DCS17 v Minister for Immigration
[2018] FCCA 2114
•3 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DCS17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2114 |
| Catchwords: CITIZENSHIP AND MIGRATION – Migration. |
| Legislation: Migration Act 1958 (Cth), ss.473CA, 473CB, 473CC, 473DB(1), 473DD |
| Cases cited: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 |
| Applicant: | DCS17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 648 of 2017 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 10 November 2017 |
| Date of Last Submission: | 10 November 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 3 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Karp |
| Solicitors for the Applicant: | Fisher Dore Lawyers |
| Counsel for the First Respondent: | Mr McGlade |
| Solicitors for the First Respondent: | Clayton Utz |
| The Second Respondent entered a submitting appearance |
ORDERS
The applicant have leave to amend the Application for Review filed on 12 July, 2017 in accordance with the proposed amended Application to Review which is annexure “TWF-1” to the affidavit of Terence William Fisher filed on 3 October, 2017;
A writ of certiorari is issued calling up the record of the second respondent and quashing the decision dated 14 June 2017.
A writ of mandamus is issued requiring the second respondent to determine the review according to law.
The first respondent pay the applicant’s costs fixed in the amount of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 648 of 2017
| DCS17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
By this application for judicial review, the applicant seeks that a decision of the second respondent made on 14 June, 2017 be set aside and his application for a Safe Haven Enterprise visa be remitted to the second respondent to be determined according to law.
In summary, his argument is that the second respondent did not engage with the case that he had put to the first respondent for the grant of the visa in a certain respect and that the decision is otherwise unreasonable.
The first respondent opposes the application and the second respondent enters a submitting appearance.
For the reasons that follow, I consider that the applicant has made out his case for relief.
Background
The applicant is a Sri Lankan citizen of Tamil ethnicity, born in the far north of that country. He arrived in Australia by boat on 17 September, 2012. For the purposes of the Migration Act 1958 (Cth) he was an unauthorised maritime arrival.
The applicant was invited to apply for a protection visa and on 2 March, 2016 he made an application for a Safe Haven Enterprise visa.
In that application and a statutory declaration submitted with it the applicant claimed that:
a)He is a devout Catholic;
b)His family were forced to move many times to try to find security during the civil war;
c)In 2006 he was wounded whilst working as a fisherman when his boat was caught in a battle between the LTTE navy and the Sri Lankan navy. He was hospitalised for a month;
d)Whilst trying to find safety in Kurunahar, he was intercepted and questioned by the army and handed over to the Criminal Investigation Division. He was detained for three months in a CID camp in Jaffna between November, 2006 and February, 2007 where he was tortured, including being sexually tortured;
e)Some months after being released he travelled to Qatar to work and stayed there until August, 2009 a few months after the end of the war;
f)In 2010, after returning to the Jaffna area from Qatar, he was elected President of the Saint Peter’s Youth Association and was re-elected in 2011 and 2012. In June, 2012 he and others erected a statue of Saint Peter at an intersection in Mandaitivu, near Jaffna. The Youth Association had received oral permission to erect the statue from the Sri Lankan navy, but Hindus objected and in the face of possible communal violence the applicant had to publish a notice in local newspapers saying that there was no intention to cause communal friction and that the statue would be taken down;
g)About a week later the applicant and four other fishermen were stopped at a navy checkpoint. When an officer was told that they were members of the Youth Association he slapped them. They were then dragged to a makeshift sand bunker and kept for a couple of hours before being released. Their fishing passes were taken from them. After that the applicant was too afraid to continue fishing; and
h)He left Sri Lanka in August, 2012. Since he came to Australia the CID have visited his family home asking about his whereabouts. His father and brothers have left the home due to constant harassment.
The applicant stated that he feared harm, for, amongst other things, reason of his race, his religion, and for membership of a particular social group, namely failed asylum seekers.
In a further statutory declaration made in February, 2015 the applicant raised the following additional claims:
a)In 2011 he was held against his will for two days by members of a Tamil militant group, the EPDP and the navy, because he had reopened a library and named it after Father Jim Brown, whom he alleged the EPDP and the navy had murdered in 2006;
b)In early 2011 he was again taken by the EPDP and the CID after he and a friend started agitating for the Tamil National Alliance to investigate the murders of 52 people whose bodies had been found in a well. He was assaulted and forced to agree to be one of their polling agents before being released;
c)In August, 2012 a close friend, Marialtis, president of another youth association, was arrested by the CID under suspicion of terrorism, was held for a year and died of the beatings he had received in prison. The applicant claimed to have coordinated with Marialtis’s youth association to publish and distribute a death notice, denying that Marialtis was a terrorist. After that, the CID started looking for Marialtis’s friends and left a message for the applicant to report to them. After doing so the applicant was assaulted and severely beaten by the CID and warned not to be involved in “these activities again”. The CID later told his family that the applicant was to report to them when he returned to Sri Lanka; and
d)Another friend, Anthonythas, was arrested by the navy whilst trying to leave the country. Others on the boat were released, but Anthonythas was detained and was to serve a two year sentence, during which he was questioned, including about the applicant, and tortured.
