DFL17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 683
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DFL17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 683
File number(s): SYG 2265 of 2017 Judgment of: JUDGE LAING Date of judgment: 23 August 2022 Catchwords: MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority (“IAA”) not to grant a Safe Haven Enterprise (Class XE) (subclass 790) visa – whether the IAA denied the applicant procedural fairness – whether the IAA gave “proper, genuine and realistic consideration” to the applicant’s evidence - whether the IAA’s decision was legally unreasonable – whether the IAA failed to assess the correct social group Legislation: Migration Act 1958 (Cth) ss 5J, 36, 473DA, 473DC Cases cited: AKD16 v Minister for Immigration & Anor [2016] FCCA 3026
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; 297 ALR 225
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497
Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15
SZNOE v Minister for Immigration and Citizenship [2012] FCA 96
Division: Division 2 General Federal Law Number of paragraphs: 36 Date of hearing: 10 August 2022 Counsel for the Applicant: The applicant appeared in-person with the assistance of an interpreter Counsel for the First Respondent: Mr T Reilly appeared in-person Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 2265 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DFL17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
23 August 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs fixed in the amount of $7,206.
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 LAING
Before the Court is an application for judicial review of a decision of the Immigration Assessment Authority (IAA) made on 29 June 2017. The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (protection visa).
BACKGROUND
The applicant is a citizen of Sri Lanka of Tamil ethnicity. He arrived in Australia on 23 April 2013 as an unauthorised maritime arrival. He applied for a protection visa on 9 November 2016, and attended a visa interview on 19 January 2017.
On 20 March 2017, the Delegate refused to grant the applicant a protection visa. The Delegate’s decision was referred to the IAA for review on 23 March 2017.
On 29 June 2017, the IAA affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA accepted that the applicant was from the Eastern Province of Sri Lanka (Trincomalee) (at [7]).
The IAA did not accept:
(a)the applicant’s claims that the Criminal Investigation Department (CID) searched his home in August 2012, that the applicant or his wife were threatened by phone to pay money, that in February 2013 the applicant, his wife or his mother-in-law received further threatening phone calls, or that the CID searched for him at his home. The IAA rejected the applicant’s claims that this occurred because he was perceived to be wealthy and that he will be perceived to be wealthy on his return (at [27]). The IAA found that there had been contradictions and evolutions in the applicant’s claims in this regard as between his protection visa application and various interviews (at [11]-[23]). The IAA also had serious concerns about the authenticity of a purported police statement by his mother-in-law that was submitted in support of the applicant’s claims (at [24]-[26]);
(b)that the applicant’s uncle was a leader in the LTTE (at [29]), or that any of the applicant’s family members or relatives were involved in or leaders in the LTTE (at [36]). The IAA observed that the applicant had not made claims relating to the LTTE in his enhanced screening interview and the applicant had stated in his induction interview that his family did not have an association with any political group (at [30]-[31]). The IAA also found the applicant’s evidence about his uncle to be vague and unconvincing (at [35]);
(c)the applicant’s claims to be of interest to the Sri Lankan authorities or that they suspected him of having been involved in terrorist activities including transporting weapons for the LTTE (at [38] and [53]). The IAA observed that the latter claim was not made in his earlier enhanced screening and induction interviews and had evolved (at [39]-[42]). The IAA also had serious concerns about the authenticity of an arrest warrant, an order to appear and letters from a lawyer and another witness that had been provided to the Delegate. In this regard, the IAA observed certain anomalies in the documents as well as country information indicating both the unlikelihood of the arrest warrant having been obtained as well as the prevalence of document fraud in Sri Lanka. The lawyer’s letter indicated the lawyer did not have personal knowledge of events and lacked details indicating that the signatory was a lawyer assisting the applicant. The Delegate had also observed that an internet search for the address and phone number listed in the letter had produced no results (at [47]-[52]). Considering the evidence as a whole, the IAA was not satisfied that an arrest warrant or an order to appear were issued in the applicant’s name, or that the applicant was suspected by the authorities of being involved in terrorist activities (at [53]); or
(d)that the applicant’s wife and mother-in-law had left Trincomalee to avoid problems after the applicant had left Sri Lanka (at [62]). This was considering limitations in the evidence that had been provided in this regard as well as the IAA’s non-acceptance of the events said to have led to their relocation (at [54]-[61]).
