BRM19 v Minister for Immigration and Multicultural Affairs

[2024] FedCFamC2G 1387

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BRM19 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1387

File number(s):

ADG 151 of 2019

Judgment of:

JUDGE GERRARD

Date of judgment:

18 December 2024

Catchwords:

MIGRATION – Safe Haven Enterprise visa – decision of the Immigration Assessment Authority – where the applicant was unaware of the grounds raised – whether the IAA considered information provided by the secretary – whether the applicant was properly notified of the IAA’s decision – no jurisdictional error established – application dismissed

Legislation:

Migration Act 1958 (Cth) ss 36(2)(aa), 36(2A), 473CB, 473DD, 476

Cases cited:

BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384

CQG15 v Minister for Immigration and Border Protection[2016] FCAFC 146

Craig v State of South Australia (1995) 184 CLR 163

DAO16 v Minister for Immigration and Border Protection[2018] FCAFC 2

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3

DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784

Kopalapillai v Minister for Immigration and Multicultural Affairs[1998] FCA 1126; (1998) 86 FCR 547

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZKRT [2013] FCA 317

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294; [2005] HCA 24

Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 952

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

Division:

Division 2 General Federal Law

Number of paragraphs:

49

Date of last submission/s:

27 June 2024

Date of hearing:

18 November 2024

Place:

Adelaide

Applicant:

Self-represented with the assistance of a Tamil interpreter

Counsel for the First Respondent:

Maria Pappas

Solicitor for the First Respondent:

Australian Government Solicitor

Second Respondent:

Submitting appearance, save as to costs

ORDERS

ADG 151 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BRM19

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE GERRARD
DATE OF ORDER:	18 DECEMBER 2024

THE COURT ORDERS THAT:

1.The application be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE GERRARD:

INTRODUCTION

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (the IAA) affirming an earlier decision of the Minister to refuse to grant him a Safe Haven Enterprise (subclass 790) visa (SHEV). As will be explained, for the applicant to succeed in this Court, he must establish that the IAA decision contains a jurisdictional error. This Court cannot undertake a review of the merits of the decision under review.

2. For the reasons set out below, the Court has not found any jurisdictional error in the IAA decision. On that basis, his application cannot succeed.

   BACKGROUND

3. The applicant is a Sri Lankan Tamil who arrived in Australia as an unauthorised maritime arrival on 3 October 2012 (Court Book (CB) 12, 14, 153).

4. On 19 October 2012, the applicant participated in an Irregular Maritime Arrival Entry Interview (CB 10). In that interview, he claimed that he left Sri Lanka because of problems with the Sri Lankan Criminal Investigation Department (the CID) who had questioned him numerous times regarding suspected involvement with the Liberation Tigers of Tamil Eelam (the LTTE) (CB 20). If returned to Sri Lanka, he fears he will be arrested by the authorities (CB 24).

5. On 22 September 2016, the applicant was invited to apply for a Temporary Protection (subclass 785) visa or a SHEV (CB 26-27). On 26 October 2017, the applicant’s migration agent requested an extension of time to lodge an application (CB 31-34), which was granted by a delegate of the first respondent (the Minister) (CB 31).

6. On 19 May 2017, the applicant’s representative lodged a SHEV application (CB 37-86). The applicant’s representative also provided written submissions labelled “Statement of Claims” in support of the application (CB 75-78). On 9 and 12 October 2018, the applicant was invited to attend an interview scheduled for 23 October 2018 (CB 96-97). The applicant attended that interview and provided various identity documents (CB 121-147).

7. On 26 February 2019, a delegate of the Minister refused to grant the applicant the visa (CB 148-170).

8. On 4 March 2019, the delegate’s decision was referred to the second respondent, the IAA, for review (CB 172-173). The IAA’s correspondence sent to the applicant’s email address resulted in a delivery failure notice (CB 188).

9. On 2 April 2019, the IAA affirmed the delegate’s decision not to grant the applicant the visa (CB 193-208). The IAA’s correspondence sent to the applicant’s email address resulted in a delivery failure notice (CB 211).

10. On 18 April 2019, the applicant lodged an application for judicial review in this Court. That application seeks review of the IAA’s decision pursuant to s 476 of the Migration Act 1958 (Cth) (the Act).

    THE IAA DECISION

11. To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error. It is thus useful to outline the IAA’s decision in some detail.

12. The IAA began by noting that it had regard to the material given by the Secretary under s 473CB of the Act. The IAA confirmed that it had not obtained or received any new information (at [3]).

13. The IAA summarised the applicant’s claims to fear harm in Sri Lanka as follows (at [4]) (without alteration):

    •In 2007 the LTTE wanted him to join them, however because he was an only child he was excused from joining, and given a letter from an LTTE commander to that effect.

