DCI17 v Minister for Home Affairs

[2019] FCCA 2007

FEDERAL CIRCUIT COURT OF AUSTRALIA

DCI17 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2007

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for safe haven enterprise visa – claims of applicant found to be lacking in credibility – failure of tribunal to address a specific claim not material so as to constitute jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth). ss.36(2), 36(2)(aa).

Cases cited:
Applicant WAEE v Minister for Immigration & Multicultural and Indigenous Affairs (2003) 236 FCR 593.
Hossain v Minister for Immigration and Border Protection (2018) 259 ALR 1.
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Applicant: DCI17

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 2407 of 2018

Judgment of: Judge Egan

Hearing date: 22 July 2019

Date of last submission: 22 July 2019

Delivered at: Melbourne

Delivered on: 24 July 2019

REPRESENTATION

Counsel for the Applicant: Mr J F Gormly

Solicitors for the Applicant: AUM Lawyers

Counsel for the First Respondent:	Ms K Bradey
Solicitors for the First Respondent:	Sparke Helmore

ORDERS

1. That the amended application filed on 17 January 2019 be dismissed.

2. That the applicant pay the first respondent’s costs of and incidental to the proceeding fixed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2407 of 2018

DCI17

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a Sri Lankan citizen of Tamil ethnicity. He arrived on Christmas Island by boat on 3 November 2010. The applicant had travelled from India to Christmas Island.

2. On 1 June 2015 the applicant applied for a Temporary Protection Visa (subclass 785). On 3 March 2016 the Applicant withdrew his application for a temporary protection visa and on 14 April 2016 he lodged an application for a Safe Haven Enterprise Visa (SHEV).

3. On 15 March 2017 a delegate to the Minister decided that the Applicant was not a person to whom Australia owed protection under the provisions of either section 36(2)(a) or section 36(2)(aa) of the Migration Act 1958 (the Act).

4. On 20 March 2017 the applicant applied to the Administrative Appeals Tribunal (AAT) for review of the delegate’s decision.

5. On 7 June 2017 the AAT affirmed the delegate’s decision not to grant the applicant a SHEV.

6. The Minister subsequently conceded that the Tribunal’s decision was affected by jurisdictional error and on 15 November 2017 the Federal Circuit Court ordered by consent that the matter be remitted back to the Tribunal for redetermination.

7. On 19 April 2018 a differently constituted Tribunal conducted a hearing where the Applicant appeared by video-link from Christmas Island.

8. On 14 May 2018 the applicant’s advisors provided further written submissions.

9. On 18 July 2018 the Tribunal affirmed the delegate’s decision not to grant to the applicant the SHEV.

The applicant’s claims

1. At [13] and [14] of the reasons of the AAT, the Tribunal recorded the applicant’s relevant claim history as follows:

   “13. The applicant is a citizen of Sri Lanka. His ethnicity is Tamil and he comes from Trincomalee in the Eastern Province of Sri Lanka. He has said that in 1990 he and his family were removed to Vavuniya and that in 1998 or 1999 he was abducted by the Liberation Tigers of Tamil Eelan (‘LTTE’) who wanted him to join their movement. He has said that he refused and he escaped their custody and sought refuge in India in 1999. The applicant has said that he remained in India, in Andhra Pradesh, until 2002 when he went to Singapore travelling on an Indian passport. While in Singapore the applicant was convicted of robbery and assault and after serving a gaol sentence he was deported to India in 2007. The applicant said that he remained in India until August 2009 and during this period he assisted an officer of the LTTE named Vigneswaran who was smuggling materials from India to the LTTE in Sri Lanka.

   14. The applicant has said that he returned to Sri Lanka with his brother-in-law in August 2009 because he wanted to see his family and because he wanted to recover his family’s residence in Trincomalee and farm land which he has claimed had been taken by a Sinhalese family. He claims that his brother-in-law was killed by the Sinhalese and that he himself left Sri Lanka again in October 2010, travelling to India where he boarded the boat which brought him to Australia in November 2010. In a submission to the Department dated 4 October 2016 the applicant’s representatives submitted that the applicant feared harm for reasons of his race (being a Tamil), his imputed political opinion, and his membership of a particular social group as a ‘returnee from the West/failed asylum seeker.’”

2. At [15] of the Tribunal reasons, the Tribunal recognised that the issues under review were whether the applicant was a refugee or not, and if not, whether there were substantial grounds for believing that, as a necessary consequence of his being removed from Australia to Sri Lanka, there was a real risk that the applicant would suffer significant harm.

