DEL17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 666

Federal Circuit and Family Court of Australia

(DIVISION 2)

DEL17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 666

File number(s):	MLG 1540 of 2017
Judgment of:	JUDGE VASTA
Date of judgment:	3 August 2022
Catchwords:	MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed
Legislation:	Migration Act 1958 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	67
Date of last submission/s:	3 August 2022
Date of hearing:	3 August 2022
Place:	Brisbane
Counsel for the Applicant:	The Applicant appearing on their own behalf with the assistance of an interpreter
Solicitor for the First Respondent:	Sparke Helmore

ORDERS

MLG 1540 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DEL17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:	JUDGE VASTA
DATE OF ORDER:	3 AUGUST 2022

THE COURT ORDERS THAT:

1.The application filed on 19 July 2017 be dismissed.

2.The Applicant pay the First Respondent’s cost of and incidental to the application fixed in the sum of $7,853.

3.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

THE COURT NOTES THAT:

A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

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
(Ex tempore)

JUDGE VASTA

1. On 30 June 2017, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicant DEL17 a protection visa.  On 19 July 2017, the Applicant asked this Court to review that decision.  Even though the Applicant filed his application in July 2017, it was not until eight months later that there was a Court event regarding his matter. 

2. On 21 March 2018, Registrar Ryan made orders that dealt with the filing of material in the matter, which included the filing of any written submissions. 

3. The matter was listed for final hearing on a date to be advised before Judge Wilson, as he then was.  Upon His Honour’s elevation to Division 1 of this Court, or what is now Division 1 of this Court, the matter seemed to have gone into abeyance.  It eventually became part of the National Migration Docket.

4. On 10 March 2022, Registrar Carney adjourned the matter for a callover on 6 April 2022.  On 6 April 2022, Registrar Carney listed the matter for final hearing before me at 2.15, yesterday, 2 August 2022. 

5. Just before the matter was to be heard yesterday, the Court received an email from a person called Aran Milvigarnan.  Mr Milvigarnan wrote that he was a relative of the Applicant and that the Applicant had a panic attack and was unable to attend the hearing as scheduled.

6. The matter still was mentioned in open Court, where Mr Milvigarnan appeared as a friend of the Court to explain the situation that the Applicant faced.  He sent to the Court a medical certificate under the hand of Dr Anne Sellathurai.  The doctor wrote that the Applicant was unable to attend Court today due to his medical condition. 

7. Because of this, the Court adjourned the matter until this morning.  The Applicant, DEL17, has appeared, aided by an interpreter.  This means that it has now been over five years since the Applicant filed his application to this Court, and the Court apologises to him that it has taken such an inordinate amount of time for the Court to deal with his application.

8. It is for this reason that it is imperative that the Court deals with the matter as quickly as it can, and that is part of the reason that I am giving my decision right now. 

9. The background to the matter is that the applicant is a citizen of Sri Lanka.  He was an unauthorised maritime arrival who came to Christmas Island on 17 September 2012.  He lodged an application for a Safe Haven Enterprise visa on 26 April 2016.  On 17 November 2016, the delegate refused to grant the Applicant the protection visa.

10. Because of the regime involving unauthorised maritime arrivals, this matter was given directly to the IAA after the delegate had made their decision.  The IAA invited the Applicant to make written submissions. 

11. On 30 November 2016, the Applicant sent a letter to the IAA stating he was not able to provide written submissions, because the IAA had given him timeframes that were unreasonable.  The authority responded on 2 December 2016, telling the Applicant it was open to him to submit documents in accordance with the practice direction.

12. The IAA then had all of the material that the delegate had before it when the decision was made.  As well, the IAA looked at the DFAT country information report for Sri Lanka that was even more recent than the one that the delegate used. 

13. The claims of the Applicant can be summarised in this way.  The Applicant is a Tamil of Catholic faith who lived in the Mannar District in the Northern Province in Sri Lanka.He said that his problems began in 1999 when he and his family fled the LTTE-controlled area in Mannar and went to the Pesali refugee camp. 

