DCG17 v Minister for Home Affairs
[2019] FCA 299
•7 March 2019
FEDERAL COURT OF AUSTRALIA
DCG17 v Minister for Home Affairs [2019] FCA 299
Appeal from: DCG17 v Minister for Immigration and Border Protection [2018] FCCA 3381 File number(s): NSD 2078 of 2018 Judge(s): BURLEY J Date of judgment: 7 March 2019 Catchwords: MIGRATION – refusal of Safe Haven Enterprise Visa application – fast track review – whether the IAA made a jurisdictional error in failing to find that Appellant was imputed with LTTE support – whether IAA erred in finding that Appellant would suffer serious harm – whether IAA failed to consider the current practices of Sri Lankan authorities or changes to the Sri Lankan government – appeal dismissed Legislation: Federal Court of Australia Act 1976 (Cth) s 24
Migration Act 1958 (Cth) ss 36 and 473BB
Cases cited: DCG17 v Minister for Immigration and Border Protection [2018] FCCA 3381
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610
Date of hearing: 14 February 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 19 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr M Smith Solicitor for the First Respondent: Australian Government Solicitor Solicitor for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 2078 of 2018 BETWEEN: DCG17
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
BURLEY J
DATE OF ORDER:
7 MARCH 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant pay the First Respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BURLEY J:
1. INTRODUCTION
The appellant is a citizen of Sri Lanka of Tamil ethnicity who came to Australia by boat in October 2016. He applied for a Safe Haven Enterprise visa (subclass 790) (SHEV) claiming that he was a person to whom Australia owed protection obligations pursuant to s 36(2)(a) or s 36(2)(aa) Migration Act1958 (Cth). The application was considered and refused by a delegate of the Minister for Immigration and Border Protection. That decision is a “fast track reviewable decision” as defined in s 473BB of the Act. The Minister referred the delegate’s decision to the Independent Assessment Authority (IAA) for review. On 27 June 2017 the IAA affirmed the delegate’s decision.
The appellant then applied to the Federal Circuit Court of Australia (FCCA) for a review of the decision of the IAA. On 29 October 2018 a judge of that court dismissed the application for review; DCG17 v Minister for Immigration and Border Protection [2018] FCCA 3381. The appellant now appeals from that decision to this court. In his Notice of Appeal he advances the following grounds, namely that the IAA made a jurisdictional error on the basis:
(1)that it accepted that he was taken away and tortured because of his brother’s involvement in the Liberation Tigers of Tamil Eelam (LTTE) but failed to deduce that the torture was for a convention reason, namely that the appellant was imputed with LTTE support;
(2)that it failed to identify that the appellant suffered serious harm in accordance with WZAPN (this is a reference to Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610);
(3)that it did not consider that Sri Lankan authorities were still targeting persons suspected of LTTE connections; and
(4)that it did not consider that there are changes to the Sri Lankan government whereby the government is becoming more repressive against the Tamil people.
Although the grounds are framed in terms of errors by the IAA, the Minister accepts that they may be read for present purposes as if the error identified is that the FCCA erred by failing to detect that the IAA made jurisdictional errors of the type described.
The appellant represented himself at the hearing of the appeal, with the assistance of a Tamil/English interpreter, and filed no written submissions. The Minister was represented by Mr M Smith of counsel, who filed written submissions in advance of the hearing.
2. THE DECISION OF THE IAA
The IAA summarised the claims made by the appellant as follows:
•The applicant is a Tamil male from Batticaloa District, Eastern Province.
•In 1993 the applicant’s father went missing. The Sri Lankan authorities issued a death certificate to say the LTTE killed him when it fact it was the Criminal Investigation Department (CID).
•In 2000 the applicant’s brother, Brother T, joined the LTTE. Brother T is still missing and the Red Cross informed the applicant's mother he is likely deceased.
•In 2000 the applicant began volunteering for the Tamil National Alliance (TNA). He put up posters, distributed pamphlets and attended their meetings and protests. The applicant’s views and role in the TNA were known publicly.
•From 2011 the CID came to the applicant’s house and asked where Brother T was. The applicant was taken away and tortured for information about Brother T. The CID believed Brother T was still alive and that the applicant was hiding him.
•After this incident, the applicant did not stay in his house overnight as the CID would always look for him in the evenings. The CID told the applicant's wife if he didn’t surrender they would kill him. The applicant tried to lodge a complaint with the police but they would not take a written statement from him.
•In 2009 the applicant lost his job because of his support for the TNA.
