Dpe17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 825
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DPE17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 825
File number(s): SYG 2523 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 7 September 2023 Catchwords: MIGRATION – Whether Immigration assessment Authority failed to properly consider and assess applicant’s claims – merits review sought – additional issue raised by Minister whether Authority erred in assessment of whether to consider new information Legislation: Migration Act 1958 (Cth) ss 5J, 473DC, 473DD Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 Division: Division 2 General Federal Law Number of paragraphs: 38 Date of hearing: 7 September 2023 Place: Sydney The Applicant: In person Counsel for the Respondents: Ms K Hooper Solicitor for the Respondents: Australian Government Solicitor ORDERS
SYG 2523 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DEP17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
7 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The application filed on 9 August 2017, is dismissed.
2.The applicant must pay the first respondent’s costs and disbursements of, and incidental to the application, fixed in the amount of $6,230.
3.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 1 and 2 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.
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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)JUDGE GIVEN
By an application to show cause filed with the Court on 9 August 2017, the applicant seeks review of a decision of the Immigration Assessment Authority (Authority) made on 31 July 2017 affirming a decision of a delegate of the Minister (delegate) to refuse to grant him a Safe Haven Enterprise (Subclass 790) visa (visa).
BACKGROUND
The applicant is a citizen of Sri Lanka and arrived in Australia as an unauthorised maritime arrival on 10 October 2012 (Court book (CB) 105).
The applicant lodged his application for the visa on 16 March 2016 (CB 25). The applicant’s claims to fear harm were, in summary, based on his brother’s involvement with the Liberation Tigers of Tamil Eelam (LTTE), which the applicant claimed would result in him being imputed with a political opinion supportive of the LTTE, the applicant’s Tamil ethnicity, his involvement in the Tamil National Alliance (TNA) political party, and his being a failed asylum seeker.
On 29 November 2016, the delegate refused to grant the applicant the visa (CB 105), and the decision was referred to the Authority for review (CB 117).
On 20 December 2016, a third party emailed the Authority (CB 134) attaching a statutory declaration apparently made by the applicant, which was primarily in the nature of a written submission (CB 135).
On 31 July 2017, the Authority affirmed the decision to not grant the applicant the visa (CB 146).
The Authority’s decision
The Authority summarised the applicant’s factual claims at [8] of its reasons for decision (CB 148). The Authority accepted the applicant’s claimed detention and mistreatment in 1992 was because of his brother’s LTTE profile (CB 150 at [23] to [24]). However, the Authority did not accept the applicant’s account of events in 2012 for reasons including inconsistencies in his claims and because he had been able to obtain a passport and travel freely in and out of Sri Lanka (including in 2012 without adverse attention being paid to him) (CB 152 to 153 at [32]). The Authority was not satisfied that the applicant continued to be of adverse interest to the Sri Lankan authorities because of his brother’s prior LTTE involvement, or because he himself was imputed to have been involved with the LTTE (CB 153 at [34]).
The Authority accepted that the applicant had low-level, brief, involvement in Sri Lankan politics distributing flyers for the TNA, but found this did not give rise to a real chance of serious harm (CB 153 at [35]). Having regard to country information and its anterior findings of fact about the applicant’s profile, the Authority found that he did not face a real chance of serious harm because of his Tamil ethnicity, or because of any actual or imputed LTTE connections, including familial connections (CB 153 at [36]).
APPLICATION TO THIS COURT
The applicant commenced these proceedings by an application to show cause filed with this Court on 9 August 2017. The matter was initially docketed to another judge of this Court (first primary Judge), before whom the applicant appeared in person on 22 September 2017 for a first Court date directions hearing. On that occasion, the first primary Judge made orders which, inter alia, included a grant of leave to the applicant to amend his application on or by 10 November 2017. The applicant did not avail himself of that opportunity.
The matter was next listed for a callover before the first primary Judge on 16 March 2018, which fixture was later vacated, and the matter stood over at large. The proceedings were later transferred to the central migration docket. They were then called over by telephone before a Registrar of the Court on 7 April 2022, on which occasion the applicant appeared with the assistance of an interpreter in the Tamil language.
The proceedings remained in the central migration docket until when, on 16 March 2023, they were docketed to me. On that date, I made orders listing the matter for hearing before me at 2.15pm on 7 September 2023 and granting the applicant further leave to file any amended application on or by 3 August 2023. The applicant and the first respondent were each ordered to file written submissions 14 and 7 days before the hearing (respectively). The Minister complied with that order, but the applicant has not filed any additional documents in accordance with those orders, or at all.
On 16 March 2023, a listing notice was sent to the parties by the Court. The document was to the applicant by Express Post only because he had not provided any email address for service in his originating application. By an Affidavit of Service, which was ultimately not read for the Minister, the Court was put on notice that the Minister’s solicitor had a telephone call with the applicant shortly before the final hearing, in which he confirmed that he had changed his postal address. Despite being asked to file a Notice of Address for Service to reflect that fact and (by the applicant’s own concession at the Bar table) also having been provided with that form, he has not done so.
