DNQ18 v Minister for Immigration
[2019] FCCA 2376
•27 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DNQ18 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2376 |
| Catchwords: MIGRATION – Safe Haven Enterprise Visa – review of decision of the Immigration Assessment Authority – whether express claim was made – whether claim arose on the material before the Authority – whether claim arose on the Authority’s findings – no jurisdictional error – application dismissed. |
| Legislation: Immigrants & Emigrants Act 1949 (SL) Migration Act 1958 (Cth), ss. 5AAA, 36(2)(a), 36(2)(aa), 46A(2), 473DC, 476(1) |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 |
| First Applicant: | DNQ18 |
| Second Applicant: | DNR18 |
| Third Applicant: | DNS18 |
| Fourth Applicant: | DNT18 |
| Fifth Applicant: | DNU18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File number: | PEG 370 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing date: | 21 June 2019 |
| Date of Last Submission: | 26 July 2019 |
| Delivered at: | Perth |
| Delivered on: | 27 August 2019 |
REPRESENTATION
| Counsel for the Applicants: | Mr R. Saul-Jahnke |
| Solicitors for the Applicants: | Estrin Saul Lawyers |
| Counsel for the First Respondent: | Ms S. Oliver |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| The Second Respondent: | Submitting appearance, save as to costs |
ORDERS
The applicants’ application for judicial review is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 370 of 2018
| DNQ18 |
First Applicant
| DNR18 |
Second Applicant
| DNS18 |
Third Applicant
| DNT18 |
Fourth Applicant
| DNU18 |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 6 July 2018, amended on 7 June 2019 (“Amended Application”), the applicants seek judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 26 June 2018.
The IAA’s decision affirmed a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the “Minister”) not to grant the applicants Safe Haven Enterprise Visas (the “protection visas”).
This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). The applicants seek an order that the decision of the IAA be quashed and that a writ of mandamus be directed to the IAA.
To succeed in this Court, the applicants must show that the IAA fell into jurisdictional error.
Background
The applicants’ written submissions filed 10 June 2019 (at [2]-[16]) and the Minister’s written submissions filed 31 May 2019 (at [3]-[10]) both contained a detailed background of the matter. Nothing in these submissions differed or was in dispute. The Court has reviewed the 423 page Court Book (“CB”) and is satisfied these submissions are accurate. The Court adopts the summary provided, as follows.
The applicants are citizens of Sri Lanka. The first, second, fourth and fifth applicants entered Australia at Cocos (Keeling) Islands as unauthorised maritime arrivals on 10 September 2012 (CB 7). In November 2012, the first, second, fourth and fifth applicants were transferred to Manus Island (CB 223) before being taken to Australia in June 2013 (CB 220).
On 25 March 2014, the third applicant was born in Australia (CB 178).
On 18 August 2016, the applicants were notified that the Minister had exercised his power under s.46A(2) of the Act to allow the applicants to lodge an application for either a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa (“SHEV”) (CB 20-21).
On 14 June 2017, the applicants lodged a valid SHEV application (CB 38-266). The first and second applicants, who are married, each made claims for protection. All applicants are members of the same family unit.
The applicants attended an interview with an officer of the Department of Home Affairs to discuss their claims for protection on 7 September 2017 (CB 267).
On 31 January 2018, a delegate of the Minister made a decision not to grant the applicants protection visas (CB 308-334). The matter was then referred to the IAA in accordance with s 473CA of the Act (CB 335).
On 6 February 2018, the IAA wrote to each of the applicants acknowledging that the matters had been referred to the IAA for review and providing a copy of the IAA’s Practice Direction and an information sheet about the IAA (CB 335-363).
On 25 February 2018, the applicants provided a submission and new information to the IAA (CB 365-377).
On 26 June 2018, the IAA affirmed the delegate’s decision (CB 388).
Claims for Protection
The first applicant’s claims for protection are set out in a statutory declaration that appears at CB 77-88. The second applicant’s claims for protection are set out in a statutory declaration that appears at CB 120-131.
These claims are summarised at [13] and [14] of the IAA’s decision.
The focus of the applicants’ application before this Court is the claim contained in the first applicant’s statutory declaration that:
We left Sri Lanka illegally, without permission, this is against the law, if we return to Sri Lanka the police will take my family and I into custody and they will change us for breaking the law. I have heard that people who went back after leaving the country illegally have been physically harmed and been taken to the custody.