3. At [7]-[10] of its reasons, the Tribunal set out the relevant protection criteria considerations.

4. At [12] of its reasons, the Tribunal recorded that it had taken into account relevant departmental PAM3 guidelines in accordance with Ministerial Direction No.56.

5. The grounds for review as set out in the applicant’s amended application for review filed on 17 January 2019 were as follows:

   “The decision of the second respondent (the Tribunal) was affected by jurisdictional error in that:

   1. The Tribunal failed to consider the applicant’s claim that he was at risk of harm upon return to Sri Lanka as a former LTTE supporter who in India was involved in the supply and transport of goods to the LTTE (the LTTE association and transportation claims).

   Particulars

   a.  The the LTTE association and transportation claims were made in post hearing written submissions from the applicant’s advisors to the delegate dated 4 October 2016. to the Tribunal dated 14 May 2018 with specific reference to the corresponding risk category in the 2012 UNHCR Eligibility Guidelines.

   b. While the Tribunal did not accept the applicant’s claims made in submissions dated 14 May 2018 to have been involved as a logistics coordinator as part of the LTTW chain of command in India (at AAT [54]) or as a leader of the LTTE in the district of Tiruppur (at AAT [46],[56]), the Tribunal found the applicant ‘may have had a past affiliation with the LTTE… by his own choice and free will upon his return to India from Singapore in 2007’: at AAT [54], [56].

   c.  These findings left intact the applicant’s earlier claims to have assisted an LTTE Brigadier Vigneswaran in India smuggle goods for the LTTE in Sri Lanka, to have delivered goods to LTTE cadres living in camps in India on behalf of Vigneswaran and on one occasion to have distributed money to LTTE members residing in Thayalpatti Sri Lankan Refugee Camp in India: advisors submissions dated 4 October 2016 at pages 5-7.

   d.  The Tribunal’s considerations and findings at AAT [62] in relation to the 2012 UNHCR Eligibility Guidelines did not specifically refer to the relevant risk category, were limited to the applicant’s experiences in Sri Lanka, and did not take into account the applicant’s experiences in India. As a result the applicant’s claim that his experiences in India (to the extent they were accepted by the Tribunal at AAT [54] and [56]) brought him into the relevant risk category, were left unconsidered.

   2.  The Tribunal failed to consider the applicant’s claims that the Sri Lankan authorities would consider him an LTTE affiliate upon return to Sri Lanka because of the assistance he gave to a senior LTTE intelligence officer and his family in India and his experience in India of the Tamil paramilitary group the TMVP.

   Particulars

   a.  The applicant claims that in early 2009 the TMVP learned of the assistance the applicant gave to a senior LTTE intelligence officer to resettle his family in a refuge camp in India and because of this the TMVP threatened and physically harmed the applicant causing him injury.

   b.  The applicant claimed that in June 2009 the TMVP learned from informers that the applicant had assisted the same family to relocate from a refugee camp in Chennai and because of this the TMVP abducted the applicant, took him to Chennai, beat him and threatened to kill him if he did not disclose the whereabouts of the family.

   c.  The claims were made in submissions to the delegate dated 4 October 2016 and were not considered by the Tribunal in its decision, nor were they subsumed in more general findings.”

6. Ground 1 of the amended application for review constitutes an assertion that that the Tribunal failed to consider the applicant’s claim that he was at risk of harm if returned to Sri Lanka because, as a former LTTE supporter in India, he was involved in the supply and transport of goods to the LTTE (referred to by the applicant as the LTTE association and transportation claims). It was submitted that the Tribunal had “constructively failed to exercise its jurisdiction because it failed to address critical claims and thereby failed to conduct the review required of it by s.414 of the Act”.

7. It was also asserted that the Tribunal had failed to consider the association and transportation claims made in the applicant’s submissions dated 4 October 2016, which claims were sought to be distinguished from the “leadership and co-ordination claims” made in the post-hearing submissions of 14 May 2018.

8. At [54] and [56] of the applicant’s submissions, it was conceded, at least in respect of the leadership and co-ordination claims, that the Tribunal had addressed but dismissed such claims. Those respective paragraphs of the applicant’s submissions are as follows:

   “54. While the Tribunal did not accept the new 'leadership and co-ordination claims the applicant had made in the submissions of 14 May 2018 that he was involved as a logistics coordinator as part of the LITE chain of command in India ( at AA T [ 54]) or as a leader of the LTTE in the district of Tiruppur (at AAT [46],[56]), the Tribunal found the applicant nevertheless 'may have had a past affiliation with the LTTE ... by his own choice and free will upon his return to India from Singapore in 2007': at AAT [54], [56]. 

