CCJ16 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 693
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CCJ16 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 693
File number(s): SYG 2156 of 2020 Judgment of: JUDGE LAING Date of judgment: 8 August 2023 Catchwords: MIGRATION – judicial review of a decision of the Immigration Assessment Authority (“IAA”) – whether the IAA overlooked evidence – whether the IAA failed to consider a material claim – application dismissed Legislation: Migration Act 1958 (Cth) Cases cited: BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; (2019) 269 FCR 94
DFY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 169
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of hearing: 1 August 2023 Place: Sydney Counsel for the Applicant: Mr P Boncardo Solicitor for the Applicant: Lander & Rogers Lawyers Counsel for the First Respondent: Ms N Gollan The Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley ORDERS
SYG 2156 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CCJ16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
8 AUGUST 2023
THE COURT ORDERS THAT:
1.The further amended application filed on 20 July 2023 be dismissed.
2.The applicant pay the first respondent’s costs fixed in the amount of $6,700.
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 LAING:
Before the Court is an application for judicial review of a decision made by the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Protection (Class XE) (Subclass 790) visa (protection visa).
BACKGROUND
The applicant is a Sri Lankan Tamil who arrived in Australia in 2012 as an unauthorised maritime arrival.
In 2015, the applicant applied for a protection visa.
The Delegate refused the application on 19 May 2016. The matter was referred to the IAA for review.
On 8 July 2016, the IAA affirmed the Delegate’s decision. That decision was quashed by a decision of the Federal Circuit Court of Australia (as it then was) on 26 June 2020 and the matter was remitted for determination according to law.
On 20 August 2020, the IAA (differently constituted) affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA observed that it had received submissions and documents that had been provided after the Delegate’s decision. To the extent that this involved new information, the IAA found that the requirements of s 473DD of the Migration Act 1958 (Cth) (Act) were met and that the new information was therefore able to be considered by the IAA. The IAA also considered that the requirements of s 473DD of the Act were met in relation to an updated country information report. These findings, at [5]-[11] of the IAA’s decision, are not the subject of challenge in these proceedings.
The IAA accepted that:
(a)the applicant was a Catholic Sri Lankan Tamil whose cousin had operated a timber business on family land (at [13]-[14]);
(b)the applicant had worked part time in his cousin’s shop and other details regarding his employment history (at [14]);
(c)the applicant’s cousin, in the course of his business, travelled to former Liberation Tigers of Tamil Eelam (LTTE) controlled areas and, as a consequence, knew of and interacted with LTTE members and cadres (at [25]);
(d)in the course of his work for his cousin, the applicant travelled to a former LTTE controlled area in 2007 and saw his cousin having a good rapport with LTTE members and cadres (at [25]);
(e)the applicant travelled to Australia unlawfully by boat, having never obtained a passport (at [15]);
(f)the applicant was the victim of an abduction in June 2008 at the hands of “armed men” who may have been members of the Tamil Makkal Viduthalai Pulikal (TMVP). The applicant was only released after his father paid a sum of money (at [29]);
(g)after his cousin closed his business, armed men came to the house asking for his cousin in October 2008. The applicant was mistreated, harmed and warned about concealing information regarding his cousin (at [30]);
(h)the applicant may have engaged with his church (Church), attended various Church activities and been mentored and counselled by the Church priest (at [37]);
(i)the applicant was assisted in obtaining a volunteer role and was recommended for a role for which he had to go to Colombo in 2011 (at [37]);
(j)the applicant was approached by police, asked questions about his stay in Colombo and may have had to report to the police on a regular basis (at [38]).
