DGD17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 645
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DGD17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 645
File number(s): MLG 1548 of 2017 Judgment of: JUDGE HUMPHREYS Date of judgment: 11 August 2022 Catchwords: MIGRATION – Immigration Assessment Authority – whether the Authority made findings without any proper basis – whether Authority was irrational, illogical and unreasonable – whether there was jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 36, 473CB
Immigrants and Emigrants Act
Cases cited: CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496
Minister for Immigration and Border Protection v Eden [2016] FCAFC 28
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of last submission/s: 8 August 2022 Date of hearing: 8 August 2022 Place: Parramatta Counsel for the Applicant: Mr Foster Solicitor for the Respondents: Mr Taylor ORDERS
MLG 1548 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DGD17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
11 AUGUST 2022
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The applicant is dismissed.
3.The Applicant to pay the First Respondent’s costs fixed in the sum of $6700.00.
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 HUMPHREYS
INTRODUCTION
The applicant is a citizen of Sri Lanka. The Applicant arrived in Australia on 17 November 2012 as an unauthorised maritime arrival.
On 11 February 2016, the applicant applied for a Safe Haven Enterprise visa (“Protection visa”). On 18 November 2016, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his Protection visa.
On 23 November 2016, the applicant’s Protection visa application was referred to the Immigration Assessment Authority (“the Authority”) for merits review. On 3 July 2017, the Authority affirmed the delegate’s decision not to grant the applicant’s Protection visa.
The applicant now seeks judicial review of the Authority’s decision in this Court.
THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION
Paragraphs 1 to 3 of the Authority’s decision record provides the background of the applicant’s protection claims and the delegate’s decision.
Paragraphs 4 to 9 of the Authority’s decision record confirms the information that the Authority had regard to. The Authority considered material referred by the Secretary under s 473CB of the Migration Act 1958 (Cth) (“the Act”). On 12 December 2016, the Applicant provided submissions to the Authority and these were relied on to the extent that the information was also before the delegate. The Authority was satisfied that there were exceptional circumstances to justify considering new information contained within the United Nations Committee Against Torture report of 9 December 2016. The Authority also found that there were exceptional circumstances to justify the consideration of new information contained within the Department of Foreign Affairs and Trade (“DFAT”) country information report of 24 January 2017.
At paragraph 10 of the decision record, the Authority summarises the applicant’s protections claims as follows:
•The applicant is a Tamil Hindu who was born in the Northern Province of Sri Lanka. The applicant’s mother and siblings remain in this district.
•One of the applicant’s brother, M, is about six years younger than the applicant. Sometime prior to 2009, the Liberation Tigers of Tamil Eelan (“LTTE”) came and took the applicant and M away to become soldiers. The applicant’s parents came and pleaded for their return. The next day, the LTTE let the applicant go but M was kept and became a combatant.
•In 2009, M was captured by the Sri Lankan Army (“SLA”) and was sent to detention and rehabilitation camps. In May the same year, the applicant and his family were sent to a Displaced Person’s (“DP”) camp until July 2011.
•While he was in the camp, the applicant was questioned by the authorities on a number of occasions. He claims that he was suspected of links to the LTTE because of his brother and because he had lived in a LTTE-controlled area.
•After the family was released from the displaced person’s camp, the situation with the SLA and the Criminal Investigation Division (“CID”) got worse. The applicant had to sign in at the police camp twice a month.
•On one occasion, the applicant could not go to the camp because he was sick. The SLA and CID came to his home, took him to the camp and beat him severely. He still has scars and injuries from this beating.
•The applicant continued signing in twice a moth every month and was subject to beatings and torture. He was asked questions about M and other boys he had been at school with. He was asked to sign a document but he refused to do so. He was told not to leave the area.
•The last time that the CID called for him was in July 2012, just before he left Sri Lanka.
•In 2013, M was released from a detention camp but he is still subject to surveillance, monitoring and monthly registration. The applicant claims that M is often beaten. The applicant also claims that the authorities visit the family home regularly and ask questions about M (if he is not there) as well as the applicant.