(CB 85-86 at [57])
The IAA’s Decision
As noted, the subject of the application before this Court is the IAA decision made on 26 June 2018. That decision is 26 pages in length and contains 77 paragraphs.
Relevantly, paragraphs 56 to 65 of the IAA’s decision address the first applicant’s claim that due to their illegal departure from Sri Lanka, the applicants would be taken into custody, charged and physically harmed, which is the focus of this application. Those paragraphs provide as follows (CB 408-410):
56.The applicant husband claimed that he left Sri Lanka illegally without permission and this is against the law. The Sri Lanka police will take him and his family into custody and they will be charged for breaking the law and physically harmed. The applicant wife claimed she risked being arrested and charged with illegally leaving the country and penalties for leaving the country can include imprisonment of up to five years and a fine up to 200, 000 Sri Lanka Rupees. She would be accused of having leaked confidential information to another country by the government because she worked for the EPDP. As discussed above I have not accepted that the applicant wife’s role or association or involvement with the EPDP would put her in a position to access confidential information, or that she would be seen as such and therefore I am not satisfied she faces a real chance of any harm on this basis. I accept the applicant departed Sri Lanka illegal on a boat without a valid passport. The applicants have been consistent in their bio data/arrival interview, PV application and written claims in this regard.
57.At their PV interview the delegate put to the applicants that country information indicated the new government in Sri Lanka was encouraging Sri Lankan’s overseas to return home and were not being charged with any crime; the applicant wife stated they had seen it on the media that people who returned had been put in jail. Politicians always made promises but they did not do as they said.
58.Under the Sri Lankan Immigrants and Emigrants Act 1949 (the I & E Act) it is an offence to depart other than via an approved port of departure. I accept that if the applicants were returned to Sri Lanka from Australia, they may be identified as returning asylum seekers who left Sri Lanka illegally.
59.Having regard to the country information in the referred material, I am not satisfied there is a real chance the applicants would be harmed as returning asylum seekers. The delegate referred to a number of country information articles/reports dating back to 2010 through to 2016. A number of reports indicate that some Sri Lankans returning to Sri Lanka have been arrested but those arrested were mostly known former LTTE members or had actual or suspected LTTE connections or links to separatist activities or those with a pro-LTTE profile or being seen as critics of the current government. Based on the applicants own evidence they were not involved in the LTTE and I am not satisfied they would be imputed with a pro-LTTE profile. Nor have they been involved in separatist activities either in Sri Lanka or Australia. I have placed greater weight on the 2017 DFAT report given it is the most recent country information report in the referred material. According to DFAT thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment. Sri Lankan authorities collect and maintain sophisticated intelligence on former LTTE members and supporters, including those on ‘stop’ and ‘watch’ electronic databases. Those on ‘stop’ lists include those with an extant court order, arrest warrant, order to impound their passport, or those on ‘watch’ lists are of interest due to separatist or criminal activities. Those on watch lists have been detained on arrival at the airport traveling from the UK. The applicants do not have a profile of one likely to be on a database, there is no evidence of any political involvement in Australia including separatist or criminal activities.
60.The DFAT Report indicates returnees are processed by the Department of Immigration and Emigration (DOIE), the State Intelligence Service (SIS) and CID and their identities are checked against various databases including for criminal and security matters. Processing returnees can sometimes take several hours including interviews. I am satisfied on the information before me that the applicants have no relevant profile, identity concerns, or otherwise that would raise the concern of the authorities.
61.The applicant husband and applicant wife may be charged under the I & E Act because they departed illegally. Country information does not indicate that children are prosecuted. DFAT understands that in most cases individuals will be arrested at the airport, they will be fingerprinted and photographed; those arrested can remain up to 24 hours in custody at the IDC office at the airport. Returnees are then transported by police to the closest Magistrates Court where a magistrate will make a determination. If a magistrate is not available a returnee might be held on remain at a nearby prison for a few days.
