DRG17 v Minister for Home Affairs
[2018] FCA 1228
•17 August 2018
FEDERAL COURT OF AUSTRALIA
DRG17 v Minister for Home Affairs [2018] FCA 1228
Appeal from: DRG17 v Minister for Home Affairs & Anor [2018] FCCA 221 File number: WAD 53 of 2018 Judge: BANKS-SMITH J Date of judgment: 17 August 2018 Catchwords: MIGRATION – appeal from decision of Federal Circuit Court of Australia to dismiss application for judicial review – whether Immigration Assessment Authority had fallen into jurisdictional error – where primary judge dismissed application – where no error on part of primary judge particularised or established – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)(aa), 46A(2) Cases cited: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129
Date of hearing: 9 August 2018 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 32 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Ms SJ Oliver Solicitor for the First Respondent Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
WAD 53 of 2018 BETWEEN: DRG17
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
BANKS-SMITH J
DATE OF ORDER:
17 AUGUST 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the first respondent's costs to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BANKS-SMITH J:
This is an appeal from the decision of the Federal Circuit Court dismissing the appellant's application for judicial review of the decision of the Immigration Assessment Authority (Authority) to affirm the Minister's delegate's decision to refuse to grant the appellant a safe haven enterprise visa (SHEV): DRG17 v Minister for Immigration and Border Protection [2018] FCCA 221.
Background
The appellant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival in November 2012.
In December 2015 the Minister exercised his power under s 46A(2) of the Migration Act 1958 (Cth) (Act) to allow the appellant to lodge a SHEV.
The appellant lodged an application for a SHEV together with a statutory declaration setting out his claims for protection (summarised below) and he also attended an interview.
On 18 November 2016 a delegate of the Minister refused the appellant's application for a SHEV.
Pursuant to s 473CA of the Act, the delegate's decision was referred to the Authority for fast track review. On 24 November 2016 the Authority wrote to the appellant informing him of the review and informing him that new information could only be considered in limited circumstances.
On 14 December 2016 the Authority received a one page statement by email (Email) from the Appellant, setting out comments as to why he said he was not treated fairly by the delegate.
On 18 July 2017 the Authority decided to affirm the decision not to grant the appellant a SHEV.
The appellant applied to the Federal Circuit Court for judicial review of the Authority's decision and that application was dismissed.
The appellant now appeals from the decision of the Federal Circuit Court.
The protection claims
In summary, the protection claims made by the appellant in his SHEV application and considered by the Authority were as follows:
(a)in February 2011 the appellant's cousin accused an officer of the Sri Lankan Army (SLA) of touching her inappropriately;
(b)the appellant, his cousin and his parents reported the incident to the officer's superior, and accordingly the appellant came to the adverse attention of the officer;
(c)about one month after the incident, the appellant was stopped by the officer and was hit;
(d)the appellant was beaten frequently over the next few months and when he refused to buy the officer further cigarettes, he was interrogated at an army check point and accused of having connections with the Liberation Tigers of Tamil Eelam (LTTE);
(e)he was beaten unconscious and woke up in an abandoned house. He returned home and SLA officers went to his house and beat him in his bedroom. A few hours later seven to eight SLA officers came to the outside of his house, so the appellant and his family escaped through the back exit;
(f)he subsequently went into hiding in Batticaloa where he was frequently questioned by unknown persons;
(g)he returned to his parent's house in Jaffna after finding out that his father was ill. After one week, SLA officers came to the house as they were aware he had returned and requested he report to the army camp;
(h)he returned to Batticaloa as a result and made arrangements to leave the country;
(i)the officer has continued to search for the appellant since his departure from Sri Lanka;
(j)if returned to Sri Lanka, the appellant fears he will be seriously harmed or killed by the SLA on account of his Tamil ethnicity and imputed LTTE links.
Before the Authority
The Authority had regard to the material referred by the Secretary under s 473CB of the Act and certain new country information. It also considered the Email and clearly had regard to s 473DD of the Act, which provides that the Authority must not consider any new information unless certain conditions are satisfied.
By the Email, the appellant contended that he was not afforded procedural fairness as he was not given adequate notice of the SHEV interview and was not given the opportunity to respond fully to questions posed during the SHEV interview.
Addressing the conditions of s 473DD, the Authority was not satisfied that the information in the Email was not previously known and, had it been known may have affected the consideration of the appellant's claims. Nor was the Authority satisfied that the information could not have been provided before the delegate's decision was made.
In reaching those findings, the Authority noted that:
(a)a letter from the Department of Immigration and Border Protection addressed to the appellant at his given address and dated 27 September 2016 informed him of the hearing date of 20 October 2016: there was no evidence to indicate that the Department did not send the letter to the appellant by post on that date (the appellant said it was provided to him by email on or about 17 October 2016);
(b)the appellant attended the interview on 20 October 2016 and informed the delegate that he was happy to proceed with the interview without a representative present;
(c)the information in the Email related to events that pre-dated the delegate's decision and the appellant had not provided any reason as to why they were not raised with the delegate before a decision was made;
(d)the Authority had listened to the recording of the SHEV interview and found the claims pertaining to the conduct of the delegate were not made out. The appellant did not raise during the interview a concern that he was being 'cut off' or otherwise not permitted to provide full answers. Furthermore, following a break, the delegate asked the appellant if he had anything else to say to which the appellant replied, 'I don't need to say anything else, just what I'm asking for is the safety'. The delegate also told the appellant that any further information provided prior to the decision being made would be considered.