•The applicant claims that if he returns, the authorities in his district will find out and will harm him. They will also harm him because he left Sri Lanka despite being told not to leave his area.
At paragraph 13 of the decision record, the Authority accepted the applicant’s claimed identity as a Tamil Hindu who resided in the Northern Providence of Sri Lanka.
Paragraphs 14 to 18 deals with the applicant’s claim that his brother, M, was in the LTTE. The Authority accepted that M was forcibly recruited into the LTTE prior to 2009. The Authority also accepted that M was detained and subject to rehabilitation for a period of three and a half years before being released in 2013. The Authority noted that the applicant’s claims were consistent with DFAT country information and accepted that M may have been subject to periods of monitoring, questioning and reporting since being released from rehabilitation. Although the Authority accepted that M may have suffered mistreatment at the hands of Sri Lankan authorities, the Authority also noted that there was no evidence that the authority’s level of suspicion, monitoring or harassment increased. Accordingly, the Authority considered the applicant’s brother to be a low-level former member of the LTTE on his release from rehabilitation, and that this profile had not increased.
At paragraph 21 of the decision record, the Authority accepts that as the older brother of a known and detained LTTE combatant, the applicant had been identified and interrogated while in a DP camp, and that he was not physically harmed, screened out as having any association with the LTTE or subjected to any other harm or adverse interest.
At paragraph 24, the Authority accepted that the applicant was taken to a police camp and beaten, however this only happened on one occasion. The applicant’s evidence indicated that this beating occurred as a result of non-attendance at a sign in, not as a result of or during any interrogation.
At paragraph 25, the Authority was not satisfied that the applicant suffered any other incidents of violence at the level and frequency as was claimed, but accepted that the applicant suffered harassment, threats, pushing and slapping during interactions with the authorities. The applicant considered evidence given to the delegate where he only referred to one incident where that occurred after he had failed to sign in and the applicant’s doctor’s report which referred to one occasion of beating and there being no questioning.
At paragraph 26, the Authority finds that the applicant was seriously assaulted on one occasion due to his failure to attend and sign in and that this was not related to any suspicion or adverse profile, other than being recently released from a DP camp.
At paragraph 35, the Authority was satisfied that the applicant would not be considered differently to any other young Tamil males with no adverse profile and noted at paragraph 36 that the United Kingdom Home Office (“UKHO”) country information report of 19 May 2016 does not indicate that young Tamil males face a real chance of serious harm on the basis of age, ethnicity or their geographic origins alone.
At paragraph 37, the Authority was satisfied that the applicant is not at a risk of harm should his scarring be noted by the Sri Lankan authorities. In dealing with this issue, the Authority referred to the UKHO country information report of 19 May 2016.
At paragraph 38, the Tribunal was satisfied that the applicant would not face a real chance of serious harm on the basis of being a young Tamil make, or a Tamil from the North.
At paragraph 39, the Authority notes that no claims were made, and there was no evidence before the Authority, that he or any member of his family had suffering any harassment, discrimination or violence due to being Hindu. The Authority was satisfied that the applicant does not face a real chance of serious harm on the basis of being a Hindu.
At paragraph 40, the Authority was satisfied that the applicant departed Sri Lanka illegally. The Authority noted that, according to the DFAT country information report of 2017, the risk of torture or mistreatment for the majority of returning Tamils is low, including those suspected of committing offences under the Sri Lankan Immigrants and Emigrants Act (“I & E ACT”). At paragraph 41, the Authority accepted that the applicant may be questioned upon return to Sri Lanka as part of airport screening processes but was not satisfied that the applicant would be at risk of harm on the basis of any adverse security or criminal profile.
Paragraphs 43 to 49 deal with the consequences of the I & E Act in relation to the applicant. At paragraph 45, the Authority found that there is a real chance that the applicant would be charged and fined under the I & E Act. The Authority further found that any fine, or the requirement for any bail, surety or guarantee, would not constitute serious harm. At paragraph 47, the Authority was satisfied that the I & E Act operates as a law of general application for all Sri Lankans equally.
