DCU18 v Minister for Home Affairs
[2019] FCCA 1458
•29 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DCU18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1458 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s fears found not to be well founded – whether the Authority overlooked relevant material or an integer of the applicant’s claims and whether the Authority misunderstood the application of the Sri Lankan Protection of Terrorism Act considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5H, 36, 46A, 473CA, 473CB, 473DC, 473DD |
| Cases cited: ASB17 v Minister for Home Affairs [2019] FCAFC 38 Maroun v Minister for Immigration (2009) 112 ALD 424 Minister for Immigration v CRY16 [2017] FCAFC 210 Minister for Immigration v DZU16 [2018] FCAFC 32 |
| Applicant: | DCU18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 320 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 29 May 2019 |
| Delivered at: | Perth |
| Delivered on: | 29 May 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Ms A Ladhams of Australian Government Solicitor |
ORDERS
The application filed on 14 June 2018 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 320 of 2018
| DCU18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority). The decision was made on 11 May 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to this matter are conveniently set out in the Minister’s outline of submissions filed on 8 May 2019.
Chronology
The applicant is a Tamil citizen of Sri Lanka who entered Australia at Cocos (Keeling) Islands on 14 October 2012 and is an unauthorised maritime arrival.[1]
[1] Court Book (CB) 23, 49, 169
On 12 August 2016 the Minister’s Department sent to the applicant an invitation to accept assistance through the “Primary Application and Information Service”.[2] By that letter, the applicant was advised that the Minister had exercised the discretion in s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) to allow him to make an application for a protection visa.[3]
[2] CB 26-27
[3] CB 27
On 24 November 2016 the applicant lodged an application for a protection visa.[4]
[4] CB 33-87, 98
The applicant was invited to an interview before the delegate on 20 October 2017.[5] On 3 November 2017, following the interview, the applicant provided the delegate with further submissions.[6]
[5] CB 101
[6] CB 125-162
On 31 January 2018 the delegate made a decision not to grant the applicant a protection visa.[7] The matter was then referred to the Authority in accordance with s.473CA of the Migration Act.
[7] CB 169-188
On 11 May 2018 the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.[8]
[8] CB 206-221
Protection claims
The applicant claimed to be owed protection by Australia for reason of his Tamil ethnicity, his imputed pro-LTTE beliefs on account of his father being a former member of the LTTE, his illegal departure from Sri Lanka and as a failed asylum seeker.
Authority decision
The Authority had regard to the material given under s.473CB and noted that no further information was obtained or received.[9]
[9] [2]-[3]
The Authority accepted that in 2011 the applicant was stopped by Sri Lankan Army (SLA) officers at a checkpoint on several occasions, and these officers verbally threatened the applicant if he did not answer their questions and demanded his bicycle.[10] However, the Authority did not accept that events involving the SLA were the reason the applicant withdrew from his studies in 2011.[11] The Authority expressed concerns regarding omissions and differences in the information provided by the applicant to the Minister’s Department on this issue in his age determination interview, entry interview and in his protection visa application, and was unpersuaded by the applicant’s explanation that he was not made aware that the information he provided for his entry interview would be used to assess his protection visa claims.[12]
[10] [8]
[11] [10]
[12] [13]
The Authority accepted that when the applicant was working at his family rice mill, on one occasion the SLA questioned and physically assaulted his father, and that subsequent to this, the Criminal Investigation Department (CID) went to the applicant’s family home and told his family that people were being monitored and investigated and questioned his family about people in the area.[13] However, the Authority did not accept that the SLA regularly interrogated the applicant’s father and beat him in front of the applicant.[14] The Authority was satisfied that the applicant was not of interest to the Sri Lankan authorities or perceived by the authorities as a person with links to the LTTE at the time the applicant went to Colombo in 2012.[15] In making this finding, the Authority referred to the Prevention of Terrorism Act (PTA) which provided the authorities with a power to detain a person without charge for three-month periods and found that if the applicant had been a person of interest to the CID, he would not have merely been questioned at his home.
