DEX16 v Minister for Immigration
[2017] FCCA 2511
•15 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DEX16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2511 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka because of a past association with the LTTE – applicant believed but his fears found not to be well-founded – whether the Authority conducted the review in conformity with its statutory obligations considered – whether the Authority’s assertion that it considered the applicant’s claims cumulatively was a mere “verbal formula” considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5AA, 36, 46A, 473CB, 473CC, 473DB |
| Cases cited: Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 BushellvRepatriation Commission (1992) 175 CLR 408 DDK16 v Minister for Immigration & Anor [2017] FCCA 353 Drake v Minister for Immigration (1979) 24 ALR 577 |
| Applicant: | DEX16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2940 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 17 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr L J Karp |
| Solicitors for the Applicant: | Rasan T Selliah & Associates |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application as amended on 20 September 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2940 of 2016
| DEX16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 29 September 2016. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the applicant filed on 20 September 2017.
The applicant is a 30 year old Sri Lankan national of Tamil ethnicity, born in Point Pedro in the far north of the country.[1] He arrived undocumented at Christmas Island on 17 August 2012,[2] and was thus an “unauthorised maritime arrival” pursuant to s.5AA and s.46A(1) of the Migration Act 1958 (Cth) (Migration Act). Upon being given written notice by the Minister under s.46A(2) (which may be assumed in this case), and having lodged a protection visa application, he became a “fast track applicant” as that term is defined in s.5 of the Migration Act.
[1] Court Book (CB) 13, 45
[2] CB 192
The application for a Safe Haven Enterprise Visa (SHEV) was lodged on 13 October 2015.[3] In a statement attached to that application[4] and in his SHEV interview on 3 December 2015,[5] the applicant claimed that:
a)his family lived and had their farm in Liberation Tigers of Tamil Eelam (LTTE) controlled territory during the war;[6]
b)as it was compulsory for one member of each family to contribute to the LTTE, the applicant worked as a driver from February 2007 to March 2009.[7] This was a paid position. He transported fighters and ferried wounded to hospital. He also carried bodies, as well as food and equipment for the LTTE, including weapons.[8] In this way he avoided having to train with weapons and to fight;
c)he was badly injured by a shell in March 2009 and spent some time (10 or 20 days) in hospital;[9]
d)about two weeks after leaving hospital he and many other Tamils were rounded up and taken to the Menik Farm Detention Camp where he was interrogated, beaten once and lined up in front of masked informers. Those who were singled out by the informers were taken away and the applicant does not know what became of them;[10]
e)after release in May 2010, he was ordered to report to the CID office in his village every two weeks.[11] He worked part time or casually as a bus conductor in 2010 and 2011;
f)on one occasion whilst working he was taken for interrogation after, he believes, being informed on by “village boys” who were paid informers and who knew he had worked for the LTTE.[12] He was threatened with detention if he did not give information;[13] and
g)in 2011, fearing that he may again be the victim of paid informants who knew about his background of working for the LTTE, he stopped working, and made arrangements to leave the country.[14]
[3] CB 86-110 and 162-163
[4] CB 115-120
[5] (transcript annexed to the affidavit of Freshta Nawabi made on 19 September 2017)
[6] CB 116 [20]; Transcript (T) 7-8
[7] CB 116 [22]; T 10, 14
[8] CB 116 [22]; T 10, 12, 24
[9] CB 116 [24]-[25]; T 15-16
[10] T 116-7; T 26-7
[11] T 117 [32]; T 22-3
[12] CB 117 [32]; T 21
[13] CB 117 [32]
[14] T 22-23
The applicant stated through the interpreter at interview, when asked what he feared in Sri Lanka:[15]
Okay, so like yeah, say, anytime they can take me back. Like yeah, so if I return back, like there’s not, no, it’s, there’s no peace of mind for me, like yeah. I had to live in fear. Any time, they can come and take me. (emphasis added)
[15] T 26
The applicant’s migration agent made submissions backed by country information,[16] which relevantly was to the effect that:
a)the security forces and those allied to them have engaged in systematic abuse, including torture and sexual violence, of people suspected of LTTE links;[17]
b)some failed asylum seekers have been tortured;[18] and
c)Tamils, including men, have been detained and sexually tortured until bribes were paid.[19]
[16] CB 123-155
[17] CB 130-132, 141
[18] CB 135-136
[19] CB 139, cf 179
Also submitted was country information to the effect that abduction, torture and sexual violence of mainly Tamils by the security forces continued after the Sirisena government was elected in 2015, with the perpetrators making no effort to hide their identities.[20]
[20] CB 147-152
In a post interview submission, the applicant’s migration agent also argued that:
a)there was ongoing targeting of people with actual or perceived links to the LTTE, and a link to the LTTE will expose an individual to harm, including torture, irrespective of how long the link has been known;
b)militias often brokered between the government and family members in exchange for money the release of detained Tamils tortured because of perceived or alleged LTTE connections;[21]
c)the applicant’s cumulative risk profile should be considered in the light of country information. It is too simplistic to assume that that because the applicant was not detained prior to his departure from Sri Lanka he is not at risk of future harm;[22]
d)involuntary and arbitrary detention for prolonged periods continues, including in irregular places of detention. Abuses by the security forces include killings carried out in a widespread manner against civilians and other protected persons;[23] and
e)Department of Foreign Affairs and Trade (DFAT) reports should be viewed with caution, as it is a government agency tasked with advancing Australia’s interests abroad. It had been reported in The Australian, for example, that the former Sri Lankan Prime Minister stated that the Australian government had agreed to stay silent on Sri Lankan human rights abuses in exchange for the Sri Lankan Navy stopping Tamil asylum seekers from fleeing Sri Lanka.[24] The submission went on[25] to argue that the DFAT report concerning bureaucratic and legal procedures and provisions for detention fails to take into account the disregard for the rule of law which has plagued Sri Lanka.