62.Penalties include a custodial sentence or a fine of up to 200, 000 Sri Lanka rupees (AU$2000) which can be paid in instalments. DFAT assesses ordinary passengers on a people smuggling venture are generally viewed as victims and no returnee who was merely a passenger has ever been given a custodial sentence. Those who plead guilty are fined and then free to go. If the applicants plead not guilty they are likely to be granted bail on the basis of a personal surety or have a family member act as a guarantor. They may have to wait for a family member to come to court to collect them and there are rarely any conditions imposed on bail. There is no requirement to report to the police between hearings. I do not consider the applicant husband and wife would be required to report regularly to their local police station and as such, I am satisfied that they are not at risk of harm in those circumstances. I accept that on their return the applicant husband and wife will be interviewed and may be brought before a magistrate, and they may be detained for a limited period of time whilst waiting for a magistrate. I accept there is a real chance that the applicant husband and wife will be fined but that this fine can be paid off in instalments and that they will then be released or if they plead not guilty they may be detained for a brief period of time until one of their family members collects them. Section 5J(5)(a) refers to a threat to a person’s liberty as an instance of serious harm; however, the Australian courts has determined that whether a risk of a loss of liberty constitutes serious harm requires a qualitative judgement, including an evaluation of the nature and gravity of the loss of liberty.
63.Whilst I note DFAT reports that prison conditions in Sri Lanka do not meet international standards because of a lack of resources, overcrowding and poor sanitary conditions, I am of the view any questioning and detention the applicant husband and wife may experience would be brief and would not in this case constitute serious harm. I also find the imposition of a fine, surety or guarantee does not of itself, or when combined with the brief detention, constitutes serious harm.
64.In addition, I am also satisfied that the provisions and penalties of the I & E Act are laws of general application that apply to all Sri Lankans equally. The law is not discriminatory on its terms, nor does the country information indicate that the law is applied in a discriminatory manner or enforced selectively.
65.I am not satisfied that the applicants have a well-founded fear of persecution within the meaning of s.5J because of the applicant husband and wife’s illegal departure.
(Citations removed)
Under its complementary protection assessment the IAA:
a)Accepted the first and second applicants will be returning to Sri Lanka having departed illegally; and
b)Found (at [74]):
that as returnees they would be subject to an interviewing process whilst security, criminal and identity checks are undertaken by the authorities. I have found they might be remanded in custody for a brief period at the airport or at a prison before they are brought before a magistrate, that they are likely to be fined or that a surety or guarantee may be imposed on them. I have found the applicants do not to have any specific profile that would warrant a longer detention, custodial sentence or further interrogation.
Whilst prison conditions in Sri Lanka are overcrowded, with poor sanitary conditions and under resourced, this is more as a result of circumstances rather than the intention of the authorities who are working to address these issues. I am not satisfied that the treatment and penalties to which the applicants may be subject means there is a real risk the applicants will be subject to the death penalty or will be arbitrarily deprived of their life or will face torture. Nor am I satisfied that there is any intention to inflict severe pain or suffering, pain or suffering or to cause extreme humiliation, as required by the definitions of cruel or inhuman treatment or punishment and degrading treatment or punishment. I am not satisfied the applicants face a real risk of cruel or inhuman treatment or punishment or degrading treatment or punishment.
Ultimately, the IAA was not satisfied that the applicants met the criteria in s.36(2)(a) or s.36(2)(aa) of the Act and affirmed the decision not to grant the applicants protection visas.
Proceedings before this Court
On 6 July 2018, the applicants filed their originating application in this Court. At that time the applicants were unpresented. The applicants obtained legal representation shortly prior to the hearing.
By leave, the applicants filed an amended application on 7 June 2019. That application contained one ground of review as follows:
The Immigration Assessment Authority (Authority) failed to consider whether the Third, Fourth and Fifth Applicants (Applicant Children) would face a real chance of persecution or real risk of significant harm either while in detention themselves upon arrival in Sri Lanka or while the First and Second Applicants (Applicant Parents) are detained for up to ‘a few days’.
Particulars
a.The First Applicant raised a claim that he feared he and his family would be held in custody and physically harmed upon return to Sri Lanka due to the family’s illegal departure from the country: CB 85-86 [57].
b.The Authority accepted at [74] that ‘the applicant husband and applicant wife will be returning to Sri Lanka having departed illegally’ and found that ‘they might be remanded in custody for a brief period at the airport or at a prison before they are brought before a magistrate’: CB 411 [74].
c.The Authority accepted at [63] that ‘that prison conditions in Sri Lanka do not meet international found standards because of a lack of resources, overcrowding and poor sanitary conditions’: CB 410 [63].
d.The Authority failed to consider whether the Applicant Children face a real chance of persecution or a real risk of significant harm in Sri Lanka, either while being detained in custody themselves or while the Applicant Parents are detained.