At paragraph 48, the Authority was not satisfied that the applicant would face a real chance of serious harm on the basis of any real or imputed support for the LTTE, including by reason of an association with his brother, being a Tamil, a young Tamil from the North or a Hindu, having left Sri Lanka while subject to reporting requirements and being a returned asylum seeker who departed Sri Lanka illegally. At paragraph 49, the Tribunal also considered the claim cumulatively to find that the applicant does not have any adverse profile with the authorities for any reason, and was satisfied that together with his illegal departure he does not face a real chance of serious harm.
At paragraph 50, the Tribunal concludes that the applicant does not meet the requirements of the definition of a refugee in s 5H(1) and does not meet s 36(2)(a) of the Act.
Paragraphs 51 to 58 deal with the complimentary protection assessment. Paragraphs 51 and 52 describe the complimentary protection requirements.
At paragraph 53, the Authority repeats that it finds that the applicant does not face a real chance of risk of significant harm for reasons of association with his brother, being a Tamil, a young Tamil from the North or a Hindu, having left Sri Lanka while subject to reporting requirements and being a returned asylum seeker who departed Sri Lanka illegally.
At paragraph 54, the Authority was not satisfied that the applicant faces a real risk of any harm due to being identified as a returned asylum seeker for the purpose of s 36(2)(aa) of the Act.
At paragraph 56, the Authority was not satisfied that the questioning or the imposition of a fine, separately or in combination with the brief period of detention to which the applicant may be subject, constitute significant harm as defined under ss 5 and 36(2A) of the Act.
At paragraph 58, the Authority concludes that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm and that the applicant does not meet s 36(a)(aa) of the Act.
GROUNDS OF JUDICIAL REVIEW
The applicant’s single ground of judicial review is contained within an amended Initiating Application filed with the Court on 24 June 2022. The ground of judicial review and its particulars are reproduced below verbatim:
1. The IAA erred when, having observed there was no evidence before it that indicates the applicant would be at any increased risk of arrest or detention because he left Sri Lanka while subject to reporting conditions, it was satisfied he would not be at risk of return on the basis of any adverse security or criminal profile.
Particulars
i.[41]
ii.The IAA took into account the applicant left Sri Lanka while subject to reporting conditions and states “although he did leave Sri Lanka while subject to reporting requirements, there is no evidence before me that indicates he will be at any increased risk of arrest or detention because of this.” [41];
iii.The IAA referred to various country information reports none of which considered returnees with the applicant’s profile, including the fact that he left Sri Lanka while subject to reporting requirements and had been previously beaten as a result of having missed a reporting requirement;
iv.The IAA failed to properly consider that the applicant might face a real chance of serious harm having left Sri Lanka while subject to reporting requirements, in light of the fact the IAA was prepared to accept the applicant’s claim he was taken to the police camp and beaten as a result of his failure to report on an occasion prior to him leaving Sri Lanka [24];
v.The IAA further failed to properly consider and take into account that the applicant might face a real chance of serious harm having left Sri Lanka while subject to reporting requirements after being beaten as a result of his failure to report on an earlier occasion, the IAA finding that returnees who had left while subject to reporting requirements would not be at any increased risk of arrest or detention and so were in the same position if they had left not being subject to reporting requirements, when there was no material or evidence before the IAA which advanced this position before the IAA;
Accordingly, the IAA made findings without any proper basis and failed to take into account the applicant’s previous experience with the authorities when he was beaten, such findings being irrational, illogical and unreasonable, thereby committing jurisdictional error.
THE APPLICANT’S SUBMISSIONS
In brief written submissions, the legal representative for the applicant, restates that in paragraph 41 of the decision that the Authority took into account that the applicant may be questioned on return as part of airport screening processes and that country information indicated that this could involve an interview, contact with police in his home area, his family and/ or neighbours and criminal and court record checks.
The applicant’s submissions continue that at paragraph 42, the Authority took into account that the United Nations accepts that torture continues in Sri Lanka and stated ‘but when considered against my finding that the applicant has no adverse profile with the authorities, I find that there is not a real chance he would be subjected to harm because is a returning asylum seeker’.