In support of these claims the applicant submitted a number of documents, including:
a)a reference from the St Peter’s Youth Association;
b)a letter corroborating part of the applicant’s history and stating that at 10 February, 2013 the human rights situation was “dire”; and
c)a newspaper article and translation naming the applicant as having re-opened a community centre.
The delegate recorded that at the interview on 23 June, 2016 the applicant further claimed:
a)His aunt, who had been living in Canada, disappeared after returning to Sri Lanka, and her body was found near a beach; and
b)He had given a speech at Marialtis’ funeral.
An extensive written submission was made on the applicant’s behalf in support of his visa application on about 27 July, 2016 when the applicant’s solicitor lodged a detailed submission with the Department. That submission included information and claims that members of religious minorities including Christians faced communal violence and attacks on churches, and that perpetrators were not brought to justice. The submission also included information that Hindu and Christian religious observance was hampered in northern Sri Lanka by the army’s requirement that public gatherings be reported, and that military authorities restricted public participation in such activities. Because these matters formed a central part of the applicant’s claims, it is necessary to set them out in full (citations omitted, emphasis expressed by the applicant’s counsel):
D. PERSECUTION BASED ON RELIGION
21. The Department was of the view that there was freedom of religion throughout Sri Lanka and the Applicant identifying himself to be Catholic did not mean he is at risk of persecution.
28. Amongst other things, s5J(5) of the Migration Act dictates that, without limiting the definition of serious harm, the following can be taken as instances of serious harm: a threat to the person’s life or liberty, significant physical harassment of the person, and significant physical ill-treatment of the person.
29. As a result of his religion beliefs, it is evidence the Applicant faced serious harm for the following reasons:
a. On or around May 2011, the EPOP took the Applicant for two days, where. he was kicked and beaten with both batons and their hands
b. The Applicant was again detained by the EPDP where he was severely physically assaulted and forced to be a polling agent;
c. When the Applicant attend. the CID office they confiscated his National Identity Card and tortured him by severely beating him with their hands and batons; and
d. The Applicant was assaulted by the Sri Lankan Navy.
30. Given the above, we respectively submit that the Applicant has faced serious harm, which amounts to persecution and will continue to do so if returned to Sri Lanka.
31. Although the newly elected government has stated “while protecting the country’s main religion Buddhism, we also protect the rights and freedom of Hindu, Muslim, and Catholic people in practicing their religion and create consensus among them to build up this country,” it is evident that individuals continue to persecuted (sic) due to their religion beliefs, driven mainly by the Sri Lankan government’s inaction;
The constitution and other laws and policies protect religious freedom. In practice, however, local authorities failed to respond effectively to communal violence, Including attacks on members of minority religious groups, and perpetrators were not brought to justice.
Attacks against religious places of worship continue to occur, with perpetrators acting with impunity:
Dozens of attacks against Christian churches and individuals were reported. For example, in January 2014, a mob attacked the Assembly of God and Calvary churches in Hikkaduwa. Local police reportedly were warned in advance but arrived after the attack ... In February 2014 a Buddhist nationalist mob of more than 200 individuals, including several Buddhist monks, attacked and damaged the Holy Family Church in Kandy district, injuring its pastor and his family. Dozens of similar attacks against Christian churches and Individuals were reported in 2014.
32. Additionally, Amnesty International reported that:
Discrimination against ethnic, linguistic and religious minorities, including members of Tamils, Muslim and Christina communities, continued. Minorities were singled out for arbitrary restrictions on freedoms of expression and association.
…
Hindu and Christian religious observance was restricted in Tamil communities of northern Sri Lanka around key dates and the army’s requirement that all public gatherings, including family events, be reported to local military authorities discouraged participation in these activities.
Police failed to protect religious minorities when they faced violence by communal forces and did not arrest perpetrators of such violence, even when there was photographic evidence to identify them.
33. The above country information indicates that religious minorities continued to be persecuted despite the change in government. Given that the Applicant has been previously harmed as a result of his religion beliefs, it is plausible that if returned he will continue to be persecuted.
The submission also dealt with the situation of failed asylum seekers. Evidence was adduced to the effect that the lack of monitoring of asylum seekers returned from Australia undermined the Australian government’s claim that none have been harmed upon return. It was also submitted that returnees had been abducted and tortured, that the advent of the new government in early 2015 has resulted in only tentative progress, that ill treatment and torture continue, and that many Tamils returning to Sri Lanka are suspected of association with the LTTE because the LTTE’s international network remains largely intact. Again, because of the central nature of these submissions to the applicant’s argument, it is necessary to set them out in full (again, citations omitted, emphasis expressed by the applicant’s counsel):
Failed Asylum Seekers
37. Although Australia has been returning numerous asylum seekers whose applications have been denied, little has been done to monitor their treatment upon their arrival:
Despite the risk of harm on return to Sri Lanka, Australia does no/ take any proactive steps to monitor the safety of the over 1100 people who have been returned since October 2012. Australia claims that nobody has been harmed upon return, but documents obtained through freedom of information show that Australia’s follow up of complaints about abuse by returnees may be seriously deficient. In one instance where Australia received a complaint that a returnee had been “severely tortured’; the Australian Federal Police officer in Colombo, despite being in the police building where the complaint was being held, declined an invitation to meet with the complainant to assess his well-being.