The new country information taken into account was in relation to the conditions for Tamils and other Sri Lankan citizens who had sought asylum abroad. The Department of Foreign Affairs and Trade (DFAT) country report was published on 24 January 2017 and updated the DFAT report to which the delegate had referred, which was dated 18 December 2015. It was published after the date of the delegate's decision and the Authority was satisfied that there were exceptional circumstances to justify considering the new information.
The Authority then considered the appellant's claims for protection. Its findings and reasons can be summarised as follows:
(a)the Authority considered the appellant's evidence in relation to a number of his past experiences to be unconvincing due to inconsistencies in his evidence presented at different times that undermined the credibility of his claims;
(b)in particular, the Authority found that the appellant had given inconsistent evidence as to how many times he was detained at checkpoints, how many SLA officers were involved, the length of his detention, the circumstances that led him to go into hiding, his reporting requirements, whether any police or security intelligence organisations impacted his day-to-day life in Sri Lanka, where he stayed and for how long prior to leaving Sri Lanka, and how he had obtained his passport;
(c)the Authority considered the appellant's explanation that any inconsistencies may have been due to interpretation or the limited time he had to answer questions, but rejected that explanation as the appellant had not indicated at his entry interview that he had any difficulty understanding the interpreter or that he had been given insufficient time to answer questions;
(d)it concluded that the appellant was not recalling a genuine personal experience in relation to the events that he claimed led to his decision to leave Sri Lanka;
(e)country information suggested that Sri Lanka had sophisticated intelligence on current and former LTTE members and supporters, and the fact that he was able to travel freely on his passport indicated that he was not a person of adverse interest to the authorities on account of any imputed LTTE links at the time or for any other reason;
(f)the Authority accepted that it is plausible that the appellant's cousin was mistreated by a SLA officer;
(g)the Authority accepted that the appellant's father was harmed when he confronted the SLA officer;
(h)the Authority accepted that the appellant and his family lodged a complaint with the officer's commanding officer, and that the offending officer may have been disciplined;
(i)however, because of the inconsistencies already referred to, the Authority was not persuaded that the appellant came to the adverse interest of the officer as claimed, that the officer continued to search for him, that he had been imputed with LTTE links by the officer or that he came to the adverse attention of paramilitary groups, or other persons, while residing in Batticaloa;
(j)the Authority noted that country information is that the overall situation for Tamils has improved considerably since the end of 2009. The appellant was educated, was able to obtain a passport and had travelled and was able to travel freely abroad. There was no evidence of barriers to the appellant in accessing services in Sri Lanka. The appellant's ability to depart the country legally indicated that he was not of adverse interest to the authorities on account of any imputed LTTE links at that time or for any other reason;
(k)taking into account those matters, and despite those events that were accepted as having occurred, the Authority was not satisfied that the appellant faced a real chance of serious harm upon return to Sri Lanka now or in the foreseeable future;
(l)further, the Authority found, having regard to country information and its findings about the appellant's profile, that the appellant did not face a real chance of serious harm by virtue of his Tamil ethnicity or on account of any actual or imputed LTTE connections, or for any other reason;
(m)the Authority, having regard to country information, was not satisfied that there was a real chance the appellant would be harmed by the Sri Lankan authorities by virtue of him being a failed asylum seeker;
(n)the country information suggests that the risk of mistreatment for the majority of returning asylum seekers is low and whilst there may be processing delays, the Authority was not persuaded that such delays constitute serious harm;
(o)having regard to all of the appellant's claims, the Authority found that the appellant does not have a well-founded fear of persecution within the meaning of s 5J of the Act and does not meet the definition of refugee in s 5H(1) of the Act;
(p)as to the complementary protection criterion, the Authority relied on its earlier findings to support the conclusion that the appellant would not face a real risk of suffering significant harm for any of the reasons advanced, and found that neither the treatment that the appellant may face as a Tamil nor the questioning on his return to Sri Lanka would amount to significant harm as defined by the Act;
(q)accordingly, the appellant was not owed protection obligations under s 36(2)(aa) of the Act.
Before the Federal Circuit Court
The appellant sought to rely upon the following grounds of review:
1.The Assessor failed to consider properly all my claims.
2.I could not understand the interpreter properly during my interviews – the interpreter spoke 'slang' Tamil which is Indian Tamil.
3.The Assessor didn't give me a chance to comment on the aspects of my claim.