   …

   
   
   

   56. The Tribunal rejected the applicant’s claim that he would be considered an LTTE affiliate on return on the basis of its findings on the late ‘leadership and coordination claims’ only: see last sentences of [54], [56], [58], [60].”

9. It cannot be submitted, therefore, that the Tribunal failed to properly consider the “leadership and co-ordination claims”.

10. Counsel for the applicant submitted, however, that because the Tribunal at [54] of its reasons found that the applicant “may have had a past affiliation with the LTTE forced upon him in Sri Lanka by his abduction by the LTTE and later in India by his own choice …”, such finding justified the submission that the Tribunal had failed to properly consider and address the “LTTE association and transportation claims” made in the applicant’s earlier submissions of 2016.

11. Contrary to that submission, it was submitted on behalf of the respondent that the Tribunal had properly addressed all issues relating to the association and transportation claims.

12. At [16] – [32] inclusive of its reasons, the Tribunal carefully recorded and noted the history given by the applicant concerning his life in Sri Lanka, including his alleged LTTE involvement, prior to the applicant’s departure for Singapore in 2002. The Tribunal further recorded the fact that the applicant had returned to live in Kandi in August 2009, his having spent most of the period from 2007 – 2009 in India.

13. At [36] – [40] of its reasons, the Tribunal further recorded in detail the applicant’s historical claims relating to his alleged involvement with the LTTE and of his interaction with his family.

14. The Tribunal carefully recorded the above factual claims made by the applicant so as to put into context his later more specific alleged claims about his LTTE involvement and profile. It cannot be said that the Tribunal failed in its duty to properly consider and record the applicant’s claims in that regard.

15. At [33] – [35] inclusive, the Tribunal made specific reference to the applicant’s claims of his having met LTTE Brigadier Vigneswaren in 2007 and of his dealings with the Brigadier up until 2010.

16. Further, at [46] – [58] inclusive of its reasons, the Tribunal closely analysed the applicant’s claims as to the extent of his involvement in alleged association and transportation matters, but rejected the proposition that any role or activity relevantly assumed or undertaken by the applicant would have given rise to him having obtained a profile of sufficient significance so as to elevate him as a person of interest to the Sri Lankan authorities. The Tribunal found that the applicant’s claims as to the extent of his involvement in providing logistical assistance to the LTTE or as part of the chain of command of the LTTE lacked credibility.

17. At [56] of its reasons, the Tribunal specifically made allowance for the fact that the passage of time would have made it difficult for the applicant to recall all events in minute detail, but it nevertheless did not accept as credible the applicant’s claims that he was an integral part of the LTTE or a leader of the LTTE in the district of Trippur so as to make him a person of interest to the Sri Lankan army if he was to be returned to Sri Lanka.

18. At [58] of its reasons, the Tribunal, having closely examined all of the applicant’s claims, found, as it was entitled to do, that the applicant had embellished the truth for the purpose of enhancing his refugee claims.

19. The claims in ground 1(a) – (c) are without merit.

20. Ground 1(d) of the amended application for review relates to an assertion that the Tribunal failed to relevantly refer to or consider the relevant risk categories as set out in the UNHCR Eligibility Guidelines for the purposes of determining an applicant’s refugee status in respect of asylum seekers from Sri Lanka. Specifically, Counsel for the applicant Mr Gormly referred the court to profile no.4 on page 27 of the UNHCR Guidelines (annexure A to the affidavit of Kathleen Coffey filed on 17 January 2019). The relevant profile said to correspond to the applicant’s experience justifying refugee protection being granted to him was submitted as follows:

    “4)  Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;”

21. It was submitted that the Tribunal had failed to consider such question when the issue of such profiling was before the Tribunal. However, at [62] of its reasons, the Tribunal specifically addressed the UNHCR 2012 Guidelines, relevantly noting that such guidelines stated that the risks facing certain individuals required “particularly careful examination”. The Tribunal then said:

    “62. … Those individuals include persons suspected of certain links with the LTTE including those who held senior positions, supporters who provided material assistance, fundraisers and propaganda activists and persons with family links or who are dependent on or otherwise closely related to such persons. Having made the factual findings above, the Tribunal is not satisfied that there is anything in the applicant’s past experiences in Sri Lanka that would bring him into any of these categories.”