[13] [18]
[14] [19]
[15] [21]
The Authority did not accept that the applicant’s father was a member of the LTTE and referred to the applicant’s “vague and unconvincing evidence” in this regard.[16] The Authority also did not accept that the applicant’s father was subjected to any reporting requirements by the Sri Lankan authorities on the basis of its finding that the applicant’s father was not a member of the LTTE.[17]
[16] [24]
[17] [27]
The Authority was not satisfied that the applicant was of any interest to the Sri Lankan authorities at the time of his departure from Sri Lanka.[18] The Authority did not accept that there was any credible basis to the applicant’s claims that his whereabouts had been sought by the SLA or that his father or brother were questioned or that his brother was physically assaulted on this basis.[19]
[18] [28]
[19] [28]
The Authority considered country information indicating the overall situation for Tamils in Sri Lanka has improved considerably since the end of the civil conflict in 2009 and the monitoring and harassment of Tamils has declined.[20] The Authority acknowledged that some persons with certain types of links to the LTTE may suffer serious harm but referred to its finding that the applicant did not have such links and therefore was not satisfied the applicant had a real chance of harm.[21]
[20] [30]-[31]
[21] [34]
The Authority considered country information regarding returnees to Sri Lanka and asylum seekers. The Authority accepted such persons may be detained for processing but that the applicant had no adverse profile and was not a person of interest, and therefore did not face a real chance of harm.[22]
[22] [38]-[40]
The Authority accepted that as the applicant left illegally by boat, he may be charged under the Immigrants and Emigrants Act (I&E Act).[23] The Authority was not satisfied that any treatment the applicant would face as a result of breaching the I&E Act would amount to serious harm or persecution.[24]
[23] [41]
[24] [46]
The Authority did not accept that there was a real chance the applicant would face serious harm for any of the reasons he had claimed if he were to return to Sri Lanka. The Authority therefore did not accept that the applicant met the requirements of the definition of a refugee in s.5H(1) or that he met s.36(2)(a) of the Migration Act.[25]
[25] [47]‑[48]
The Authority also considered the complementary protection provisions and, for similar reasons to those stated above, was not satisfied that there was a real risk that the applicant would suffer significant harm if he returned to Sri Lanka. Therefore the applicant did not meet the criteria in s.36(2)(aa) of the Migration Act.[26]
[26] [52]-[53]
The present proceedings
These proceedings began with a show cause application filed on 14 June 2018. No amended application has been filed. There are three grounds in that application, upon which the applicant continues to rely:
1.The IAA, by relying on the DFAT country information that Sri Lanka is safe for the Tamil asylum seekers under the President Maithripala [Sirisena] and PM Ranil Wickremesinghe, has failed to consider that the Sirisena’s government may be ousted by former president Mahindra Rajapaksa.
Particulars
The IAA failed to consider the result of the recent Sri Lanka local government election on 10 Feb 2018 in which Rajapaksa’s newly formed party won nearly 45% of the total votes casted. This poll results signals the return of the former president under whose tenure the LTTE were militarily defeated.
Former president Mahindraja Rajapaksa’s government had been condemned by the international community for carrying out torture, enforced disappearance and extrajudicial killing of Tamils who were suspected of being LTTE supporters.
Rajapaksa's ardent supporters mostly belongs to the majority Sinhalese Buddhist community and his campaign of against a separate Tamil state.
2.The IAA misunderstood the application of the Sri Lankan Prevention of Terrorism Act 1979 (PTA) by failing to understand that the powers under PTA are subjected to processes that must be complied before a person can be detained under the PTA. By the statement below, the IAA was of the incorrect view that a person can simply be detained without complying with the processes outlined in the PTA.
Particulars
The IAA at paragraph 21 said as follows: “…under the Prevention of Terrorism Act 1979 the Sri Lankan authorities had the power to detain a person without charge for three month periods, …. I am satisfied that had the applicant been of interest to the CID as claimed he would not have been merely questioned by the CID at his home”.
3.The IAA committed an error by holding that the applicant was a mere Tamil from the North when it failed to take into account of the fact that the applicant was subjected to harassment before he left Sri Lanka, hence not a mere Tamil but an able bodied Tamil man who has been subjected to harassment by the Sri Lankan security agencies on grounds of suspected LTTE links.
(errors in original)
I have before me as evidence the applicant’s short affidavit filed with his application and the court book lodged on 21 August 2018.
Only the Minister filed written submissions in advance of today’s hearing in accordance with procedural orders made by a registrar. I invited oral submissions from the applicant. He noted that he had not received the Minister’s written submissions. Those submissions had been sent to the applicant’s former solicitor who ceased acting for the applicant on or about 14 May 2019. The applicant had obtained a copy of the court book from his former solicitor, but not the Minister’s submissions.
I gave the applicant the option of having the Minister’s submissions read to him by the interpreter or to respond to the submissions to be made orally by the Minister’s solicitor advocate. The applicant took the second option. I am satisfied that the applicant was not disadvantaged by that course.