In assessing the applicant’s risk of harm, the IAA found that:
(a)country information indicated that being a Tamil coming from the North or East is not generally sufficient to warrant protection (at [65]-[68]);
(b)as the applicant was not of interest to the CID or any other group prior to his departure, the IAA was not satisfied he would face a real chance of harm as a Tamil from the Eastern province (at [69] and [90]);
(c)if returned to Sri Lanka, the applicant may face a limited period of detention and a fine. However, the IAA found that this would be pursuant to a non-discriminatory law of general application and would not involve serious or significant harm (at [70]-[84] and [89]).
In finding that the applicant did not meet the definition of a refugee, the IAA stated:
85.I am satisfied there is not a real chance of the applicant being harmed by the Sri Lankan authorities, or any other group or person on return to Sri Lanka on basis of his; ethnicity as a Tamil, as a male from the Eastern province of Sri Lanka, on the basis of any actual or imputed political profile, claimed financial position, illegal departure, return as a failed asylum seeker, or for any of the reasons claimed on his return to Sri Lanka.
In relation to the complementary protection criteria, the IAA concluded:
89.As the applicant would be travelling to Sri Lanka as a returnee (whether involuntary or otherwise) on a temporary travel document, I have accepted he may be detained en masse with other returnees for processing on return. I have found he has no adverse profile and would not face any additional detention, penalty or fine and after the processing is complete he will be cleared. I am satisfied that the brief detention and questioning related to the processing of his return would not constitute significant harm. I do not accept it would amount to the death penalty, or result in an arbitrary deprivation of life, or torture. It does not amount to the death penalty; arbitrary deprivation of life or torture. It does not constitute pain or suffering that could be considered cruel or inhuman in nature, severe pain or suffering or extreme humiliation. I am not satisfied he faces a real risk of significant harm on return to Sri Lanka on the basis as a returning asylum seeker from Australia.
90.I have otherwise found the applicant does not face a real chance of harm on the basis of his; ethnicity as a Tamil, as a male from the Eastern province of Sri Lanka, on the basis of any actual or imputed political profile, claimed financial position, his return as a failed asylum seeker, or for any of the reasons claimed on his return to Sri Lanka. As 'real risk' involves the same standard as 'real chance', I am also not satisfied that the applicant faces a real risk of significant harm on these bases.
The IAA therefore found that the applicant did not meet s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) and affirmed the Delegate’s decision.
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the present proceedings on 18 July 2017 through an application containing the following grounds:
1.The Immigration Assessment Authority (IAA) made jurisdictional error in that it failed to give an opportunity to the applicant to contest the validity of the new external information (other than country information) relied on by IAA.
Particulars
In para 51 the IAA observes that "the Lawyers letter is dated 8th March 2017. The name of the lawyer is illegible. I further note that the delegate's finding that an internet search on the address and phone number listed in the lawyer’s' letter produced no results." The IAA has relied on the delegate findings that the address and the phone number did not produce any results. This information that the address did not produce any results on a internet search or in other words “the non existence of the address on internet search” is an external new information relied by the IAA/delegate and it did not constitute Country information or information provided by the applicant. Hence the applicant should have been granted an opportunity to explain the non existence of the lawyer’s address. The applicant does have proof that the address, phone number and the Lawyer name do exist in the Sri Lankan Bar association details . Failure to provide an opportunity to the applicant to contest the validity of the new external information relied upon by the IAA amounts to miscarriage of justice.
2.The Immigration Assessment Authority (IAA) made jurisdictional error in that it failed to give “proper, genuine and realistic consideration” to the evidence on record and the findings suffers from legal unreasonableness.
Particulars
In para 49 the IAA observes that “the order to appear is dated 5th Jan 2014 approximately 5 months after the date of the warrant of arrest. It states pursuant to the order made on 7th May 2013, the applicant failed to attend the police station on 26th May 2013. Neither of these dates correspond with the dates listed on the warrant”. It is submitted that the arrest warrant related to a separate matter not connected to the terrorism related enquiry which the applicant failed to attend on 26th May 2013 for which a letter was issued on 5th Jan 2014 that the failure will attract further registration of new case under the Sri Lankan laws. The IAA presumed that the both relate to the same matter whereas in fact it relates to different matters. This results in IAA failing to give proper, genuine and realistic consideration, to the evidence on record as enunciated in AKD16 v Minister for Immigration & Anor [2016] FCCA 3026 (24 November 2016) at 168 wherein his Honour observes that "For that matter, the decision of the High Court in Minister for Immigration and Citizenship v SZJSS required me to give this issue “proper, genuine and realistic consideration. By undertaking that task I am not thereby engaging in a merits review”.