The IAA did not accept that:
(a)the applicant was affected by a “data breach” in 2014. The information before the IAA indicated that those affected were in detention facilities in January 2014. The IAA observed that the applicant did not appear to have been in immigration detention at the time (at [16]);
(b)the applicant’s cousin was an LTTE member or cadre (at [25]);
(c)the applicant’s ability to present his claims or evidence had been hindered by any mental health or memory issues (at [17]-[21]);
(d)the applicant was targeted by the men who abducted him because of his cousin’s dealings with or any suspected links with the LTTE (at [30]);
(e)the applicant resided in the Church for a period of 3 years due to fear of the “armed men”, that the men were searching for him and had approached his family or the priest, or that he fled to Colombo due to fear for his safety (at [37]);
(f)the applicant was of interest to the authorities in Colombo in connection with his cousin, or that they were monitoring him (at [38]);
(g)armed men came looking for the applicant in July 2012 after his cousin approached him for money (at [39]-[45]);
(h)the applicant was of any interest to or had an adverse profile with the authorities, the army or any other paramilitary or “armed” group at the time of his departure from Sri Lanka in July 2012 (at [45]);
(i)armed men searched for the applicant after his departure (at [46]-[50]); or
(j)the applicant’s father or brother had been detained since the applicant’s departure or that any of his family members had been approached or questioned about the applicant or his cousin (at [39]-[54]).
Having regard to the above findings and available country information, the IAA was not satisfied that there was a real chance that the applicant would face harm in the reasonably foreseeable future for reasons of his Tamil ethnicity, as a Tamil from the eastern province, or as a result of his past experiences, including his association with his cousin or interactions with “armed men” or paramilitary groups in 2008, over 10 years previously (at [54]-[60]).
Whilst the IAA accepted that the applicant may face a short period of detention and a fine on account of his illegal departure from Sri Lanka, the IAA did not accept that the applicant would face a real chance of persecution or significant harm on the basis of being a returned Tamil asylum seeker from Australia who departed Sri Lanka illegally, or otherwise (at [61]-[74]).
On the basis of the above, the IAA affirmed the Delegate’s decision.
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings before this Court through an application filed on 15 September 2020. He ultimately relied upon a further amended application filed on 20 July 2023 containing the following grounds:
1. The IAA erred in finding that the applicant had fabricated the “July 2012 incident and subsequent events” because there was no logical or rational basis for this conclusion (at [45]).
Particulars
i. The IAA stated it would take into account the applicant’s mental health concerns in the explanations as to vagueness and differences in the applicant’s evidence by considering statements and submissions on his behalf (at [21]), but instead took those submissions into account as contradicting the applicant’s statements in his interview (at [34]) or otherwise did not take those submissions into account at all (at [33]).
ii. A basis for the IAA’s reasoning was its conclusion that the applicant’s letters of support did not refer to this incident, which was illogical, irrational, and unreasonable in light of the IAA’s simultaneous rejection of the letters as non-genuine (at [43]-[44]).
iii. A basis for the IAA’s finding was that the applicant had fabricated his version of events as to his departure from Sri Lanka, being a finding that had no rational basis in the evidence (at [40]).
2. The IAA failed to consider relevant material, being Facebook pictures that tended to support the applicant’s claim to have lived at the [Church] from October 2008 until September 2011.
Particulars
i. The IAA made findings that the applicant had fabricated his account of living in the [Church] for his protection (at [37]).
ii. The IAA failed to consider Facebook pictures submitted by the applicant showing him at the Church at the relevant time.
iii. The evidence was cogent and important, in circumstances where the IAA made findings that the applicant fabricated his account of living at the [Church] (at [33]-[34]).
3. The IAA failed to consider a material claim, being whether the applicant would face a real risk of significant harm from armed men who had detained him previously, in assessing whether he was owed complementary protection.
Particulars
i. The IAA failed to consider whether the applicant faced a real risk of significant harm from armed men, whom the IAA accepted had:
a. kidnapped and beaten the applicant;
b. detained him for two days; and
c.interrogated him (at [26]-[29]).
ii. The IAA erroneously confined its consideration of the complementary protection criteria to whether the applicant was at risk on the basis of an actual or imputed LTTE connection (at [58]-[60]).
Ground 1 of the further amended application was not pressed.
Ground 2
Ground 2 contended that the IAA failed to consider relevant material, being Facebook photographs that tended to support the applicant’s claim to have lived at a particular Church from October 2008 until September 2011.