The applicant, at the outset, and later during his oral submissions, sought an adjournment. This was based on the fact that his former solicitor has apparently withdrawn his services. At the time his application was filed, the applicant was represented by Ganasan Arujunan of AUM Legal. Mr Arujunan filed a fresh Notice of Address for Service on 17 April 2019 that simply updated his address for service. It follows that the applicant was legally represented by Mr Arujunan at least between 14 June 2018 and 17 April 2019. However, the applicant appeared today self-represented. The only foreknowledge the Court or the Minister had of that was a fresh Notice of Address for Service filed personally by the applicant on 14 May 2019.
The solicitor did not file a notice of withdrawal in accordance with Rule 9.03 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).[27] This had several consequences. The first was that the applicant was left to deal with his case on his own. The second is that the Court was required to arrange for a Tamil interpreter at very short notice. This is an unfortunate situation. It was, however, not, in my view, a situation requiring an adjournment of the hearing. As I explained to the applicant, the grounds in his application had been professionally prepared and he has the advantage of those. The applicant was not able to tell me why his former solicitor had withdrawn his services. He confirmed that he had not withdrawn his instructions. The reason for the withdrawal of services by the solicitor is therefore a mystery.
[27] I requested an explanation from the solicitor, which was provided in writing the day after the hearing. The solicitor had assumed that the circumstances were covered by rule 9.01. I accepted the explanation, although I consider that the solicitor’s assumption was wrong, given that the solicitor withdrew his services.
It was apparently suggested to the applicant by somebody that he should seek an adjournment in these circumstances. As I explained to the applicant, the late withdrawal of a legal representative coupled with a request for an adjournment is a not uncommon circumstance in this jurisdiction. It is not something to be encouraged by the Court.
The grounds of review advanced by the applicant do not establish jurisdictional error. The first ground asserts a failure to consider country information. The difficulty with this ground is that the relevant country information was not before the Authority. The applicant says that he was represented by a practitioner in Sydney before the Authority, who said that he would provide the relevant country information. There is, however, no indication that that person did so.
The relevant country information relates to a local government election held on 10 February 2018. That was following the referral of this matter to the Authority. It was, however, within the time made available to the applicant for a submission. No submission was made. It was open to the applicant to present new information which could not have been provided to the delegate because it post-dated the delegate’s decision. I find that the information was not provided to the Authority. The circumstances, in my view, did not give rise to any obligation on the Authority to inquire. This ground therefore fails.
The second ground asserts a misunderstanding of the Sri Lankan PTA. I reject that contention. The Authority refers to the PTA at [14] and [21] of its reasons. The reference by the Authority was simply to illustrate the point that the applicant was not subjected to detention by the authorities. I see no error in the Authority’s approach.
The third ground asserts error by the Authority in considering the claim based on the applicant’s Tamil ethnicity. This was dealt with by the Authority at [8] and [18], and between [33] and [37] of its reasons. That consideration was without error. The Authority specifically considered the issue of the applicant’s experience at checkpoints at [36] of its reasons in connection with its consideration of the ethnicity claim.
I otherwise agree with the Minister’s submissions in respect of the grounds of review.
Ground 1
By this ground, the applicant asserts that the Authority erred by relying on DFAT country information to make a finding that it is safe for Tamil asylum seekers to return to Sri Lanka without taking into account that the government may change.
What the ground fails to properly articulate is how any jurisdictional error arises.
The factual premise relied on by the applicant to support this ground is that on 10 February 2018, local elections took place and former president Mahindra Rajapaksa won 45% of the total votes cast. The applicant appears to assert that the Authority should have speculated that this election result may mean that Mr Rajapaksa may at some point in the future return to power and that this may mean that it may not be as safe for Tamils to return to Sri Lanka. No evidence is provided to support the factual premises asserted in the particulars, and the asserted error appears to be that the Authority failed to engage in a reasoning process that is nothing more than speculative.
Further, and as noted above, it does not appear that any evidence about the local elections in Sri Lanka was before the Authority. The date of the elections set out in the particulars post-dates the delegate’s decision and the Authority did not get or receive any new information.[28]
[28] See CB 207 [3]
Although it would have been open to the Authority to get new country information and to take that information into account if it was satisfied that the criteria in s.473DD were met, the Authority was not under any obligation to obtain new information in any circumstances.[29]
[29] Section 473DC(2) of the Migration Act
The discretion in s.473DC to obtain or not to obtain new information must be exercised reasonably.[30] The applicant bears the onus of establishing that the Authority failed to consider exercising the s.473DC discretion,[31] and that any failure to do so was material to the Authority’s decision.[32] Neither of these have been established. In any event, in the circumstances of this case, no unreasonableness arises even if it is established that the Authority did not consider the exercise of its discretion to obtain new information about local elections in Sri Lanka.[33] The prospect of Mr Rajapaksa returning to power and what it would mean for Tamils was not an issue raised by the applicant or addressed in the delegate’s decision, and nor was the relationship between the outcome of local elections and possible future national elections.