The applicant’s submissions also refer to paragraph 44 of the Authority’s decision record concerning penalties for returnees who had breached the I & E Act, the real chance that the applicant would be charged and fined at paragraph 45, and that, if detained under detention, the detention of more than a few days would be remote at paragraph 46 of the decision record.
The applicant submits that the above information was possibly obtained from country information from the DFAT report of 24 January 2017, UKHO dated 19 May 2016, USDOS 13 April 2016, DFAT report dated 16 February 2015, CCDP Working paper dated 1 November 2014, DFAT report dated 3 October 2014, which were referenced in the Authority’s decision record.
The applicant submits that none of the reports referenced in the Authority’s decision record make mention of a returnee with the applicant’s profile, including the fact that he left Sri Lanka while subject to reporting requirements. The applicant submits that the Authority continued to determine that the applicant’s position was the same as if he was a returnee not subject to reporting requirements when he departed.
The applicant repeats the Authority’s findings at paragraph 24 that the applicant was taken to a police camp and beaten as a result of his failure to report on an occasion prior to him leaving Sri Lanka at paragraph 24, and that the applicant claimed he missed reporting due to illness at paragraph 10 of the decision record. The applicant submits that the corporal punishment inflicted upon the applicant for having missed reporting on one occasion was a relevant consideration, which the Authority failed to properly consider, on the basis that none of the country information addressed returnees with a similar profile.
The applicants submits that, the Authority implicitly inferred that, merely because the country information did not address returnees with a similar profile, as the applicant that such a profile was of no importance nor relevant to the issue before it and that the applicant equated with a returnee who had not been subject to reporting when he left. The applicant submits that this inference was in error.
The applicant submits that in these circumstances the Authority made irrational, illogical and unreasonable findings and failed to take into account the applicant’s previous experience with the authorities when he was beaten.
THE FIRST RESPONDENT’S SUBMISSIONS
In their written submissions, the first respondent notes that applicant states that the country information considered by the Authority “possibly included” the reports mentioned in paragraph 31 of this judgment. However, the applicant has not filed an Affidavit or a supplementary Court Book including copies of the country information reports, but nevertheless asserts that none of the reports mention a returnee with the applicant’s profile.
The first respondent submitted that the ground that the Authority made irrational, illogical and unreasonable findings and failed to take into account the applicant’s previous experience with the authorities goes to challenge a factual finding and impermissibly invites the Court to engage in merits review: (see; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259). It was submitted that it is not illogical, irrational or unreasonable simply because one possible conclusion has been preferred to another, and rational or reasonable minds might adopt different reasoning or finding on the same evidence: (see; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130]-[131]).
The first respondent submitted that the test for unreasonableness is also necessarily stringent (see; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11]) and it does not involve the court re-making the decision according to its own view of reasonableness (see; Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 at [59]). Rather, the question is ‘whether a decision-maker could reasonably come to the conclusion’ reached: (see; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [21]).
The first respondent submitted that the Authority expressly considered and accepted the applicant’s claims that he was required to report and that he had been taken to the police camp and beaten severely for failing to report (see; Court Book at 229 [23]-[24]) and then expressly referred to the applicant leaving Sri Lanka while subject to reporting requirements (see; Court Book at 233 [41]). As such, the contention that the Authority failed to consider whether the applicant faced a real chance of serious harm as a person who left Sri Lanka while subject to reporting requirements cannot be sustained. The first respondent submitted that it ought to be inferred from the Authority’s reference to the claim at page 233 [41] of the Court Book, that it had also taken account its earlier finding that the applicant had been punished on one occasion for failing to report.
The first respondent submitted that, when the Authority’s decision is read as a whole, it is clear that it did not accept that there was a real chance that the applicant would be punished on return for leaving the country when he was subject to reporting requirements, as he had no adverse security profile and because the country conditions in Sri Lana had improved since the end of the civil conflict.
The first respondent submitted that, insofar as it is alleged that the impugned finding lacked an evidentiary basis, the Authority was not obliged to uncritically accept the applicant’s claims evidence and it did not require rebutting evidence before holding that a factual assertion was not made out: (see; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at [65]).