•In September 2012 the CID took the applicant to their camp and beat him because of his support for the TNA. The applicant’s mother and wife were outside the camp crying and at midnight he was released. The applicant tried to lodge a complaint with the police but they refused to take a written statement.
•On 26 September 2012 the applicant departed Sri Lanka by boat. When the CID came to the applicant’s house looking for him, his wife said he had gone to Colombo.
•On 7 May 2013 the applicant saw a news article that indicated his neighbour had been shot. The applicant's wife told him that on the same day a person with their face covered had come to their door and asked about him.
•On 26 December 2015 two people, who had their faces covered, were carrying guns and spoke Sinhala, came to the applicant’s family home. The applicant believes they were CID. They stated if they were given 50,000 rupees they would stop coming to the house, but would still continue to pursue the applicant.
•The CID are still interested in the applicant and their camp is less than a kilometre from his home.
•The applicant fears the Sri Lankan authorities, will detain, interrogate, torture or kill him because: he is a Tamil from the Eastern Province; in 1993 the CID killed his father; in 2000 Brother T joined the LTTE; from 2000 the applicant assisted the TNA; and in 2012 he departed Sri Lanka illegally and sought asylum in Australia.
In considering the appellant’s claims, the IAA reached the following conclusions (citations omitted):
26.The most recent (2012) United Nations High Commissioner on Refugees (UNHCR) Guideline do not specify individuals of Tamil race as requiring protection for that reason alone. Furthermore, in the UNHCR's opinion, individuals originating from an area where the LTTE were previously active, such as the applicant, do not require protection solely on that basis unless there are additional, relevant factors which may give rise to a profile of risk.
27.The UNHCR does advise that in some circumstances, persons with family links to the LTTE may be at risk. I have accepted the applicant's father had a profile with the Sri Lankan authorities because of his business activities, and the circumstances surrounding his death in 1993; although I am not satisfied that these were factors in the CID's treatment of the applicant in 2011. While I have accepted the CID detained, interrogated and tortured the applicant regarding Brother T and his involvement in the LTTE I am not satisfied the CID's visits to the applicant's house continued beyond 2011.
28.Consistent with the UNHCR position, in 2016 the UK Home Office concluded that in its view: "Simply being a Tamil does not of itself give rise to a well-founded fear of persecution or serious harm in Sri Lanka." The applicant has not been in Sri Lanka since the current government came to power and there is a lack of credible evidence to indicate the applicant was at the time of his departure, or will be on return, of interest to the Sri Lankan authorities. I am not satisfied the applicant faces a real chance of harm on account of an imputed pro-LTIE political opinion, arising from his familial link to his father or Brother T, should he return to Sri Lanka.
The IAA accepted the appellant had provided basic level support for the Tamil National Alliance (TNA) and assisted them at this basic level in the April 2010 and September 2012 elections. However, it did not accept that he had a profile to warrant the adverse attention claimed or that he had been warned or harmed by the CID or others during his involvement. Nor did it accept that the CID had been asking for him at his house or that his neighbour was shot arising from the CID looking for the appellant. Based on country information, the IAA did not accept the appellant faces a real chance of harm because of any real or imputed political opinion arising from his support for the TNA. Further, the IAA did not accept that the appellant would face harm due to having the same first name as the former LTTE leader, due to its general concerns about the appellant’s credibility, and because the appellant only raised this claim towards the end of the SHEV interview. The IAA reached the overall conclusion that it did not accept that the appellant is of any ongoing interest to the CID or any other Sri Lankan authorities, or any paramilitary groups or any unknown persons for the reasons claimed. It also found that the appellant would not face a real chance of serious harm arising from the fact that upon his return to Sri Lanka he would be charged with departing Sri Lanka illegally.
In the result the IAA found that the appellant does not meet the requirements of either s 36(2)(a) or s 36(2)(aa) of the Act.
3. THE FCCA
The appellant advanced the following grounds of review before the primary judge in the FCCA:
(1)The IAA made a jurisdictional error as it misapplied the well-founded fear test. The appellant and his family had prolonged history of association with the LTTE and the IAA failed to take that into account. The Appellant’s relatives were associated with the LTTE and as a result the appellant will be imputed with an LTTE profile.
(2)The IAA did not deal with all the claims made by the appellant. The appellant’s central claim is that he was imputed with an LTTE profile.
(3)The IAA failed to engage itself in “WZAPN qualitative assessment”. The appellant will be imputed with an LTTE profile and will be mistreated.
