DFV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCA 1310
•21 August 2019
FEDERAL COURT OF AUSTRALIA
DFV17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1310
Appeal from: DFV17 v Minister for Immigration & Anor [2019] FCCA 810 File number(s): VID 382 of 2019 Judge(s): ANDERSON J Date of judgment: 21 August 2019 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court of Australia dismissing application for judicial review of decision of Immigration Assessment Authority (Authority) not to grant protection visa – whether appellant raised with the Authority a discrete claim to fear harm based on the circumstances of his father’s ethnicity – whether such a claim clearly emerged from the materials
Held: appeal dismissed – relevant claim did not clearly emerge from the materials – Authority had no obligation to consider discrete claim
Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa) Cases cited: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503
DFV17 v Minister for Immigration & Anor [2019] FCCA 810
Date of hearing: 13 August 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 37 Counsel for the Appellant: The Appellant appeared in person with the assistance of an
interpreterCounsel for the First Respondent: Mr A Solomon-Bridge Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to
costsORDERS
VID 382 of 2019 BETWEEN: DFV17
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
ANDERSON J
DATE OF ORDER:
21 AUGUST 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of and incidental to the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ANDERSON J:
Introduction and summary
The appellant appeals from the decision of the Federal Circuit Court of Australia (Circuit Court) dismissing the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (Authority). The Authority had affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a temporary protection visa.
The appellant argues that the Authority failed to consider his claim to harm upon return to Sri Lanka by reason of his membership of his family group because of his father’s ethnicity. However, this particular claim is not one that clearly emerges, either expressly or impliedly, from the materials presented to the Authority by the appellant, who had legal representation at time of making his visa application. For this reason, the Circuit Court was correct to reject that the appellant had made a discrete claim that he faced harm because of this father’s ethnicity.
The appellant’s appeal to this Court is accordingly dismissed.
Background
The appellant is a Sri Lankan citizen who is of Tamil ethnicity and a Hindu. He came to Australia by boat on 17 August 2012.
In July 2013, the appellant lodged an application for a protection visa. The application included a statutory declaration and submissions from his legal representative. Those submissions stated that “[t]he essential and significant reasons why the [appellant] fears persecution include”:
1. His ethnicity as a Tamil;
2.His actual/imputed political opinion including of being a ‘perceived sympathizer/supporter of the LTTE’, or as someone seen to hold Tamil separatist views or views supporting a renewal of hostilities against the [Government of Sri Lanka];
3. His membership of the following particular social groups:
i. failed asylum seekers
(Emphasis in original.)
In September 2015, the appellant was informed that his application for a protection visa was invalid and could not be processed, but he was instead invited to apply for a temporary protection visa or a safe haven enterprise visa.
On 16 February 2016, the appellant applied for a temporary protection visa. That application included a second statutory declaration as well as the previous statutory declaration. In April 2016, the appellant provided further documents to support his application.
On 23 May 2016, an officer of the Department of Immigration and Border Protection interviewed the appellant. The appellant, through an interpreter, relevantly said the following in his interview:
[T]he Sinhalese people didn't like my father because my father's father was a Sinhalese man, and then my grandmother married a Tamil and he became a Tamil, so the Sinhalese people didn't like my father because of it, and so they threatened us, saying that they will kill us, and had issued because of it. So even when we returned from India we had problems from my father 's people, and so if anything happens in my father's — in the Tamil area, but they would say "You're a Sinhalese, and why would you say with the Tamils", and they actually beat up my father as well.
…
It was the army, after I came back; they would do roundups, and also the general Sinhalese people as well. It's because we were returned from India, even the general public, they thought we were LTTE, and I can't - when I returned from work at night time, where I was working was, like, a Sinhalese area, so - and when I returned sometimes they'd throw stones at me, and also they would pull my bike and stop me there, and ask me to wait there, and then Sinhalese, they would say "You're a Tiger", and they keep saying that, and they'll come to hit me. Mostly Sinhalese people, and also the army as well, because I'm a Tamil they think I'm - I was a LTTE. Mostly they don't - they sort of had a hatred towards Tamil people.