35. Despite Australia’s inaction, Yasmin Sooka has noted the continued harm that is being faced by Sri Lankan returnees:
Some witnesses whose previous asylum applications were unsuccessful reported being abducted upon their return to Sri Lanka by the security forces, who knew of their failed asylum application. Once in detention, they were subsequently repeatedly tortured and sexually assaulted until, in cases documented in the study, bribes could be used to procure release and they managed to leave the country again.
39. The above abuse continues to occur despite the recent change in government:
A. security force Insider testified since the presidential election in 2015 that military intelligence officials from Joseph Camp were actively looking for any Tamils returning home from abroad in order to interrogate them. The witness stated that the intention was to abduct, detain and torture them.
…
We have obtained multiple photographs of informers and from showing these to witnesses who have recently arrived in the UK we know several informers are still active in the Vanni. This makes this period of apparent openness and reconciliation generated by the change of government one of great risk, especially when there is no demilitarisation or reduction in surveillance.
40. Consequently, many have warned against sending asylum seekers back until the political situation becomes more transparent:
Sri Lankan religious leaders say it is too early to send asylum seekers back to the country, despite the recent change of government.
“My general view of the countries holding asylum seekers: please do not send them back immediately,” says Catholic priest and lawyer Fr Veerasan Yogeswaran. “There are positive developments, But at the same time these are not signs that everything is good and everything is democratic now.”
…
Refugee and human rights activities argue that it was unsafe to return Sri Lankan asylum seekers to a country that, even after the end of the bitter civil war in 2009, remained under the strong-arm rule of President Rajapksa and his family.
Despite serious human rights concerns successive Australian governments enthusiastically returned Sri Lankan asylum seekers.
There is evidence that in doing so Australia has breached its international obligations not to return refugees to situations in which they may be persecuted.
…
Yogeswaran, speaking in the eastern city of Trincomalee where he runs the Centre for Promotion and Protection of Human rights, said the human rights situation in Sri Lanka remains unresolved and uncertain.
“The minority communities are of the opinion still that we do not feel safe and security in this Island. And that is one of the reasons that they are also fleeing. There may not be abductions but there can be constant harassment and intimidations,” he said.
On the other side of the Island, in Mannar, Bishop Rayappu Joseph agreed. He said the country’s criminal investigation department remained un unwelcomed presence in many communities “Even now, the people are living in fear,” he said.
Both Joseph and Yogeswaran said the ongoing military presence remains a significant cause of insecurity for minority communities.
“That’s why the north and east are calling to demilitarise these areas,” Yogeswaran said. “Remove excessive army camps and remove army or armed forces’ influence over the civilian life. The government is still not addressing these issues. The. government says we will not move any military settlements or military camps. And they are increasing it again, here and there. All that shows that we are living in an occupied land under intimidation and threat and therefore the people feel insecure and security is threatened. So they are not leading a normal life as the other Sri Lankans [are].”
Instead of returning asylum seekers, the religious leaders said Australia should focus on engaging with Sri Lanka on the problem of how its minority communities can live peacefully as part of the Sri Lankan nation.
41. This above view was further supported by Freedom from Torture on 12 August 2015 who have advised that:
And until Sri Lanka’s leaders show that they have succeeded in eradicating torture, countries hosting Sri Lankan asylum seekers must be cautious when assessing their protection claims. A few green shoots of human rights reform should not be taken as a green light for removals.
42. Recently, Edmund Rice Centre reported on the real and significant harm faced by Tamil returnees from Australia:
The Edmund Rice Centre has credible evidence of more young Sri Lankan men, Tamil speakers, who have been forcibly returned recently by Australia to Sri Lanka and have suffered torture.
Gopal (a pseudonym) arrived by boat in Australia in early 2012. He was assessed not to be a refugee by Australian authorities and also assessed not to have any well-founded fear of significant harm if he were to be returned. He was returned late 2014. On arrival at Colombo Airport he was detained and then held for three days’ of intense interrogation including being threatened at gun point, stripped naked and pain inflicted on his body and face with a number of sharp instruments.
The tortures sought information on a range of topics: who organised his fight from Sri Lanka, what had he told the Australian officials, the names and details of the other Sri Lankan men whom he knew during his bid for protection in Australia, particularly those from his own region in Sri Lanka, which of them did he think were members of the LTTE.
He was then held in prison and not released until his family had paid the bribe that was demanded. On release he has kept moving from place to place in an attempt to avoid further interrogation by the security forces.
43. Accordingly, if the Applicant is forcibly returned to Sri Lanka, it is plausible he will be subjected to the deep rotted (sil. rooted) torture imposed against Tamils.
On 24 October, 2016 a delegate of the first respondent made a decision to refuse to grant the applicant a protection visa. That decision was a fast track decision. On 31 October, 2016 it was referred to the second respondent for merits review.