The applicant filed written submissions in support of this ground on 7 July 2019. The Minister responded to the amended application in further written submissions filed on 14 June 2019. The Court notes that the Minister had previously filed written submissions on 31 May 2019.
The applicant was represented by Mr Jahnke and the Minister was represented by Ms Oliver. Both advocates (in their written and oral submissions) offered considerable assistance to the Court.
The matter came on for final hearing on 21 June 2019.
The Court notes that in the final hearing the Court asked both parties for submissions to address a particular issue regarding s.473DC of the Act. Based on the Court’s findings below the need to consider those submissions here is not necessary.
The applicants’ submissions
The applicants’ written submissions can be summarised as follows:
a)Under the IAA’s assessment of the applicants’ claims against the refugee criterion in s.36(2)(a) of the Act and the complementary protection provisions under s.36(2)(aa) of the Act, the IAA failed to consider whether the third, fourth and fifth applicants faced a real chance of serious harm or a real risk of significant harm as a result of them being either:
i)detained upon arrival in Sri Lanka in an overcrowded prison which falls short of international standards (“argument one” or the “applicants’ first argument”); or
ii)forcibly separated from their parents by the Sri Lankan authorities while their parents are detained for a period of between ’24 hours’ to a ‘few days’ (“argument two” or the “applicants’ second argument”).
b)In relation to argument one, being the claim that the third, fourth and fifth applicants would suffer persecution or be subject to significant harm while in detention, the applicants argue:
i)In the SHEV application, the claim was raised on behalf of the Applicant Children that they feared that upon ‘return to Sri Lanka the police will take [them] into custody’. This is a ‘substantial clearly articulated argument, relying on established facts’. The IAA was therefore obliged to consider this claim in relation to the Applicant Children.
ii)The IAA’s only statement relating to the Applicant Children in relation to their status as returned asylum seekers was that ‘[c]ountry information does not indicate that children are prosecuted.’ However, this was a general statement that did not grapple with the Applicant Children’s claims as they arose.
iii)Firstly, because the claim – as it was expressed by the Applicant Husband – was that he and his family (including the Applicant Children) would be put in custody upon arrival in Sri Lanka and that additionally they would be charged with offences under the Sri Lankan Immigrants and Emigrants Act 1949 (the “I & E Act”). Even if the IAA found that the I & E Act did not apply to minors, there nevertheless remained the question of whether or not the Applicant Children would be subjected to a period of detention in an overcrowded adult prison upon arrival.
iv)Secondly, at the time of the IAA’s decision, the Fourth Applicant was exactly 17 years, 1 month and 15 days old. In just over 10 months’ time, he was to become an adult. If the IAA did consider whether the Fourth Applicant would be subject to detention or prosecution under the Immigrant and Emigrants Act, it was required to consider not just the fourth applicant’s circumstances in the present or immediate future, but his circumstances in the reasonably foreseeable future. The absence of any consideration of this reality supports a finding that the claim was not considered.
v)Thirdly, the ACCORD Report considered by the IAA revealed that age of criminal responsibility in Sri Lanka was eight years of age (not 18) and that ‘children between eight and twelve years of age’ may still face criminal prosecution (if they are of sufficient maturity) and that children over 12 years of age can be prosecuted regardless of their maturity. The IAA was therefore required to consider the Fourth and Fifth Applicants’ circumstances, including whether they would be detained upon arrival until a decision was made on whether or not they would be prosecuted.
vi)It was therefore incumbent on the IAA to consider whether the Applicant Children would face a real chance of serious harm or a real risk of significant harm as a result of any period of detention in an overcrowded, adult prison.
c)In relation to argument two (the applicants’ claim that the IAA failed to consider the claim that the third, fourth and fifth applicants would suffer persecution or be subject to significant harm while their parents were in detention) the applicants argue:
i)Referencing MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497, the applicants argue that this claim emerged from the IAA’s own findings.
ii)Once the IAA found that the Applicant Children’s parents would be detained for a period upon arrival in Sri Lanka, a tolerably clear claim arose that the Applicant Children (one of whom was only four years of age at the time of the IAA’s decision) would face a real chance of serious harm or real risk of significant harm while their parents were detained.
iii)Citing MZZZM v Minister for Immigration & Anor and MZAFB v Minister for Immigration & Anor [2014] FCCA 2665 (“MZZZM”), the applicants argue that these claims that the Applicant Children would face a real chance of serious harm or real risk of significant harm while their parents were detained are tolerably clear. They do not involve creative thinking or speculation on the part of the IAA. By failing to consider these claims, the IAA fell into jurisdictional error.