14. The Applicant said that he stayed in the camp for two years, until 2001.  During this time, there were two occasions that he was detained by the army on suspicion of LTTE involvement.  He said that he believed that this was because he was a Tamil, and he was targeted for that reason. 

15. While he was living at the camp, he was working as a fisherman.  He said that there was a local Muslim network called Chiath that controlled the port.  He said that this network forced the fishermen to pay 3000 rupees per month to be able to fish there.

16. He said that the family then relocated to another village about 30 kilometres away but still in Mannar.  He said that he continued to work as a fisherman and continued to pay the monthly fee to this Muslim network. 

17. He said that in June 2012, the Sri Lankan government reasserted ownership over the fishing port.  He said that the government allocated fee-free, that is, “no fee” fishing ports to Tamil refugees, and he was allocated the same area that he was already using.  He said that the Muslim villagers became hostile and began stealing the fish of the fishermen, setting fire and destroying their equipment and hitting them and threatening them.  

18. He said that he, and some others, then hired a lawyer so that they could take the matter to Court.  He said that a local Muslim MP threatened their lawyer and told the lawyer that he should not represent or assist the fishermen.  He said that the case went ahead, and the Court confirmed the government’s decision and ordered the arrest of the Muslim villagers that had assaulted the Tamil refugees and destroyed their equipment. 

19. He said following the Court’s determination, the Muslim villagers then attacked the Court building and the legal representatives of the fishermen. He said the police were called, however, they were unable to stop the attack, and the police themselves were also assaulted. 

20. He said that a Muslim government minister criticised the Court decision.  He said that the Muslim MP, who had earlier threatened their lawyer, was unhappy about what had happened in Court.  He said that this MP ordered that his own militant group kill the Tamil refugees and lawyers who were involved in the case.  He said that, in late July or early August, a group of Muslim men visited his house while he was out.  They told his wife that they wanted to speak with him, and his wife told them that she did not know where he was.

21. He believes that these Muslim men were part of the Chiath network, and that they intended to harm him because of his involvement in the Court case.  He said, because he was fearful for his own life and safety of his family, he started hiding at different houses in the neighbourhood.  He said that he believed it would be safer for himself and for his family if he left Sri Lanka. 

22. He left his village on 30 August 2012 and travelled to Colombo, and then to Galle to board the boat to Australia.  He said that he fears being killed by the Muslim militant group if he returns to Sri Lanka.  He said that after his departure, seven other Tamil refugees, who were also involved in the case, have gone missing and are suspected dead.  He said that the other Tamils who were involved in the case have either gone into hiding, or fled, for fear that they will be harmed by the militant group. 

23. He said that, in approximately December 2012, his wife told him that the Muslim MP had planted bombs in his family’s fishing shed and other fishing sheds owned by the Tamil refugees.  He said that these were similar bombs to those used by the LTTE.  He said that it was then reported to the army that the Tamils had these bombs, which caused the army to investigate. 

24. He believes that the army will be suspicious that he was involved in LTTE activities.  He said that he believes that he will be arrested, interrogated and tortured by authorities if he goes back to Sri Lanka because they will think he was involved with the LTTE. He says that, because he is Tamil, this allegation won’t be properly investigated, and he would be found guilty.  He also fears the authorities because he departed Sri Lanka illegally.  He says he does not believe he will be able to pay any fine and, therefore, will stay in prison, and he will suffer harm in prison. 

25. The IAA scrutinised the claims that the Applicant had made. The IAA accepted that he was a Tamil, that he was a Catholic and that he came from the Mannar District area. The IAA accepted that he was one of 25 Tamils who participated in a Court case which led to the confirmation of Tamils’ fishing rights and also led to criminal actions being taken against Muslims who fought against them and destroyed their property. 

26. The IAA also looked at country information about what happened in that area.  The country information indicated that payments of money were made by fishermen to the Operculum Fisheries Corporation Society.  The country information was that the government, through the Army, ordered that these fees were to stop being paid and that fishermen had freedom to fish in these areas.