[30] Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600; [2018] HCA 16 at [21]
[31] ASB17 v Minister for Home Affairs [2019] FCAFC 38 at [46]-[47]
[32] DPI17 v Minister for Home Affairs [2019] FCAFC 43 at [48]
[33] Compare and contrast Minister for Immigration v CRY16 [2017] FCAFC 210 and Minister for Immigration v DZU16 [2018] FCAFC 32. In each of these matters, the Authority made a finding dispositive of the visa applicant’s case in relation to a new factual matter that was not addressed before the delegate, and about which the applicant was likely to have further information. No such dispositive finding was made in the present matter
Even if this ground were to be interpreted as a failure to consider an integer of the applicant’s claim, then the simple answer is that there was no obligation on the Authority to consider any integer of a claim that was not clearly articulated by the applicant and which did not emerge clearly on the materials before the Authority.[34]
[34] NABE v Minister for Immigration (2004) 144 FCR 1; [2004] FCAFC 263 at [68]; AYY17 v Minister for Immigration [2018] FCAFC 89 at [18]
Further, the applicant in this matter was sent a copy of the Authority’s Practice Direction, which included information about providing submissions to the Authority and asking the Authority to take into account new information. Thus, I infer that the applicant was aware that he had the option to ask the Authority to take into account information about the local elections, and could even have provided a submission to the Authority asking it to engage in the speculative reasoning process set out in the particulars. The applicant did not exercise this option. It is unpersuasive for the applicant to now assert jurisdictional error in the Authority’s decision when he did not seek to put information before the Authority about the local elections on 10 February 2018 or make submissions in relation to those elections.
This ground does not disclose any jurisdictional error.
Ground 2
The applicant’s assertion in this ground that the Authority misunderstood the application of the PTA must fail for the simple reason that there is no evidence before this Court to establish how the PTA is required to be applied. In the absence of any evidence to establish that the Authority has misunderstood the application of the PTA, this ground has no merit whatsoever. The applicant bears the onus of establishing jurisdictional error in the Authority decision[35] and has made no attempt to satisfy that onus in relation to this ground.
[35] See Maroun v Minister for Immigration (2009) 112 ALD 424 at [15]
Further, and as noted above, the finding made by the Authority at [21] (and the related finding at [14]) were open to the Authority on the evidence before it. This evidence included the 2017 DFAT report in relation to Sri Lanka, on which the Authority appears to have relied in making its findings based on the PTA allowing the authorities to detain a person without charge for three-month periods not exceeding a total of 18 months. The applicant has not identified any part of the 2017 DFAT report, or any other information or evidence that was before the Authority that suggests that the Authority may have misunderstood the application of the PTA.
This ground is not established.
Ground 3
This ground relates to the Authority’s finding that the applicant, although a male Tamil who resided in the Northern province, had no other characteristics which would give him an adverse profile or other profile of interest when returning to Sri Lanka.
The ground alleges that the Authority failed to take into account harassment the applicant was subjected to while in Sri Lanka and which the applicant claims was on the grounds of suspected LTTE links.
At [8] and [18] the Authority accepted that:
a)the applicant was stopped at checkpoints by SLA officers on several occasions, who questioned him, verbally threatened him and demanded his bicycle;
b)one day when the applicant was working at the family rice mill, the SLA came and questioned and physically assaulted his father; and
c)one week later, the CID went to the applicant’s house and told his family that people were being monitored and investigated and questioned his family about people in the area.
No other claims of harassment against the applicant were made by the applicant.
The Authority’s findings clearly show that it was aware of, and accepted, the applicant’s claims that can be generally described as past harassment from the Sri Lankan authorities. Notwithstanding this acceptance of past harassment, the Authority found that there was no credible evidence indicating the there was a real chance the applicant would face serious harm, on account of his Tamil ethnicity, or on account of his claimed perceived links to the LTTE, if he were to return to Sri Lanka in the reasonably foreseeable future. The Authority’s reasoning was open to it and took into account any harassment the applicant claimed to have suffered.
This ground does not disclose any jurisdictional error.
Conclusion
I conclude that the applicant is unable to demonstrate a case of jurisdictional error by the Authority. It follows that the Authority decision is a privative clause decision, and the application must be dismissed. I will so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $7,000. That is below the amount prescribed in the Federal Circuit Court Rules for a final hearing. The applicant enquired about having time to pay the costs but did not oppose the making of a costs order.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,000.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 6 June 2019
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