At hearing, the applicant advanced the following submissions in relation to argument one:
a)The only reference to what will happen to the children upon their return to Sri Lanka is that Country information does not indicate that children are prosecuted (at [61]). The IAA did not consider:
i)whether or not children are detained upon arrival;
ii)whether they are detained for a period while it is decided whether or not they will be prosecuted; and
iii)whether they are detained with their parents if their parents are detained and charged.
b)In the absence of any findings on these issues it should be inferred that the IAA’s silence here demonstrates that it either was not considered at all or, at least, wasn’t considered properly.
c)In relation to whether this would materially affect the decision, Counsel for the applicant argued:
MR JAHNKE: So we do argue that from a materiality perspective, there’s certainly a lot here that is still needed to be unpacked, and I’ve just provided ways that it could have impacted the outcome of the authority’s decision. Additionally, any finding in the decision that putting someone in prison or in detention didn’t amount to serious harm or significant harm was clearly based on an assessment of the parents who are adults, and, as we know, any findings about harm need to take into account the attributes or the personal characteristics of the person who’s suffering the harm, and the common example, I think, that Hathaway uses is age and frailty or something like this.
So if you’re dealing with, you know, an older person or a person with a disability or a person with a health condition, what might be significant harm to them or persecution to them might not be persecution to a healthy adult. We’re dealing with children here. One of the children applicants was a 16 year old girl. The idea of a 16 year old girl being placed in an adult prison might amount to persecution or serious harm, even if it might not be for her father. It might be for her given the risks that are involved. There was no discussion of what impact it would have on children. There was no discussion of what it would have on a teenage girl. These are a number of attributes that just are not engaged with at all in the decision.
In relation to the applicants’ second argument, Counsel for the applicant argued that:
a)When the IAA decided that the parents might be put in detention for a period of time it was incumbent on the IAA to at least consider what would happen to the children during that period, as this was a claim that arose from the IAA’s own findings or its own conclusions. Counsel for the applicant argued that:
MR JAHNKE: … when the authority said that both parents will be locked up, it immediately became apparent to the tribunal that there’s kids here, one of them who is a four year old boy, who doesn’t have a parent. Does he get thrown in prison with the parents? Does he get left outside the prison by himself? Is there care mechanisms in place? It just simply wasn’t discussed, and this wasn’t something that the applicants are even aware there was going to be a separate finding in relation to the parents and the kids, that they would be dealt with differently…
The Minister’s Submissions
The Minister’s submissions can be summarised as follows:
a)The Minister acknowledges that the first applicant raised a claim in his written statement that he fears his family will be taken into custody or detention upon return to Sri Lanka for their illegal departure and that they may be physically harmed: CB 85-6 at [57].
b)It can be assumed that the first applicant is not here including an express claim in relation to the third applicant, who did not depart Sri Lanka illegally, and the Minister notes that, in the immediately preceding paragraph, the first respondent acknowledges that the third applicant was born in Australia: CB 85 at [56].
c)The IAA has in fact considered the express claim that the fourth and fifth applicants would face harm for being detained upon arrival in Sri Lanka, even if it has not expressly stated a finding that the fourth and fifth applicant do not face the requisite chance of harm on this basis, it has implicitly found that they would not. That implicit finding arises from the express finding of the IAA that the child applicants would not be charged or detained upon their return to Sri Lanka.
d)At [56] the IAA acknowledged that:
i)the first applicant claimed that he had left Sri Lanka illegally and that the police will take him and his family into custody and they will be charged for breaking the law and physically harmed; and
ii)the second applicant claimed that she risked being arrested and charged with illegally leaving the country and that penalties can include imprisonment for up to 5 years and a fine of up to 200,000 Sri Lankan Rupees.
e)At [58] the IAA acknowledged that under the I & E Act it is an offence to depart Sri Lanka other than via an approved port of departure. The IAA accepted that the applicants may be identified as returning asylum seekers who left Sri Lanka illegally.
f)The IAA then stated (at [61]):
The [first applicant] and [second applicant] may be charged under the I & E Act because they departed illegally. Country information does not indicate that children are prosecuted.
g)The IAA then proceeded to set out the expected treatment that one charged under the I & E Act would face, based on the country information before it, and concluded that this treatment would not, in the circumstances of the first and second applicants, amount to serious harm and that such treatment did not meet the definition of ‘significant harm’ in s 36(2A) of the Act.
