DFM17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 98

Federal Circuit and Family Court of Australia

(DIVISION 2)

DFM17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 98

File number(s):	MLG 1537 of 2017
Judgment of:	DEPUTY CHIEF JUDGE MERCURI
Date of judgment:	16 February 2023
Catchwords:	MIGRATION LAW – application for judicial review – decision of the Administrative Appeals Tribunal – Protection (Class XA) visa – Sri Lankan national – where applicant claims to fear harm due to work as sub-editor at anti-government newspaper – where Tribunal found the applicant could return to Sri Lanka and work in media with remote risk of harm – finding that Tribunal’s findings were reasonably available on evidence and material before it – no jurisdictional error established – application dismissed with costs.
Division:	Division 2 General Federal Law
Number of paragraphs:	54
Date of last submission/s:	28 September 2022
Date of hearing:	28 September 2022
Place:	Melbourne
Solicitor for the Applicants:	The First Applicant appeared in person on behalf of the First to Fourth Applicants
Solicitor for the First Respondent:	Mr N Rogers of Australian Government Solicitor

ORDERS

MLG 1537 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DFM17

First Applicant

DFN17

Second Applicant

DFO17 (and another named in the Schedule)

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	16 February 2023

THE COURT ORDERS THAT:

1.The applicants’ application filed on 18 July 2017 be dismissed.

2.The first and second applicants pay the first respondent’s costs in a sum to be fixed if not agreed.

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

DEPUTY CHIEF JUDGE MERCURI:

Introduction

1. This is an application for judicial review of a decision by the Administrative Appeals Tribunal (‘the Tribunal’) to affirm a decision of the delegate for the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Minister’), to refuse the applicants a Protection (Class XA) visa (‘protection visa’).

   Background

2. The applicants are Sri Lankan nationals of Sinhalese ethnicity.

3. The applicants are members of the same family unit.  The first and second applicant are husband and wife respectively and the third and fourth applicants are their children.

4. The applicants departed Sri Lanka lawfully in 2007, initially travelling to Australia on student visas.[1]  The second applicant was the primary holder of the student visa and the first, third and fourth applicants were dependent visa holders.

   [1] Court book at page 866.

   Application for protection visa on 3 April 2013

5. On 3 April 2013, the applicants then applied for a protection visa.[2]

   [2] Court book at page 9.

6. In support of his protection claim, the first applicant provided a statement dated 26 March 2013 in which he outlines the basis on which he claims to meet the requirements of the Migration Act1958 (Cth) for the issuing of a protection visa.[3]

   [3] Court book at pages 187 to 196.

7. In essence, the first applicant claims that:

   (a)he was a journalist employed by the Divaina newspaper, an independent newspaper, and from 2003 to 2007 he was employed there as a sub-editor;

   (b)in this capacity, he reported on connections between ministers and underworld figures in Sri Lanka and faced threats and abuse as a result;

   (c)after the election of the Rajapaksa government in 2005, the newspaper increasingly came under pressure to write articles favourable to the government;

   (d)the applicant and his family supported the United National Party (‘UNP’);

   (e)in 2004, the first applicant had witnessed suspicious activities in a building near his home owned by a notorious drug trafficker which he reported to the police anonymously – the first applicant says that after this incident, and further reports he made to the police, he began to receive threatening phone calls and death threats;

   (f)his father was a well-known artist aligned with the UNP and he and his family was harassed by the Rajapaksa government;

   (g)in August 2007, his mother and sister were seriously assaulted by unknown persons;

   (h)he and his family then left Sri Lanka in 2007 to escape harm; and

   (i)if he were to return to Sri Lanka he would be identified as a failed asylum-seeker and he would be identified as a former journalist who had worked for an anti-government newspaper.

   Refusal of protection visa on 27 November 2013

8. On 27 November 2013, a delegate of the Minister refused to grant the applicants’ application for a protection visa.  The delegate’s decision record is at pages 552 to 594 of the court book.

   Application to Refugee Review Tribunal on 21 December 2013

9. On 21 December 2013, the applicants applied to the Refugee Review Tribunal (as it then was).[4] 

   [4] Court book at pages 595 to 600.

