Dek17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 719
Federal Circuit and Family Court of Australia
(DIVISION 2)
DEK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 719
File number(s): SYG 2229 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 1 September 2022 Catchwords: MIGRATION – Immigration Assessment Authority decision – unwarranted assumptions – whether “what if I am wrong?” test required Legislation: Migration Act 1958 (Cth) ss 36, 476 Cases cited: BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe (1999) 197 CLR 510
SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451
WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 437
XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 535
Division: Division 2 General Federal Law Number of paragraphs: 49 Date of hearing: 19 July 2022 Place: Sydney Counsel for the Applicant: Mr B Zipser Counsel for the Respondents: Mr G Johnson Solicitors for the Respondents: Australian Government Solicitor ORDERS
SYG 2229 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DEK17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
1 september 2022
THE COURT ORDERS THAT:
1.The application, as amended by leave granted on 19 July 2022, is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
By an application filed in this Court on 17 July 2017, the applicant seeks judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (Act) of a decision of the Immigration Assessment Authority (Authority) made on 22 June 2017 affirming a decision of a delegate of the first respondent (delegate) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (SHEV).
Background
The following statement of background facts is derived from the submissions of the parties.
On 21 October 2012 the applicant arrived in Australian waters as an unauthorised maritime arrival (Court Book (CB) 54, 117).
On 26 November 2012 the applicant participated in an “enhanced screening interview” (CB 1-8).
On 27 January 2013 the applicant participated in an “Irregular Maritime Arrival Entry Interview” (CB 9-27).
On 20 May 2016 (CB 85), following the lifting of a bar notified by letter dated 7 January 2016 (CB 28), the applicant lodged an application for a SHEV (CB 34-84). The application was accompanied by a statement of the applicant dated 19 May 2016 which set out his claims (CB 71-78).
In short, the applicant claimed to fear harm because he was a Tamil and because of his political support for the Tamil National Alliance (TNA), which he asserted would lead to him being imputed as being a supporter of the Liberation Tigers of Tamil Eelam (LTTE). In his statement, the applicant referred to having been the subject of adverse treatment by the Sinhalese during the civil war, including during periods when he was stationed at a refugee camp in Batticaloa. He referred to being discriminated against in terms of his employment because of his ethnicity. He referred to ethnicity-motived killings of his family members. The applicant also referred in his statement to having attracted adverse attention after the war due to his involvement in the TNA, initially by assisting his uncle who was a candidate in the 2012 elections. He referred to occasions when men (presumably the Criminal Investigation Department (CID)) came to his family home and threatened his wife and children, and claimed that he was being targeted. The applicant claimed that the CID were still looking for him.
On 27 October 2016 the applicant attended an interview with the delegate (CB 95).
On 4 November 2016 the delegate refused the applicant’s SHEV application (CB 114). The applicant’s matter was referred to the Authority for review (CB 136). On 22 June 2017 the Authority affirmed the decision under review (CB 150-166).
The Authority’s decision
The Authority outlined the applicant’s claims at [5] of its decision record (CB 151-152). It accepted that the applicant was a Hindu Tamil most recently from Batticaloa in Eastern Province (CB 153 [8]). The Authority found that the applicant had “provided a detailed and reasonably consistent account” of the events causing him to leave Sri Lanka and considered that he had given a truthful account of his circumstances “with one exception”. Namely it did not accept that his younger brother was involved in the LTTE or had been missing since the end of the war, noting that the applicant did not raise this claim until “some way through the SHEV interview” (CB 153 [9]). The Authority did not accept the applicant’s explanation before the delegate that he did not previously raise this claim because he was “scared”.
The Authority considered the applicant’s imputed support for the LTTE. It accepted that the applicant was detained and mistreated during the civil war and that four of his relatives were killed in 1993 (CB 154 [10]). However, having regard to country information and the applicant’s evidence about his own experienced, the Authority was not satisfied that the applicant had been subjected to any monitoring activity since the end of the war. It found that there was no real chance that he would be face serious harm because of any imputed links with or support for the LTTE (CB 155 [11]).
