DPJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCA 1429

FEDERAL COURT OF AUSTRALIA

DPJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1429

Appeal from:	DPJ16 v Minister for Immigration & Anor [2019] FCCA 508
File number:	VID 281 of 2019
Judge:	WHEELAHAN J
Date of judgment:	2 September 2019
Catchwords:	MIGRATION – appeal from Federal Circuit Court – whether the Immigration Assessment Authority adequately considered whether the appellant would be of interest to Authorities on his return to Sri Lanka – whether the Authority failed to consider whether the appellant may be subject to torture as part of interrogation upon his return to Sri Lanka – appeal dismissed.
Legislation:	Migration Act 1958 (Cth) s 36, s 473CA
Cases cited:	AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89
Date of hearing:	27 August 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	30
Counsel for the Appellant:	The appellant appeared in person.
Counsel for the Respondents:	Mr A Solomon-Bridge
Solicitor for the Respondents:	DLA Piper

ORDERS

VID 281 of 2019

BETWEEN:

DPJ16

Appellant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:	WHEELAHAN J
DATE OF ORDER:	2 SEPTEMBER 2019

THE COURT ORDERS THAT:

1.The name of the first respondent be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2.The appeal be dismissed.

3.The appellant pay the first respondent’s costs, to be taxed in default of agreement.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1. The appellant appeals a decision of the Federal Circuit Court of 5 March 2019 by which an application for judicial review of a decision of the Immigration Assessment Authority was dismissed. The Authority had affirmed a decision of a delegate of the first respondent (the Minister) not to grant the appellant a Safe Haven Enterprise visa, as he did not satisfy the conditions in ss 36(2) of the Migration Act 1958 (Cth).

2. The appellant was represented by counsel before the Federal Circuit Court, but before this Court the appellant was unrepresented, and addressed the Court with the assistance of an interpreter.

3. At the commencement of the hearing, I confirmed with the appellant that the substance of the primary judge’s reasons, his notice of appeal, and the written submissions filed in this appeal on behalf of the Minister had been interpreted to him.

   Background

4. The appellant is a citizen of Sri Lanka who is of Tamil ethnicity from the north of the country. He arrived in Australia by boat on 11 September 2012. In 2013 the appellant made an invalid application for a Protection visa (Class XA). Later, in September 2015, the appellant was invited to apply for a Safe Haven Enterprise visa, and he then lodged a valid application on 23 October 2015.

5. The appellant lived in a refugee camp in India between 1990 and 2004. In 2004, his family returned to Sri Lanka. In 2008, the appellant was forcibly recruited by the Liberation Tigers of Tamil Eelam (LTTE) and taken to LTTE training camps. He claimed that he escaped a LTTE training camp on foot and attempted to move through a checkpoint amongst a group of civilians, but was arrested, detained, harmed, and tortured by officers of the Sri Lankan Army. The appellant claimed to have been stripped, beaten and detained near the checkpoint for three or four days, then taken to another location where he was accused of being associated with the LTTE, and was further interrogated, tortured and threatened.

6. The appellant claimed that in July 2008 he was handed over to the police in Sri Lanka, who took him to the courts where he was charged as a supporter of the LTTE and was released on bail, subject to reporting conditions. In a statutory declaration that was before the delegate of the Minister, the appellant clarified this claim, and stated that there was no court case against him anywhere in Sri Lanka, but that he had been arrested on suspicion, which was a routine thing that the Criminal Investigation Department (CID) and the police did on a daily basis to harass and torture young Tamils. The appellant claimed that he reported twice to the CID and was assaulted on each occasion and required to sign a confession, which he refused to do. The appellant claimed that he thereafter breached his bail conditions by not reporting.

7. The appellant claimed that in 2011 he fled to another part of the country from where he contacted his family sporadically. He claimed that he was told that the CID had attended his family’s home on numerous occasions and questioned his family about his whereabouts. He claimed that he learned that a summons had been sent to his home, and that a warrant had been issued for his arrest.

8. The appellant claimed in his protection visa interview that he avoided the authorities in the period from late 2008 to 2011 by hiding, or by staying briefly with friends and family.