The primary judge considered that the first two grounds should be read together and that their contention is that the Authority failed to consider the appellant’s claim that he would be imputed with an LTTE profile and persecuted for that reason because of his family’s history with the LTTE. The primary judge rejected that contention, noting that the IAA did in fact address the claim, accepted a large part of it insofar as it concerned his family, but found at [28] that there was a lack of credible evidence to indicate the appellant was at the time of his departure, or would be upon his return, of interest to the Sri Lankan authorities.
The primary judge considered that the reference to “WZAPN” in the third ground is a reference to the decision of the High Court in Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610. He notes in his reasons that WZAPN concerned an issue arising from an earlier decision of North J in the Federal Court on appeal from a decision of the FCCA, construing s.91R(2) of the Act to mean that where there is an acceptance that there might be, or there is a real chance of a threat of detention or any detention, then in and of itself that must constitute serious harm and therefore bring the person within the definition of a “refugee” depending on the reasons for that harm. The primary judge noted that the High Court rejected that construction, finding, at [45], that what is always required in determining what amounts to persecution (within the meaning of what was then s 91R) and serious harm, was a qualitative analysis of the actions and the harm to which those actions might give rise.
The primary judge then found:
15.The Authority was alive to that decision it seems not simply because it was something referred to in the Statutory Declaration of 28 November 2016 but also because it stated, at [48] of its reasons, that the question of whether a loss of liberty that the applicant might face upon return to Sri Lanka as an illegal departee, was a matter of qualitative judgment involving the assessment of matters of fact and degree as well as an evaluation of the nature and gravity of that loss of liberty. Indeed, the Authority, in a footnote, referred expressly to the decision of WZAPN. Cognisant then of the proper test, the Authority proceeded to state its conclusions about the type of detention and other treatment that might be faced by the applicant for the reasons he claimed upon return to Sri Lanka but, in its analysis, concluded that none of those matters amounted to serious harm. That was both in the context of the refugee criterion in sub-s.36(2)(a) and the complementary protection criterion in sub-s.36(2)(aa).
Accordingly, the primary judge rejected the third ground advanced.
4. THE APPEAL
I commence my consideration of this appeal with the observation, which is apt for many such appeals, that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the appellant satisfies the criteria for the grant of the SHEV or to grant the appellant a visa. As such, neither Court has the capacity to consider the factual merits of the IAA’s decision to refuse to grant the SHEV to the appellant. The jurisdiction of the FCCA is limited to considering only whether the IAA’s decision to refuse to grant the appellant the SHEV is lawful under the Act, that is, whether the decision of the IAA is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the IAA under s 24 of the Federal Court of Australia Act 1976 (Cth).
In his first ground of appeal the appellant contends that the IAA fell into error by failing to conclude that the appellant was imputed with LTTE support. It sufficiently overlaps with grounds 1 and 2 advanced before the FCCA so as not to require leave for it to be advanced. However, it is apparent from the reasons given that the IAA did in fact assess and consider the claims advanced by the appellant. In particular, the IAA accepted that the appellant had been subjected to torture on one occasion for reasons related to his brother, but did not accept that in the future the appellant would be of interest to the Sri Lankan authorities. The conclusions of the IAA expressed at [26] – [28] are set out in [6] above. This ground amounts to a disagreement with the evaluation of the evidence considered by the IAA. In my view the primary judge correctly found that the consideration by the IAA of the question of any imputed connection between the appellant and his family with the LTTE did not reflect jurisdictional error. Ground 1 must be dismissed.
In ground 2 the appellant refers to the decision in WZAPN. As the appellant is self-represented I shall assume in his favour that this ground is the same as that advanced in ground 3 before the primary judge. On that basis no error has been identified. In WZAPN the High Court rejected the contention that a threat of any detention in and of itself must constitute serious harm. At [45] it found that what is always required in determining what amounts to serious harm is a qualitative analysis of the nature and gravity of the loss of liberty. The likelihood of detention constituting serious harm invites consideration of the circumstances and consequences of that detention.
In my view, the reasons expressed by the primary judge, as set out in [15] above, are correct. Ground 2 must be dismissed.
In ground 3 the appellant contends that the IAA fell into jurisdictional error because it did not consider that the Sri Lankan authorities were still targeting persons suspected of an LTTE connection. In ground 4, jurisdictional error is said to arise because the IAA did not consider that the current Sri Lankan government is becoming more repressive against the Tamil people. I agree with the submission advanced on behalf of the Minister that these grounds simply express disagreement with the merits assessment of the evidence by the IAA. They do not reflect jurisdictional error.
5. DISPOSITION
For the reasons set out above the appeal must be dismissed. The appellant must pay the first respondent’s costs.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate:
Dated: 7 March 2019
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