10. On 19 October 2015, the Tribunal affirmed the delegate’s decision (‘First Tribunal Decision’).[5]

    [5] Court book at page 753 and following.

    Application for review of First Tribunal Decision

11. The applicants successfully sought a review of the First Tribunal Decision, and on 25 January 2016, orders were made by consent quashing the First Tribunal Decision on the basis that the Tribunal had failed to consider part of the applicants’ claims, namely that they feared harm as failed asylum seekers.[6]

    [6] Court book at pages 764 to 765.

    Remittal to Tribunal on 11 February 2016

12. On 11 February 2016, the Tribunal wrote to the applicants to confirm that their application for review had been remitted to the Tribunal for reconsideration.[7]

    [7] Court book at pages 767 to 770.

13. On 22 June 2017, the Tribunal again affirmed the delegate’s decision (‘Second Tribunal Decision’).[8]  It is this decision which is the subject of the current judicial review application before this court, lodged on 18 July 2017.

    [8] Court book at pages 862 to 864.

14. In the course of the second Tribunal proceedings, the first applicant, through his then representative, provided a submission dated 21 November 2016 in which he confirmed that his claims remained as set out in his initial 2013 statement to the Department.[9]

    [9] Court book at pages 793 to 796; paragraph [6].

15. The first applicant also provided more up to date country information to the Second Tribunal.  At paragraph [8] of the first applicant’s November 2016 submissions to the Tribunal, the applicant’s representative said:

    8.His claims fall into four categories.  First, in relation to reports he made to police about the nefarious activities of known criminals who were living nearby to his then address.  Second, in relation to articles that he wrote or presided over as a sub-editor at the Divaina newspaper (these articles exposed and/or were critical of the links between underground criminals and various politicians).  Third, in relation to his support for the UNP.  Fourth, as a failed asylum (sic), as a consequence of the above.

    Second Tribunal decision

16. The second Tribunal’s decision dated 22 June 2017, which is subject of this judicial review application, is at pages 865 to 891 of the court book.

17. After setting out the procedural background to this matter, the Tribunal at paragraph [5] identified the relevant issues before it as follows:

    5.The issues in this review are whether any of the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugees Convention in Sri Lanka, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Sri Lanka, there is a real risk that one or all of them will suffer significant harm.

18. At paragraph [8], the Tribunal then set out in detail the claims made by the first applicant in his March 2013 statement in support of his application for a protection visa.

19. At paragraphs [9] to [10], the Tribunal considered evidence provided by the first applicant about his psychological health, as well as medical information about the second applicant’s health after an incident in Melbourne in 2007.  The Tribunal concluded that notwithstanding these issues, both the first and second applicants were able to present their evidence at the hearing without impairment.

20. At paragraphs [12] to [15], the Tribunal considered the applicants’ explanation for the delay in making an application for a protection visa, in circumstances where they arrived in Australia in 2007 and did not make their application for a protection visa until 2013.  Relevantly at paragraph [15], the Tribunal said:

    15.Having regard to the health of both and in particular the harm done to applicant two because of the train attack, and their explanations, I still do not understand why they did not seek protection earlier if their claims of past harms and fears are true.  This leads me to the view that there is doubt that they did, in fact, flee to Australia in fear, leads me to doubt the gravity of their claimed fears, and to doubt their credibility in relation to the events which they claim lead them to fear return.  Having regard to this and to the findings below … I have reached a positive state of disbelief about their claimed fears on leaving Sri Lanka and their claimed fears on return and of much of the details of their claims of past harm.  I find that in relation to these aspects of their claims the applicants are not credible or witnesses of truth. (emphasis added)

21. At paragraphs [41] to [43], the Tribunal considered the applicant’s claims regarding his fears arising from his work as a journalist and sub-editor.  The Tribunal did not accept that this work led to the applicant being considered to be, or having been, responsible for the writing of or publication of articles which exposed the underworld or political links to the underworld.