On 17 October 2016, a delegate of the Minister for Immigration and Border Protection refused the appellant’s visa application.
The Authority’s decision
On 26 October 2016, the matter was referred to the Authority for review. The appellant provided to the Authority a further statement dated 17 November 2016, which attached a newspaper article and medical records with respect to the appellant's father.
In May 2017, the Authority invited the appellant to comment on specific parts of a 2017 DFAT report. The appellant's representatives provided a submission dated 15 May 2017 in response to the invitation, together with further submissions with respect to his case. Those submissions summarised the grounds upon which it was said the appellant would face persecution as follows:
If the [appellant] returns to Sri Lanka, he would against [sic] come to the adverse attention of the Sri Lankan authorities. He would face persecution due to his imputed political opinion and particular-social group (LTTE association) and as a former LTTE supporter on the basis that:
a) Tamil ethnicity;
b) Young male;
c) Suspected LTTE supporter;
d) Comes from a fisherman family;
e) Family links – LTTE association;
f)He (and the family) was harassed by the authorities in the past (due to his above profile)); and
g)The authorities see the [appellant] as a contributor to the re-emergence of the LTTE.
The Authority provided reasons for its decision on 26 June 2017. In the course of reaching its decision, the Authority made various factual findings, including the following at [23] of the Authority’s reasons:
Problems in Sri Lanka
…
23.The applicant has consistently claimed since his arrival interview that his father was abducted on 29 December 2011 and released on 3 January 2012, that they paid money for his release and that the abductors wanted more money. However, he variously said that they don’t know who abducted his father as their faces were covered (arrival interview); his father was abducted by four men from the CID (written statement of February 2016); and his father was abducted by the Intelligence service, consisting of five men including two Muslims and that they were from the CID and the Karuna Group (TPV interview). Additionally, the supporting statement dated 20 August 2012 from his mother refers to his father’s abductors as an unidentified group and unknown gang. Given that the abductors were described as unknown when he first raised the claim and that his mother’s statement says the abductors were unknown / unidentified, I am satisfied that the applicant’s later claims that the abductors were CID or Intelligence service men from the CID and the Karuna Group, or that the CID constantly harassed his father about the money afterwards, are an embellishment to boost his protection claims in relation to the Sri Lankan authorities’ level of interest in him and his family. I accept that the applicant’s father was abducted on 29 December 2011; his father was released on 3 January 2012; the abductors demanded 100,000 rupees but they paid 50,000 rupees to obtain his father’s release; while his father was held he was mistreated by his abductors including suffering an injury to his head; that after his father’s release the abductors threatened the family, including the applicant, about paying further money; and that the applicant believes his father’s death in May 2015 is related to the injuries his father suffered during the abduction.
Having made various factual findings, the Authority turned to the question of whether the appellant was owed refugee protection. This involved the following remarks at [49]-[50]:
Father’s abductors, paramilitary groups and the people smugglers
49. I accept that his father’s abductors threatened and harassed the applicant and his family about paying further money for his father’s release prior to his departure from Sri Lanka and that his family in Sri Lanka were threatened by the people smugglers about the outstanding 3.5 lakhs for his travel to Australia.
50. The evidence does not suggest that the applicant or his family have subsequently paid any further money to the abductors or to the people smugglers. Other than making threats, the applicant does not claim that the abductors or people smugglers have harmed his family, damaged the family’s property or caused his family any loss. Given that it is now almost five years since the applicant left Sri Lanka and in that time the abductors and the people smugglers have not carried out the threats or taken any adverse action against his family in Sri Lanka, I am not satisfied that the applicant is at risk of harm, if he returns to Sri Lanka, now or in the foreseeable future, from his father’s abductors or the people smugglers.