h)It is implicit in the IAA’s finding at [61] that the IAA found that only the first and second applicants faced the possibility of being charged under the Immigrants & Emigrants Act, and that the child applicants would not be charged. It follows from this that the IAA implicitly found that only the first and second applicants would face the possibility of the treatment described at [61] to [63], which did not in any event amount to serious harm.
i)The express and implicit findings of fact at [61] are sufficient to dispose of the need for the IAA to separately consider any claims relating to the child applicants actually being detained for the purposes of complementary protection.
j)In the alternative, if the Court finds that the IAA did not consider this express claim, any such error is not a material jurisdictional error. Any such error would not be material because it could not realistically have deprived the applicants of the possibility of a successful outcome, because of other findings made by the IAA.
k)Finally, no claim that the child applicants would face harm while their parents were in detention was expressly made. Nor did any such claim clearly emerge from the materials before the IAA in the circumstances of this case.
l)The applicants assert that a claim that the child applicants would face serious or significant harm while their parents are in detention emerges simply from the finding that the first and second applicant would be detained for a period upon arrival in Sri Lanka. There is nothing in the materials before the IAA that suggests that a child will face any risk of harm simply because their parents are detained. No such claim clearly arose on the materials before the IAA. It should also be noted that the applicants were represented when the matter was before the delegate and the IAA and that a submission was made to the IAA. The applicants made no claims in relation to any possible harm that the child applicants may face if their parents are detained for up to a few days but the child applicants are not.
m)Accordingly, the IAA was under no obligation to consider this issue.
Consideration
While the applicants have separated their arguments, essentially, what is advanced is that the IAA failed to consider what would happen to the applicant children on their return to Sri Lanka.
Argument One
The Minister concedes that the first applicant raised a claim in his written statement that he fears his family will be taken into custody or detention upon return to Sri Lanka due to their illegal departure and that they may be physically harmed.
For ease of reference, the claim was phrased as follows:
We left Sri Lanka illegally, without permission, this is against the law, if we return to Sri Lanka the police will take my family and I into custody and they will change us for breaking the law. I have heard that people who went back after leaving the country illegally have been physically harmed and been taken to the custody.
Here, the IAA did address the claim as articulated:
a)the IAA accepted that the applicants left Sri Lanka illegally, that they may be identified as having done so and that it was an offence to do so (CB 408 at [58]);
b)the IAA found that the first and second applicant may be charged and that children are not prosecuted (i.e., charged) (CB 409 at [62]). Hence, the IAA accepted the claim insofar as it related to the first and second applicant, but not the applicant children; and
c)it assessed what would happen to the first and second applicant as a result of being charged for leaving the country illegally. While it accepted that they may be the subject of a fine or brief imprisonment, the IAA did not accept this amounted to serious or significant harm (CB 410-412 at [63] and [74]).
The first applicant’s claim was that his family would be harmed as a result of being charged and taken into custody for breaching the law. The IAA accepted that the parents would be charged and may be taken into custody, however, it did not accept that the children would be.
Having found that the I & E Act did not apply to minors, or that minors were not prosecuted, it did not remain for the IAA to consider whether the children would be subjected to a period of detention in a prison on arrival as the reason for that detention was rejected.
Hence, the claim to suffer harm from breaking the law was addressed by the IAA. The children would not be detained and suffer harm for reason of having left the country illegally (which is what the first applicant had claimed). What would happen to the children as a consequence of their parents leaving illegally or being placed in custody, and the extent to which a period in detention or being separated from their parents may amount to serious or significant harm, was a separate issue (and will be addressed in the second argument).
While the applicants’ argument that the IAA ought to have considered (given the fourth applicant’s age, being 17 years old at the time of the IAA’s decision) that the fourth applicant may be prosecuted and therefore subject to detention is compelling, there are two answers to this:
a)the IAA was required to consider the “reasonably foreseeable future”. By all accounts, the reasonably foreseeable future for the IAA to consider in respect of this claim was 28 days (CB 389). It was reasonable for the IAA to assume that when it handed down the decision, the fourth applicant would not be 18 when he returned to Sri Lanka. As such, the IAA did not need to consider this issue in relation to fourth applicant; and
b)the finding that the first and second applicants detention or imprisonment would not amount to serious or significant harm, and the further finding that the I & E Act was a law of general application can lead the Court to be satisfied that not having considered this was immaterial in any event.