22. At paragraphs [44] to [45], the Tribunal assessed the first applicant’s claim to fear harm as a result of his observation and reporting of illegal activities in a nearby building in 2004.  The Tribunal did not accept that the applicant was:

    45.…identified as the basis of the complaint/s to the police by anyone, nor that he was known or presumed or suspected by anyone to have been responsible for the police arrests of suspects in 2004 next door, nor that he was threatened as a result of these events.

23. At paragraphs [46] to [52], the Tribunal considered the first applicant’s claims to fear harm as a result of threats he had received.  The Tribunal set out in some detail the concerns it had about these claims and the applicant’s evidence in relation to these matters.  Ultimately, the Tribunal did not accept that the first applicant, or any of the other applicants:

    52.… were ever threatened as a result of the threats to applicant one or for any other reason connected to these claims. I do not accept that the applicants were forced to move from Grandpass because of the threats, nor any of their subsequent moves.

24. At paragraph [54], the Tribunal considered the evidence given by the second applicant about the reasons she gave for her decision to resign from her employment, but did not accept her evidence that she resigned for the reasons claimed, namely, as a result of being threatened.

25. Similarly, at paragraph [57], the Tribunal concluded that although it accepted that the first applicant’s mother and sister may have been harmed in August 2007, it did not accept that it was for the reasons claimed or for any reason connected with the applicant.

26. Ultimately, for these reasons, the Tribunal was not satisfied that the applicant had been threatened or otherwise harmed because of his work in the media before leaving Sri Lanka.[10]  The Tribunal accepted that it was likely if the applicants were to return to Sri Lanka, the first applicant was likely to resume work as a journalist.  However, having regard to its findings about the harm experienced in the past by the applicants, and also having regard to the improvements in the political situation in Sri Lanka in any event, the Tribunal concluded at paragraph [58] that any risk of harm to the applicant as a journalist if he were to return to Sri Lanka was remote.

    [10] Tribunal decision record dated 22 June 2017 at paragraph [58].

27. The Tribunal also considered the applicants’ claims arising from the first applicant’s links to the UNP,[11] as well as failed asylum seekers,[12] concluding that neither of these grounds gave rise to a risk of harm so as to meet the requirements for the granting of a protection visa.  The Tribunal therefore concluded that the applicants’ claims, either individually or cumulatively, did not give rise to a real chance that they would be harmed on their return to Sri Lanka.[13]

    [11] Tribunal decision record dated 22 June 2017 at paragraphs [59] to [62].

    [12] Tribunal decision record dated 22 June 2017 at paragraphs [63] to [70].

    [13] Tribunal decision record dated 22 June 2017 at paragraph [72].

28. For the same reasons, the Tribunal concluded that the applicants did not meet the requirements of complementary protection as there were not substantial grounds for believing that the applicants would face a real risk of significant harm on being returned to Sri Lanka.[14]

    [14] Tribunal decision record dated 22 June 2017 at paragraphs [73] to [76].

    Proceedings in this court

29. The applicants filed their application for judicial review of the Tribunal’s Second Decision, dated 22 June 2017, on 18 July 2017.

30. Orders were made on 16 June 2022 by Registrar Carney permitting the applicants to file and serve any amended application, among other material upon which they sought to rely at the hearing, at least 28 days prior to the hearing.[15]  Notwithstanding these orders, the applicants did not file any such amended application, although written submissions were filed by the applicants on 8 September 2022.

    [15] Similar orders had been previously made on 21 March 2018 requiring the applicant to file any amended application (among other things) by 2 November 2020. 

31. At the hearing before me, the first applicant appeared on his own behalf, as well as on behalf of the remaining applicants.  He was also assisted by a Sinhalese interpreter.

32. When the applicant appeared before me, he confirmed that he had not in fact sought to file any amended application, although he did indicate that he had some further information which he wanted to put to the court, namely up to date information about the position in Sri Lanka which he said supported his case.[16]  As that material had not been before the Tribunal, and given the nature of this court’s role in a judicial review application, I did not grant leave for that information to be relied upon.

    [16] Court transcript at pages 2 and 3.