[21] CB 173-176
[22] CB 179
[23] CB 182-3
[24] CB 183-4
[25] at CB 184
The delegate’s decision
The delegate accepted the applicant’s claims as to his history and experiences. He also found, based on a Human Rights Watch Report, that despite improvements in the security situation the Sri Lankan authorities continue to act unlawfully and with impunity, and engage in arbitrary arrest, enforced disappearances, torture and custodial killings.[26] However, based on the applicant’s history of being released from Menik Farm detention centre on reporting conditions rather than being placed in a rehabilitation camp, and a lack of apparent interest in him by the security forces between the time he stopped work in 2011 to his departure from Sri Lanka, the delegate concluded that the applicant did not have a profile which would cause him to face a real chance of persecution if returned.[27]
[26] CB 213-4 [109]
[27] CB 214-216
The delegate also considered whether the applicant would be at relevant risk for reason of his race, religion, status as a failed asylum seeker and for a combination of these, and decided that he would not.[28]
[28] CB 216-222
The decision of the Authority
The Authority decision was not as detailed as that of the delegate. The Authority accepted that the applicant avoided active combat by taking up employment with the LTTE as a driver,[29] and that while at Menik Farm the applicant was questioned by CID officers and “may have been mistreated”.[30] It accepted that the applicant was detained at Menik Farm for about a year and was released in May 2010.[31] It found, after considering the 2012 UNHCR Guidelines, that the Sri Lankan authorities were aware of the applicant’s employment as a driver for the LTTE and that as he was released from Menik Farm they were satisfied that he was not a person of interest,[32] and although he subsequently underwent low level questioning he was neither arrested nor detained.[33]
[29] CB 285 [10]
[30] CB 285 [12]
[31] CB 286 [13]-[14]
[32] CB 286 [14]-[15]
[33] CB 286-7 [17]
Relying almost exclusively on a DFAT report of 18 December 2015, the Authority concluded that the monitoring and harassment of Tamils has decreased under the Sirisena government and that the Tamil community feels more confident to refuse or question the motives of monitoring activities. Given that the available evidence indicated that the applicant had not engaged in separatist activities either in Sri Lanka or since he has been in Australia, or would be perceived as having done so, the Authority was not satisfied that the applicant would have a real or perceived profile that would attract the attention of the Sri Lankan authorities.[34]
[34] CB 288 [21]
Relying on the same DFAT report, the Authority found that the applicant did not have a well-founded fear of persecution, or a real risk of significant harm for reason of his religion, his illegal departure from Sri Lanka or being a failed asylum seeker.[35] It also stated that it had “regard to the applicant’s circumstances both individually and cumulatively”.[36] Whether it actually did so is considered below.
[35] CB 288-291
[36] CB 291 [42]
The current proceedings
These proceedings began with a show cause application filed on 26 October 2016. The applicant now relies upon an amended application filed on 20 September 2017. There is one particularised ground in that application:
1. The second respondent (the IAA) failed to conduct its review pursuant to s.473CC of the Migration Act, according to law.
Particulars
(a) Failure to consider information that was before it, pursuant to s.473DB of the Migration Act, to the effect that;
(i) Abduction, torture and sexual violence of mainly Tamils by the security forces continued after the change of government in 2015, with the perpetrators making no effort to hide their identities.
(ii) Despite improvements in the overall security situation, security forces have continued to engage in human rights abuses, including arbitrary detention, enforced disappearances, torture and murder (CB 213-4).
(b) Failure to consider clearly articulated submissions advanced on behalf of the applicant to the effect that;
(i) There was ongoing targeting of people with actual or perceived links to the LTTE with those targeted at risk of harm, including torture, irrespective of how long the link has been known.
(ii) Militias often brokered the release of torture victims between the government and victims’ families for money.