9. The appellant stated that he left Sri Lanka in August 2012, believing that his life was in danger. He claimed that he believed that if he had been caught, he would have been tortured and killed. The appellant claimed that after he left Sri Lanka, in about June 2013, his family advised him that his father and brother were taken away by the CID for interrogation, and that his brother was questioned about the appellant’s whereabouts on his way to university.

10. The appellant claimed that if he returned to Sri Lanka he would likely come under increased scrutiny upon his arrival, because he was a Tamil from the Northern Province of Sri Lanka, and there was a warrant for his arrest on suspicion of being involved with the LTTE and terrorist activities. The appellant also claimed that given that he was also briefly involved with the LTTE, even if it was against his will, he would be detained, tortured, and almost certainly killed by the Sri Lankan authorities. The appellant claimed that his ethnicity as a Tamil was itself enough for authorities to persecute him, and claimed that when they realised that he was once wanted for LTTE activities, and that he had fled the country and applied for refugee status in Australia, he would not be spared.

    The Authority’s decision

11. On 5 August 2016, a delegate of the Minister refused the appellant’s application for a Safe Haven Enterprise visa. The delegate’s decision was treated as a “fast track reviewable decision” for the purposes of Part 7AA of the Migration Act, and was referred to the Authority under s 473CA of the Act. On 28 October 2016, the Authority affirmed the decision of the delegate not to grant the appellant a protection visa.

12. The Authority accepted that the appellant was forcibly recruited to join the LTTE and thereafter escaped on foot. The Authority also accepted that the appellant was subsequently detained by the Sri Lankan Army, and that he was then beaten, tortured and threatened. The Authority accepted that the appellant was then handed over to the police in July 2008 before being brought before a court on suspicion of being a LTTE member or supporter, and that the court then released the appellant on bail, subject to reporting conditions. However, the Authority noted that the appellant had given evidence that there was no court case against him in Sri Lanka, and concluded that as the appellant was released without charge, there was insufficient evidence to link the appellant to the LTTE at the time of his release.

13. The Authority accepted that following his release on bail the appellant reported on two occasions to the CID office, and accepted that the appellant was assaulted on those occasions and pressured to sign a confession, which he declined to do. However, the Authority did not accept that the assaults involved torture on either occasion or that the appellant suffered any consequences for not making a confession. The Authority found that because the Sri Lankan authorities had let the appellant go on these occasions (albeit after assaulting and attempting to coerce him), the appellant was not of serious interest to the authorities.

14. The Authority stated that there were some discrepancies in the appellant’s evidence, finding that he had embellished his claim that he had lived in hiding in the approximate two year period from late 2008 following his release from custody, and finding that the CID had not sought the appellant out when he had failed to report. This finding was based upon evidence that the appellant had continued to work and had resided at his home address during that period. The Authority did not accept that the appellant spent those years in hiding.

15. The Authority then found, relevantly, at [22]-[23] of its reasons –

    22.I have not accepted that the applicant was in hiding from 2008 and could not have been apprehended by the authorities if he was of interest to them. I find it implausible that he would be sent multiple notices to appear in court rather than simply being arrested, and without any charges ever being laid against him. I also consider it implausible that the applicant would have a lawyer attend and represent him when he was as he claims, hiding from the authorities altogether. I do not accept the applicant’s evidence about the court proceedings against him subsequent to the initial Magistrate’s appearance and I place no weight on the documents provided to support his claim of the continuing case. Given the applicant claims he was sent numerous notices to appear in court and has been the subject of an arrest warrant for almost eight years, I find it implausible that his parents would need to approach the court for evidence of an outstanding warrant against him. I do not accept that any such warrant exists. These factors, coupled with the fact the applicant remained in the local area and in Trincomalee with family - during a time when the Sri Lankan government was actively hunting down LTTE suspects, indicate to me that he was not a concern to the authorities during this time.

    23.In his written application the applicant stated his father and brother were interrogated by the CID in June 2013 and in the SHEV interview he stated that many times since his departure the CID and police have visited his home and asked his parents about him. He also claims he has a feeling the phone line is tapped and that his conversations with his family are being recorded. While I accept that routine monitoring of Tamils in the Northern province was still occurring in 2013, given my concerns and reasoning outlined above, I do not accept the authorities were interested in the applicant subsequent to 2008, even despite defaulting on reporting requirements. I do not accept that the authorities interrogated his family members five years later, nor that they have visited his home many times since his departure. I also do not accept the authorities have tapped his phone or recorded his conversations.