    Grounds of review

33. In his initiating application, the applicant raises one ground of review attached to which are three particulars, in the following terms:

    1.        The decision of the AAT is affected by jurisdictional error.

    Particulars

    a.The tribunal has erred in its conclusion at paragraph 45 of its decision by asking the wrong question.  The applicant regardless of his role at Divaina would be classified as a journalist by those of his neighbours and this would include the alleged crime boss who most likely would not know the difference between a sub editor and a journalist.  The applicant had stated that he had met the crime boss a few times and then when there is a police raid, suspicions get aroused and there is a real chance that the crime boss may have made inquiries about the applicant and discovered that he was employed by a newspaper and it must have been him who broke the story and notified the police and the applicant was identified as the basis of the complaint to the police.

    b.The tribunal has erred by simply dismissing all his evidence in paragraph 52 and then in paragraph 55 by giving no weight to the following documents; the psychological assessment; the letter from the UJA dated 11 November 2013; letter of support from Nimal Weeraseka dated October 2013; the acknowledgement of complaint letter from the police, dated 25 September 2003; the letter relating to the death threats, 27 December 2006;

    c.The tribunal has not given proper consideration to the Complementary Protection criteria, s. 36(2)(aa).

34. I will address each of these matters in turn.

35. As stated, at the hearing before me, the first applicant appeared for all applicants assisted by an interpreter.  He was asked whether there was anything he wished to say in support of his claims, and in addition to the matters set out in the written contentions he had filed.  In response, the first applicant said:

    (a)the Tribunal had not fully understood what he said;[17]

    (b)there were a lot of things that the Tribunal did not take into consideration;[18]

    (c)he had been followed by underworld figures for two or three years, he received lots of threatening phone calls and he felt that he had not had an opportunity to tell the Tribunal member about these matters;[19]

    (d)the Tribunal did not properly understand and analyse the job that he had as a journalist and that when he was working as a sub-editor, he was not required to write articles and that the Tribunal had not understood that;[20]

    (e)he complained to the police about the death threats he had received, but they did nothing and that is why he no longer reported any other issues of concern;[21]

    (f)the Tribunal member did not take into account the overall claims made;[22]

    (g)the main incident happened in 2004, and after that, the first applicant was followed and threatened;[23]

    (h)the first applicant was able to avoid any harm by moving house at the time;[24] and

    (i)in relation to the delay in applying for a protection visa, the first applicant stated that they applied for a student visa as that was the easiest option initially.[25]

    [17] Court transcript at page 3.

    [18] Court transcript at page 3.

    [19] Court transcript at page 3.

    [20] Court transcript at page 4.

    [21] Court transcript at page 4.

    [22] Court transcript at page 5.

    [23] Court transcript at page 9.

    [24] Court transcript at page 10.

    [25] Court transcript at page 10.

36. In his written submissions, the first applicant stated that he had provided substantial evidence to corroborate his former role as a sub-editor at Divaina and about his activities at the newspaper and with underworld figures.[26]  He also gave significant evidence about being monitored, approached and threatened by criminals and the steps he had taken to complain to the police about these matters.

    [26] Applicant’s Contentions of Fact and Law filed on 8 September 2022.

37. The first applicant further submitted that he had given evidence about his links to the UNP and his activity in support of the UNP.[27]

    [27] Applicant’s Contentions of Fact and Law filed on 8 September 2022 at paragraph [11(j)].

38. Relevantly, in his written submissions, the first applicant said the following:

    11(m).It is submitted on the Main Applicant’s behalf, that there is sufficient evidence to show that the applicant would be targeted on his return for the stories he published in the past.  Sri Lanka is a small country and given he has always lived in the south, it is most likely he will return to the south.  That subsequently, if returned to Sri Lanka, he will need to seek employment to support both himself, his wife and his young family and given journalism is the only career that he has pursued in Sri Lanka and … he will no doubt apply for such positions in this field.  That applying for such a position will entail submitting a resume and he will need to divulge his past experience as a journalist.  It will be then that his past activities with Divaina will most likely come to light and given the large influence the Rajapakse government has on all media in Sri Lanka, he will be targeted by the Rajapakse/underworld crime bosses as an enemy

1. It was further submitted by the applicants that the Tribunal did not properly consider whether the complementary protection criterion was met.  Relevantly, in his written contentions, the first applicant states that he:

   
   

   11(x).… fears being arbitrarily deprived of his life, being tortured or being subjected to cruel, subhuman or degrading treatment or punishment from the Rajapakse government … who are very anti journalist and UNP.