3.The IAA failed to consider the correct social group to which the applicant belongs, being (i) ethnic Tamil, middle aged male (ii) frequently visited LTTE controlled area (iii) Perceived to have LTTE connections (vi) person of interest to the Sri Lankan Government Authorities as the applicant is being enquired in terrorism related offences (v) failed asylum seeker who Illegally departed the country (vi) Government instituted false criminal cases are pending (vii) possibility of applying the Prevention of Terrorism act upon return to Sri Lanka.
Particulars
The correct social group (PSG) to which the applicant belongs was never considered, the IAA considered only some of the characteristics of the social group viz ethnic Tamil and, failed asylum seeker but have not considered others aspects of the social group It is submitted that the serious harm that would occur to the this PSG (to which the visa applicant belongs) on their return to Sri Lanka was nor properly considered.
Ground 1
By ground 1, the applicant contended that the IAA erred in failing to give him an opportunity to contest “new external information”, namely, the Delegate’s finding that the address and phone number on the “lawyer’s letter” produced no results on an internet search.
The Delegate’s finding in this regard is at page 207 of the Court Book. There, the Delegate observed that “[i]nternet research on the lawyer’s phone numbers produced no results and an internet research of the business address of the lawyer also produced no results”. This was referred to by the IAA at [51] of its decision, in which it stated “I further note that the delegate’s finding that an internet search on the address and phone number listed in the lawyer’s letter produced no results”.
The ground appears to rely upon s 473DE of the Act, which requires the IAA to give particulars of certain “new information” to an applicant. However, the results of the Delegate’s internet search were not “new information” as defined in s 473DC(1) of the Act as they were relevantly “before the Minister when the Minister made the decision under section 65”. Further, s 473DA(2) makes clear that the IAA is not required to give an applicant “any material that was before the Minister when the Minister made the decision under section 65.” The results of the internet search conducted by the Delegate were such material.
It also could not be said to have been unreasonable for the IAA not to have sought further information from the applicant in this regard pursuant to s 473DC of the Act. Whilst the particulars to the ground contend that the applicant could have provided additional relevant information if given the opportunity, the applicant was, in fact, given an opportunity in which to do this. The applicant was on notice of the results of the Delegate’s search from the Delegate’s decision. Had he wished to provide additional evidence to the IAA in this regard, it would have been open to him to have done so.
It follows that I am not persuaded that ground 1 is able to succeed.
Ground 2
By ground 2, the applicant contended that the IAA failed to give “proper, genuine and realistic consideration” to the evidence on record or made findings that were affected by legal unreasonableness. This was said to have occurred on account of the IAA’s reasoning at [49]:
49.The order to appear is dated 5 January 2014, approximately 5 months after the date of the warrant of arrest. It states pursuant to order made on 7 May 2013, the applicant failed to attend the police station on 26 May 2013. Neither of these dates corresponds with the dates listed on the warrant of arrest nor has a copy of the order referred to and dated 7 May 2013 been provided.
Whilst it may be accepted that decision makers are required to engage properly with the claims and evidence before them, the High Court has cautioned against use of labels such as “proper, genuine and realistic consideration” outside of their proper context, lest they be taken as an encouragement towards impermissible merits review: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497 (Plaintiff M1/202) at [26]-[35] (Kiefel CJ, Keane, Gordon and Steward JJ). The “requisite level of engagement by the decision-maker… must occur within the bounds of rationality and reasonableness”: Plaintiff M1/202 at [25]. Whilst this may vary according to context, it is well settled that a “decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them”: Plaintiff M1/202 at [25].
Legal unreasonableness may be found where a decision maker comes to a conclusion that no reasonable decision maker could have reached, or makes a decision that is devoid of an “evident and intelligible justification” (Minister for Immigration and Citizenship v Li [2013] HCA 18; 297 ALR 225 at [68] and [76] per Hayne, Kiefel and Bell JJ). It may also be found “if there is no logical connection between the evidence and the inferences or conclusions drawn” (see Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15 at [43]). However, the test has been described as “necessarily stringent” (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [11] per Kiefel CJ). It is not met where reasonable minds could have come to different conclusions (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130]-[131] per Crennan and Bell JJ).
The applicant contended that the IAA’s findings at [49] were not open to it, and failed to give requisite consideration to his evidence, because they incorrectly assumed that both the arrest warrant and the order to appear related to the same matter. The applicant contended that the “arrest warrant related to a separate matter not connected to the terrorism related enquiry which the applicant failed to attend on 26th May 2013 for which a letter was issued on 5th Jan 2014”.
The difficulty with these contentions is that they do not appear to have been made previously. I have not had my attention drawn to any evidence that was before the IAA indicating that the arrest warrant and the order to appear related to separate matters. Nor has any such evidence become apparent upon my review of the materials.