16. The Authority found that the appellant bore some visible scars from his ordeals in 2008, but considered these would not contribute to his risk profile on return to Sri Lanka, citing information in a report of the Department of Foreign Affairs and Trade (DFAT). The Authority was also not satisfied the appellant would face a real chance of harm upon his return to Sri Lanka, or in the reasonably foreseeable future on the basis of being a Tamil from the Northern Province. The Authority also did not accept that the appellant’s scarring or identity as a young male Tamil would put him at increased risk of adverse interest upon his return.

17. In summary, the Authority accepted that the appellant was forcibly recruited by, and escaped from the LTTE, and that he was detained, harmed, and arrested on suspicion in 2008. However, the Authority found that the Sri Lankan authorities’ interest in the appellant decreased throughout 2008 such that he was not actively sought by them even after he defaulted on his reporting requirements. The Authority did not accept that the appellant was of interest to authorities subsequent to 2008, or that members of his family were interrogated or otherwise questioned about the appellant after he departed. The Authority did not accept that the appellant was of interest or the subject of an arrest warrant, and given those factors, it did not accept that risk profiles to which it referred applied to warrant protection in the appellant’s circumstances.

18. In relation to the fact that the appellant had departed Sri Lanka illegally, the Authority noted at [39] of its reasons that he would be identifiable to authorities as a failed asylum seeker should he return. However, at [40] of its reasons, the Authority stated –

    Entry procedures upon arrival back in Sri Lanka may take several hours as involuntary returnees are processed by Immigration, Police and Intelligence Services to check identity and to see if the returnee has any outstanding criminal matters. Checks may involve interviewing the returnee, contacting their home area’s police, neighbours and family and checking criminal and court records. DFAT assesses that returnees are treated in accordance with these standard procedures, regardless of their ethnicity and religion. DFAT assesses that they are not subject to mistreatment while undergoing these checks.

19. The Authority accepted that upon his return to Sri Lanka the appellant would be identified as having departing illegally and may be charged under the Sri Lankan Immigration and Emigration Act 1988. However, based upon information from DFAT, and because the Authority did not accept that there were any outstanding warrants or court cases pending against the appellant, the Authority found that the appellant would be issued with a fine and released, or if he pleaded not guilty, he would be released on his own personal surety.

    The proceeding in the Federal Circuit Court

20. Before the Federal Circuit Court the appellant relied on an amended application seeking judicial review of the Authority’s decision, alleging that the Authority fell into jurisdictional error. The appellant relied on two grounds First, the appellant alleged that in considering the risk of harm to the appellant the Authority failed to consider the effect on that risk of the “Checks [which] involve interviewing the returnee, contacting their home area’s police, neighbours and family and checking criminal and court records”, being those adverted to in [40] of the Authority’s reasons set out above. Second, the appellant alleged that the Authority had failed to consider whether upon his return the appellant might suffer torture, assault, or other serious harm during questioning processes even if he were ultimately not found to be of interest to the Sri Lankan authorities.

21. In relation to the first ground of review, the primary judge found at [15] of her Honour’s reasons that the Authority had made conclusive findings that the appellant was no longer of interest to the Sri Lankan authorities. The primary judge noted that paragraph [40] of the Authority’s reasons implied an acceptance of the relevant country information. The primary judge noted that the Authority had considered and rejected the claim that there was an outstanding warrant for the appellant’s arrest, and that the appellant had not provided the Authority with any satisfactory evidence of the warrant. These findings of the Authority led to the primary judge’s rejection of the first ground.

22. In relation to the second ground of review, the primary judge referred to the Authority’s acceptance at [40] of its reasons of DFAT information that returnees to Sri Lanka are not subject to mistreatment while undergoing checks. The primary judge also held that the Authority was only required to consider such claims as put before it by the appellant when such claims were either: (1) the subject of substantial, clearly articulated argument, relying on established facts; or (2) clearly emerged from the materials, citing the Full Court’s decision in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18]. The primary judge considered that the Authority was not required to consider a discrete claim that, even though it may be determined after investigation that the appellant was not of interest to Sri Lankan authorities, he would be subjected to torture or assault during the course of investigation. That was because this discrete claim was not part of any clearly articulated matters raised as part of the appellant’s claims, and nor did they emerge on the materials.