   Particular (a)

2. As stated, by particular (a), the applicants assert that the Tribunal did not ask the correct question in relation to paragraph [45] of its decision.   By this particular of ground 1, the applicant does little more than seek impermissible merits review.

3. It is clear from a fair reading of paragraph [45] that the Tribunal understood the first applicant’s claims in relation to the risk of harm arising from his work at Divaina.  So much is clear from the words ‘regardless of his role at Divaina, he was known to his Grandpass neighbours, and to the crime boss who owned the apartment block as a journalist’ in the opening sentence of paragraph [45]. The Tribunal then goes on to consider this claim, and while it notes that it has some ‘superficial merit’, it goes on to identify a number of concerns with the claim. After setting out those concerns in some detail, the Tribunal then rejected the claims. Ultimately, the Tribunal was not satisfied that the first applicant was known or suspected by anyone to have been responsible for the police arrests.

4. This conclusion, with which the applicants continue to disagree, was reasonably open on the evidence before the Tribunal.  It does not disclose any jurisdictional error.

   Particular (b)

5. In particular (b), the applicants take issue with the way in which the Tribunal dealt with documents submitted in support of the claim for protection.  In particular, the applicants assert that the Tribunal erred by ‘simply dismissing’ all his evidence and then in paragraph [55], giving no weight to various identified documents.

6. A fair reading of the Tribunal decision discloses that it did not simply dismiss the applicants’ evidence.  Rather, it considered his claims, referred to his evidence in support of those claims and then, in a detailed and comprehensive way, explained why it did not accept his claims.

7. Similarly, in relation to the identified documents, the Tribunal had regard to each of them and explained why, in relation to each document, no weight ought to be given to each of those documents.[28]  Again, the conclusions reached in relation to the weight to be given (or not) to each of those documents were reasonably open on the basis of the material before the Tribunal. 

   [28] See Tribunal decision record dated 22 June 2017 at paragraph [55].

8. Therefore, no jurisdictional error arises from the Tribunal’s findings in this regard.

   Particular (c)

9. By particular (c), the applicants assert that the Tribunal failed to give proper consideration to the complementary protection criteria.  As stated above, the applicant expanded upon this ground in his contentions filed in support of his application.

10. For the following reasons, this aspect of ground 1 is also not made out.

11. At paragraph [73], the Tribunal set out the relevant matters that it had to consider in determining whether the complementary protection criterion was satisfied.

12. It was open to the Tribunal, having made the factual findings that it did in relation to the applicant’s substantive claims for protection, to conclude, as it did, that ‘there is no real chance that they will be seriously harmed on return in the reasonably foreseeable future for any of the reasons claimed or any other reason’.[29]The Tribunal also had regard to the stress and psychological harm that might be caused to each of them, and in particular, to the children who have grown up largely in Australia, but concluded that this did not constitute ‘significant harm’ to the applicants or any of them.[30]

    [29] Tribunal decision record dated 22 June 2017 at paragraph [73].

    [30] Tribunal decision record dated 22 June 2017 at paragraph [75].

13. Read fairly and in the context of the detailed findings made, including the credit findings, in relation to the applicant’s substantive protection claims, these findings were reasonably open to the Tribunal.  The Tribunal understood the statutory task before it, considered the evidence and reached conclusions that were reasonably open on the evidence before it.

14. Ultimately, this aspect of ground 1, like the other two, is no more than a disagreement with the conclusions reached and the applicants effectively seek impermissible merits review.

    Conclusion

15. For each of these reasons, the applicants’ application has not been made out.

16. I therefore order that the application be dismissed and the applicants pay the first respondent’s costs in a sum to be fixed, if not agreed.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

Associate:

Dated:       16 February 2023

SCHEDULE OF PARTIES

MLG1537 of 2017
Applicants
Fourth Applicant:	DFP17