AXD18 v Minister for Home Affairs
[2019] FCCA 349
•15 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXD18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 349 |
| Catchwords: MIGRATION – Protection Visa Application – review of decision of the Immigration Assessment Authority – whether failure to consider integer of claim – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.476(1) |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 |
| First Applicant: | AXD18 |
| Second Applicant: | AXE18 |
| Third Applicant: | AXF18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 108 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 14 November 2018 |
| Date of Last Submission: | 14 November 2018 |
| Delivered at: | Perth |
| Delivered on: | 15 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Saul-Jahnke |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the First Respondent: | Ms A. Ladhams |
| The Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
The applicant’s application for judicial review is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 108 of 2018
| AXD18 |
First Applicant
| AXE18 |
Second Applicant
| AXF18 |
Third Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 26 February 2018, amended 10 October 2018, AXD18, AXE18 and AXF18 (the “applicants”) seek judicial review of a decision of the Immigration Assessment Authority (the “IAA”) made on 9 February 2018.
The IAA affirmed a decision of a delegate for the Minister for Home Affairs (the “Minister”) to refuse to grant the applicants a Safe Haven Enterprise Visa (“SHEV”).
This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth). To succeed before this Court, the applicants’ must show jurisdictional error on the part of the IAA.
The Court had before it a detailed Court Book (“CB”) spanning 308 pages, written submissions from the applicants dated 10 October 2018 and written submissions from the first respondent dated 24 October 2018.
Background
The first applicant and the second applicant (who is the first applicant’s wife) are from Sri Lanka. The third applicant is the daughter of the first and second applicant and was born in Australia on 18 August 2015.
The applicants arrived at Christmas Island as unauthorised maritime arrivals on 5 November 2012 (CB at 63).
On 15 December 2016, the applicants applied for a SHEV (CB 43-129). A delegate for the Minister refused that application on 13 April 2017 (CB 236-249).
On 20 April 2017, the matter was referred to the IAA (CB 265). The IAA affirmed the delegate’s decision on 9 February 2018 (CB 283-300).
Only the first applicant has made claims for protection. The second and third applicants are included as members of the same family unit.
Claims for Protection
SHEV Application
In support of the applicants’ SHEV application, the first applicant provided a statutory declaration dated 11 December 2016 (“statutory declaration”) (CB 133-134). In that statutory declaration the first applicant explained that:
a)While in Mannar his father worked for the Liberation Tigers of Tamil Eelam (“LTTE”), transporting food supplies to the LTTE. The LTTE sometimes asked his father to carry guns hidden under food supplies;
b)His father recruited other Tamils (including his two uncles) to fight against the Sri Lankan army (“SRA”). His father was also involved in getting the first applicant’s two uncles to join the LTTE;
c)On 12 July 1988, one of his uncles was shot dead by the army when he was returning from visiting the first applicant’s father;
d)In June 1990, his father was abducted by the SRA and interrogated about recruiting fighters for the LTTE and about transporting weapons and LTTE members. His father was beaten and, after being held for 5 days, his mother paid one lakhs to get his father released;
e)The family fled to India shortly thereafter;
f)In February 1997, the first applicant’s other uncle was killed by army masked men;
g)His mother’s younger sister was also a fighter with the LTTE. In May 1999 she was injured while fighting the SRA, she managed to escape from Sri Lanka to India but was caught by the Indian CID and she was jailed for 4 years. In 2006, army intelligence started to investigate her and she escaped to India;
h)In India, his father was helping LTTE supporters who had escaped to India to escape to other countries by introducing them to agents in India; and
i)His father had many enemies from other members of the paramilitary group operating in Mannar. There is a lot of enmity between the paramilitary group and LTTE because LTTE members have killed many paramilitary members.
The first applicant claimed to fear harm if he was returned to Sri Lanka because:
a)The SLA or the CID (who he claims have details about his family), will detain and interrogate him to find out more about his father and his aunt;
b)The members of the paramilitary group who the first applicant described as “enemies of his father” will come to know that he is his father’s son; and
c)He will be returning to Sri Lanka as an asylum seeker and fears that if his family is returned to Colombo airport, they will be separated and he is scared for his safety and his wife’s and child’s safety.