The Authority accepted that the applicant had engaged in “low level electioneering” for his wife’s uncle in the 2012 elections and that rival parties came to his home on three different occasions in 2012 (CB 155 [12]). However, it had regard to country information which indicated that the political situation had “changed considerably” since the 2012 elections (CB 155 [13]). It considered that the applicant’s brief work for the TNA in 2012 did not result in a real chance of serious harm if the applicant returned to Sri Lanka. The Authority accepted that if the applicant “were to assist the TNA in future elections he may be subject to low level harassment” but was not satisfied that this would constitute serious harm amounting to persecution “particularly given the changed political climate as evidenced in the country information” (CB 155 [14]).
The Authority considered at [15]-[20] (CB 156-157) the applicant’s claims relating to claimed visits to his home after his departure. It noted that this evidence was “somewhat vague, inconsistent and unsatisfactory” (CB 156 [15]). The Authority noted the applicant’s written statement that soldiers came first in December 2012 looking for him and again later in December 2012 but was not sure whether if it was the same men. The Authority stated that the applicant “provided little detail about these visits at the SHEV interview” (CB 156 [16]) and that it had “some doubts about whether the visits in December 2012 actually took place” but considered that given the applicant’s low level involvement in the September 2012 elections, it was likely that the visits, “if they occurred, were related to the applicant’s unlawful departure” (CB 156 [17]). In relation to the claimed April 2013 visit, the Authority noted the “discrepancy” between the applicant’s written claims that his home was visited by the CID and the SHEV interview where he stated that his wife did not know who the visitors were, the Authority had “some doubts as to whether the visit took place at all” and again considered that if it did occur, “it may have been related to the circumstances of [the applicant’s] departure” (CB 156 [18]). Concerning a claimed 2014 incident during a religious festival, where men visited the applicant’s home asked after his whereabouts and asked for money, the Authority was not satisfied that “this was anything other than some group soliciting money for the religious festival on the basis that the applicant was known to be overseas” and it was further not satisfied that this represented a threat of harm to the applicant or any adverse interest in him (CB 157 [19]).
The Authority found that even if some of the claimed visits in 2012 and 2013 had occurred, it was not satisfied that this indicated any ongoing intention by Sri Lankan authorities or groups to harm the applicant and did not accept that any of the visits were connected to his activities during the 2012 elections. Given that it did not accept his claim about his brother’s LTTE involvement and that the applicant did not claim to have been questioned or harassed in relation to LTTE involvement since 2007, the Authority concluded it was “most likely” that any such visits related to his illegal departure. It did not accept that the visits reflected “an intention to harm him, or that he faces a real chance of serious harm” (CB 156-157 [20]).
The Authority was not satisfied that the applicant would face discrimination amounting to serious harm on account of his Tamil ethnicity if returned to Sri Lanka (CB 157 [21]). It was also not satisfied that he would face significant restrictions to the practice of his Hindu faith, or religious discrimination amounting to serious harm (CB 157 [23]). Concerning the applicant’s unlawful departure from Sri Lanka, the Authority accepted that he would face “a degree of scrutiny at the airport on return as part of routine processing” but found that the authorities would “quickly establish” that he had no relevant involvement with the LTTE during the war and was not of adverse attention (CB 158 [25]). The Authority found that any processes to which the applicant would be subject as a returnee would be applied on a non-discriminatory basis as a law of general application and thus did not constitute persecution for the purposes of ss 5H(1) and 5J(1) of the Act (CB 159 [30]).
The Authority concluded that the applicant did not face a real chance of persecution on returning to Sri Lanka (CB 159 [31]), did not meet the requirements of the definition of “refugee” in s 5H(1) and therefore did not meet s 36(2)(a) of the Act (CB 159 [32]). In relation to the complementary protection criterion, the Authority concluded that the applicant did not face a real risk that he would suffer significant harm on return to Sri Lanka for any of the reasons claimed and therefore did not satisfy the requirements of s 36(2)(aa) of the Act (CB 160-161 [39]-[40]). Accordingly, the Authority affirmed the decision not to grant the applicant a SHEV.
application to this court
The applicant commenced these proceedings by an application filed on 17 July 2017 (originating application). The originating application filed by the applicant, who at that time was unrepresented, contained nine grounds of review.