To the extent that the applicants’ referred to there being country information suggesting that the age of criminal responsibility in Sri Lanka was eight, and this implied that the IAA should have considered any period of detention that may come to the applicant children while a determination was being made whether to prosecute them, the Court disagrees for the following reasons:
a)the weight the IAA gives to the country information is a matter for the IAA: NAHI v Minister for Immigration & Indigenous Affairs [2004] FCAFC 10 at [11]; and
b)the ACCORD Report to which the applicant refers contained general information on the age of criminal responsibility. The Department of Foreign Affairs and Trade Report indicated, in specific reference to the I & E Act, that children were not prosecuted therefore, the need to consider or evaluate the information in the ACCORD Report (which was not specific to the I & E Act) did not clearly arise from the materials.
For the above reasons, the Court is satisfied that the first applicant’s claim as articulated, and with reference to each of the applicants, was considered by the IAA.
Argument Two
Argument two asserts that the IAA was required to consider what would happen to the children on return to Sri Lanka in the event that their parents were detained.
The Minister argues that the claim was not clearly made and did not arise on the materials before the IAA.
In considering whether a claim clearly emerges, the Court should have regard to the following principles summarised in AYY17 v Minister for Immigration & Border Protection [2018] FCAFC 89 at [18]:
a)such a finding is not to be made lightly;
b)that a claim might arise from the materials is not enough;
c)to clearly emerge on the materials, the claim must be based on established facts;
d)there is no precise standing to determining whether an unarticulated claim is squarely raised or clearly emerges from the materials, but a court will be more willing to draw the line in favour of an unrepresented party; and
e)whether a claim has emerged from the materials must be considered in the context of the way the applicants’ claim are presented over time.
The applicant argues that the relevant “claim” here can be inferred or, in the alternative, that on the basis of the IAA’s own finding that the parents may be detained, it was incumbent on the IAA to consider what would happen to the children. That consideration, it was submitted, was entirely lacking.
The Court is not satisfied that such a claim was express or implicit in the materials before the IAA. Nor is the Court satisfied, on the basis of the IAA’s findings, that it was necessary for the IAA to consider this issue.
The applicants’ argument appears to suggest that the IAA ought to speculate on claims that did not squarely arise on the material before it, and to reformulate or embellish the claims that were made on an ex-post facto basis: SZLWI v Minister for Immigration (2008) 171 FCR 134 at [23].
It is noted that in the delegate’s decision, the delegate extensively set out the applicants’ claims (including “Fears relating to children”) (CB 315). Nowhere in that summary of claims (which is almost three pages in length) is there reference to a claim that the applicant children may suffer harm in circumstances where their parents were detained.
In respect of the delegate’s finding, it is noted:
I have considered the chance of Applicants 1, 2, 3 and 4 and 5 suffering harm on their arrival at Colombo airport or afterwards on account of living abroad for a significant period and returning as failed asylum seekers who departed the country illegally.
…
In regards to Applicant 1, 2, 3 and 4’s illegal departure; their identity is likely to be checked and they would be questioned at the airport on arrival. However, noting the applicants do not have a criminal background and were not of interest to the authorities when they left the country, I find they would not be exposed to harassment or any type of harm that would amount to serious harm on their return.
Even if they were to face charges for an illegal departure, there is no information to suggest that anyone has been given a custodial sentence for departing illegally. For people who have been convicted of illegal departure they have faced fines of between 5000 and 50000 rupees. The above information indicates that the applicants may be questioned, briefly detained and fined as a result of departing Sri Lanka illegally. No information could be found to suggest that returnees being held for short periods in remand on illegal departure charges have faced ill-treatment while on remand. I have given regard to Minister for Immigration and Border Protection v WZAPN [2015] HCA 22 with respect to whether being detained for departing illegally could amount to serious harm. I am satisfied that a short period of detention to facilitate the processing of such charges and fines does not amount to serious harm and therefore does not involve persecution.
Considering the above, I am satisfied the applicants do not hold a well-founded fear of persecution on account of being failed asylum seekers who departed Sri Lanka illegally.
The applicants were represented before the IAA. Their representative provided a detailed written submission (CB 364-369). At no time in that submission did the representative raise argument with the delegate’s findings that the “short period of detention to facilitate the processing of such charges and fines does not amount to serious harm and therefore does not involve persecution”. This included the fourth and fifth applicants being subject to that detention.