Post Interview Submissions
The applicants’ then representative provided a post interview submission to the Department of Immigration and Border Protection on 3 April 2017, in which he reiterated the first applicant’s claims to fear harm on account of:
a)His father’s involvement with the LTTE, including weapons transport and recruitment of cadres;
b)His father’s involvement with assisting LTTE supporters in Tamil Nadu;
c)His aunt’s situation as an LTTE cadre;
d)His status as a failed asylum seeker who departed illegally; and
e)His Tamil ethnicity.
Relevantly, the first applicant’s representative submitted that the first applicant’s father and aunt’s involvement with the LTTE gave rise to a particular risk profile for the first applicant. The representative then noted that (CB 227):
The Bar Human Rights Committee of England Wales reported that those escape the detention by bribing are recorded as un−acquitted suspect and they will be of significant interests to the Sri Lankan army. Hence, on return the applicant risks detention and interrogation about his father’s past and present activities both before he left Sri Lanka and now (sic).
The representative also submitted that the Sri Lankan security agencies would have an adverse interest in the first applicant’s aunt and that the adverse interest in his father and aunt would be reason to detain and interrogate the first applicant.
The Delegate’s Decision
In considering the first applicant’s family’s involvement with the LTTE (CB 241), the delegate accepted that the first applicant's father was a low profile LTTE member.
The delegate also accepted that the applicant’s paternal uncles were LTTE cadres who were killed in 1988 and 1997 but noted that they were not high profile LTTE members.
The delegate also found that the first applicant’s aunt was an LTTE cadre but noted that she also had a low profile.
The delegate did not accept that the first applicant’s father would be classified as an ‘un-acquitted suspect’ because he escaped by paying a bribe, finding (CB 242):
The country information provided by the migration agent is from 2014 and appears to be referring to individuals detained at the airport upon arrival in Sri Lanka. I find it highly unlikely that given the passage of time that the applicant’s father would have such a charge held against him.
The delegate then assessed whether the first applicant had a well-founded fear of persecution on this basis, noting a range of country information about the changed situation for Tamils and people perceived as supporting the LTTE, including those with family links to the LTTE (CB 243-244). The delegate ultimately did not accept that the first applicant faced a real chance of persecution as a result of his links to his father, his deceased uncles or his aunt in the reasonably foreseeable future (CB 245).
The IAA’s Decision
In relation to the first applicant’s family’s involvement with the LTTE, the IAA made the following findings:
a)Aunt: the IAA accepted that the aunt was an LTTE cadre, that she was injured in May 1998, that she escaped to India and was arrested and jailed for 4 years, and was then deported to Sri Lanka in 2004 where she was investigated by the Sri Lankan authorities. She then fled to India in 2006 and resides in Tamil Nadu in the same refugee camp as the first applicant’s family: [15]-[17], [20], [24].
b)Uncles: the IAA accepted that the first applicant’s uncles were killed by the SLA in 1988 and 1997, and that their identity and LTTE membership was known to the authorities: [14], [17], [20], [24].
c)Father: the IAA accepted that the first applicant’s father provided assistance to the LTTE in Sri Lanka prior to 1990 and in India in 2009 and 2010. It accepted that in June 1990 the first applicant's father was abducted, interrogated and tortured by SLA intelligence and that his mother paid a bribe to secure his release. It accepted and that there may be a record of his 5 day period in detention and that there is a possibility that he may be recorded as an ‘un-acquitted suspect’: [13], [15]-[17], [20]-[24].
On the basis of these findings, the IAA found at [24] that the first applicant has family links to the LTTE, and proceeded to consider the risk of harm on this basis. Relevantly, the IAA noted:
a)The representative’s submission that the first applicant, as a person with family links to the LTTE, would fall into a category of people identified by the UNHCR in 2012 as warranting international protection: [24]. However, it noted that the report was more than 5 years old at the time of its decision: [25].
b)A report from the UK Home Office that reported that people with past membership or connection to the LTTE would not warrant international protection unless they are perceived to be active in post conflict Tamil separatism: [28], [30].
c)A DFAT report indicating that close relatives of high profile former LTTE members who remain wanted may be subject to monitoring: [29].
d)US Department of State reports which contained information about the human rights situation more generally, as well as other country information about the improved political situation: [25]-[26], [31].