On 29 September 2017 a Registrar of the Court made orders by consent providing a procedural timetable for the matter and listing it for final hearing before Judge Emmett on 2 April 2020. This listing was subsequently vacated on 19 March 2020 due to the COVID-19 pandemic.
On 2 March 2022 the matter was listed for a callover before a Registrar. The applicant did not attend and the matter was adjourned for a further callover on 30 March 2022, shortly before which the applicant acquired representation by Counsel on a direct access basis and, on 29 March 2022, a Registrar made orders by consent providing, inter alia, for any amended application to be filed and served by 28 April 2022. The parties were informed by the Registry on 3 May 2022 that the matter was listed for hearing before me on 19 July 2022.
On 25 May 2022, written submissions were filed for the applicant well in advance of the hearing. Those submissions appended a proposed amended application upon which the applicant seeks leave to rely.
The proposed amended application advances the following two grounds of review:
1.The Immigration Assessment Authority ("IAA") found in paragraph 14 of its decision that if the applicant, on returning to Sri Lanka, were to continue to assist the TNA in future elections, he may be subject to low level harassment, but this "would [not] rise to the level of serious harm amounting to persecution". The IAA, in making this finding, assumed that the political climate in Sri Lanka at the time of the IAA's decision would not deteriorate. The country information before the IAA indicated that the "political climate" in Sri Lanka was fluid. In the circumstances, it was necessary for the IAA, in considering the position for the applicant into the reasonably foreseeable future from the time the applicant returned to Sri Lanka, to actively consider whether the political climate would remain the same or alternatively deteriorate. The IAA failed to take this step. This is a jurisdictional error.
2.The IAA found in paragraph 20 of its decision that, in relation to the applicant's claim concerning visits by the authorities to the family home of the applicant in 2012 and 2013, "I do not accept that any of the visits were connected with the applicant's work for the TNA in the September 2012 elections" and "I am not satisfied that they indicate an ongoing intention on the part of [various groups] to harm the applicant". The language used by the IAA in its reasons in support of these findings indicates that the IAA had doubts about the findings. In the circumstances, the IAA should have considered the possibility that the visits were connected with the applicant's work for the TNA in the September 2012 election.
The applicant’s Counsel concedes that the proposed amended application was lodged out of time but submits that there would be prejudice to the applicant if leave were not granted. Counsel further contends that the written submissions annexing the application were filed two months in advance of the hearing, which reduced any prejudice to the Minister, and contain two grounds of review replacing the nine grounds of the originating application, thus likely reducing costs in responding to the application. The first respondent quite properly did not oppose leave being granted and, accordingly, at the hearing I granted leave for the applicant to file and rely upon the proposed amended application in the form annexed to the applicant’s written submissions and because Counsel for the applicant was appearing on a direct access basis. I also dispensed with the need to serve the amended application once filed, given that the solicitors for the first respondent were already in possession of an unsealed version and that they could easily obtain a sealed copy themselves by accessing the Commonwealth Courts Portal.
Submissions were also filed for the first respondent in accordance with the Court’s orders and each of the applicant’s Counsel and Minister’s solicitor made oral submissions at the hearing on 19 July 2022. Both parties having been represented by Counsel experienced in this jurisdiction, the submissions made were highly focussed and refreshingly distillate which has therefore made the consideration of this matter a similar exercise in concision. I have been assisted by all the submissions of the parties.
Ground 1
By this ground the applicant alleges that the Authority erred in its consideration of the applicant’s claims which concerned his involvement in the TNA. The applicant makes this contention in two ways. Firstly, that the Authority made an unwarranted assumption that the political climate in Sri Lanka would not deteriorate in the reasonably foreseeable future, given that the political and security situation was “fluid” and, secondly, that this unwarranted assumption resulted in the Authority failing to engage in an active intellectual process or give proper, genuine and realistic consideration to the claim.