On 14 June 2017, the second respondent affirmed the delegate’s decision. The applicant’s written submissions accurately, in my view, summarise the second respondent’s findings. I have adopted that summary in what follows. The second respondent:
a)was satisfied as to the applicant’s identity;
b)accepted the claims about the applicant being wounded by cross fire during a sea battle in 2006 and being detained in a CID camp for three months and tortured but released due to lack of evidence;
c)found that the applicant’s being able to obtain a driver’s licence and a passport and leave and re-enter the country without incident is evidence that he was not of interest to the authorities at those times;
d)was prepared to accept that the applicant was assaulted by naval personnel for infringing various rules such as returning from fishing late, but did not believe that this happened regularly;
e)did not accept that a specific incident occurred where the applicant and other fishermen were identified as members of the youth association and that he was singled out from the group. Nor did it accept that his fishing pass was confiscated or that he stopped work as a fisherman because of fear in April, 2012. Those findings were in contrast to the findings of the delegate who had accepted that the applicant was taken at a navy checkpoint, held in a sand bunker for two hours before being released and told not to mention the incident, and that he was too afraid to continue working as a fisherman;
f)accepted that the applicant was president of his local Youth Association in 2010 and 2011 and of the community centre in 2011;
g)accepted that “Father JB” went missing in Jaffna and that the applicant as a young Catholic greatly admired him. The second respondent found it plausible that the EPDP or the Sri Lankan authorities were responsible for his disappearance;
h)was not satisfied that the applicant was responsible for naming a library or a building after Father Brown as claimed. It found that he reopened a community centre in a building already publicly named after Father Brown. The second respondent did not accept that the applicant faced any opposition in doing this and did not accept that the applicant was detained and assaulted by the EPDP, or warned not to undertake further activities that would glorify Father Brown. In contrast to these findings, the delegate had accepted the applicant’s claims of having opened a library and named it after Father Brown, having been held for two days by the EPDP and the navy and beaten for doing so and warned not to do anything to glorify Father Brown in future;
i)accepted that the EPDP briefly detained the applicant and forced him to work for them at a 2011 election. It considered that the EPDP’s willingness to release him indicated that they did not think of him as a genuine threat. It found that the EPDP has stopped operating as a pro-government paramilitary group and thus the applicant does not face a real chance of harm from them should he return;
j)accepted that the applicant’s friend Marialtis died in custody in August, 2012 but not that the applicant made a speech at his funeral, or that he was of interest to the CID because of the death notice, or that he was questioned and tortured after the funeral, or faces harm because of his activities following Marialtis’s death. Those findings were contrary to the approach taken by the delegate who accepted that the applicant gave a brief speech at the funeral and that he may have been questioned and mistreated by the CID and warned about future activities; and
k)did not accept that the authorities have regularly harassed the applicant’s remaining family, forcing them to leave their family home. However, the delegate had accepted that the authorities and possibly the CID, had come looking for the applicant after he left the country, but did not accept that he was of “particular adverse interest” to them.
The second respondent concluded that the applicant did not have a well-founded fear of persecution for reason of his race or that the security forces have any ongoing interest in him.
The second respondent accepted that the applicant is a devout Catholic. It accepted his involvement in the erection of a statue of St Peter and that the applicant had voluntarily removed the statue in response to opposition from the Hindu community. The second respondent did not accept that the applicant faced a real chance of persecution for reason of his religion.
As to the applicant’s illegal departure from Sri Lanka and his status as a returned asylum seeker the second respondent considered that the applicant would be arrested, questioned, fined and held briefly as part of the re-entry process. It found that this process would not involve or constitute serious harm.
Consequently, it affirmed the decision under review.
The grounds of review
At the commencement of the hearing before me, the applicant sought leave to rely upon an amended application for review setting out new grounds. The application was not opposed and I granted the requested leave.
The amended application for review contains three new grounds which entirely replace the original ground of review relied upon by the applicant.
I will deal with each ground separately.
Ground One
This ground is in the following terms:
1. The IAA failed to conduct a review pursuant to s. 473CC of the Migration Act, according to law.
Particulars
(a) Failure to consider review material that was before it, pursuant to s.473DB of the Migration Act, to the effect that;
(i) Members of minority religions, including Christians in Sri Lanka, have been the victims of communal violence, including attacks on individuals and places of worship.
(ii) There is a continuing risk of harm to failed asylum seekers.
The applicant argues that the task of the second respondent is to conduct a review of the delegate’s decision according to generally accepted tenets of administrative decision making. Thus, he argues, by his counsel, that the objective of an administrative review is to come to the correct or preferable decision within the limits of the reviewer’s statutory powers and on the material before it: Drake v Minister for Immigration (1979) 24 ALR 577 at 589; Bushell v Repatriation Commission (1992) 175 CLR 408 at 425; Minister for Immigration v Li (2013) 249 CLR 332 at [10], [93]). Indeed, as the applicant argues, there would be no purpose to the review if that were not so.