27. The country information also showed that there was a conflict that broke out between Tamil and Muslim fishermen in Mannar in 2012.  The country information suggested that property belonging to Tamil fishermen was damaged and destroyed in this conflict.  The country information was that criminal cases, related to this incident, were later heard at the Court in Mannar.  The country information was that the Court made a ruling confirming the fishing rights and access of the Tamil fishermen.  The country information was that violence did erupt in front of the court complex while the cases were being heard.

28. The country information was that a Muslim MP, Rishad Bathiudeen led the assaults.  The country information was that this same MP threatened a judge who was presiding over the case. 

29. For those reasons, the IAA accepted those aspects of the claims made by the Applicant. There were concerns though about other aspects of the claims.  The concerns were with the claims about the existence of a Muslim militant network operating with impunity, or in collaboration with the Sri Lankan authorities. There was a concern about the claim that the MP had made threats to kill the Tamil parties in the Court case.  There were concerns about the disappearance of the seven Tamils.  There were concerns about the false accusations of possession of LTTE explosives against 12 Tamils.  There were also concerns about the claim that the army had discovered explosives in the Applicant’s fishing hut after he left Sri Lanka. 

30. The IAA said that the country information did not support the claim that there was a Muslim militant network called the Chiath.  The IAA said that there was no support that there was any Muslim militant or criminal group with influence all over Sri Lanka.  The IAA was prepared to accept that there may have been a local Muslim group operating in the area that the locals referred to as Chiath.  But the IAA found that the Applicant embellished what their level of influence and activity actually was.  The IAA did not accept that there was a Sri Lanka-wide network which operated with impunity in Mannar or anywhere else in Sri Lanka. 

31. The country information indicated that the police did respond to the attacks on the Courthouse and made several arrests.  The IAA accepted that the police may have been unable to stop some aspects of the incidents in front of the Courthouse though. 

32. The IAA had concerns about the Applicant’s claims of lack of police action.  The IAA noted that the country information showed that there was a substantial amount of reporting covering the conflict over the fishing rights at that time. 

33. The delegate put to the Applicant that he could not find any information about a claim that there were seven people involved in the Court case who disappeared.  The delegate had said to the Applicant that this was surprising given the media focus on all the other incidents relating to the matter, but the Applicant told the delegate that he was telling the truth. 

34. The IAA accepted that because of the violence that had been in the Courthouse and the Applicant’s role in all of that, that the Applicant would have felt intimidated and fearful.  The IAA noted that the Applicant said that a group had come to his house and spoken to his wife, but the IAA noted again that the Applicant, even though he said he was hiding at different houses, stayed in the neighbourhood for a month afterwards. 

35. The Applicant did not make any claim, nor was there any evidence, that this Muslim group did anything else.  The group did not visit his house again or make inquiries in the neighbourhood or take any steps against family members to try and locate the Applicant.  The IAA found it implausible that, if these people really did want to carry out harm against the Applicant, they would not have been able to locate him in the following month while he remained in the neighbourhood. 

36. The IAA also found it implausible that, having successfully received a positive Court outcome, the Applicant would believe that his only option was to leave Sri Lanka.  The IAA said that they accepted that the Muslim group had come to the house on one occasion, but did not accept that the Applicant went into hiding.  The IAA did not accept that there was anything further that was done to harm the Applicant in the following month.  The IAA did not accept that this visit by the Muslim group to the house was the catalyst for the Applicant to leave Sri Lanka. 

37. The IAA considered that the absence of reporting about a campaign to kill the 25 instigators of the Court case at the order of the government minister is significant.  The IAA noted that there was no reporting about a government minister campaigning to kill the instigators of the Court case.  Whilst a lack of information was not conclusive of itself, given all of the circumstances, the IAA considered the absence of this reporting to be significant. 

38. The Applicant’s logic was somewhat faulty according to the IAA.  The Applicant said that seven men went missing and the remaining 17 went into hiding or fled the area.  The IAA said it is unclear as to why the seven, that he claims have disappeared, were victims of the Muslim group, but the other 17 have left or gone into hiding of their own volition.  The IAA said that the Applicant’s evidence about this significant matter has been vague and is not supported by country information. 