I asked my Associate to assist the applicant in filing a Notice of Address for Service form at the conclusion of the hearing so as to update the Court’s records, which I understand occurred. In any event, the applicant appeared before me for hearing in person and with the assistance of an interpreter in the Tamil language. The Minister was represented by Counsel. The Court adjourned for approximately 15 minutes during the hearing so that the written submissions of the Minister could be interpreted to the applicant in full.
Grounds of review
By his application to show cause, the applicant raises the following three particularised grounds of review:
Ground 1
IAA made a jurisdictional error by misapplying the well-founded fear test.
Particulars
IAA did not consider past affiliation of the Applicant's brother with the LTTE.
Ground 2
IAA did not take into account a relevant issue.
Particulars
IAA did not consider that Applicant did not come to adverse attention because of the issue of Notice.
Ground 3
IAA did not take into account a relevant issue.
Particulars
Sri Lankan authorities have recommenced arrests of former LTTE suspects and their relatives.
At the hearing, the Court Book was tendered for the Minister and marked Exhibit “1R”. While the applicant did file an Affidavit in support of the originating application, regard was not had to it because it served only to annexe the Authority’s decision, which is contained in the Court Book. As noted, the Minister filed written submissions as ordered. Other than the originating documents and the Notice of Address for Service completed at the conclusion of the hearing, the applicant has not filed any other documents in this case. During the hearing, the grounds of review were interpreted to the applicant and he was given an opportunity to address them.
Ground 1
The first ground of review alleges that the Authority erred by misapplying the “well-founded fear” test. The particulars to this ground are said to be that the Authority did not consider the past affiliation the applicant’s brother had with the LTTE. When asked to speak to this ground, the applicant said:
Whatever I have told them about my brother’s affiliation with the LTTE, they have not taken into account.
and:
The reason I came here was because of problems arising from his affiliation, so if they had considered that, they would understand.
It is important to appreciate that there is a difference between considering claims and accepting them. Notwithstanding this, it is clear from a review of the Authority’s decision that not only did it consider the claims in relation to the applicant’s brother having been affiliated with the LTTE, but it accepted them. The Authority also accepted that the applicant had come to the adverse attention of the Sri Lankan authorities by reason of his brother’s profile when it said (CB 150 at [23]):
I accept that the applicant came to the adverse attention of the Sri Lankan authorities in 1992 on account of his brother’s LTTE profile. I note that the applicant has been consistent throughout the entry interview and his SHEV application in respect of this claim. Country information in the referred materials documents the detention and torture of civilians during the conflict towards those suspected of having LTTE connections. In circumstances where the applicant’s brother was a member of the LTTE, I accept that the applicant was detained and subjected to such treatment as claimed. I accept that the applicant was detained, tortured, and accused of LTTE links in 1992. I also accept that he was released in early 1993 after his mother paid a sum of money.
However, even having accepted that the brother had the profile claimed, and that the applicant had been detained and tortured and accused of having his own links to the LTTE in 1992, it does not necessarily follow that the Authority was required to be satisfied that the applicant otherwise met the requirements of either the refugee criterion or the complementary protection criterion.
At [32] of its reasons for decision, the Authority set out (in detail) other factors which caused it to conclude that, even if the accepted events of 1992 were taken into account, the applicant still did not meet the real chance or real risk of requisite harm test.
The applicable law is accurately summarised by the Authority at [10] of its reasons. The particulars to this ground suggests that the applicant’s complaint is that in determining whether the applicant had a well-founded fear of persecution within the meaning s 5J(1) of the Migration Act 1958 (Cth) (Act), the Authority failed to consider the applicant’s brother’s past affiliation with the LTTE.
As stated at [17] above, that past affiliation is a matter which the Authority accepted. The Minister says that the Authority did consider its acceptance of this claim in assessing whether the applicant had a well-founded fear of persecution. The Authority’s findings at [23] to [24] (which accepted the applicant’s claim about his brother and the past harm experienced by the applicant in 1992 to 1993) cannot be read separately from the whole of the reasons.
In that regard, the following context is relevant:
(a)at [32], the Authority did not accept the claimed 2012 events, for the reasons it gave. At the end of this paragraph, the Authority stated that it was:
…not satisfied that the applicant is at risk of harm in Sri Lanka due to his brother’s prior LTTE involvement, or for any other reason.
(b)at [34], the Authority stated:
I have accepted that the applicant was detained and mistreated in 1992 on account of his brother's LTTE profile. However, on the evidence before me, I am not satisfied the applicant continues to be of ongoing interest to the Sri Lankan authorities on account of his brother's prior LTTE involvement, or his own imputed involvement. Accordingly, I am not satisfied that the applicant now faces a real chance of serious harm in Sri Lanka due to imputed LTTE involvement or links.
(c)at [36], the Authority concluded that:
…Given my findings about the profile of the applicant, and having regard to the country information before me, I conclude that he is not a person that faces a real chance of serious harm by virtue of his Tamil ethnicity, or on account of any actual or imputed LTTE connections, including familial connections.