After the applicant’s counsel had prepared his written submissions, but before the hearing before me, the Full Court of the Federal Court of Australia delivered judgment in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448. In that case the Full Court was called upon to consider the nature of a review conducted by the second respondent pursuant to s.473CA of the Migration Act. The approach taken by each of the members comprising the Full Court was summarised by a subsequent Full Court in Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80 as follows:
11. The task to be undertaken when conducting such a “review” has attracted the attention of the Full Court: BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169 (“BMB16”). Attracting attention in that decision, however, were the more limited powers conferred upon the Authority by s 473CC as compared with, for example, those conferred upon the Administrative Appeals Tribunal by s 43 of the Administrative Appeals Tribunal Act 1975 (Cth). Justice Dowsett concluded that “s 473CC, by its terms, limits the nature of the contemplated review”: [2017] FCAFC 169 at [17]. Justice Besanko was of the view that the function of the Authority in undertaking a review was “to make the correct and preferable decision on the information before the Tribunal”: [2017] FCAFC 169 at [34] to [36]. Justice Charlesworth concluded that the “word ‘review’ in s 473CC of the Act is not to be construed by immediate and unqualified resort to cases in which the Courts have previously construed the same word in a different statutory context”: [2017] FCAFC 169 at [81]. Her Honour was of the view that “the Authority cannot perform a ‘full merits review’“: [2017] FCAFC 169 at [87]. All members of the Full Court agreed with the result, namely that the Authority was not bound by the findings of fact made by the delegate.
Subsequently, in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 the Full Court considered and summarised the principles governing the conduct of a review for the purposes of s.473CA of the Act, a quickly developing area of the Migration Act:
The principles
17. By s 473CC of the Migration Act, the IAA is required to “review” the decision referred to it pursuant to s 473CA. In performing its review the IAA is provided the material identified in s 473DB of the Migration Act.
18. It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:
· The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
· The Tribunal is only required to consider such claims where they are either:
(a) the subject of substantial clearly articulated argument, relying on established facts; or
(b) clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]).
· These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
... A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).
(Emphasis added.)
· As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
(a) such a finding is not to be made lightly (NABE at [68]);
(b) the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c) to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
37 While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38 Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and
(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
The material to be considered by the second respondent is that referred to in s.473CB of the Migration Act together with any new information that the second respondent determines to receive pursuant to s.473DD of the Act. In the present case, the second respondent received a submission from the applicant’s agent that contained new information. The second respondent had regard to some of that information but not all of it. The applicant makes no complaint about how the second respondent dealt with the new information contained within the submission. There is no argument that the second respondent was not required to consider the submission made by the applicant’s solicitors after the hearing before the first respondent’s delegate, but before the delegate refused the applicant’s visa application.
The applicant’s argument is that the second respondent’s reasons do not reveal that it gave any, let alone any proper, consideration to his claims arising from his devout Catholicism.
In its reasons, the second respondent stated that it “had regard to the material referred by the Secretary under s. 473CB…”. However, the applicant argues that statement should not be accepted at face value, because whether a reviewer undertakes his or her statutory task is a matter of substance, not a matter of form. Merely adverting to something in the course of relating the evidence does not necessarily mean that it has been considered in the necessary way: Minister for Immigration v Guo (1996) 191 CLR 559 at 595; SZOVB v Minister for Immigration (2011) 125 ALD 38 at [43].
The only reference to the applicant’s solicitor’s submissions are found in paragraph 4 of the second respondent’s reasons and is raised in the context of discussing a further submission received by the second respondent on behalf of the applicant, as follows (my emphasis):
4. I note the delegate had put similar information to the applicant during the SHEV interview, during which he was represented. The delegate also advised the applicant that the IM is a limited form of review and can only consider new information in exceptional circumstances. The applicant’s then representative sent the delegate a post-interview written submission which contains similar, country information to that in the IM submission before me. I am satisfied the applicant was given the opportunity to address the issues raised in the country information he has now submitted to the IAA. I am not satisfied exceptional circumstances exist to justify considering this report.
The second respondent’s statement about the earlier submission begs the inference that the second respondent had compared the content of the earlier submission with the content of the later submission received by the second respondent. To make that comparison, the second respondent must have considered its content, at least for the purposes of the comparison. It can be inferred, and I find, that the second respondent was aware of the content of the earlier submission made to the first respondent’s delegate for the purposes of the visa application.
Of the applicant’s claims to fear persecution by reason of his religion, the second respondent’s reasons are as follows:
Catholic Tamil - Erection of Saint Peter’s Statue
41. I accept the applicant is a devout Catholic and that in 2012 he erected the statue of Saint Peter as he has claimed. At the end of the SHEV interview the delegate put to the applicant that there is freedom of religion in Sri Lanka, and that there is no country information to indicate he would face harm for reasons of his Catholic religion should he return there. In response the applicant reiterated his written claim regarding the erection of the statue, specifically that he became “unpopular” with the local Hindu community, who protested against the statue and that “the local newspapers wrote of potential religious uprisings in the area”.