The first respondent says that there was no such unwarranted assumption and that the Authority took into account information which showed a directional trend of improvement which did not indicate fluidity (in the sense of unpredictability) and, in those circumstances, speculation about deterioration did not arise.
Before turning to the lynchpin of this ground, namely whether there existed an unwarranted assumption on the part of the Authority, it is worthwhile observing (in respect of both grounds raised by the amended application) the well-established principle that in construing the reasons of the decision-maker, a beneficial construction is to be adopted: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and more recently XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 535 per Perry, Banks-Smith and Anderson JJ at [27]:
In this regard, it is well established that the reasons of an administrative decision-maker “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271 –272 (Brennan CJ, Toohey, McHugh and Gummow JJ (quoting with approval Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280 at 287 )). As such, when it is said that such reasons should be read beneficially, ultimately this means that “a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying”: Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14] –[15] (Allsop J (as his Honour then was)).
In BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292 the Tribunal rejected claims of the applicant centred on his homosexuality and being a high-profile gay activist. The Tribunal found that it was anomalous that information about an alleged brutal assault in which the applicant had been badly injured and another man had died, was not posted on social media. This was despite the fact that the material before the Tribunal indicated that the authorities in that country heavily controlled social media. The Tribunal made an unfounded statement that information regarding the assault could have been passed anonymously to activists outside the country.
The Full Federal Court found that the only evidence before the Tribunal suggested the contrary and that the “unwarranted assumption, in turn, was relied upon by the Tribunal as material in forming its view as to the credibility of the appellant” and was an error of the kind identified in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451 per Flick J at [22]: see BZD17 (supra) per Perram, Perry and O’Callaghan JJ at [58].
That reference to SZVAP is important because the common thread in these cases is that they arose in the context of adverse credibility findings being made on the basis of such unwarranted assumptions. In SZVAP at [22] Flick J found:
… Jurisdictional error may also be exposed where the Tribunal applies “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document“: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 at [37] ; (2009) 181 FCR 113 at 126 per Logan J. Unwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 437 at [54] ; (2002) 194 ALR 676 at 685.
The decision of WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 437 to which Flick J referred in SZVAP and upon which the applicant relies in his written submissions in the instant case, also turned upon an unwarranted assumption in relation to credibility.
The finding sought to be impugned in the instant case was not one which turned on an adverse credibility finding. In fact, as the applicant notes, the Authority accepted that he had undertaken political activities for the TNA. The Authority also accepted that the applicant might continue to undertake similar election campaigning activities in the future if returned to Sri Lanka. In this sense, there was not an adverse credibility finding made based on the matter which the applicant says was unwarranted.
In my view, there was no unwarranted assumption and therefore no adverse credibility finding based thereon. Rather, the findings of the Authority were open on the material before it.
At [11] the Authority made reference to the fact that since the end of the civil conflict in 2009, the situation for Tamils in Sri Lanka had improved. Next, at [12] the Authority referred to an absence of information, namely that there was no independent evidence which suggested that a person with the applicant’s low-level TNA activities continued to be at risk many years after the elections in question. Those elections were addressed at the beginning of [13] where the Authority noted information considered by the delegate which indicated that the political situation in Sri Lanka had “changed considerably” since the 2012 elections. The next election, held in 2015, was also referred to by the Authority at [13] as being “generally considered free and fair”.
The contention of the applicant in relation to this ground that the Authority made an unwarranted assumption that the situation would not change, is not made out. Firstly, this is because the finding was consistent with the material before the Authority: Cf BZD17 at [58]. Secondly, the Authority went on at [14] to properly consider the applicant’s claims in relation to whether he would face a real chance of serious harm on return to Sri Lanka at the time of the decision and also in the reasonably foreseeable future.