The IAA concluded that the country information before it indicated that a person with the first applicant’s profile may be subject to monitoring and harassment in Sri Lanka, but that his profile is not such that he faces a real chance of being subjected to serious harm in the foreseeable future because of his Tamil ethnicity or imputed anti- government or pro-LTTE political opinion: [32]. It then stated at [37]:
Given the changed circumstances in Sri Lanka since the applicant's departure, the length of time that has passed since the applicant's family members were involved with the LTTE, the length of time that the applicant has lived in Tamil Nadu, India, and the fact that he was a ten year old child when he left Sri Lanka and has never returned there since that time, I am satisfied that the chance of the applicant facing harm in Sri Lanka because of family links with the LTTE or because of being imputed with an anti−government political opinion or imputed to be an LTTE supporter is very remote. I find that the applicant's fears of persecution in this regard are not well-founded.
The Applicants’ Submissions
The applicants raise one ground of review before this Court which was articulated in their amended application dated 10 October 2018.
The applicants claim as follows:
The Immigration Assessment Authority erred by failing to consider the integers of the Applicant’s claims arising from his father and aunty being considered ‘un-acquitted suspects’ who would be ‘of significant adverse interest to the authorities’ upon any return to his home country.
In support of this ground, the applicants submitted as follows in written submissions dated 10 October 2018:
15. … part of the argument advanced in [the] Applicants’ protection visa application was that ‘un-acquitted suspects’ were of adverse interest to Sri Lankan authorities. The First Applicant identified in his written submissions that both his father and his aunty (the two uncles having been killed by the authorities) would be such persons.
16. The claim before the IAA clearly comprised the integers that his father and aunty were ‘un-acquitted suspects’ and as a result, the First Applicant himself would in turn be imputed with some kind of pro-LTTE opinion, or at the very least be of adverse interest as a person from whom authorities thought they might be able to coerce information. These integers of the claim however, were not considered by the IAA.
17. First, in relation to the father, the IAA accepted that he might be recorded by the authorities in their intelligence databases as an ‘un-acquitted suspect’. However, having accepted that possibility, the IAA failed to complete its analysis and consider whether the Applicant might be of adverse interest as a result. Nowhere in the paragraphs following the IAA’s acceptance that the father might be regarded as an ‘un-acquitted suspect’—despite the passage of time since the father’s last hostile LTTE activity—is there any grappling of the consequences which might flow to the Applicant as a result.
18. Second, even though the aunty was also identified by the First Applicant as a source of a pro-LTTE imputation, the IAA did not consider at all whether the aunty would be likely regarded as an ‘un-acquitted suspect’, and therefore another reason why the Applicant might be at risk of harm. The failure to engage in this consideration, and make consequential findings as to whether it would provide a reason for the Applicant to be at risk of harm, is stark in light of the IAA accepting the country information from the Bar Committee that ‘un-acquitted suspects’ are still of adverse interest.
19. Third, there is no examination of the cumulative effect of both the father and the aunty being ‘un-acquitted suspects’. That also needed to be considered by the IAA.
20. For these three reasons, the IAA erred in failing to give complete consideration to the integers of the Applicants’ protection claims. It is uncontroversial that such a failure is a jurisdictional error.
The First Respondent’s Submissions
In response, the first respondent submitted in written submissions dated 24 October 2018 as follows:
18. In regards to the father, the IAA expressly considered his situation as an un-acquitted suspect. It had accepted that the applicant’s father escaped detention because his wife (the applicant’s mother) paid a bribe, and noted that despite his release after 5 days suggesting he was not regarded as an LTTE suspect, that he nevertheless may be recorded as an un-acquitted suspect: see [21]-[24]. After accepting this fact (and other facts regarding family members), the IAA stated at [24] that it therefore accepted that the applicant has family links with the LTTE. It is apparent that the IAA dealt with the father’s situation as a potential un-acquitted suspect, as it related to the applicant’s claims, under the umbrella of “family links to the LTTE.” This was how the claim was put by the applicant: that he feared harm because of his father, aunt and uncles’ involvement with the LTTE. That involvement included various historical activities with the LTTE, which were findings of fact accepted by the IAA.