The Facebook photographs appear at pages 99 to 100 of the Court Book (CB). In submissions at CB 133, the applicant’s then representative had submitted that the images “that were posted by the applicant in May 2011 were 2 photos taken in front of the church inside the church compound and another 2 photos were of the 2010 Church Christmas party which was outside the Church compound”.
The applicant submitted that the photos were so cogent, central and substantial that an inference ought to be drawn that they were not considered by the IAA and that failure to consider them resulted in jurisdictional error: see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111]-[112] per Robertson J. This was in the context of the IAA’s reasoning at [33]-[34] and [37] of its decision, where the IAA had rejected the credibility of the applicant’s evidence that he had lived in the Church for 3 years due to a fear of being harmed by armed men. The applicant submitted that the significance of the evidence, when considered against the otherwise detailed reasoning of the IAA, warranted an inference being drawn that this material was overlooked: BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; (2019) 269 FCR 94 at [44]-[57] per Rares, Perry and Charlesworth JJ.
I accept that the IAA did not refer to the photographs in its decision. However, I am not persuaded that the photographs were of the substantial, cogent quality contended by the applicant. As was submitted by the Minister, the photographs depict the applicant standing in front of various settings such as buildings. Whilst the photographs may well have been taken at the Church, this is not clear from the photographs. In any event, the IAA accepted at [37] that “the applicant may have engaged with his church, attended various church activities and had the benefit of being mentored and counselled by the church priest”. The IAA accepted that the applicant had attended the Church, which was claimed to have been the location at which the photographs were taken. An available inference is therefore that the IAA did not refer to the photographs because it did not consider that they were material to its decision, in circumstances where they went no further than potentially confirming the applicant’s attendance at a location that the IAA accepted he had attended.
Having regard to the above, I am not persuaded that I should infer that the photographs were overlooked or ignored by the IAA, notwithstanding the fact that they were not referenced in the IAA’s decision. It is well established that a decision maker is not obliged “to refer in the reasons to every piece of evidence and every contention made”: see DFY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 169 at [27]-[31] per Gleeson J and the authorities cited therein.
The limited nature of the photographic evidence, within the context of the IAA’s acceptance of the applicant’s attendance at the Church, do not support an inference that the photographs were overlooked or ignored. Even if this occurred, I accept the Minister’s submission that it has not been demonstrated that such an error was material in the sense considered in cases such as MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506. This is considering the limitations in the evidence that I have identified above.
For these reasons, ground 2 is unable to succeed.
Ground 3
Ground 3 contended that the IAA failed to consider the applicant’s claim to face a real risk of significant harm from the armed men who had detained him previously under the complementary protection criterion. The applicant contended that the IAA erroneously confined its consideration in this regard to whether the applicant was at risk on the basis of an actual or imputed LTTE connection (at [58]-[60]).
I am unable to accept the applicant’s contentions. At [54] of its decision, the IAA reasoned:
54.… I accept that in June 2008, while his cousin was not at the shop, the applicant was taken away by these men, detained and mistreated and that he was only released after his father paid a ransom. I also accept that after this incident, in October 2008, the men came to the applicant’s house looking for his cousin and that they attempted to harm his mother and mistreated the applicant. I do not accept that after the October 2008 incident, the applicant came to the attention of any armed group or Sri Lankan authorities due to connection or association with his cousin, and do not accept that he was in hiding at the church for three years or that he left Sri Lankan in the circumstances claimed. I am satisfied that the applicant was not of any adverse interest to the CID, the SLA or any other armed group at the time of departure. The applicant’s evidence is that his family have remained in their [village] and I have not accepted that the applicant’s father or brother have been detained since the applicant’s departure or that any of his family members have been approached or questioned about the applicant or his cousin as claimed.
The IAA accepted the applicant’s claim to have been detained and mistreated by armed men as claimed in 2008. However, it did not accept that the applicant was of ongoing interest to the armed men or any other “armed group” at the time of his departure from Sri Lanka in 2012. This was having regard to the credibility issues it had identified at [31]-[45] of its reasons, where it had rejected the applicant’s claims to have faced subsequent harm from the “armed men” and to have been of interest to any “armed group” at the time of his departure.