I agree that a plain, contextual and beneficial reading of the Authority’s reasons for decision demonstrates that, contrary to the allegation made by ground 1 of the application, the Authority very clearly took into account the brother’s LTTE affiliation and the applicant’s claims of past harm in this regard, but was not ultimately satisfied that it gave rise to the applicant meeting either of the requisite tests and being a person to whom Australia owed protection obligations. Accordingly, ground 1 fails at a factual level.
Ground 2
By ground 2, the applicant alleges that the Authority failed to take into account a relevant issue, which is described by the applicant as being the “issue of Notice”. The Minister’s written submissions in response to this ground were (understandably) brief given that, without further particulars or explanation, it is difficult to understand the allegation being made.
The Court sought to explore with the applicant at hearing to what he was referring when he used the expression “issue of Notice.” However, and while meaning no disrespect to him, it was not possible to get a clear answer. The applicant first said, “I was apprehended and detained”, that “I was not given notice of being detained” and also “They detained me then released me, and, because of the ongoing fear, I fled.”
Counsel for the Minister helpfully explained that she had undertaken a process of reviewing the content of the Court Book in search of any references to an “issue of Notice” or anything that otherwise might be construed as giving some sense to this ground. Counsel for the Minister also explained that regard was also had to the identity documents that were submitted with the visa application as well. However, this forensic exercise did not shed any further light on what might have been intended by the expressions used in ground 2.
When asked whether or not any of the applicant’s oral submissions today elucidated the matter further for the Minister, it was respectfully submitted for the Minister that the submissions did not clarify the matter. In any event, in circumstances where the claim to have been detained was accepted by the Authority, the Minister says it is difficult to understand how this could be said to give rise to any jurisdictional error.
I find that there is nothing emanating from this ground, even when understood in the manner sought to be explained by the applicant at the hearing today, which gives rise to a jurisdictional error as alleged. Nor can any error that might give meaning to this ground be reasonably discerned from the content of the Court Book. As such, ground 2 must fail.
Ground 3
By ground 3, the applicant alleges that the Authority failed to take into account a relevant issue. The Minister submits that the manner in which ground 3 is expressed appears to contend for the merits of the applicant’s protection claims, which, as I explained to the applicant at the outset of the hearing (and which he said he understood) is not part of this Court’s jurisdiction.
When asked what he wished to say in relation to this ground, the applicant said he had no explanation. When asked by the Court if he was seeking to contend that he ought to have been found to be a person to whom Australia owed protection because Sri Lankan authorities had recommenced arresting the relatives of former LTTE suspects and, therefore, he ought to have been given a protection visa, the applicant said “yes”.
In submissions in reply, the applicant similarly made submissions to the effect that if he was to go back to Sri Lanka he would be harmed. He also asked the Court for a visa.
In my view, the Minister’s characterisation of this ground is accurate. The applicant is, in essence, seeking merits review and as I explained to him, the Court cannot assess the reality of his claims or give him a visa. As such, ground 3 is not made out.
Additional issue
In his capacity as a model litigant and in the interests of completeness, the Minister raised an additional issue. Namely, whether there was any error in the Authority’ findings in relation to s 473DD of the Act in the manner identified in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 (AUS17).
At [4] of its decision, the Authority identified the applicant’s statutory declaration, which it described as a submission (CB 147). The Authority considered that submission to the extent that it did not comprise of “new information” as defined by s 473DC(1) of the Act. The Authority identified references within the submission to country information that was not before the delegate and which it found was “new information”. The Authority considered that new information against ss 473DD(b)(i) and (ii), finding neither to be met (CB 147 at [6]).
The Minister contends that, having so found, there was no satisfaction of either or both of
ss 473DD(b)(i) and/or (ii) that the Authority was obliged to consider in evaluating satisfaction of s 473DD(a) (Cf. AUS17 (supra) at [11] per Kiefel CJ, Gageler, Keane and Gordon JJ) and, the requirements in ss 473DD(a) and (b) being cumulative, section 473DD was not able to be met.
I agree with that submission and accept that there is no error in the manner in which the Authority addressed section 473DD in considering whether or not new information would be received and considered by it.
CONSIDERATION
Overall, I am satisfied that the decision of the Authority in this matter is not affected by jurisdictional error. In the absence of jurisdictional error, the decision is, therefore, a privative clause decision, and must be dismissed. I will so order.
COSTS
Consequent upon the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $6,230 on the basis that costs ought follow the event. Having regard to the proceedings, I am satisfied that costs ought follow the event. I am further satisfied that the amount sought is reasonable having regard to the nature and duration of the proceedings, the additional issue raised by the Minister in written submissions, which were prepared by Counsel, and the attendance of Counsel today instructed by a solicitor. That is more so having regard to the fact that the present scale costs for a matter concluded in the migration jurisdiction at a final hearing is $8,371.30.
I certify that the preceding thirty eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 14 September 2023
0
1
0