42. However the applicant has not provided any evidence that he was ever harmed or threatened because of his decision to erect the statue, because of his involvement with Catholic organisations, or for being a practising Catholic. When discussing the matter of the statue at SHEV interview the applicant did not refer to his written claim that he sought permission from the authorities before placing the statue at the checkpoint, or that this permission was later withdrawn. On the basis of the limited evidence before me I accept the applicant voluntarily removed the statue in response to opposition from the Hindu community, which resolved the matter. On the information before me I do not accept the applicant faces a real chance of harm on account of his religion should he return to Sri Lanka.
Those two paragraphs comprise the totality of the second respondent’s reasons relating to the applicant’s claims based upon his religion. The reasons focus exclusively upon the claims made by the applicant concerning the erection and subsequent removal of the statue of St Peter. They record that the delegate put to the applicant that there is freedom of religion in Sri Lanka, and that there is no country information to indicate he would face harm for reasons of his Catholic religion should he return there. But they do not record that subsequently the applicant, by his solicitors, provided information to that effect. The applicant’s submissions and the material referred to in them, extracted above, provide a basis for the applicant’s claim that he would be at risk of harm by reason of his Catholicism should he return to Sri Lanka. However, the second respondent’s reasons reveal no express consideration of the applicant’s case that religious minorities continued to be persecuted despite the change in government. There was no express consideration of the applicant’s claims based upon the information that:
a)individuals in Sri Lanka continue to be persecuted due to their religious beliefs;
b)attacks against religious places of worship continue to occur, with perpetrators acting with impunity;
c)local authorities failed to respond effectively to communal violence, including attacks on members of minority religious groups such as Catholics, and perpetrators were not brought to justice;
d)there had been dozens of attacks against minority churches and individuals reported in 2014;
e)Police failed to protect religious minorities when they faced violence by communal forces and did not arrest perpetrators of such violence, even when there was photographic evidence to identify them; and
f)here were significant restrictions on religious freedom in the north of Sri Lanka.
As the applicant submits, all that the second respondent appears to have done is to consider the single incident where the applicant and others attempted to erect a statue of St Peter and were forced by the possibility of violence, to take it down.
As to the applicant’s claims to fear persecution as a failed asylum seeker, the second respondent said:
Returning Asylum Seeker from Australia - Illegal Departure
…
47. With reference to the applicant’s particular circumstances, I accept his details may already be on record as the result of his three month detention in 2006/2007. However I have found he does not face a real chance of harm for this reason and that he is not of any ongoing interest to the Sri Lankan authorities. Accordingly, while I accept there is a real chance the applicant will be questioned, fined, and held briefly as part of the re-entry process, I do not accept he would face greater scrutiny or penalty upon return than other illegal departees.
48. Nor am I satisfied that any routine questioning at the airport upon return, which all illegal departees undergo, amounts to serious herm. I am also not satisfied that the payment of a fine, or being held in detention for a period of up to 24 hours at the airport, or possibly a nearby prison for a brief period, cumulatively amounts to serious harm. In the instance the applicant pleads not guilty, he will be released on his own persona! surety. I note in some cases a family member is required to collect illegal departees who are released, or to act as a guarantor if personal surety is not granted. There is no evidence before me to suggest the applicant would not be granted personal surety, or that his one brother remaining in Sri Lanka would not be able to travel to Colombo if required. I am not satisfied on the evidence that even if he pleads not guilty, he will detained any longer.
49. Furthermore, the country information before the delegate indicates the I&E Act applies to all Sri Lankan citizens, and is not discriminatory on Its face or in its application. A generally applicable law will not ordinarily constitute persecution because the application of the law does not amount to discrimination. As such I find the treatment the applicant will face as a consequence of the application of the I&E Act is not persecution within the meaning of s.5J(4) of the Act.
The applicant argues that the second respondent’s reasons on this point reveal no attempt to engage with the detailed submissions about the danger to returned asylum seekers highlighted by the material provided to it by the applicant’s solicitors. The second respondent merely took refuge in information in its possession about the legal process. In neither case he argues, has the second respondent made any attempt to consider and deal with submissions of substance which were clearly articulated by him. Its failure to comply with s.473DB(1) of the Migration Act led to its failing to carry out the review function required by s.473CC.
The first respondent argues that the applicant’s claims under this ground of review ought to be seen as an argument that the second respondent did not consider the evidence of the applicant on his claim to be at risk of religious persecution. However, that is to ignore the basis upon which the applicant has argued his case. More than ignoring or not dealing with material that the applicant put before the delegate, he argues that the second respondent did not engage with his case at all and did not give it any proper consideration.
The relevant principles were recently collected by Flick J in Jung v Minister for Immigration and Border Protection [2017] FCA 173 where his Honour said:
17. It is unquestionably the case that a failure on the part of an administrative decision-maker to deal with a claim raised by the evidence and the contentions advanced for resolution may constitute jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [63], (2004) 144 FCR 1 at 20 to 21 per Black CJ, French and Selway JJ; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [45], (2003) 236 FCR 593 at 604 per French, Sackville and Hely JJ. So, too, may a failure on the part of an administrative decision-maker to deal with a particular piece of evidence found an argument that the decision-maker has fallen into jurisdictional error: MZWBW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 94 at [26] per Black CJ, Sundberg and Bennett JJ.