(iii) DFAT reports were framed to “advance Australia’s interests” and could not be relied upon in considering whether the applicant faced harm upon or after his return to Sri Lanka.
(c) The second respondent failed to consider the applicant’s claims cumulatively, despite its statement at CB 291 [42] that it did so.
Particular (b)(iii) was not relied upon in the light of the Authority’s reasoning at [9].[37]
[37] CB 285
In addition to the court book filed on 5 January 2017, I have before me as evidence the affidavit of Ms Nawabi, made on 19 September 2017, to which is annexed a transcript of the protection visa interview conducted by the delegate.
Both the applicant and the Minister filed written submissions and also made oral submissions through their counsel at the trial of the matter on 17 October 2017.
Consideration
Applicant’s contentions
Relevant principles
The objective of any administrative review, including under s.473CC, is said to be to come to the “correct or preferable decision”[38] within the limits of the reviewer’s statutory powers and on the material before it.[39]
[38] cf BMB16 v Minister for Immigration [2017] FCAFC 169 at [85]
[39] see e.g. Drake v Minister for Immigration (1979) 24 ALR 577 at 589; BushellvRepatriation Commission (1992) 175 CLR 408 at 425; Minister for ImmigrationvLi (2013) 249 CLR 332 at 342
At a minimum, the material before the Authority is that referred to in s.473CB of the Migration Act:
473CB Material to be provided to Immigration Assessment Authority
(1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b)material provided by the referred applicant to the person making the decision before the decision was made;
(c)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
…
Section 473DB(1) states:
473DB Immigration Assessment Authority to review decisions on the papers
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
Thus, the Authority must consider the review material. This includes all information and submissions made and, the applicant submits, the reasons of the delegate and the information referred to by the delegate.
Quite apart from that, the task of review, under well recognised principles, includes consideration of submissions, documents and information before the Reviewer.[40]
[40] see e.g. Minister for ImmigrationvMZYTS (2013) 230 FCR 431; Minister for Immigrationv SZRKT (2013) 212 FCR 99 at [111]-[112]; SZSSCvMinister for Immigration (2014) 317 ALR 365 at [75]-[80]
The applicant contends that the Authority’s reasons do not engage, or attempt to engage, with the following:
a)the migration agent’s submissions that there was ongoing targeting of people with actual or perceived links to the LTTE, with those targeted being at risk of harm, including torture, irrespective of how long the link has been known;[41]
b)the migration agent’s submission that militias often brokered the release of torture victims between the government and victims’ families for money;[42]
c)information[43] that abduction, torture and sexual violence of mainly Tamils by the security forces continued after the Sirisena government was elected in 2015, with the perpetrators making no effort to hide their identities; and
d)the delegate’s finding, based on a UNHCR report, that despite improvements in the overall security situation, security forces have continued to engage in human rights abuses, including arbitrary detention, enforced disappearances, torture and murder.[44]
[41] CB 173-4
[42] CB 175
[43] at CB 147-152
[44] CB 213-4
The grounds of review
Thus, the applicant submits that the Authority failed to review the delegate’s decision pursuant to s.473CC. It has failed to “consider the review material” as it was required to do under s.473DB(1), which includes the documents and submissions before the delegate and the delegate’s finding.
There is one other matter. As referred to above, the Authority stated that it considered the applicant’s claims cumulatively. That should not be accepted uncritically. In Minister for ImmigrationvGuo[45] Kirby J stated that the Court reviewing a decision must look behind the assertion that a matter has been taken into account to determine whether there has been a real, as distinct from a purported exercise of power.
[45] (1991) 191 CLR 559 at 595
In the current case the Authority considered the individual bases upon which the applicant feared harm upon return to Sri Lanka, for the purposes of s.36(2)(a) of the Migration Act,[46] and for the purposes of s.36(2)(aa).[47] There is said to be no indication whatsoever that it looked at whether the applicant’s profile in one respect may accumulate with his profile in other respects to produce an objective fear of relevant harm. It engaged in a purported, rather than real, exercise of its jurisdiction.
