Dco17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 648
•24 May 2022
FEDERAL COURT OF AUSTRALIA
DCO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 648
Appeal from: DCO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1020 Date of hearing: 24 May 2022 File number: NSD 979 of 2021 Judgment of: LEE J Date of judgment: 24 May 2022 Catchwords: MIGRATION – application for extension of time and leave to appeal from judgment of Federal Circuit Court – where appellant refused safe haven visa by Minister and decision affirmed by Immigration Assessment Authority – whether Authority failed to consider appellant’s fear of persecution upon return to Sri Lanka – extension of time and leave to appeal granted – appeal dismissed Legislation: Migration Act 1958 (Cth) s 46A Cases cited: DCO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1020
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588
WAEE v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 35 Counsel for the Applicant: Mr D Taylor of Sydney West Legal and Migration Solicitor for the Applicant: Sydney West Legal and Migration Counsel for the First Respondent: Mr Bora Kaplan Solicitor for the First Respondent: MinterEllison Counsel for the Second Respondent: Second Respondent filed a submitting notice save as to costs ORDERS
NSD 979 of 2021 BETWEEN: DCO17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
LEE J
DATE OF ORDER:
24 MAY 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed with costs.
2.The costs recoverable are fixed at the amount of $7,241.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from the transcript)LEE J:
A INTRODUCTION
This appeal has an unusual procedural history. It was originally listed for hearing on 19 April 2022 but, following representations made by the solicitor for the appellant, it was adjourned for a period of in excess of four weeks in order for material to be supplied in accordance with the orders of the Court. Part of that material was a document entitled “Appellant submissions and annexing [sic] Amended Draft Notice of Appeal”, received by the Court on 5 May 2022. As that title would indicate, annexed to the submissions was an amended draft notice of appeal.
Previously, in the 2021 application made for an extension of time and leave to appeal, the grounds of the application were relevantly identical to the grounds relied upon before the Federal Circuit Court (as it then was) to contend the decision of the second respondent (Authority) miscarried.
The position of the first respondent (Minister) at the commencement of the hearing was that the proposed revision of the notice of appeal leaves only a ground not advanced before the primary judge, and that the interests of justice did not require that leave be given to argue a new point on appeal: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 (at 598 [46] per Kiefel, Weinberg and Stone JJ).
This led to somewhat of a difficulty, because no submissions had been made by the appellant directed at any other ground other than the new ground of appeal. When I came onto the bench, the position was clarified by the solicitor for the appellant, who noted that he was instructed to abandon any reliance on any other ground notified, save for the proposed new ground, which should be characterised as an “amendment” to a ground advanced below. When this was clarified, ultimately, the Minister did not continue to oppose the grant of leave to raise a new point on appeal, and I made orders not only providing such leave but also extending the time for leave to appeal.
B BACKGROUND
The substantive history of this matter starts almost ten years ago, when the appellant, who is a citizen of Sri Lanka, entered Australia. Following the exercise by the Minister of his power in s 46A(2) of the Migration Act 1958 (Cth) (Act), the appellant applied for a Safe Haven Enterprise (subclass 790) visa in May 2016. In support of that application, the appellant made a detailed statement in April 2016, in which he set out his claims for protection. In general terms, those claims were that the appellant feared harm at the hands of the Sri Lankan Army (SLA) and intelligence units for reason of being suspected of being associated with the Liberation Tigers of Tamil Eelam (LTTE).
The delegate refused the grant of a visa in December 2016. The matter was then referred to the Authority for review under Part 7AA of the Act. The Authority affirmed the decision of the delegate in June 2017. Proceedings were commenced in the Federal Circuit Court in July 2017 and resulted in a judgment in August 2021, namely DCO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1020 (primary judgment).
B THE AMBIT OF THE APPEAL
I commenced these reasons by noting that the grounds below are not advanced in the amended notice of appeal. Ground one below was in the following terms:
The Authority [at 18] failed to consider an integer of the applicant’s claims, that the kidnapping and enforced disappearance of the applicant’s cousin was connected to the membership of the banned youth organization [sic].
Save to the extent that the current ground does intersect with ground one below, the primary judgment can be largely put to one side. It is sufficient to note that each of the appellant’s grounds of review below (first, that the authority failed to consider part of the appellant’s claim; secondly, relating to one of the Authority’s findings; and, thirdly, that there was an error in the way the Authority treated new information) were rejected by the primary judge for reasons that do not now require elaboration.