The first respondent submitted that the Authority’s finding at Court Book page 223 [41] and its reasoning was reasonably open on the available material. The applicant’s ground of judicial review does no more than express disagreement with a finding of fact.
CONSIDERATION
The applicant’s sole ground of judicial review is based on the assertion that the applicant is at greater risk on return, because at the time he left Sri Lanka he was the subject of reporting conditions and as a result of not reporting on one occasion, the applicant was beaten for failing to report as required. The applicant asserts that the findings that he was not at risk, given his previous experience when he was beaten, were irrational illogical unreasonable and thus subject to jurisdictional error.
Particular complaint made that the country information relied upon made no specific mention of a returnee with the applicant’s particular profile. That is, it is asserted there is no information on the risks associated of a person who fled the country while subject reporting conditions. The difficulty with this assertion is, although country information is referred to in the written submissions of the applicant, no evidence has been put before the court that this assertion is in fact correct. For the purpose of the argument, assuming even that is, it is hardly surprising. Country information is generic in nature and cannot be expected to cover every possibility or contingency.
At paragraph [33] the Authority referred to specific United Kingdom Home Office country information that indicated that as at the time of the Authority decision in 2016, there were four categories of persons who remained at risk of persecution or serious harm They were:
a. individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are, or are perceived to have a significant role in relation to post conflict Tamil separatism;
b. journalists or human rights activist who, in either case, have criticised the Sri Lankan government in particular its human rights record or are associated with publications critical of the Sri Lankan government;
c. individuals who have given evidence to the lessons learned and reconciliation commission implicating Sri Lankan security forces, Armed Forces or the Sri Lankan authorities in alleged war crimes; and
d. a person whose name appears on a computerised “stop” list accessible at the airport comprising a list of those individuals whom there is an excellent court order or arrest warrant.
The court notes that the applicant does not fit into one of the above four categories, and thus it is not surprising, notwithstanding his claim to have fled Sri Lanka while subject to reporting, that the Authority found he was not at serious risk on return.
At paragraph 35, the Authority concluded that the applicant himself had not been arrested, charged or identified rehabilitation and the Authority did not accept the claim that the authorities had visited the family’s home searching for him since he left Sri Lanka. The Authority also noted that the applicant has not claimed to be involved in any activity since he left Sri Lanka that could see him imputed with an anti-government, separatist or pro-LTTE view. The Court is satisfied that these findings were open to the Authority on the evidence that was before it and for the reasons it gave
The Court is satisfied that at paragraph 42, the Authority properly considered the circumstances of the applicant with respect to country information, including that from the United Nations, that accepted torture continues in Sri Lanka. This, however, needs to be tempered with the finding by the Authority that the applicant did not have an adverse profile with the authorities. This was in circumstances where the reason for the applicant being the subject of reporting conditions prior to him leaving Sri Lanka related to the applicant’s brother M. It is not suggested that the applicant was at any time a member or fought for the LTTE. The applicant’s fears were based on the fact that he was suspected of links to the LTTE because of his brother and because he lived in the LTTE controlled area. In particular, the Authority considered changed circumstances in Sri Lanka post the end of the civil war. At paragraph 48, the Authority made specific reference to the fact that he left Sri Lanka while subject to reporting conditions. It cannot be said that the Authority either ignored this particular circumstances or did not actively and intellectually engage with it.
The Authority clearly considered the risks to the applicant upon return and that he may be subject to search, questioning, and would most probably be charged with an offence of having left Sri Lanka illegally. The Authority specifically noted that the risk of torture or mistreatment for the majority of Tamils is low including those suspected of offences under the relevant immigration laws.
The court is satisfied that the overall findings of the Authority, noting the stringent standard for legal unreasonableness, were open to it for the reasons it gave on the evidence that was before it. There is nothing irrational or illogical in the Authority’s findings given the country information that was before it, and the particular claims made by the applicant.
CONCLUSION
Given the findings were open to the Authority, the ground of judicial review has no merit and the application must be dismissed.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 11 August 2022
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