The Authority ultimately held that:
(a)it was not satisfied that the appellant would face a real chance of persecution from the Sri Lankan authorities due to any links with the LTTE either as a result of an imputed political opinion or him being a young Tamil male and fisherman from the east;
(b)there was not a real chance that the appellant would experience harm from those who had abducted his father, people smugglers, or one of the various groups that he identified, either because of unpaid debts or for any other reason; and
(c)it was not satisfied that the appellant faced a real chance of persecution if he returned to Sri Lanka on the basis of being a failed Tamil asylum seeker who had departed illegally.
The Authority accordingly affirmed the delegate’s decision not to grant the appellant a protection visa.
The Federal Circuit Court’s decision
The appellant applied for judicial review of the Authority’s decision not to grant the appellant a temporary protection visa. The appellant was legally represented in the Circuit Court. He advanced four grounds of review, the first three of which are irrelevant for current purposes and were dismissed by the Circuit Court.
The fourth ground of the appellant’s application for judicial review was framed as follows:
4. The Authority failed to consider the applicant’s claim to fear serious or significant harm due to his membership of his family group for reason of his father’s ethnicity. Alternatively, the Authority failed to consider an integer of the applicant’s claim to fear serious harm due to his membership of his family group.
Particulars
a) The applicant claimed in the SHEV interview that his family faced threats on return to India in 2008 because of his father’s ethnic background as a Sinhalese man who had become a Tamil (Transcript, p 21 - 22).
b) The Authority did not refer to the applicant’s father’s ethnicity in its reasons for decision.
c) The Authority, therefore, failed to consider a basis upon which the applicant claimed to satisfy the statutory criteria in s 36(2)(a) or (aa) of the [Migration Act 1958 (Cth)].
d) Alternatively the applicant claimed to fear harm due to membership of his family group. The applicant’s father’s ethnic background was an integral part of that claim, which the Authority failed to consider.
In addressing this ground of review, the Circuit Court had regard to the appellant’s statements in his interview with the Department, as relevantly extracted above at [8], and the Authority’s consideration of the appellant’s claims in relation to his father’s abduction, as extracted above at [12]-[13]. The Circuit Court then determined the ground as follows:
29.The applicant argues that the [Authority] failed to consider an integer of the applicant's claim, namely that he was at risk because his father was ethnically a Sinhalese man, but one who had become a Tamil. … It is argued that the [Authority] did not consider the applicant's father's ethnicity in the decision.
30. The applicant had claimed that his father was abducted in 2011 and only released after a ransom had been paid. The [Authority] accepted that his father had been abducted but found that the attackers were unknown and that the applicant did not face any risk from the attackers in future …
…
32.Counsel for the Minister argues that this passage [i.e. the first paragraph extracted above at [8]] indicates only that his father may have suffered greater mistreatment because he had been a Sinhalese man who married a Tamil and became a Tamil man, rather than this being a basis for fears by the applicant. The last sentence of the passage makes clear that his father's relatives may beat up his father but does not make an allegation with respect to the applicant.
33.The substance of the applicant's claim wasn't mistreatment because he was a Tamil, as he reiterated towards the end of the interview …
34.As counsel for the Minister points out, this particular claim does not appear in the applicant's statement made after his interview with the delegate nor in the representative summary put to the [Authority] of the applicant's background, nor in the summary of claims.
35.When considering the small passage in the transcript in the context of the information more generally I am not persuaded that this was made as a separate claim rather than an incident of the claim by the applicant of mistreatment as a Tamil. In the circumstances I am not persuaded that this ground is made out.
(Citations omitted.)
The Circuit Court accordingly dismissed this fourth ground of review, and the appellant’s judicial review application as a whole: DFV17 v Minister for Immigration & Anor [2019] FCCA 810 (FCCA Reasons).