The arrest warrant stated that it was related to “suspicion of terrorism connection”. As was observed by the IAA, the order to appear was dated around 5 months later. It referred to a failure to attend a police station in connection with dates that did not appear to match those on the warrant.
I accept the Minister’s submission that it was open to the IAA to infer that the documents related to the same matter in the absence of any clear claim or evidence to the contrary. This was in circumstances where the applicant had claimed there was an active case against him following the arrest warrant and had submitted the documents together apparently in support of those claims. Certainly, it was open to the IAA to observe, as it did at [49], the lack of correspondence between the dates on the documents provided.
It follows that I do not accept that the IAA’s reasoning at [49] was closed to it, or failed to reasonably engage with the evidence that was before it. Ground 2 is therefore unable to succeed.
Ground 3
By ground 3, the applicant contended that the IAA failed to consider all aspects of his particular social group.
In terms of the aspects raised, the IAA rejected the applicant’s claims that:
(a)he faced relevant harm on account of his ethnicity or residence in Trincomalee (a previously LTTE controlled area he claimed to have visited and subsequently resided in) (at [65]-[69]);
(b)he had or was perceived to have LTTE connections (at [28]-[36] and [69]);
(c)he was of adverse interest in connection with terrorism related offenses (at [53]) (in support of which the applicant had made submissions regarding the Prevention of Terrorism Act);
(d)he faced a real chance of relevant harm as a failed asylum seeker who had departed Sri Lanka illegally (at [70]-[84]); and that
(e)government instituted false criminal cases were pending (at [37]-[53]).
The effect of the IAA’s reasoning, therefore, was that the applicant did not have a well-founded fear of persecution on the bases that he had contended. Given this conclusion, it was unnecessary for the IAA to assess and identify with precision the applicant’s particular social group(s): SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [78].
Ground 3 is therefore unable to succeed.
A further matter
The reasoning of the IAA at [89] of its decision is extracted above. There, the IAA stated in relation to the complementary protection criterion that it had earlier “accepted he may be detained en masse with other returnees for processing on return” and that it had “found he… would not face any additional detention, penalty or fine and after the processing is complete he will be cleared”.
The difficulty with this is that it was not, on one reading, what the IAA had found in its preceding paragraphs. At [80]-[83], the IAA had regard to country information indicating that returnees who were merely passengers on a people smuggling venture were “fined on a discretionary basis, with fines payable by instalment”. If the applicant plead guilty, he would be required to pay a fine (which he could do by instalment). The IAA was “not satisfied that the payment of a fine in this case amounts to serious harm”.
At the hearing, I raised whether the IAA’s reasoning in [89] might be affected by illogicality. This is because, on one reading, the IAA relied at [89] upon what was said to be its earlier finding that the applicant would not face any penalty or fine after processing at the airport, whereas the actual findings it had made earlier in its reasoning contemplated imposition of a fine.
However, on balance, I am not satisfied that the IAA’s decision was affected by jurisdictional error on this basis. Whilst the IAA’s reasoning at [89] may not have been clearly expressed, I find the most likely inference to be that the IAA, through typographical omission, failed to clearly articulate the intended basis of [89], which was that the applicant would “not face any additional detention, penalty or fine” beyond that which had been earlier considered, and had been considered not to amount to relevant harm. I find this to be a more likely inference than the alternative i.e. that the IAA somehow misunderstood and misapplied its own reasoning mere paragraphs earlier.
That this was what was intended by the IAA at [89] is supported by the IAA’s consideration that the potential fine, which it emphasised was payable by instalments, was incapable amounting to serious harm. Whilst the test for significant harm is not identical, this does show that the IAA considered the harm potentially referable to the contemplated fine fell below a certain level (including below significant economic hardship threatening the applicant’s capacity to subsist: see 5J(5) of the Act). The IAA also, at [84]-[85] and [90], rejected that the applicant would face a real chance or risk of “harm” more generally, including in relation to his return as a failed asylum seeker. At [89], the IAA additionally concluded that it was not satisfied that the applicant “faces a real risk of significant harm on return to Sri Lanka”.
Whilst the language used by the IAA may have been more clearly expressed, the intended meaning appears to have involved rejection of the proposition that the potential fine and other consequences of his departure were capable of amounting to serious or significant harm. I therefore accept Mr Riley’s submission for the Minister that the language used by the IAA at [89] is incapable of amounting to jurisdictional error.
CONCLUSION
For the above reasons, the application must be dismissed.
If successful, the Minister sought costs fixed in the amount of $7,206 which was the scale amount at the time of application. I accept that this amount is reasonable, having regard to the work performed in this matter and the Court’s scale.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 23 August 2022
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