39. When the IAA was reviewing this case, it had been five years since the Court case and five years since the Applicant had departed Sri Lanka.  The IAA noted that there had been no further violence in the area and that Tamil fishermen were not the subject of attacks by Muslims. 

40. The IAA noted the apparent ability of the Applicant’s family members to carry out their daily activities without harm. 

41. For those reasons, the IAA was not satisfied that the Applicant faced a real chance of harm from Mr Bathiudeen or any other Muslims in the area or any Muslim groups in Sri Lanka, and certainly not because of any involvement that the Applicant had in the fishing dispute or his involvement in the Court case.

42. The IAA then looked at the current country information as to what would be facing the applicant upon return to Sri Lanka.  The IAA said that, while there are some issues over fishing access in Mannar, the rights to fish in the area have not been rescinded by the government.  The IAA noted that the Applicant’s father and uncle were both still working as fishermen.  The country information did not support that fishermen of any age, ethnicity or origin are persecuted in Sri Lanka.

43. The IAA then looked at the Applicant’s ethnicity and what, if any, harm could come to him because of that if returned to Sri Lanka.  The IAA concluded that the Applicant was not considered by the authorities to be an LTTE member, supporter or sympathiser nor was he of any other adverse interest to the authorities before he left Sri Lanka. 

44. The IAA then looked at the claim that the Applicant made that the army found bombs in the fishing hut of the Applicant which were similar to those used by the LTTE.  The IAA noted the Applicant’s claim that these explosives were planted to make him look as though he was an LTTE sympathiser.  The IAA noted that this claim is based on things that have been told to the Applicant and that he himself had not been present for any of these occurrences.  There were many inconsistencies and aspects to the claim that the IAA felt simply did not make sense.

45. The IAA noted that his evidence about this was vague and speculative and that he was not in the country at the time that these events occurred.  At paragraph 28 of their reasons, the IAA said that they were not satisfied that the Applicant’s claims in this regard were credible.  The IAA said that they did not accept that explosives were found in the Applicant’s hut or that the authorities have been looking for the Applicant because of this.  The IAA said that they do not accept that the Applicant was suspected of having LTTE involvement.

46. The IAA then looked at the situation for Tamils in Sri Lanka.  The IAA also looked at the fact that the Applicant would be returning from Australia as a failed asylum seeker.  After thoroughly assessing all of those aspects, the IAA concluded that none of those matters would lead to the Applicant experiencing serious harm because of any of those matters. 

47. At paragraph 44 of the reasons of the IAA, the IAA summarised why it was that they were not satisfied that the Applicant met the requirements of the definition of “refugee” in the Act. 

48. The IAA then looked at the complementary protection criteria.  Again, after thoroughly assessing those matters, the IAA concluded that the Applicant did not meet the criteria for complementary protection. 

49. There were two grounds of application when the matter was filed back in July 2017.  The first ground is that

    1.    The Second Respondent constructively failed to review the First Respondent’s decision, denied the Applicant’s procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extend to him a real opportunity to reply to adverse information.

1. This ground seems to be based on a misapprehension of the role of the IAA.  There can be no substance in any claim that there was a constructive failure to review the decision of the Minister.  As I have just illustrated by my recitation of the salient features of the decision of the IAA, the IAA must review the information that is given to it from the secretary of the department. 

2. It is not for the IAA to raise critical matters with the Applicant and it is not for the IAA to extend to the Applicant a real opportunity to reply to adverse information.  All of the criticisms made of the Applicant, and all of the adverse information, was contained in that decision.  The Applicant was given the opportunity to put any written submissions to the IAA, but did not do so.  The IAA said at paragraph 11 of their reasons:

   …I am satisfied the applicant was on notice as to the delegate’s concerns and potential findings.

3. For these reasons, there is no jurisdictional error revealed by ground one.  I also note that the Applicant did not pursue ground one when he appeared before me today. 

4. The second ground is that

   2.    The Second Respondent denied the applicant procedural fairness and/or made an error of law because the applicant was refused to represent his claims/comments orally. By refusing to schedule an oral interview with the applicant, the AAT fell into error and denied the applicant procedural fairness.