19. In that context, the ‘claim’ properly understood was that the applicant would be imputed with LTTE involvement because of his family. There was no separate claim to fear harm from his father’s status as an un-acquitted suspect, and even if it were a separate integer, it was unnecessary make an express finding, as it was subsumed into a finding of greater generality about “family links to the LTTE”: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [47].
20. In relation to the aunt, no claim ever arose on the basis that she was an un-acquitted LTTE suspect. Like the applicant’s father, the aunt was detained by the Sri Lankan authorities. But critically, there was no evidence before the IAA that she or anyone else paid a bribe for the aunt’s release in 2006, or that she escaped from custody. Rather, the applicant claimed that after the SLA intelligence started to investigate her, she ‘escaped’ to India: CB 133, 226.
20.1.No claim was expressly made: contrary to the applicant’s submissions at [6] and [15], the applicant’s aunt was never identified as an un-acquitted suspect in the 3 April 2017 submissions. At CB 227 the representative identifies a group of people to which he submits the applicant belongs, being people suspected of links with the LTTE. The representative then identifies the father as a person who paid a bribe and was therefore an un-acquitted suspect, and then (in a new paragraph) states that the aunt would be of adverse interest to the Sri Lankan security agencies. Therefore, it is apparent that the applicant put his case in respect of the aunt squarely within the umbrella claim of “family members with links to the LTTE.”
20.2. No claim arose squarely on the materials: given that the aunt had not paid a bribe or escaped detention, she did not fall within the profile of people identified in the country information as being un-acquitted suspects. There was nothing to suggest that she had this profile or would be attributed with these characteristics.
21. In the alternative, the Minister submits that even if a claim impliedly arose regarding the aunt, it too was subsumed in the broader finding in respect of “family members in the LTTE.”
Relevant Law
As summarised by Judge Lucev in DTX17 v Minister for Immigration & Anor [2017] FCCA 3015 (DTX17):
23. The failure of an administrative decision-maker such as the IAA to consider a component integer of an applicant’s claim to meet the criteria relevant under the Migration Act will constitute jurisdictional error: Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 at [42] per Allsop J; Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”); Minister for Immigration & Border Protection v MZYTS & Anor [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 at [34] and [62] per Kenny, Griffiths and Mortimer JJ. Likewise, the IAA may commit jurisdictional error where it misconceives the applicant’s claims: AZAAA v Minister for Immigration & Citizenship [2009] FCA 554; (2009) FCR 363 per Mansfield J at [53]. In Dranichnikov the High Court observed that the failure to respond to a substantial, clearly articulated argument relying upon established facts is a failure to accord procedural fairness to an applicant: Dranichnikov at [24] per Gummow and Callinan JJ and [95] per Hayne J.
It may be inferred that an administrative decision maker such as the IAA has failed to consider a claim if it does not mention it in its reasons: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (Applicant WAEE) at [47]. However, the reasons must be read as a whole and they may demonstrate that a claim has been considered even if it is not expressly mentioned: Applicant WAEE at [47].
It is well established that where an administrative decision-maker is required to consider a claim or some mandatory criteria by an Act of parliament, the decision maker must engage in an active intellectual process directly addressing that claim or criteria: Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140 at [47]-[54] per Lindgren, Rares and Foster JJ; Minister for Immigration & Citizenship v Khadgi [2010] FCAFC 145; 190 FCR 248; (2010) 274 ALR 438 at [57] per Stone, Foster and Nicholas JJ.
In Carrascalao v Minister for Immigration & Border Protection [2017] FCAFC 107 at [47] per Griffiths, White and Bromwich JJ (Carrascalao), the Full Court of the Federal Court said:
Whether or not there was such an active intellectual process requires the Court to conduct an evaluative judgment, taking into account the available evidence and reasonable inferences, as to all the relevant facts and circumstances of each case. These include, but are not limited to, the nature and volume of the material placed before the Minister to assist his decision-making, as well as other matters which arise from the relevant statutory context.
However, a finding that a decision maker ‘has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof’: Carrascalao at [47].