Critically, absent from the delegate’s finding was a reference to the fifth applicant. At no time in the submissions to the IAA was it suggested that the delegate had not taken into account what would happen to the fifth applicant if the family was detained for a period. While it may have been an oversight, the fact remains that on the material before the IAA there was nothing to suggest that there was a fear of harm on the basis that the children would be separated from their parents or required to remain in detention with their parents.
The applicants referred to MZZZM as a matter having the same factual circumstances as this case, and wherein the Court found that there was an error in failing to consider the claim made that the daughter would suffer significant harm on return to Sri Lanka whilst she was in detention or, alternatively, whilst her father was in detention. Such claim was said to have arisen from the Tribunal’s own findings and the materials before the Tribunal.
In particular, the applicant references [109] of MZZZM:
… Even if the Tribunal found that the Immigrant and Emigrants Act did not apply to minors, there nevertheless remained the question of the circumstances of the daughter during the period the father was detained.
Here, the Tribunal had found that the I & E Act did not apply to minors. The question is whether it “nevertheless” remained for the IAA to consider the circumstances of the applicant children during the period the parents may be detained.
The Court does not believe the circumstances in MZZZM are entirely applicable to this case. The finding in MZZZM does not, in the Court’s view, sit appropriately with the fast track regime of pt.7AA. In particular, the obligation of the applicants under s.5AAA of the Act to specify “all particulars” of their claim. Further, the obligation to consider matters arising from the IAA’s own findings must arise tolerably clearly from the IAA’s own findings of fact and not involve creative thinking or speculation: MZZZM at [90] and [131].
It could not be implied from the materials before the IAA that the claim arose or was “tolerably clear”. The applicants had not raised the issue in any of their express claims and they do not appear to have expressed any concern in this regard at the interview with the delegate. They made no submissions on the issue.
In light of this, the fact that there was no “finding of fact” that the applicants “would” be detained and noting that the parties were represented, the Court is not prepared to find that the need to consider what might happen to the children if their parents were detained was implicitly made.
Turning to whether it was necessary, on the basis of the IAA’s finding that the parents may be detained, to consider the risk to the children, the Court notes the following in DCP16 v Minister for Immigration [2019] FCAFC 91 at [98]:
On the question of the guarantee, the Authority was dealing with a triply contingent hypothetical. First, the appellant had to plead not guilty. If he pleaded guilty, he would be fined, with the fine able to be paid by instalments; no guarantee question would arise. Second, if he pleaded not guilty, he could be released on his own personal recognizance. In that eventuality, no guarantee would be required. Third, the guarantee question would only arise if he pleaded not guilty and his own personal recognizance was not sufficient. Now in that eventuality, and given that no immediate payment of money would be required from a guarantor, it might be expected that a family member may act as guarantor to secure the appellant’s release. But all of this is in the realm of a hypothetical which the Authority did not need to speculate about or discuss in detail.
Here, the IAA was largely dealing with a hypothetical and not one that was ever put to it. The parents and children being detained for a period or being separated because of their parents being detained was a contingent hypothetical. Specifically, any issue of harm was largely contingent on:
a)the parents being charged (which the IAA expressed only as a possibility);
b)there not being a Magistrate available; and
c)how the parents plead.
The IAA did not need to discuss in detail the potential consequences of the children in each of the above hypothetical scenarios. On the evidence provided and the claims advanced, it was enough for the IAA to address whether the parents would suffer serious or significant harm. The IAA did just that. No other issue of harm was ever suggested and on the evidence before the IAA it cannot be said that the hypotheticals that arguably arise point to an issue that should have been considered.
The Court is sympathetic to the concerns now raised by the applicants. The position they find themselves in is less than desirable, particularly as children are involved. The Court cannot, however, determine matters of this sort ‘with an eye keenly attuned to error’: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [46], per French, Sackville and Hely JJ. That, regrettably, is precisely what the Court is being asked to do here. The IAA operates within a restricted legislative regime that is largely unprecedented. Within the context of this case as pleaded it cannot be said that the IAA has acted in a way that is jurisdictionally unsound.
Accordingly, the second argument also fails.
Conclusion
For the reasons outlined above, the Court finds that there is no jurisdictional error demonstrated by the applicants’ sole ground of review.
Accordingly, the applicants’ application for judicial review is dismissed.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 27 August 2019
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