The primary judge found that:
(a)as to the first ground of review, it was readily apparent that the Authority had properly considered each of the appellant's claims. The primary judge further found the Authority did as it was charged to do, namely to consider each of the appellant's claims, and he could detect no error in the Authority's analysis and consideration of each claim;
(b)as to the second ground of review, the appellant had not at any stage in the interview with the delegate raised that he was having difficulty in understanding the interpreter. The primary judge considered that if the appellant had been genuinely concerned about the interpretation, and particularly the alleged interpretation difficulties, he should have raised the point at the interview rather than on an application for judicial review;
(c)as to the third ground of review, under Division 3 of Part 7AA of the Act, the Authority was not obliged to invite the appellant to comment on a possible finding made by the Authority and to the extent the ground sought to agitate such claim, it was wrong.
The Court concluded that all three grounds of review were devoid of merit and dismissed the application.
Notice of appeal
The appellant filed a notice of appeal from the decision of the Federal Circuit Court on 16 February 2018. The notice of appeal specifies one ground of appeal:
Jurisdictional error - due to not following the law or facts presented in the evidence.
Self‑evidently, the purported ground does not disclose any identified error and no particulars were provided.
The appellant was ordered to file a written outline no later than 10 days prior to the hearing before me. He did not do so. However, I asked the appellant during the hearing before me to explain the grounds he wished to rely upon and the reasons why he asserts the primary judge made a wrong decision. The appellant referred to various incidents he said had occurred in Sri Lanka such as alleged shootings of students and a judge, shootings by police and harassment by army officials. At their highest, such submissions addressed country information in the context of the appellant's protection claims, and allowing some tolerance and latitude to the appellant, and having regard to the nature of the SHEV application, I will treat the appellant's submissions as amounting to a complaint that the primary judge erred in failing to accept that there was jurisdictional error on the part of the Authority based on its consideration of country information.
It is well recognised that the task of the Federal Circuit Court when dealing with an application for judicial review is to determine whether the Authority's decision was affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [76]. The task of this Court on an appeal is to determine whether the judgment of the Federal Circuit Court is affected by appealable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]. That task is to be undertaken having regard to the High Court's recent discussion of the respective roles of the Federal Circuit Court and the Federal Court in the context of legal unreasonableness in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30.
A review of the Authority's reasons reveals that it correctly identified the law that applied in the circumstances of this case, being the provisions of Part 7AA of the Act. The Authority had jurisdiction to review the delegate's decision on the papers. In my view, it was entitled to have regard to recent country information and it was not obliged to take into account the new information by way of the Email.
As is apparent from the summary of the findings set out above, the Authority carefully considered and assessed each of the appellant's claims and made factual findings that were open to it on the evidence. Where it was not persuaded that claims were made out, it gave reasons for forming that view: for example, it noted various areas of inconsistency which caused it to doubt the veracity of some of the appellant's claims.
The Authority gave careful consideration to country information about the treatment of Tamils and the manner in which the appellant might be treated upon any return to Sri Lanka, taking into account that he would be a failed asylum seeker. The country information referred to provides a rational basis for its findings on those matters. The Authority referred to country information in accepting some of the appellant's claims. For example, there was country information that stated that there had been a number of sexual assaults against women in the northern region of Sri Lanka and the Authority referred to this information in accepting the appellant's claim about the assault on his cousin. The appellant had submitted before the Authority that he knew of many people who had 'disappeared' on return to Sri Lanka, but the Authority paid careful regard to the country information to the effect that the positon of Tamils had improved, the monitoring of Tamils has eased since 2009 and that there was no other information that suggested that persons have gone missing on account of claiming asylum abroad.
There was no evidence that the appellant raised the specific incidents he raised before me when he was before the Authority or the primary judge and in any event, there was no evidence of such incidents, or when or why they occurred. The task of the Authority is to make the correct and preferable decision on evidence as at the date of its decision: Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at 298–299 [35]–[38], 304 [60]. There is no suggestion the information was before the Authority or was ignored by the Authority. It was not for the primary judge to accept evidence of country information subsequent to the decision of the Authority. It was not for the primary judge to make factual findings as to country information: that was the task for the Authority.
Having carefully reviewed the Authority's reasons and the material in the Court Book that was before the primary judge, it seems to me that the Authority's decision cannot properly be described as unreasonable or revealing jurisdictional error.
The primary judge accurately summarised the appellant's protection claims and then considered whether they had been addressed by the Authority. He was satisfied that was so (properly, in my view). The appellant has not pointed to any deficiency in the manner in which the primary judge reviewed the evidence or matters raised before the Authority. Given the absence of identifiable jurisdictional error in the Authority's decision, it follows that the primary judge was right to dismiss the application for judicial review. It was not suggested that the primary judge erred in his treatment of grounds 2 and 3 of the review application before him. In any event, the primary judge's finding as to ground 2 was open on the evidence before him and his finding as to ground 3 reflects the statutory regime.
Determination
Having carefully considered the various matters raised by the appellant in his oral submissions before me and having reviewed the Authority's reasons and those of the primary judge, I am not satisfied that there is any error in the decision reached by the primary judge.
Accordingly, I would dismiss the appeal and costs should follow the event in the usual way.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith. Associate:
Dated: 17 August 2018
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