Ground one of the amended notice of appeal is in the following terms:
The IAA’s rejection of the Appellant’s claim; that he was subject of the same adverse interest as that affecting his Cousin who was kidnapped, at the time of the kidnapping, and through to the his departure from Sri Lankan in 2012, due to being a member of the same particular social group as his cousin and therefore facing the same adverse risk; lacked a logical basis and was material to the outcome: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]–[40].
(Reproduced without alteration).
During the course of his comprehensive and helpful submissions, Mr Taylor, the solicitor who appeared on behalf of the appellant, ranged somewhat more broadly than the ground of appeal. As such, it is necessary to deal with the appeal in two steps: first, addressing the sole ground of appeal as articulated; and secondly, addressing a number of miscellaneous points that were raised during the course of submissions.
C THE GROUND OF APPEAL
The logical starting point in considering the sole ground of appeal is the nature of the appellant’s claim before the Authority. The Minister submits that the appellant advanced no claim in his visa application or in his submissions to the Authority that he had a well-founded fear of persecution because he was, as the appellant now contends, subject to the same adverse interest that affected his cousin, who was kidnapped, or because he was a member of a particular social group comprising family members of his cousin or members of a Tamil youth group suspected to be linked to the LTTE. Rather, the Minister submits, the claim made by the appellant was that he feared that he would be kidnapped and harmed by the Sri Lankan authorities on account of him being suspected of being associated with the LTTE.
As noted above, the appellant made a detailed statement in April 2016. Under the heading “What I fear may happen to me, by who and why, if I return to that country”, the following is set out:
22.I fear the Sri Lankan authorities, especially the SLA and other intelligence units if I return to Sri Lanka.
23.I fear the Sri Lankan authorities because they have been pursuing me since the time I did not attend the cleaning at the new camp up until the time I left for Australia. I fear I will be taken by them like my cousin was taken. He is still missing until this day. The authorities have suspected us of being associated with the LTTE and that was the reason for ceasing the operation of the youth association. During the ceasefire period from 2004 to 2006, the government had allowed the LTTE to continue with their political activities. The people in my village, including myself was involved in helping the LTTE with loading sandbags to their area. I did not know that the civil war would resume after the ceasefire and that the government would target us for helping the LTTE when it was allowed at that time.
24.If we had refused to help the LTTE during that time, we would also face trouble from the LTTE.
25.On 30 December 2015, an unknown person (possibly the previous interpreter) came to my house and slashed my father with a sword. He said that if my father died I would return to the country. He was admitted into hospital for 2 months.
26.I fear my life will be in danger if I return as up to this day, I am still wanted by the authorities.
(Reproduced without alteration).
The reference to the cousin in this extract and the other papers is to a close relative of the appellant who was referred to familiarly as his “brother”. Consistently with the Authority’s reasons, I will continue to refer to him as a cousin. As is evident in the extract, the appellant’s cousin had been taken by the authorities and was still missing. The appellant feared that the authorities suspected him, like his cousin, of being associated with the LTTE and “that was the reason for ceasing the operation of the youth association”.
The Authority came to consider the nature of the claim advanced by the appellant at [12]–[33] of its reasons. In particular, at [33], it directly turned its attention to a consideration of the appellant’s claim that he would suffer the same fate as his cousin on account of his suspected association with the LTTE:
33.Having regard to the country information before me and the applicant’s individual circumstances, I am not satisfied that he is at risk of serious harm if he is returned to Sri Lanka. The applicant’s evidence is that he was one of a number of members of the youth association who were beaten for not coming to SLA camp to clean it and he was subsequently rounded up on a number of occasions along with other young Tamil males, including members of the youth association, beaten and questioned about the LTTE, and that his cousin (also a member of the youth association) was abducted and has not been seen again. I accept that the applicant had a genuine subjective fear that, as a result of his experiences at the hands of the SLA and the abduction of his cousin, he might also be targeted for similar treatment. While I do not wish to minimise or trivialise his experiences, his evidence is consistent with country information that many Tamils were subjected to instances of torture, arrest, monitoring, detentions and harassment with LTTE support frequently imputed on the basis of ethnicity. I accept his motives for going into hiding sprang from his (and his parents) desire to protect himself at a time of great uncertainty when, as a young Tamil male the combination of his ethnicity and gender, were liable to make him (and others like him) an object of suspicion to the authorities and that he and his parents wanted to avoid him potentially suffering the same fate as his cousin. However, his evidence does not support that at the time he left he was a person of interest to the authorities and the country information before me indicates that country conditions have changed to such an extent that I am not satisfied that if he is returned, the applicant is at risk of serious harm on the basis of his age, ethnicity, religion, membership of the youth association, or his origins in the east.