[46] at CB 285-290
[47] at CB 290-291
Minister’s contentions
The first particular claims that the Authority failed to consider information (in the applicant’s submissions to the delegate) that abduction, torture and sexual violence against Tamils continued after 2015, and that security forces have continued to engage in human rights abuses. This is said to be not a fair reading of the Authority’s reasons, contrary to Minister for Immigration v Wu Shan Liang.[48] The Authority summarised the applicant’s claims at [5],[49] and included at CB 284.3 reference to both of these matters. There is accordingly no basis to suggest that they were not considered by the Authority. The Authority at [18]-[21][50] was nevertheless entitled to reason that on the basis of country information the applicant did not face a well-founded fear of harm as a Tamil. The choice and assessment of the weight of country information is a factual matter for the Authority.[51]
[48] (1996) 185 CLR 259 at 271-272
[49] CB 283
[50] CB 287-288
[51] NAHI v Minister for Immigration [2004] FCAFC 1 at [13]
The second particular claims that the Authority failed to address submissions of the applicant that there was ongoing targeting of people with actual or perceived links to the LTTE, that militias often brokered the release of torture victims for money and that DFAT reports could not be relied upon. Again, this is said not to be a fair reading of the Authority’s reasons. The Authority did not have to mention every contention in the applicant’s submissions.[52] The Authority accepted that the applicant may be imputed with the profile of an LTTE supporter, and that he had been detained and subsequently released, but found that based on his individual circumstances there was not a real chance of persecution if he returned to Sri Lanka.[53] That addresses the claims made concerning the applicant’s fear of harm due to imputed support for the LTTE. The Authority explicitly considered at [9] the claim that DFAT reports could not be relied upon.[54]
[52] Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 at [46]
[53] CB 286-287 [15]-[17]
[54] CB 285
The third particular contends that the Authority failed to consider the applicant’s claims cumulatively. This is again said to be an unfair reading of the Authority’s reasons. The Authority states at [33][55] and [42][56] that it considered the applicant’s claims and circumstances individually and cumulatively. The applicant’s submissions claim that the Authority did not consider the accumulation of the applicant’s profile in different respects, but the Authority accepted that he may be imputed with the profile of an LTTE supporter,[57] albeit not playing any leadership role,[58] and on a fair reading took into account this profile when considering the applicant’s risk of harm as a Tamil,[59] and for his illegal departure,[60] and when considering complementary protection.[61]
[55] CB 290
[56] CB 291
[57] CB 286 [15]
[58] CB 287 [17]
[59] CB 288 [21]
[60] CB 290 [32]
[61] CB 291 [38]
Resolution
The Authority summarised the applicant’s claims at [5] of its reasons[62] and it cannot be argued that there was a complete failure by the Authority to consider his claims or submissions made in support of them. The issue here is whether there was an active intellectual engagement with those claims and submissions. In NAJT v Minister for Immigration,[63] Madgwick J at [212] referred to the judgment of Sackville J in Singh v Minister for Immigration[64] at [58] where his Honour had stated:
A decision-maker may be aware of information without paying any attention to it or giving it any consideration. In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration – had in Black CJ’s phrase in Tickner v Chapman … engaged in an active intellectual process in relation to the letter – yet remained silent about such consideration in the reasons he gave.
(citation omitted)
[62] CB 283-284
[63] [2005] FCAFC 134
[64] (2001) 109 FCR 152
There is no doubt that there was an active intellectual engagement with the applicant’s submissions to the delegate at [9] of the Authority’s reasons. That was necessary, as the Authority plainly preferred the December 2015 DFAT Country Information Report on Sri Lanka to the country information relied upon by the applicant. The applicant’s claims were quite detailed and his statement appears from CB 115. He repeated his claims at the interview conducted by the delegate. Post hearing submissions were put to the delegate on behalf of the applicant. Those submissions were detailed and cogently argued and are reproduced at CB 173. Relevant country information is reproduced at CB 147 and onwards. All of this went to the applicant facing a risk of torture. He had several attributes which exposed him to that risk and those representing him before the delegate had put forward the best possible case that could be made. That was, however, not sufficient to persuade the delegate, and the Authority had the benefit of the delegate’s reasons in reviewing the matter.
The applicant made no submissions to the Authority on the delegate’s decision.
While the detail of what was put before the delegate on behalf of the applicant probably merited more fulsome consideration by the Authority, it is tolerably clear from the Authority’s reasons that the Authority was not only aware of that information but considered it. Further, the Authority twice asserted in its reasons that it had considered the applicant’s claims cumulatively[65]. While there are cases where such an assertion is so artificial or divorced from an active intellectual engagement that it may be dismissed as a verbal formula,[66] this is not such a case. It is plain from the Authority’s reasons that it placed heavy reliance on the general improvement of circumstances for Tamils (including those who had formerly been associated with the LTTE) from 2015 onwards. The applicant had left Sri Lanka in 2012 and had no personal experience of those improving conditions. The Authority at [15][67] specifically had regard to the applicant’s risk factors by reference to guidelines published by the UNHCR.
[65] See [29] above
[66] See for example DDK16 v Minister for Immigration & Anor [2017] FCCA 353
[67] CB 286
In my opinion, the conclusions reached by the Authority were open to it on the material before it and sufficient was done in the Authority’s reasons to demonstrate that it had engaged with the review material consistently with ss.473CC and 473DB of the Migration Act. Further, I am satisfied that the Authority considered the applicant’s claims cumulatively as it asserted it did.
Conclusion
The applicant has failed to demonstrate that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 15 November 2017
0
15
2