    •After the war ended, he entered a displacement camp and the letter was discovered by the Sri Lankan Army (SLA). He was questioned on a number of occasions about the letter whilst in various camps, and believes Sri Lankan authorities suspected him of helping the LTTE.

    •On 14 August 2012 the Criminal Investigation Department (CID) took him for questioning. He was interrogated about the letter, about whether he was an LTTE member, and was beaten. He denied he was ever an LTTE member. He was also asked about scars on his elbow, which were from a bike accident in about 2007, and accused of obtaining them from being involved in the war.

    •When the CID released him they threatened him and he was afraid he would be abducted, so he made plans to leave Sri Lanka with the help of a people smuggler.

    •The CID went searching for him at his mother's home in about 2013, and told his family he had to come back.

    •If he is returned to Sri Lanka he fears he will be taken into custody because he left Sri Lanka illegally, and that he may be killed if he is jailed.

    •He also fears harm as a Tamil male, and that the Sri Lankan government will falsely accuse him of being an LTTE member, and he will be beaten, interrogated, threatened, tortured or killed.

14. The IAA then set out the refugee assessment criteria in respect of whether the applicant has a well-founded fear of persecution under s 5J of the Act (at [5]-[6]).

15. The IAA accepted that there was no issue regarding the applicant’s identity as a Sri Lankan Tamil (at [7]). The IAA also accepted the applicant is of Hindu faith and that no protection claim was made in respect of this (at [8]).

16. The IAA accepted the applicant’s claims regarding his early life in Sri Lanka, growing up in the Kilinochchi District of the Northern Province in his family home, apart from periods spent in a number of camps for internally displaced persons. The IAA also accepted the applicant’s claims in respect of his father leaving the family, his employment history, marriage to his wife, and that he and his wife have a child together (at [9]).

17. The IAA set out the applicant’s claims regarding the LTTE. The IAA detailed the applicant’s claims that, in 2007, he was detained by the LTTE for several hours for the purpose of forcing one child from each family to join them, only being released after his mother intervened by providing a letter from an LTTE commander stating he was an only child and excused from joining. It then set out further claims put forward by the applicant in respect of various questionings and beatings by the CID in respect of the letter, some years later in 2009 to 2012 (at [10]-[11]).

18. The IAA found the applicant’s evidence during his SHEV interview to be consistent with that provided in his SHEV application, in a manner suggesting he was recalling lived experience. The IAA also found the applicant’s claims to be supported by country information describing the LTTE practice of forcible and voluntary recruitment (at [12]). Whilst it accepted claims in respect of the letter, and being questioned by the CID in relation to this (at [19]), it found it implausible that the applicant would have been released as a result of entreaties if he were genuinely suspected of having connections to the LTTE. Instead, the IAA considered he was released as he was not of adverse interest to Sri Lankan authorities at that time (at [13]), and that if he was genuinely suspected to have links to the LTTE, he would have been sent to a rehabilitation camp (at [15]). Ultimately, it found that the applicant did not fear harm as a result of any family members’ previous involvement with the LTTE (at [14], [19]).

19. The IAA set out the applicant’s claims in respect of the CID visiting his mother’s home, where his wife and children were living, after he left Sri Lanka in approximately 2013. Whilst the IAA found it plausible and accepted that the CID visited his mother’s home as claimed, it found that this resulted from routine treatment of Tamils at the time and was not indicative of the applicant having an adverse profile (at [16]).

20. The IAA considered the applicant’s claims in respect of fearing harm if returned to Sri Lanka. It set out the applicant’s claims relating to his identity as a Tamil male from the north of Sri Lanka, the scars on his right elbow, and any suspected LTTE involvement or political opinion, and considered these against relevant country information (at [17]-[24]). Ultimately, it found that the applicant may experience some societal discrimination upon his return to Sri Lanka for these reasons, but that such treatment would not amount to serious harm so as to constitute a well-founded fear of persecution (at [17]-[18], [25]).

21. The IAA set out the applicant’s evidence in respect of leaving Sri Lanka illegally by boat in September 2012 without a passport and with the assistance of a people smuggler. The IAA accepted this evidence and considered it likely on return that the applicant would be identified by Sri Lankan authorities as someone who departed Sri Lanka illegally, and who has lived overseas and is returning as a failed asylum seeker (at [26]). The IAA considered it plausible that, as a failed asylum seeker, he may be monitored for a period of time on return and may experience some social stigma within his community, but that this would not amount to serious harm (at [27]). The IAA also set out the likely processes and penalties that may be imposed on the applicant upon his return, and that he may be questioned and detained for up to two days in an airport holding cell, but that this would not be discriminatory in nature or that it would amount to serious harm (at [28]-[30]).