The language of the statute does not either in and of itself, nor with the benefit of consideration by the Courts, require that a decision-maker speculate infinitely and/or about all likely outcomes. Further, and as the applicant accepts, what has happened in the past is a useful indicator to consider when calculating what might happen in the future: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576.
So understood, it was within the scope of available findings for the Authority, relying on a trend of improvements to the political landscape, to at least assume the status quo would remain. That the Authority did not speculate about outcomes which countered the information before it does not constitute a failure to engage in an active intellectual process or give proper, genuine and realistic consideration to the applicant’s claim to fear harm based on his political activities. To the contrary, the Authority properly applied its mind to the requisite time period of assessment and made findings consistent with the evidence before it.
Accordingly, ground 1 is not made out.
Ground 2
By this ground the applicant relies on the long-standing authority of Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, and in particular what was said by Sackville J at [60] to [67] therein, as the foundation for a proposition that the Authority had a real doubt about the reason why authorities had visited the applicant’s wife at the family home in 2012 to 2013 and, accordingly, that it ought to have considered that the visits were connected with the applicant’s TNA involvement and not, as it found, “most likely” that it was in relation to the applicant having departed Sri Lanka illegally.
The applicant says that the use of the term “most likely” should be taken to mean that the Authority “considered it possible, although not ‘likely’ that the visits were connected to the applicant’s work for the TNA.”
The first respondent observes that the dicta of Sackville J in Rajalingam, which built upon the High Court’s findings in Guo (supra) and Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe (1999) 197 CLR 510, was that where the decision-maker “is uncertain as to whether an alleged event occurred, it may be necessary to take into account the possibility”. The first respondent says that such uncertainty does not arise in this case. I agree.
Firstly, and again noting that a beneficial reading of the entirety of the reasons for decision is required, the finding at [20] of the Authority’s reasons is not the only finding in relation to these visits. In fact, the issue is addressed in the Authority’s reasons from [15] onwards and by the time the Authority reached [20] it was concluding its consideration of the claim.
Crucially, the conclusions in [20] need to be understood in the much broader context that the doubt the Authority had earlier expressed was a doubt that the alleged visits to the applicant’s family home had occurred at all. At [17] the Authority made plain that it was.
Proceeding in essence in order to give the applicant the benefit of the doubt, the Authority stated:
In these circumstances I have some doubts about whether the visits in December 2012 actually took place, but in any event, it seems unlikely to me that any such visits would have been related to the September 2012 elections…
Accordingly, rather than taking a macro-level reading of the internal findings at [20] in support of the proposition that the Authority ought to have asked itself “What if I am wrong?” within that paragraph, by the time the Authority reached [20] it was already in the midst of that very exercise.
That is because the findings from [18] onwards were already directed to that question against a significant doubt about the occurrence of the visits at all. What can also be observed about [17] is that the Authority already expressed its initial incredulity at the possibility that the visits were election-related. This view is reiterated at [20] of the reasons for decision and, contrary to the assertion that the Authority’s use of the expression “most likely” means that there were other, remnant reasons for why the visits had taken place, the sentence in question commences thus (emphasis added):
There appears to be no other plausible explanation for this sudden interest in the applicant, and I consider it most likely...
Firstly, that sentence has the effect of precluding any other explanation for the visit. Secondly, the words “sudden interest” also have work to do. The Authority was emphasising the timing of the visits as being newly motivated and that this corresponded with the applicant having departed Sri Lanka. This reflects the Authority’s consideration that the purpose of the visits dovetailed with the applicant’s departure, and was not related to his campaigning activities of many years before, a finding which had already been made at [17].
In my view a proper and contextual reading of the Authority’s reasons reveals that there was no equivocation expressed by the Authority as to the reasons for visits, in respect of which it was already giving the applicant the benefit of the doubt. Accordingly, there is no error of the kind alleged by ground 2.
As ground 2 also does not give rise to error, the decision of the Authority, being free from jurisdictional error, is a privative clause decision and therefore the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 1 September 2022
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