D CONSIDERATION
The argument on behalf of the appellant is that the Authority elided two “claims”, which ought to have been considered distinct. The first was the claim that the appellant had a well-founded fear of persecution if he returned to Sri Lanka, namely that he would suffer harm on account of being suspected of being associated with the LTTE. The second was a more nuanced and granular claim that he had been targeted because of his association with a particular youth group. In this regard, reference was made to an exchange between the case officer and the appellant in his initial transcript of interview, and in particular the following:
Case officer: Did you want to tell me anything more about the association?
Interpreter: They want to destroy the Youth Club. So, in order to destroy that, they asked us to, I told you before about the putting up of a new camp, they call these people to come for work, like cleaning there. Because they didn’t have a reason to stop us from functioning. Then after, they created problem, they wanted to stop youth club from functioning. They called and gave work in the, they asked to clean the camp, and then, it started, people got kidnapped or disappeared, and members were shot dead.
When one has regard, however, to what is set out at [33] of the Authority’s reasons, it is entirely clear that the Authority did direct itself to the question of whether it was satisfied that, if the appellant was returned to Sri Lanka, he would be at risk of serious harm, including by reference to his membership of the youth group. This comment ought not to be decontextualised. It is evident by having regard to all the material placed before both the delegate and the Authority that the relevance of the youth group was that membership of it was an indication to the authorities of some perceived association or support of the activities of the LTTE.
In this regard it was open to the Authority to consider that the appellant’s contentions concerning the youth group were logically related to his claim that he feared persecution by reason of his perceived association with the LTTE. Additionally, related to this point is the fact that the Authority accepted that his cousin, who was also a member of the youth group, was abducted and had not been seen since. This was accepted by the Authority and informed its acceptance the appellant had a genuine subjective fear that he also may be targeted as a result of his own experiences and the abduction of his cousin.
Ultimately, however, what was determinative in the Authority’s reasoning is the material before it did not support the conclusion that the appellant remained a person of interest. At [33] the Authority found that the evidence did not support a conclusion that the appellant was a person of interest to the authorities at the time he left Sri Lanka. The Authority also found (at [33]) that the country information indicated that conditions had changed such that, if the appellant was returned, a conclusion could not be reached that he is at risk of serious harm on the basis of his age, ethnicity, religion, membership of the youth group, or his origins.
As the Minister correctly submitted, those findings undermine the factual premise on which the appellant’s distinct claim (if it was a distinct claim) rested and are an answer to it: see WAEE v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (at 604–605 [47] per French, Sackville and Hely JJ).
Further, even if there was some error by the Authority in not discerning a more specific claim, given the findings that were made, I do not consider there is a realistic possibility a different decision could have been made if there had not been such an error: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 (at 452 [39] per Kiefel CJ, Gageler, Keane and Gleeson JJ).
E OTHER MATTERS
I mentioned above that there were a number of other miscellaneous matters which did not seem to me, at least initially, to be directly related to the ground of appeal, as articulated, but it is appropriate that they be dealt with. First, an argument was advanced about [24] of the Authority’s reasons. Second, an argument was advanced about events that occurred in 2008.
E.1 The Authority’s reasons at [24]
The paragraph in question is in the following terms:
24.I note his evidence that during the second period he was in hiding in 2012, his uncle was taken for interrogation because the SLA knew he had taken the applicant to a safe place. He also stated his uncle visited him on two occasions and let him use his mobile phone to call his parents. In my view, given the extensive powers of the authorities under the Prevention of Terrorism Act (PTA) if the authorities had had any interest in the applicant, they would have taken steps to locate the applicant through his uncle. I also note that during this period the applicant’s family was not approached by the authorities and asked about his whereabouts. I am not satisfied that at the time he left Sri Lanka the applicant was a person of interest to the authorities.
(Emphasis added).
The point made by the appellant was that there was such an internal inconsistency in the paragraph that it rendered the decision of the Authority legally unreasonable. Although the submissions were not expanded upon either in writing or orally, it was suggested that the illogicality of the decision is so manifest from the above paragraph that the decision lacked an evident and intelligible justification, and so amounted to jurisdictional error.
There is a series of cascading difficulties with this argument. It is sufficient to note that I am far from convinced that there is any internal consistency or illogicality in the paragraph at all. In order to explain why, it is necessary to note that the appellant was accepted to have been in hiding in two periods. The initial period was June 2008 to February 2012 (see Authority’s reasons at [19]) where the appellant lived at three locations away from home. The second period of hiding was from later in February 2012. It was during this second period of hiding that the Authority noted that the appellant’s evidence was that his uncle was taken into interrogation.