Appeal to this Court
The appellant appealed to this Court by way of notice of appeal dated 16 April 2019. The notice of appeal set out the following two grounds of appeal:
1.The Federal Circuit Court erred in not finding the [Authority’s] failure to consider the applicant’s claim to fear serious or significant harm due to his membership of his family group for reason of his father’s ethnicity amounted to jurisdictional error.
2.The Federal Circuit Court erred in not finding that the [Authority’s] failure to consider an integer of the applicant’s claim to fear serious harm due to his membership of his family group amounted to jurisdictional error.
By order of a Registrar of this Court dated 1 May 2019, the appellant was required to file and serve a written outline of submissions by 30 July 2019. The appellant did not file any such submissions prior to the hearing.
The appeal was heard on 13 August 2019. The appellant was unrepresented but had the assistance of an interpreter. I asked the appellant various questions about the decisions of the Authority and the Circuit Court.
I asked the appellant to tell me what was wrong with the decision of the Authority. The appellant said he did not have the opportunity to say what he wanted to say to the Authority. He said that, if he had been given the chance by the Authority to provide further information after the interview, he would have done so. He also revisited various aspects of the background information that had been provided to the Authority. The appellant said that:
(a)he had experienced burning to his body during a bomb blast in 2006. As such, if he were to return to Sri Lanka, “they will look at [him] as someone connected to some organisation”. The appellant said “they” will come around to his village, check his body, notice the scars, and think that he was an ex-LTTE member and put him in prison. The appellant said the Authority did not take his burns into consideration; and
(b)because the appellant’s father moved to a Tamil area after getting married to the appellant’s mother, the Sinhalese people were very suspicious of him. After the family spent a year in India, the appellant’s father was accused of being an LTTE member. The appellant’s father was tortured and kidnapped, and the appellant paid ransom money for his release.
The appellant confirmed during the hearing before this Court that he had informed his legal representations of these matters before the Authority’s decision.
The appellant also said that the Circuit Court did not “really consider” the burns to his body and other evidence that he gave.
The Minister was represented in this Court by Mr Solomon-Bridge of counsel who submitted that the appellant never put a discrete claim, either expressly or impliedly, that he faced harm because of his father’s ethnic background. Given that the claim was not made, there was no obligation on the Authority to consider it. The Circuit Court was therefore correct to find that the Authority had not committed jurisdictional error.
Consideration
Ground of appeal (1) – Failure to consider claim to fear of harm due to membership of family group by reason of father’s ethnicity
The premise of the first ground of appeal is that the appellant made a discrete claim to fear harm based on the circumstances of his father’s ethnicity. In the Circuit Court, the only material from which that premise was sought to be established was a passage in the transcript of the appellant’s interview with the Department on 23 May 2016, which is set out again for reference:
[T]he Sinhalese people didn’t like my father because my father’s father was a Sinhalese man, and then my grandmother married a Tamil man and he became a Tamil, so the Sinhalese people didn’t like my father because of it, and so they threatened us, saying that they will kill us, and had issued because of it. So even when we returned from India we had problems from my father’s people, and so if anything happens in my father’s – in the Tamil area, but they would say “You’re a Sinhalese, and why would you stay with the Tamils”, and they actually beat up my father as well.
I accept that a failure by the Authority to consider a claim or component integer is a relevant jurisdictional error: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 (AYY17) at [18] per Collier, McKerracher and Banks-Smith JJ. However, the Authority is only required to consider such claims where they are either the subject of substantial clearly articulated argument, relying on established facts, or otherwise clearly emerge from the materials: ibid.