18. But considerable care should be taken before concluding that a particular claim or contention has not been taken into account – and even greater care before concluding that a particular piece of evidence has not been taken into account – such that the decision-maker has fallen into jurisdictional error. In the latter case, it may well be that the failure to consider a particular piece of evidence may only lend support to a proposition that an integer of a claim or submission has not been properly taken into account.
19. To recognise that there has been a failure to take into account a particular piece of evidence, it is respectfully considered, is not to ignore the fact that a Court should constantly keep in mind the difference between a failure to consider an integer of a claim or a submission which has been made and a failure to take into account a particular piece of evidence. The difference may in some cases be difficult to discern, but the difference remains.
20. In many cases, and the present is but a further example, it may be unclear whether evidence has been properly taken into account. In some cases it may not be sufficient for a decision-maker to simply refer to a submission which has been made, albeit a submission well founded upon the available evidence to be taken into account and evaluated by the decision-maker. In many cases it is preferable for a decision-maker expressly to refer to the evidence upon which a submission is advanced; to do so not only removes any ambiguity as to whether that evidence has been taken into account, it also provides considerable comfort to a claimant that his case has been properly considered. To fail to expressly refer to evidence, particularly evidence which is of central importance to a claim being made, assumes particular significance upon an application for review. There remains, of course, no necessity for an administrative decision-maker to expressly refer to every item of evidence placed before him, no matter how remote its relevance or importance to the issues to be resolved. Much depends upon the importance of the evidence to the issues to be resolved: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, (2003) 236 FCR 593 at 604. French, Sackville and Hely JJ there observed:
[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 … 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 …
See also: Minister for Immigration and Multicultural and Indigenous Affairs v W306/01A [2003] FCAFC 208 at [45] per French and Hill JJ. Similarly, in Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294, Allsop J (as his Honour was then) said that Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, (2001) 206 CLR 323:
[57] … does not stand for the proposition that a relevant consideration has not been taken into account and the decision-maker thereby has failed to embark on or complete his or her jurisdictional task merely because some piece of evidence which the court thinks is relevant in the evidential or probative sense can be seen not to have been weighed or discussed. “Relevant” for this purpose means that the decision-maker is bound by the statute or by law to take this into account.
His Honour repeated much the same proposition as follows in Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265, (2006) 90 ALD 614:
[21] … the Tribunal is not obliged to refer to every piece of evidence or to give a line by line refutation of evidence. …
See also: Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [29] per Cooper and Finkelstein JJ.
The first respondent submits that the primary reason the second respondent rejected the applicant’s claim that he would be persecuted on account of his Catholicism was on the basis that, in the past, the applicant had never been harmed or threatened in connection with his religious practices. Indeed, a fair reading of the passages of the second respondent’s reasons extracted above reveals that is so. The first respondent submits that conclusion was supported by reliable DFAT Country Information before the delegate (which the second respondent referred to) which suggested the lack of any real risk of harm faced by practicing Catholics in Sri Lanka. It is also noteworthy that the second respondent had the more recent version of the aforementioned DFAT report before it which expressed a similar picture of the situation in Sri Lanka. The references to the DFAT country information were said to be found in [41] and [42] of the second respondent’s reasons. But as can be seen above the reference is in paragraph [42] where the second respondent records: “At the end of the SHEV interview the delegate put to the applicant that there is freedom of religion in Sri Lanka, and that there is no country information to indicate he would face harm for reasons of his Catholic religion should he return there.” There was no direct refence to the country information relied upon by the delegate but only to the effect of a part of the DFAT report used by the delegate. Importantly, the second respondent then records: “In response the applicant reiterated his written claim regarding the erection of the statue, specifically that he became “unpopular” with the local Hindu community, who protested against the statue and that “the local newspapers wrote of potential religious uprisings in the area”. But that statement is only half correct. The applicant certainly responded in that way. But his solicitor’s written submissions made after the hearing went further in the way I have set out above. By suggesting that the applicant responded in the limited way recorded by the second responded without referring to the written response by his solicitors, the second respondent’s reasons lead to the clear inference that the second respondent did not take them into account. The applicant’s written submissions furnished other country information which was contrary to that identified by the delegate.
The first respondent submits that [41] and [42] of the second respondent’s reasons make it apparent that the primary matter it relied on to inform its evaluation of future risk for the applicant was his past experience in Sri Lanka. In my view, that was the only mater that informed the second respondent’s evaluation of that matter.
The first respondent points out that reliance by a decision-maker on past events to assess claims of future risk of harm is generally wholly unexceptional. The first respondent, by way of example, points to SZSTZ v Minister for Immigration and Border Protection [2015] FCCA 93 at [45] where Judge Driver said (my emphasis):
The Tribunal’s reasons expressly assessed the applicant’s claims by reference to the risk of harm in the reasonably foreseeable future. The fact that the Tribunal’s reasons focus predominantly on past events is wholly unexceptional. It merely reflects the manner in which the applicant’s claims were expressed and the fact that past events are indicative of the risk of future harm.