The Authority concluded that, given the extensive powers of authorities under domestic Sri Lankan law, if the authorities had any particular interest in the appellant, they would have taken steps to locate the appellant through his uncle. A further point was made that, during the period, the appellant’s family was not approached by the authorities and asked about his whereabouts. These matters were also called in aid by the Authority to reach the state of non‑satisfaction that, at the time the appellant left Sri Lanka, the appellant was not a person of interest to the authorities.
The appellant advanced two particular submissions with respect to what appears at [24] of the Authority’s reasons. The first is that it is mere speculation as to what steps would have been taken by the authorities to locate the appellant through his uncle. The second is that there was an insufficient evidentiary basis to find that the appellant’s family was not approached by the authorities and enquiries were not made of them about his whereabouts. As to the first of these issues, it seems that what the Authority was saying was that if the appellant continued to be of interest in 2012, given the existence of extensive anti‑terrorism powers, some steps would have been evident to show that he was being sought following the interrogation of his uncle.
Although the Minister conceded initially that there was an express finding that the interrogation actually took place, I am not convinced that this was the case (as distinct from recording, at [24], the evidence of the appellant). In any event, nothing turns on this. What is clear is that what the Authority was saying was that there were a suite of powers that facilitated the extraction of information and the taking of steps on the basis of any information the authorities obtained, and such steps were absent.
As to the second aspect of the complaint, this seems to me to be entirely without foundation. If one revisits the statement made by the appellant, it is evident that he gave evidence that, in the approximately four years from June 2008 through to February 2012, his family was constantly asked about his whereabouts by the army and intelligence units. The evidence is silent on this specific matter after his grandmother fell sick in early 2012 and the appellant decided to visit his house in February 2012 and thereafter went into his second period of hiding.
E.2 Events in 2008
The second miscellaneous point made by the appellant related to events that occurred in 2008. The Authority accepted the appellant had been beaten in May 2008 for failing to attend an army camp, and that he and others (including his cousin) were taken to an army base, beaten and questioned by the authorities about whether they knew any LTTE members in the area and whether they were LTTE sympathisers: see Authority’s reasons (at [14]–[16]). These activities were found to be instances of routine round‑ups to which many Tamils were subject at the time.
The appellant submitted that the fact that the appellant and his cousin were both subjected to what could only be described as torture was not appreciated by the Authority. He further submitted that the very fact that the Sri Lankan authorities failed to deal with the seriousness of the assault is indicative of targeting and grave risk of future harm for the appellant and his cousin. In particular, he indicated that the adverse interest in the appellant’s cousin was not separate to, or different from, the adverse interest in the appellant himself.
The finding that this sort of conduct was indicative of ordinary round‑up activities is said to demonstrate that the Authority did not consider that the Tamil youth group itself (along with the LTTE generally) was the object of round‑ups and, therefore, indicative of targeting and serious adverse interest in members of the Tamil youth group, including the appellant and his cousin.
As it was developed, this submission had some tangential relationship to the ground of appeal and, unsurprisingly in these circumstances, the answer to this complaint resembles the answer to why the ground of appeal is misconceived. That is, the finding at [33] of the Authority’s reasons was that the evidence did not support a conclusion that the appellant was a person of interest to the authorities at the time he left Sri Lanka. The Authority also found that the country information indicated that conditions had changed such that, if the appellant was returned, a conclusion could not be reached that he is at risk of serious harm on the basis of his age, ethnicity, religion, membership of the youth group, or his origins.
Nextly, specific complaint was directed to [18] of the Authority’s reasons concerning an incident that occurred when a white van came to the appellant’s house. With respect, it is a little unclear what to make of this submission. The Authority accepted (at [17]) that the appellant had been consistent in his claim that his cousin was abducted on 30 June 2008, that that abduction was by unknown persons, and that he remains missing.
As illustrated in the above extracts, the appellant gave evidence about his claim that a white van with his cousin inside came to his house and his mother’s reaction. The Authority indicated some surprise about the appellant’s apparent inability to expand upon his written statement about those events in any way by reference to the materials before it. There does not seem to me to be anything evidently lacking intelligibility or logicality about the conclusions drawn in [18] of the Authority’s reasons.
F CONCLUSION AND ORDERS
Mr Taylor said everything he could on behalf of the appellant and the Court is grateful for his assistance, together with counsel for the Minister. The only ground persisted in is one which is not sustainable, and in the light of the abandonment of any other attack on the primary judge’s reasons, the appeal must be dismissed with costs.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. Associate:
Dated: 2 June 2022
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