5. As I said in relation to ground one, ground two is also based on a misapprehension of the IAA regime.  There is no obligation on the IAA to allow for oral comments or an oral interview.  Whilst this can happen, it is on the very rarest of occasions where the evidence meets the requirements of those particular sections in the legislation.  Oral interviews do not happen as a matter of course.  There has been no breach of any procedural fairness rule. 

6. Ground two fails to illustrate any jurisdictional error.  I also note that the Applicant did not press this ground in his oral submissions to me today. 

7. When he appeared before me today, the Applicant told me that he did not have enough education because of the war.  He said that he could not study during that time.  He said that he has had health problems.  He told me that he had heart surgery two years ago.  He said that he has not been able to work, so he has not been able to get enough money to have a lawyer appear for him. 

8. When asked about any error that the IAA had made, the Applicant pointed me to paragraph 10 of the reasons.  He said that he had used the word “wadee” to the delegate.  He said that “wadee” is where fishing equipment is stored.  He said that the interpreter had used the word “vaadi”, which means loaning money and getting interest.  He said, “If they got this interpretation wrong, what else did they get wrong?”

9. I went through paragraph 10 with the Applicant.  The particular sentence reads as follows:

   While the applicant stated they were required to pay the local Muslim network, the Chiath, country information indicates payments of the amount claimed were made unofficially per vaadi to Operculum Fisheries Corporation Society until advised by the army to stop payments.

10. I explained to the Applicant that the word “vaadi” came from country information and not from anything that he had said.  I explained to him that the IAA understood that the Applicant was required to pay to be able to fish in the area.  That while he said that he paid the Muslim network, the country information said that payments were made to the corporation. But that this was not important because the money could still have been being paid to the Muslim villagers. The Applicant accepted this and agreed that what he was claiming was what was put to the IAA.

11. The Applicant took issue with the IAA finding that the Muslim group or Chiath, was not acting with the Sir Lankan government.  He said that the IAA refused to accept that this group had nationwide reach and could act with impunity.  He said that all Tamils know that this group does exist and that it acts against Tamils.  He said that the IAA had made a very big error because it refused to accept what all Tamils know. 

12. As far as this complaint is concerned, the evidence before the IAA allowed it to make such a conclusion.  The Applicant just does not accept the IAA finding.  That may be so, but it does not illustrate any jurisdictional error.  It is nothing more than an attempt for an impermissible merits review.

13. The Applicant also said that seven people have gone missing and that no one has heard from them again.  As far as this aspect was a claim by the Applicant that the IAA had not dealt with this issue as he would have liked, it is still an attempt at impermissible merits review.  Because of this, it does not illustrate any jurisdictional error. 

14. The Applicant then made submissions as to what is happening to himself and to Sri Lanka.  He said that the IAA decision was five years ago, and a lot has happened since then.  The Applicant spoke about his own health and how it was not good.  He told me that his blood pressure has gone up.  He said, at times, body parts become numb.  He said that, at times, he cannot even talk, and he reiterated that he had had heart surgery two years ago.

15. He talked also about what was happening in Sri Lanka.  He said, even now, the military is doing whatever they want.  He said people are living on one meal a day.  He said protests are going on all the time.  He said he worries about this, and it affects his health.  He said he simply cannot go and live there anymore.  He spoke about something that Sri Lanka did that the UK said was wrong but that Sri Lanka refuted this and said that they were right.  He was, in effect, saying that no one can have faith in the government there anymore, and therefore, he cannot live there anymore.

16. Those things that he has spoken about may very well be true, and if they are true, they are matters which would garner significant sympathy for the Applicant, but the unfortunate reality is, for the Applicant, that all of this occurs after the AAT has given its decision. 

17. In a review of the decision, the Court can only look at the decision and not what has occurred afterwards, and so those matters cannot be part of my considerations in this matter. 

18. Having looked at the decision of the IAA very thoroughly, I have not been able to find any jurisdictional error.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Associate:

Dated:       1 November 2022