions and Facebook evidence and articles, which have been considered’.  The Authority continued (at [5]):

   It was also submitted the [appellant] would be perceived as being a member of the diaspora working for Tamil separatism and to destabilise the unitary Sri Lankan state as he was an active member of the [cricket club] since August 2015. The perception of the cricket club needs to be viewed with an understanding of the role sport plays as a tool for self-determination and international recognition as occurs with the West Papuan Warrior Rugby team and the Tibet National football team. It was submitted equally the cricket team is perceived by Sri Lankan authorities to be closely linked to Transnational Government Tamil Eelam (TGTE) and Tamil separatist movement. It was submitted the [appellant] would be held in police custody upon return and might be subject to torture and that any even short period in detention will subject to the [appellant] to a real risk of significant harm. It was submitted the cricket team links readers to the Wikipedia page of the TGTE, one of the eight remaining organisation still proscribed under the PTA. This demonstrates the symbolic importance of a sports club aligning itself with the separatist movement.

8. In considering the appellant’s claims in respect of his cricket club involvement, the Authority reasoned (at [23]-[25]):

   23.I have considered the Facebook pages, articles and the letter from the founder of the [cricket club]. I accept that the [appellant] is a member of the [cricket club] and he appears in photos and videos on the public Facebook page. However, I do not accept that this raises his profile or means that he is anti-government or perceived as being anti-government or part of any Tamil separatist movement. It is evident from the information provided that it is a sports club and the [appellant] joined it to play cricket and because they have good coaching. Further, the articles he provided notes that it is a club that provides a positive meeting ground for people to come together as Tamils, without political baggage. Further, the founder hopes to normalise the term Tamil Eelam and remove the connotations to the Tamil Tigers and it is a non-politicised environment. He hopes it will come to be associated with the geographical location, rather than the politicised concept which arose during the war. It was evident from articles and the founder that it was formed to provide positive and healthy activity and allow Tamil asylum seekers to socialise with other people who speak the language, share the culture and to get physical exercise. The team has also helped to remove loneliness of Tamils and to give relief from depression and to promote a relationship between the Tamil community and Australian people. I have considered the Facebook screenshots provided by the [appellant]. While there were some ‘likes’, shares and comments by other Facebook users, including a name Tamilsrevolt, which showed pictures of LTTE uniforms or commemoration day and arguments with Sinhalese about the need for a Tamil state, these were not made by the [appellant] or the founder. Rather as a public Facebook page, anyone can and has made comments or likes. However, it is clear that the [cricket] club is a cricket club and not involved in politics and nor does it wish to be, which is confirmed by the founder, in the published articles and the Facebook page. This is further evidenced by the founder’s letter in which he states they have purposely removed posts from the site from people who associate the name with the LTTE and Tamil separatism generally. It is evident any LTTE Facebook comments/photos (if still not removed) are from the public, not from the [appellant] or its founder and would been seen in that context.

   24.I do not accept that the [cricket club] is anti-government or associated with Tamil separatism or politics. The evidence is quite clear that it is not. I do not accept the [cricket club] promotes or is interested in obtaining a separate Tamil homeland. The evidence from the founder, the Facebook page and the [appellant] is that is a sporting cricket club which assists Tamils socialise and play cricket with others. Further, I do not accept the [appellant] or by his association with the [cricket club] is antigovernment, associated with or interested in Tamil separatism. I do not accept or any association with the [cricket club] means the [appellant] is or will be perceived to have anti-government or Tamil separatist activities or motivations or involvement. I reject the agent’s submissions that the cricket club is perceived by the Sri Lankan authorities to be linked to TGTE or any Tamil separatist movement. It is evident from the Facebook posts provided that the [cricket club] is solely involved in cricket and competing in the Last man standing competitions.

   25.While the founder’s letter indicated he was concerned to learn that families of some of their players in the images or videos have experienced harassment from authorities, there was no detail about this or how the founder came to know of this and as a result, I place little weight on this. Further, in any event, I have not accepted that anyone has been looking for the [appellant] or that his family has been harassed. I do not accept that the [appellant’s] involvement with cricket club raises his profile or that he or his family faced or faces harassment or harm in that regard.

9. In considering the appellant’s claims based upon his status as a failed asylum seeker, the Authority also relevantly stated (at [40]):

   As discussed above, I have not accepted that the [appellant] (even as a member of [the cricket club]), his family have or perceived as [having] an LTTE or anti-government profile, or are wanted by CID, TID, the authorities, paramilitary or other groups or anyone.  …

10. The Authority affirmed the decision not to grant the appellant the SHEV. 

    IN THE FEDERAL CIRCUIT COURT

11. The appellant was represented by counsel in the Federal Circuit Court.  He sought and was granted leave to rely upon an amended application containing two grounds of review as follows:

    1.        The Authority’s decision was affected by legal unreasonableness.

    Particulars

    a.the Authority acted unreasonably in failing to consider whether it should exercise the discretion in s 473DC [of the Migration Act 1958 (Cth)] to obtain further material, being information from the founder of the [cricket club] about how he knew the families of players who had appeared on the website were being harassed by the authorities in Sri Lanka.

    b.The Authority did not rc.eet [sic] the evidence of the founder of the cricket club that families of players had experienced harassment in Sri Lanka as being a fabrication or implausible. Rathe[r] the evidence was given “little weight”. Even if it had “little weight” that evidence of the way the Authorities viewed association with the [cricket] club was not contradicted by any other evidence. It was illogical therefore to find that there was no real risk or chance of harm.