Here the applicant’s claims that related to his Catholicism as explained in his solicitor’s written submissions were not related to his past experiences as a Catholic in Sri Lanka. It was based upon the experiences of other Catholics as recorded in the information relied upon by the applicant in his solicitor’s written submissions. Whilst in most cases it will be sufficient to consider an applicant’s claims to future harm by reference to his or her claimed past experiences and to determine that matter based upon findings in relation to those claimed experiences, that will not always be so. Here that was not the applicant’s case insofar as it relied upon his religious beliefs. The second respondent did not grapple with that case, but simply considered the matter by reference to the applicant’s ability to produce evidence of actual harm in the past by reason of his religion. To approach the case in that way was not to engage with the applicant’s claim in this regard.
Having accepted that the applicant was a devout Catholic, the passages from the second respondent’s reasons extracted above reveal that the second respondent focussed upon two matters: first, the erection and subsequent demolition of the statute of St Peter and second, whether the applicant provided any evidence that he was ever harmed or threatened because of “his decision to erect a statute, because of his involvement with Catholic organisations, or for being a practising Catholic”. Without then articulating that the applicant was claiming to fear a risk of harm as a devout Catholic and without adverting to the material provided by the applicant’s solicitor that demonstrated that Christian churches and individuals faced harm in Sri Lanka as set out in the above extracts from the applicant’s solicitor’s written submissions, the second respondent found that “On the information before me I do not accept the applicant faces a real chance of harm on account of his religion should he return to Sri Lanka”.
As counsel for the applicant argues, if there had been engagement with the applicant’s argument based upon his Catholicism, the second respondent would have at least made a determination about the nature and extent of the risk to Catholics in Sri Lanka generally given the material before it about that matter. The second respondent did not do that.
Bearing in mind the care that has to be taken when determining whether an administrative decision maker has dealt with a claim raised by the evidence and the contentions advanced for resolution, I have concluded in this case that the second respondent did not deal with the claim advanced by the applicant concerning the risk of persecution because of his religion.
In my view, this ground of review demonstrates jurisdictional error.
Grounds two and three
These grounds are related and are in the following terms:
2. The IAA acted in a manner that was legally unreasonable in not disclosing to the applicant that it was considering rejecting claims that had been accepted by the delegate, and inviting submissions and new information thereon, pursuant to s. 473DC(3) of the Migration Act.
Particulars
(a) The claim that the applicant faced opposition from the Sri Lankan authorities or the EPDP in reopening the a (sic) library.
(b) The claim that the applicant was stopped and held in a sand bunker because he erected a statue of St Peter.
(c) The claim that he stopped work as a fisherman out of fear.
(d) The claim that the applicant made a speech at the funeral, or was questioned or tortured for doing so.
3. The IAA acted in breach of the requirements of procedural fairness, insofar as it applied to the IAA’s process, in not disclosing to the applicant that it was considering rejecting claims that had been accepted by the delegate, and inviting submissions and new information thereon, pursuant to s. 473DC(3) of the Migration Act.
Particulars
The applicant repeats the particulars set out under ground 2 above.
The applicant points out that the issues raised by these grounds were the subject of appeals before the Full Court of the Federal Court of Australia from three cases in this court, DGZ16 v Minister for Immigration and Border Protection [2017] FCCA 623, DZU16 v Minister for Immigration [2017] FCCA 851 and CRY16 v Minister for Immigration [2017] FCCA 1549.
In DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 the Full Court determined that the second respondent was not obliged to inform a visa applicant that it was considering departing from claims that had been made by the first respondent’s delegate. The Full Court held (my emphasis):
76. It was open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond.
…
78. It follows from what we have said that, leaving aside for the moment Ground 5, the appeal fails. We regard the central issue as covered by Ground 2. As we have held, the primary judge did not err in finding that the Authority conducted a review as required by s 473CC, it not being necessary in the conduct of the Authority’s review in this case to give the appellant notice of new issues and afford him a reasonable opportunity to respond. Ground 2 therefore fails. Ground 3, concerning legal unreasonableness, fails as under the statutory scheme in the circumstances of this case the Authority was not obliged to inform the appellant of the issues that it considered to arise on the review, insofar as those issues were not found to be dispositive by the delegate. Ground 4 fails as, in our opinion, s 473DA had the effect of excluding the requirement that the Authority comply with the requirements of procedural fairness in deciding whether to disclose the issues that arose on the Authority’s review and to invite a response. Although, as we have said at [73] above and consistently with Ground 1, we do not approach the resolution of the appeal by considering whether or not the delegate’s decision indicated that all aspects of the appellant’s credit were at issue in the Authority’s review, Ground 1 does not survive our other conclusions, particularly in relation to Ground 2.
See also Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526 at [97] – [100].
As to ground three, the applicant accepts that the decision in DBE16 v Minister for Immigration [2017] FCA 942 is against his argument and means that it cannot succeed. I am bound by the decision in DBE16. In any event, it is consistent with the decisions in DGZ16 and DZU16.
Conclusion
For the reasons set out above, I have concluded that the second respondent’s decision is affected by jurisdictional error. The applicant should have the claimed relief and costs.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 3 August, 2018.
Date: 3 August, 2018
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