22. Having made those findings and considered the claims individually and cumulatively, the IAA was not satisfied that the applicant has a well-founded fear of persecution (at [31]).

23. The IAA then considered the applicant against the complementary protection criterion (at [33]-[37]). The IAA relied on the same findings of fact with respect to Sri Lanka as it did in its assessment of the refugee criteria.

24. The IAA concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm for the purposes of s 36(2)(aa) and 36(2A) of the Act (at [37]).

25. Having regard to the above, the IAA concluded that the applicant was unable to meet the relevant visa criteria.

    APPLICATION TO THIS COURT

26. The application for judicial review filed by the applicant on 18 April 2019 contains the following grounds of review (without alteration):

    1.The   IAA decision was  inconsistent, illogical and so unreasonable

    Particulars

    a.   The applicant  claimed his brother was a colonel in the LTTE

    b.   .The IAA wrongfully made an  assumption that the application brother  was not died by military

    c.   I will provide more details and information once the court book is prepared.

    2.Ground

    3.The decision was inconsistent. Illogical and so unreasonable to not accept the information associated in processing enmasse

    4.The IAA  was not satisfied that there are exceptional circumstances to consider this information

27. The applicant filed an affidavit with that judicial review application on 18 April 2019. The affidavit annexed a copy of the IAA’s decision.

28. The matter was listed in person on 18 November 2024, however the applicant failed to appear. The Court attempted to call the applicant’s phone number, with no answer. Ms Pappas provided an alternative phone number from the Department for Home Affairs’ records (the Department), marked as Annexure MP-4 of the Affidavit of Service filed by the Minister on 15 November 2024. The Court was successful in reaching the applicant on this alternative phone number, and so the applicant appeared before the Court by telephone without legal representation but with the assistance of a Tamil interpreter.

29. The materials before the Court include the application for judicial review and supporting affidavit affirmed by the applicant on 18 April 2019 (the affidavit being taken as read and in evidence at the hearing on 18 November 2024), a Court Book numbering 211 pages (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 27 June 2024.

30. The applicant was not represented and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [55] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 952 at [40]. Accordingly, at the hearing of this matter on 18 November 2024, the applicant was invited to tell the Court what he believed to be wrong with the IAA’s decision and/or procedure.

31. The Court also took some time to explain that it could not undertake a merits review of the IAA’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the IAA decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged, common categories of alleged jurisdictional error include:

    (a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));

    (b)where the decision-maker ignores relevant material (Craig at 178);

    (c)where the decision-maker relies on irrelevant material (Craig at 178);

    (d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294 at 354-355, [2005] HCA 24 at [207]-[208]);

    (e)where the decision-maker fails to consider the entirety of an applicant's claims (or integers of the claims) made (Minister for Immigration and Citizenship v SZKRT [2013] FCA 317 at [111]);

    (f)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and

    (g)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28, [2022] FCAFC 3 at [33]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648; [2010] HCA 16 at [131] (SZMDS); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445, [2014] FCAFC 1 at [44]).

32. However, it was also explained to the applicant that this was not an exhaustive list and he should attempt to tell the Court what he said the IAA did wrong.

33. Against this background, the applicant told the Court that he provided all of the information relevant to his claim but it was rejected. He said that he couldn’t find the reason why his claim was rejected. The Court raised with the applicant, as identified in the Minister’s written submissions, that his grounds bear no relationship to the facts of his case. In response, the applicant confirmed that he had assistance in preparing his application. He said that he did not know what was in the application. He also confirmed that he did not have a brother, despite the grounds raised in his application. Irrespective of this, the Court invited the applicant on two occasions to say anything he believed to be wrong with the IAA’s decision that was separate from the grounds in his application. In response, the applicant simply repeated that he had provided all of his evidence to the Department and doesn’t know why his application was rejected. The applicant did not wish to say anything in reply to the Minister’s submissions.

    CONSIDERATION

34. As outlined above, there are four grounds of review advanced in these proceedings. Where an applicant is unrepresented, the Court endeavours to interpret the applicant’s grounds as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392). That is more acute in this case where the applicant confirmed that the grounds were prepared by another person and at least one of those grounds patently bears no resemblance to the applicant’s circumstances.

    Grounds one and two

35. Grounds one and two can be dealt with together. Through these grounds, the applicant submits that the IAA’s decision was “inconsistent, illogical and so unreasonable” by not considering his brother’s involvement in the LTTE.