    2.“The Authority failed to consider the [appellant’s] claims and evidence that the cricket club had been linked to Tamil Separatism in media coverage”

    Particulars

    Paragraph 33 and Annexures “X” and “Y” to the [appellant’s] adviser’s submissions dated 11 September 2017”

12. As to ground 1(a), the primary judge held (at [66]-[71]) that it was not unreasonable for the Authority to not expressly consider or exercise its power under s 473DC of the Migration Act 1958 (Cth) when the statutory scheme in Pt 7AA of the Act contemplated a limited form of review under which the Authority made decisions without accepting or requesting new information. Further and in any event, the Authority gave an opportunity to the appellant to provide submissions or new information and the appellant did provide submissions to the Authority, which were referred to in the Authority’s reasons.

13. As to ground 1(b), his Honour held (at [72]-[74]) that it was entirely open for the Authority to put little weight on the evidence from the founder of the cricket club.  It was apparent to the primary judge that there was a real and genuine engagement with the appellant’s submissions by the Authority in light of the statutory regime.  His Honour did not accept there was legal unreasonableness in the Authority’s decision to accord the founder’s letter ‘little weight’ (identified at [25] of the Authority’s reasons).  The adverse finding was open to the Authority for the reasons it gave.  Ground 1(b) was dismissed. 

14. As to the second ground of review argued in the Federal Circuit Court, the appellant contended the Authority failed to consider articles relating to the cricket club.  The primary judge held that the Authority expressly noted that it considered the articles and twice referred to the articles in its decision record.  The primary judge concluded the Authority clearly recognised, engaged with and addressed the submissions and the claims made with respect to the cricket club.  It did not accept that the Authority was required to expressly refer to specific articles that the appellant had provided to the delegate in a submission and held that the Authority demonstrated an active and intellectual engagement with the appellant’s claims and submissions.

15. As each of the grounds of review were rejected, the appellant’s application for judicial review was dismissed.

    IN THIS COURT

16. There is a sole ground of appeal.  It is in terms which have been seen on a number of occasions by this Court (with the same errors):

    1.        …

    2.JURISDICTIONAL ERROR DUE TO NO [sic] FOLLOWING OR [sic] FACTS PRESENTED[.]

17. The ground is entirely unparticularised and totally unhelpful.  The Minister contends that the lack of particularity alone would be sufficient basis for the appeal to be dismissed.  This is a course rarely taken even though, technically, it is open.  In those cases citing the principle, the Court has invariably gone on to consider arguments otherwise raised by a self‑represented litigant with clearly little or no understanding as to the processes involved, let alone the language.

18. Before me, the appellant orally submitted that his brother was experiencing considerable difficulties in Sri Lanka and it would be likely that the appellant would be in the same position.  He stressed that military control was different in the North from that in the South.  These and other matters were advanced from the bar table and almost invariably related to present circumstances, even though the commentary was linked in no way to evidence or a ground of appeal.  The appellant, referred to the recent Easter Sunday bomb blast, saying that attacks had happened in several places.  He said that politicians were actually behind them and that most of the people affected by the bomb blasts were, according to the appellant, Tamils.  The attacks were also said to have occurred in Tamil areas.

19. I stressed that my limited role was not to attempt to engage in fact-finding, but to ascertain whether there was appellable error in respect of the Federal Circuit Court’s judgment.  This indication had little impact as the appellant continued to emphasise the troubles and dangers at home and his fear that he would be in danger if he returned.  Tamils, he said, were blamed for actions being carried out by others, such as Muslim people.  He said that there ‘there is not going to be peace in the country’.  Normal young people, especially young citizens were being targeted.  He did finally raise a reference to his involvement with the cricket club, saying that his name could be found on the internet and that he was likely to be targeted in Sri Lanka as they would know that he had been with Tamil people here. 

1. He was particularly concerned that, if he was sent back, his wife of one year and two months would be without him and he would be worried for her. 

2. As counsel for the Minister observed, and as I tried to explain to the appellant, none of those matters without more were relevant to identifying jurisdictional error on the part of the Authority or appellable error by the Federal Circuit Court.  Not only was the appellant seeking impermissible merits review, but he was also focussing on current matters which were not before the Authority, whose decision was given in January 2018.

3. Insofar as examining the question of whether there was any appellable error on the part of the Federal Circuit Court, no error can be identified. With respect to ground 1(a) and unreasonableness, I accept the submission for the Minister that, consistent with well-established principles, the primary judge considered the statutory regime under Pt 7AA of the Act and the specific circumstances of the matter to conclude that the Authority’s decision had ‘an evident and intelligible justification’.

4. As to ground 1(b), the complaint of the appellant primarily was as to the weight the Authority placed on the evidence from the founder of the cricket club.  The weight attribution does not disclose any error on the part of the Authority.  It is entirely uncontroversial that the weight to be afforded to evidence is generally a matter for the decision-maker. 

5. In relation to ground 2, the primary judge was right to conclude that the submissions and articles relating to the cricket club were considered by the Authority.  The submissions and the materials were discussed, considered and explained by the Authority.  In any event, it is not the position that a decision-maker must refer to every piece of evidence. 

6. The Authority was entitled and required to examine and form a factual view as to the prospects of harm in Sri Lanka arising from association with the cricket club.  There is no doubt that the Authority did so and reached a rational basis for the conclusion that the connection would not expose the appellant to relevant harm.  The primary judge’s analysis of the process was correct. 

   CONCLUSION

7. As there is no apparent error in the reasoning of the Federal Circuit Court, this appeal must be dismissed with costs. 

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Associate:

Dated:       4 June 2019