At [55]-[59], the IAA considered country information indicating that, inter alia, the security situation in Sri Lanka had improved since the applicant’s departure and that the influence of former paramilitary groups such as the TMVP had declined. The IAA observed that the country information indicated that they no longer maintained armed wings. Having regard to this, the IAA reasoned at [60]:
60.In considering the applicant’s circumstances in the context of the country information cited above, I am not satisfied that there is a real chance that the applicant would face any harm in the reasonably foreseeable future for reasons of his Tamil ethnicity, as a Tamil from the eastern province, or as a result of his past experiences, including his association with his cousin or interactions with “armed men” or paramilitary groups in 2008, over ten years ago.
At [71]-[73], the IAA reasoned (footnote omitted):
71. I accept that on return to Sri Lanka the applicant will very likely be investigated and charged under the I&E Act for illegal departure, and that he may be questioned and detained for a brief period at the airport or while awaiting bail, be subject to a fine payable in instalments and costs associated with bail if required. I am not satisfied that he would otherwise be harmed or detained for any extended period. In considering the country information about difficulties that a person returning to Sri Lanka may face on return, I also accept that the applicant may face some low level societal discrimination within his community as a returning asylum seeker. However, I do not consider that such treatment and difficulties that the applicant may face involves significant harm. I am not satisfied that through any act or omission, there is an intention to inflict pain or suffering that can reasonably be regarded as cruel and inhuman in nature, severe pain or suffering or to cause extreme humiliation such as to meet the definitions of torture or cruel or inhumane treatment or punishment or degrading treatment or punishment. I am also not satisfied that the applicant will face a real risk of being arbitrarily deprived of his life, or be subject to the death penalty or tortured. I am not satisfied that the applicant faces a real risk of significant harm as defined.
72. I have found above that there is otherwise no real chance of the applicant facing any harm. The Federal Court12 has held that ‘real risk’ imposes the same standards as the ‘real chance’ test. Having regard to my findings and reasoning above I am also satisfied that the applicant does not face a real risk of significant harm.
73. I am not satisfied that there is a real risk that the applicant will suffer significant harm in Sri Lanka.
Having regard to the above, I accept the Minister’s submission that the IAA both considered and determined the applicant’s claim to face a real risk of significant harm from the “armed men” who had detained him previously.
I do not accept that the IAA confined its assessment at [60] to whether the applicant faced a real chance of harm as a Tamil, or on the basis of any imputed LTTE connection. Nor do I accept that the IAA’s reasoning at [60] was confined to the concept of persecution, or consideration of the refugee criterion. Although the IAA’s reasoning at [60] fell under the general heading of “Refugee assessment”, it went further than this. On its terms, it rejected that the applicant would face a real chance of “any harm” for reasons of or including “his past experiences, including his… interactions with ‘armed men’ or paramilitary groups in 2008, over ten years ago”. This was dispositive of the applicant’s claims to face a real chance or risk of (any type of) harm from the armed men who had detained him, both under the refugee and the complementary protection criteria.
Further, the IAA’s reasoning at [72] under the heading “Complementary protection assessment” expressly adopted its earlier reasoning where it had found that the applicant did not face a real chance of “any harm” in relation to, inter alia, his past experiences at the hands of the “armed men”. The applicant submitted that this paragraph concerned the matters identified at [71]. I do not accept this. At [71], the IAA separately considered whether the harm the applicant may face as a failed asylum seeker who departed Sri Lanka illegally amounted to a real risk significant harm. At [72], the IAA observed that it had “otherwise” found that there was no real chance of the applicant facing “any harm”. The IAA observed that it had therefore found that the applicant did not face a real risk of significant harm, based upon its earlier reasoning. This included its reasoning at [60].
Ground 3 is therefore unable to succeed.
CONCLUSION
For the above reasons, the application before the Court must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 8 August 2023
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