23. The primary judge held that the Authority’s findings were clearly open to it on the material, and that the appellant had been unable to demonstrate that the Authority’s decision was affected by jurisdictional error. On 5 March 2019, the primary judge dismissed the application for judicial review.

    The appeal to this court

24. By his notice of appeal to this Court the appellant relied on the following grounds of appeal –

    1.The Federal Circuit Court at first instance erred in not finding that the Second Respondent ("the Authority") fell into jurisdictional error in that it failed to consider relevant considerations.

    Particulars

    a.   In considering the risk of harm to the Appellant, the Authority failed to consider the effect on that risk of the "Checks [which] involve interviewing the returnee, contacting their home area's police.... and checking criminal and court records" (Court Book at first instance, p. 323, the Authority's Decision Record [40]), in so far as those checks may reveal to the authorities at the time of his return to Sri Lanka that he had been detained and interrogated and had a previous court appearance or appearances relating to his suspected involvement in the LTTE, and that he had failed to report to CID as required by the conditions of his release on bail.

    b.   Further or in the alternative to particular (a), the Authority failed to consider whether, although it may be determined after investigation on his return to Sri Lanka that the Appellant is not of interest to the authorities, nevertheless during that investigation he may again suffer torture or assault or other serious harm, as the Authority had found that this had occurred to him three times in the past, and it found that he would be "processed by Immigration, Police and Intelligence Services" and that "Checks may involve interviewing the returnee, contacting their home area's police .... and checking criminal and court records." (Court Book 323, the Authority's Decision Record [40])

25. The appellant’s grounds of appeal raise the same issues in substantially the same terms as the grounds of review that were rejected by the primary judge. The appellant did not file any written submissions in support of his appeal. As I stated at [2] above, the appellant was unrepresented before the Court and addressed the Court with the assistance of an interpreter.

26. The appellant addressed the Court briefly, and then again in reply to the submissions that were made on behalf of the Minister. Without being critical of the appellant given that he was unrepresented, he did not develop any oral argument addressed to the grounds of appeal in his notice of appeal. He referred to the findings of the Authority that he had been tortured by the LTTE, that he had been tortured by the Sri Lankan government, that he had been a person of interest, and that he had experienced problems in Sri Lanka. He submitted that he did not understand why he was being told that he could go back to his country, and submitted that if he went back he would lose his life. In reply submissions the appellant submitted that the subject matter of his second ground of review, which was reflected in paragraph (b) of the particulars of his ground of appeal, had been raised by his claim, and submitted that it had been mentioned everywhere. The appellant submitted that he did not understand why it had been held that this was not a claim that he had made.

    Consideration

1. I am not persuaded that there is any error in the primary judge’s decision.

2. As to ground 1(a) of the notice of appeal, I consider that once the Authority found that the appellant had been of no interest to the Sri Lankan authorities from late 2008, and rejected his claim that there was an outstanding warrant for his arrest, it was open to the Authority to rely, as it did, upon DFAT information concerning the risks to which the appellant might be exposed as a returnee to Sri Lanka, and to conclude that those risks were not such as to warrant the appellant’s protection. In my view, the Authority was not required to consider a separate claim that a process of investigation and checks by the Sri Lankan authorities upon the appellant’s return would expose him to a risk which, in substance, the Authority was not satisfied existed. There was no error by the primary judge in rejecting the first ground of review, which is the subject of ground 1(a) of the notice of appeal.

3. Ground 1(b) of the notice of appeal raises whether the Authority failed to consider whether the appellant, even if not of interest to the Sri Lankan authorities, might nonetheless suffer some mistreatment as part of the investigation process upon his return to Sri Lanka. The Authority addressed this issue, including at [40] of its reasons which is set out at [18] above. In making its findings the Authority acted on information that DFAT had assessed that “returnees… are not subject to mistreatment when undergoing criminal record and other re-entry checks”. There was no error by the primary judge in rejecting the second ground of review, which is the subject of ground 1(b) of the notice of appeal.

   Conclusion

4. The appeal will be dismissed with costs.

I certify that the preceding thirty-one (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wheelahan.

Associate:

Dated:       2 September 2019