22. Having similarly found at [53] – [58] of its reasons that any involvement on the part of the applicant in providing “material assistance” to the LTTE whilst the applicant was in India would not have given rise to the applicant assuming a profile significant enough to bring him to the attention of the Sri Lankan authorities, it must be inferred that the Tribunal did not consider that the relevant UNHCR Guidelines had been satisfied in respect of the applicant’s time and experiences in Sri Lanka so as to give rise to his being owed refugee obligations. The Tribunal properly considered the issues as raised, and Ground 1(d) of the amended application for review is for above reasons likewise without merit.

23. As to ground 2 of the application for review, such ground asserts that the Tribunal had failed to consider the applicant’s claims that the Sri Lankan authorities would consider him as an LTTE affiliate if returned to Sri Lanka because of his allegedly having assisted a senior LTTE intelligence officer in the relocation of him and his family.

24. It was conceded by Ms Bradey, Counsel for the first respondent, that the Tribunal had not specifically dealt with that issue in its reasons. In doing so, Ms Bradey also conceded that the issue had been specifically raised by the applicant on page 6 of the applicant’s submissions dated 4 October 2016. [1] Rather, it was submitted on behalf of the first respondent that it was implicit in the reasons of the Tribunal that the Tribunal had rejected the applicant’s claims that he had assisted in the relocation of a senior LTTE intelligence officer and his family as such assertion fell into the category of the applicant’s evidence found by the Tribunal at [53] – [58] inclusive of its reasons to lack credibility.

    [1]        Court book page 384 – last paragraph

25. Notwithstanding that the Tribunal failed to specifically address such issue, as was submitted on behalf of the applicant, there is force in the submission made on behalf of the first respondent. In the applicant’s further submissions dated 14 May 2018, [2] the applicant failed to make any reference to his alleged assistance provided to the senior LTTE intelligence officer, notwithstanding that in such submissions, under the heading “Applicant’s LTTE Involvement”, such submissions recorded:

    “We note that the Tribunal indicated that it would be helpful if the applicant could provide further information about his LTTE involvement in India, specifically about his association with Vigeswaran.”

    [2]        Court book pp. 550 – 556

26. Had the applicant sought to press his earlier claim to the effect that he had so allegedly assisted a senior LTTE intelligence officer, one would have expected him to have mentioned any such involvement by him in such supplementary submissions in the context of the Brigadier having arranged for him or ordered him to so relocate the senior intelligence officer.  The applicant failed to do so.

27. That omission is to be similarly assessed in the light of the applicant not having had recorded any mention of his alleged involvement with such senior intelligence officer when he was asked if he had done any other work for the Brigadier in India, his not having mentioned the senior intelligence officer in that regard, as set out in [33] – [35] of the reasons of the Tribunal.

28. In such circumstances, the Tribunal is not open to criticism on the basis that it failed to relevantly consider, or had overlooked, material evidence,  as such considerations were the subject of consideration in Applicant WAEE v Minister for Immigration & Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] – [47] per French, Sackville and Healy JJ where it was said:

    “[46] It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. 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.

    [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. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

1. Alternatively, this court does not consider that any omission by the Tribunal to make specific reference to the applicant’s alleged claim that he assisted in the relocation of an LTTE senior intelligence officer and his family was so material as to give rise to jurisdictional error, because the Tribunal had already extensively dealt with, and considered, the question of the applicant’s claims relating to his past LTTE involvement. [3]

   [3]        Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 per Edelman J at

2. Further, a tribunal is not required to refer to each and every claim made by an applicant when arriving at its decision. [4] The Tribunal comprehensively addressed all matters of relevance which it was required to address, and it arrived at a well-reasoned and considered decision.

   [4]        Minister for Immigration and Multicultural Affairs v Yusuf  (2001) 206 CLR 323 at [68] per

3. The Tribunal properly considered all matters relating to the applicant’s claimed involvement as an LTTE operative and found the applicant’s claims to be lacking in credibility. The claims made in ground 2 of the amended application for review are without merit.

4. In arriving at its decision, it cannot be said that the Tribunal failed to make an obvious enquiry about a critical fact. [5]

   [5]        Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.

5. Further, it cannot be said that no other rational or logical decision maker could not have made the same decision. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:

   “130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”

6. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

7. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

8. The application for review is without merit and is dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 24 July 2019

[72] and Nettle J at [40].         McHugh, Gummow and Hayne JJ and at [217] per Callinan J.