As to whether a claim clearly emerges, the Full Court in AYY17 set out at [18] the following principles:
(a) such a finding is not to be made lightly;
(b) the fact that a claim might be said to arise from materials is not enough;
(c) to clearly emerge from the materials, the claim must be based on “established facts”;
(d) while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”; and
(e) understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
The passage from the transcript of the appellant’s interview set out above at [27] was relevant to how the appellant’s father may have suffered greater mistreatment when he returned from India because he had been a Sinhalese man who married a Tamil and became a Tamil man. However, the appellant was not claiming in that passage that he suffered or may suffer further mistreatment, additional to that suffered by reason of his being a Tamil, because of his father’s ethnicity. The appellant’s fear of harm was instead based on the claim that the army and Sinhalese people would mistreat him because he was a Tamil. This is apparent from the following passage of the transcript of the appellant’s interview:
It was the army, after I came back; they would do roundups, and also the general Sinhalese people as well. It’s because we were returned from India, even the general public, they thought we were LTTE, and I can’t – when I returned from work at night time, where I was working was, like, a Sinhalese area, so – and when I returned sometimes they’d throw stones at me, and also they would pull my bike and stop me there, and ask me to wait there, and then Sinhalese, they would say “You’re a Tiger”, and they keep say that, and they’ll come to hit me. Mostly Sinhalese people, and also the army as well, because I’m a Tamil they think I’m – I was a LTTE. Mostly they don’t – they sort of had a hatred towards Tamil people.
Given the appellant was represented before the Authority, and there was no clear reference in the submissions of his legal representatives to the purported claim, either in 2013 or in 2017, or in the other information provided to the Authority, my view is that a discrete claim that the appellant faced harm because of his father’s ethnic background does not clearly emerge from the materials. As that claim was not put as a discrete claim by the appellant, there was no obligation on the Authority to consider it, and the Authority could not have committed jurisdictional error in the manner now contended by the appellant.
As a final matter, I do not accept the contention raised at the hearing in this Court by the appellant that he did not have adequate opportunity in his interview with the Department in May 2016 to say what he wanted to say. The end of the transcript of that interview demonstrates that he did have such an opportunity:
[INTERVIEWER]: So if you have anything else you wanted to - any further comments you wanted to make in regard to those questions, you can provide it within seven days. So you can send that to me by email. I'll give you a copy of my email address before you leave today. So we're going to take another short break just to make sure we've covered everything that you want to talk about today, so I'll turn off the recorder.
SHORT ADJOURNMENT [3.45 pm]
RESUMED [3.55 pm]
[INTERVIEWER]: Did you have any more comments to make in response to concerns or information I raised?
INTERPRETER: No.
[INTERVIEWER]: Before we finish the interview today, is there anything you wanted to say in regard to your protection visa application?
INTERPRETER: If I go back to Sri Lanka I have problems there. I don't even know what will happen to me.
[INTERVIEWER]: Did you have anything more to tell me today?
INTERPRETER: No.
[INTERVIEWER]: No, and have you put forward all of your claims for protection today?
INTERPRETER: Yes.
[INTERVIEWER]: Yes. All right, so if you need to provide further information to the Department it will be taken into account prior to a decision being made, and if the Department needs anything further from you we'll be in contact with you. The time is 3.57 pm, and I will conclude your interview. Thank you.
For these reasons, the appellant’s first ground of appeal must be dismissed.
Ground of appeal (2) – Failure to consider an integer of claim to fear of harm due to membership of family group by reason of father’s ethnicity
The second ground of appeal only has separate effect once regard is had to particular (d) provided in relation to the fourth ground of review advanced by the appellant before the Circuit Court, as extracted above at [17]. That particular expressed the following:
Alternatively the applicant claimed to fear harm due to membership of his family group. The applicant’s father’s ethnic background was an integral part of that claim, which the Authority failed to consider
Thus, this second ground proceeds from the alternative premise that the appellant’s father’s ethnicity was an integral part of the appellant’s claim to fear harm due to membership of his family group.
For the reasons given above in considering the appellant’s first ground of appeal, this alternative claim is not established. The appellant did not put his father’s ethnicity, either expressly or impliedly, as a matter which bore upon the risk that the appellant faced personally. For these reasons, the second ground of appeal must also be dismissed.
Conclusion
For the reasons set out above, the appellant’s appeal to this Court will be dismissed with costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Anderson. Associate:
Dated: 21 August 2019
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