36. The applicant confirmed to the Court that he did not have a brother. The Minister did not wish to make submissions in respect of ground one, where the applicant did not understand he was alleging such a ground in relation to a brother. Whilst the ground was not formally abandoned by the applicant, it is clear from his confirmation in this Court and the evidence which was before the IAA that it has no nexus to the claims actually made by the applicant. Indeed, it is completely inconsistent with his evidence that he is an only child.

1. In relation to ground two, it is obvious that this is not an intentional ground but rather an example of the kind of rudimentary drafting styles often seen in this Court from self-represented applicants unfamiliar with the niceties of legal drafting. That is not a criticism. The Court well appreciates the difficulty a self-represented applicant with limited English faces in preparing a formal legal document. As stated above, the Court will always endeavour to ascertain the gist of an applicant’s ground where that is apparent. What is apparent here is that no ground is actually pressed.

2. In those circumstances, the Court accepts that no jurisdictional error arises in respect of these grounds.

   Grounds three and four

3. Grounds three and four can be dealt with together. Through these grounds, the applicant submits that the IAA’s decision was “inconsistent, illogical and so unreasonable” by not accepting the information associated with processing en masse, and that it was not satisfied there were exceptional circumstances to consider such information. The applicant did not seek to elaborate on these grounds at the hearing of this matter.

4. In written submissions, the Minister submitted that the applicant did not provide any new material to the IAA, and as such, it did not make any findings as to whether there were exceptional circumstances to consider new information under s 473DD of the Act. In these circumstances, the Minister submitted to the Court that perhaps the ground should be that the IAA did not consider the applicant’s information he had provided to the Department.

5. In respect of whether the IAA did not consider the applicant’s information provided to the Department, the Minister submitted that the IAA indicated it had regard to the material given by the Secretary under s 473CB of the Act. The Minister also submitted that the IAA’s decision refers to the applicant’s claims and then goes on to consider the applicant’s evidence in the remainder of the decision.

6. The Court accepts the Minister’s submissions in this regard. At [3] of its reasons, the IAA states that it has had regard to the material given by the Secretary and confirms that no further information had been obtained or received. It then actively engaged with the material before it throughout its reasons.

7. It is apparent at [11]-[25] of these reasons that the IAA comprehensively considered and engaged with the applicant’s claims. It accepted the applicant’s claims as made. However, when considered against credible country information, particularly the most recent country information from DFAT about Sri Lanka, it found that the applicant would simply not be at risk of harm.

8. The Court has also been unable to independently find any error on behalf of the IAA. The IAA understood the relevant task before it. It considered all of the claims made by the applicant and all of the evidence given by the applicant in support of those claims. All of the matters considered by the IAA were clearly relevant and there is no evidence that it failed to consider irrelevant material. The IAA’s findings in this matter were based on rational reasons that were arrived at on consideration of matters that were logically probative (CQG15 v Minister for Immigration and Border Protection[2016] FCAFC 146; Kopalapillai v Minister for Immigration and Multicultural Affairs[1998] FCA 1126; (1998) 86 FCR 547 and DAO16 v Minister for Immigration and Border Protection[2018] FCAFC 2). It cannot be said that no other rational or logical decision maker could have drawn the same conclusion or arrived at the same decision (SZMDS).

   Additional matter raised by the Minister

9. Counsel for the Minister, as model litigant, raised an additional matter. The Minister drew the Court’s attention to a potential procedural fairness issue, namely, that the IAA’s correspondence which was sent to the applicant’s email address resulted in a delivery failure notice on two occasions. However, the Minister submitted that these delivery failure notices were not evidence of failure by the IAA to properly notify the applicant of its decision.

10. The Minister firstly submitted that the applicant had provided a Yahoo email address in his visa application which the Department had previously used to send correspondence to him without fail. The Minister then submitted that the covering letter sent by the IAA to the applicant was also addressed to the applicant’s postal address, and that the IAA’s correspondence was correctly dispatched in accordance with the relevant procedural fairness obligations in accordance with the Act. The Court accepts the Minister’s submissions in this regard, where the applicant also confirmed in the hearing that he had received all of the information and communication from the IAA in respect of the decision. In any event, it is clear that the applicant received the IAA decision, and any issues with notification did not affect his ability to lodge an application for judicial review in this Court within time.

11. The Court is satisfied that, even adopting the broad approach referred to in [34] of these reasons, no jurisdictional error is apparent.

    CONCLUSION

12. The application for review, supporting affidavit and additional submissions made by the applicant have failed to identify any jurisdictional error on the part of the IAA. The Court is otherwise unable to identify any jurisdictional error on the part of the IAA.

13. Accordingly, the application is dismissed.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard.

Associate:

Dated:       18 December 2024