Further, the IAA is not required to consider a case that is not expressly made or does not arise clearly on the materials before it: NABE v Minister for Immigration & Multicultural Affairs (No 2) (2004) 144 FCR 1 (NABE) at [61].
It may also be unnecessary for a decision maker such as the IAA to make a finding on a particular matter if it is subsumed into findings of greater generality. In Applicant WAEE, French, Sackville and Heely JJ said (at [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 a factual premise upon which a contention rests which has been rejected. …
Consideration
The First Applicant’s Aunt
The Court does not agree with the applicants’ written submissions that “the claim before the IAA clearly comprised the integers that [both] his father and aunty were ‘un-acquitted suspects’”.
The Court notes that the issue of whether the applicants’ claims before the IAA indicated that the first applicant’s aunt would be considered an ‘un-acquitted suspect’ was addressed in the hearing as follows:
HIS HONOUR: Mr Saul-Jahnke, just going back to the arguments in relation to the aunt, do you still press the argument that the evidence in relation to the aunt … reveal[s] or indicate[s] that an integer of some sort exists in relation to that particular piece of evidence …
MR SAUL-JAHNKE: I acknowledge that it’s definitely nowhere near as clearly expressed as the way the father’s claim - - -
…
MR SAUL-JAHNKE: We don’t press that – we don’t press that it’s – the argument that there was no claim raised that she bribed her way out of detention is – it’s a fact – I don’t argue with that. The only reason why it would possibly be – or we’re arguing it would be brought in is because of the fact – the way it was summarised at the end of those paragraphs the aunt was tied in with the father in any claim, and that in the delegate’s decision and in his submission, but I accept that it’s nowhere – there’s no mention in the material that she bribed her way out of detention.
In the material before the IAA, no reference is made to the first applicant’s aunt as an ‘un-acquitted suspect’. Nor, as conceded by Counsel for the applicants, is any reference made to a bribe being paid for her release. Further, there was no evidence before the IAA that the aunt escaped from custody. Rather, the first applicant claimed that after the SLA intelligence started to investigate his aunt, she ‘escaped’ to India, was subsequently caught by the Indian CID and jailed for four years in 1999, before being deported back to Sri Lanka in 2004 (CB 133, 226).
The Court is not satisfied that a claim that the first applicant faced a risk of harm if returned to Sri Lanka on the basis that his aunt would be considered an ‘un-acquitted suspect’ was expressly made. Nor did it arise clearly on the materials before the IAA. In the circumstances, it cannot be said that the IAA was required to consider this claim: NABE; SZSSC v Minister for Immigration and Border Protection [2014] FCA 863 at [78]-[82].
The First Applicant’s Father
The Court notes the comments of French, Sackville and Heely JJ in Applicant WAEE at [46] that:
The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
This reasoning applies equally to the IAA. The IAA’s decision here should not be scrutinised “with an eye keenly attuned to error”.
The Court is not satisfied that there is sufficient evidence that the decision maker here did not engage in an “active intellectual process” when addressing the first applicant’s claim that he would face harm as a result of his father being considered an ‘un-acquitted suspect’: Carrascalao at [47]. In the material before the IAA, the first applicant claimed that he feared harm if he was forced to return to Sri Lanka because of his father’s, aunt’s and uncles’ involvement with the LTTE. That involvement included various historical activities with the LTTE, not limited to his father’s potential status as an ‘un-acquitted suspect’.
This is not a case where the IAA has failed to mention the first applicant’s claims in its reasons. Rather, the reasons read as a whole demonstrate that all of the first applicant’s claims relating to his family member’s ties to the LTTE were considered. It is this Court’s view that the IAA took a holistic approach in dealing with these claims and ultimately made a finding that was at a higher level of generality. The Court is therefore satisfied that the IAA was well aware of the first applicant’s claim that his father would be considered an ‘un-acquitted suspect’, it made findings about the factual basis for that claim (CB 288-289 at [21]-[23]), accepted it as a possibility (CB 289 at [23]-[24]) and, by making a finding in relation to the first applicant’s “family links to the LTTE” (CB 291 at [37]), effectively dealt with it: Applicant WAEE.
The applicants’ sole ground of review fails.
Conclusion
For the reasons outlined above, the applicants’ application for judicial review fails and is, accordingly, dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 15 February 2019
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