Dud18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 979
•18 August 2021
FEDERAL COURT OF AUSTRALIA
DUD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 979
Appeal from: DUD18 v Minister for Immigration [2020] FCCA 2506 File number(s): WAD 231 of 2020 Judgment of: O'CALLAGHAN J Date of judgment: 18 August 2021 Catchwords: MIGRATION – appeal from decision refusing judicial review of IAA’s decision – appeal dismissed Legislation: Migration Act 1958 (Cth) Cases cited: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 30 Date of hearing: 11 August 2021 Counsel for the Appellant: Mr M Guo Solicitor for the Appellant: Estrin Saul Lawyers Counsel for the First Respondent: Ms SJ Oliver Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
WAD 231 of 2020 BETWEEN: DUD18
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
O'CALLAGHAN J
DATE OF ORDER:
18 AUGUST 2021
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs of and incidental to the appeal to be agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
O’CALLAGHAN J:
The appellant appeals from a decision of the Federal Circuit Court of Australia dated 10 September 2020, dismissing an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (the IAA), dated 28 June 2018. By that decision, the IAA affirmed a decision made by a delegate of the first respondent (the delegate) to refuse the appellant’s application for a Safe Haven Enterprise (Class XE) (Subclass 790) visa (the visa). The IAA’s decision was made pursuant to Part 7AA of the Migration Act 1958 (Cth) (the Act).
Background
The appellant, a citizen of Sri Lanka, arrived in Australia on Christmas Island on 27 November 2012 as a so-called “unlawful maritime arrival”.
The appellant applied for the visa in March 2017.
On 23 August 2017, the appellant attended an interview with the delegate. Following the interview, the appellant’s representative provided further submissions and materials to the delegate on three separate occasions between August and October 2017.
In November 2017, the delegate refused to grant the visa and the matter was referred to the IAA.
The appellant’s representative subsequently provided further submissions and documentation to the IAA and on 28 June 2018, the IAA affirmed the delegate’s decision.
The appellant’s claims
The appellant’s lawyers provided to the delegate a written submission dated 31 August 2017 which, among other things, reiterated his fears that he would face a real chance of serious harm and a real risk of significant harm for reasons of his membership of the Tamil Eelam Cricket Club in Australia. Citing various sources, the submission explained that the term “Tamil Eelam” is the name used by separatists for the independent nation-state they pursue. The submission also cited the Oxford English Dictionary’s definition of the term “Eelam” as “[t]he proposed homeland of the Tamil people of Sri Lanka, for which the Tamil Tigers separatist group have been fighting since the early 1980s”. The “Tamil Tigers” are also referred to as the Liberation Tigers of Tamil Eelam (LTTE).
The submission also annexed a screenshot of the Wikipedia profile for the “Tamil Eelam national cricket team”, which publicly listed the appellant, by his full name, as one of eight team members. The screenshot of the Cricket Club’s profile page also depicted a link to the Transnational Government of Tamil Eelam (TGTE) Wikipedia page. The parties described that link and the appellant’s claim that it demonstrated the symbolic importance of a sports club aligning itself with the Tamil Eelam separatist movement as the Sporting Separatism Information.
Also included with the submission were several Facebook screenshots showing posts promoting Tamil separatism.
Apart from the Wikipedia and Facebook pages, the submissions also included:
(1)articles about the Cricket Club in the context of discussions concerning:
(a)a Tamil Eelam “identity”;
(b)political and ethnic freedom and a “story of survival”; and
(c)a Tamil Eelam “homeland”; and
(2)a reference to what was apparently a political advertisement connected to the current Sirasena administration, which labelled the Cricket Club as “World First Terror Cricket Team”.
After discussing country information about how sport has been used worldwide in aid of separatist movements, the submissions concluded:
The Tamil Eelam Cricket Club continues this tradition of promoting international recognition and visibility for the Tamil people’s aims of obtaining a separate Tamil homeland, as well as asserting their marginalised identities as Tamils. This aim is evident both through the associations evident from the links cited above, but also through their controversial choice of name. It clearly links participants in the team with separatist politics which … exposes the Appellant and his teammates to a real risk of harm if returned to Sri Lanka.
The submissions made to the delegate concerning the Cricket Club were also made to the IAA.
Relevant reasons of the IAA
The IAA’s reasons with respect to the Tamil Eelam Cricket Club claim were as follows:
31.The applicant claimed in his visa application that he joined the Perth Tamil Eelam Cricket Club sometime in August 2015. He played for the team in the national competition for Last Man Stands tournament on the Gold Coast. He stated that the trip and the team had attracted significant attention in the Sri Lankan community. Soon after the club had appeared in reports in Tamil and English language news sources, some men in civilian clothing came to his family home made inquiries about where he was and what he was doing and they told his mother that the applicant was working against the Sri Lanka government in Australia. His mother told them that it was not true as the applicant was just playing cricket. After the men left the house, they questioned his brother again when they saw him on the street and they beat his brother. So the family sent his brother to Switzerland in December 2015 where he was in the process of applying for refugee status. He repeated broadly the same at the visa interview and a letter of support from the founder of the club dated 23 May 2017 was also provided. A large amount of material was provided in the post interview submissions.
32.I have considered the letter from the founder of the Tamil Eelam Cricket Team/Club, various Facebook pages, and articles provided relating to the cricket team/club and the applicant. I accept that the applicant is member of the Tamil Eelam Cricket Club in Perth and his name and images are on the public Facebook pages.
33.The applicant submits that his membership of the cricket club would impute him with an association with the LTTE and post-conflict Tamil separatism. The post interview submissions include a large number of Facebook page screenshots. For example, some are from the Tamil Eelam Cricket Club's Facebook page, showing some users made comments about politics and the tigers/being proud to be Tamil/Tamil Eelam/need for a separate Tamil state and with one user using LTTE uniformed person as a profile picture and a user named ‘TamilsRevolt’. Some are from the TamilsRevolt and Tamils Eelam Cricfans’ Facebook pages, which has links to a Wikipedia article about the cricket club, the Government of Tamil Eelam’ Facebook page and articles that appears to promoting Tamil separatism. Also provided are screen shots of search results of Tamil Eelam/Tamil Eelam Cricket showing images linked to the LTTE/separatism, where one link to a Facebook user named ‘Free Tamil Eelam’ promoting the club's fundraising page.
34.However, the letter from the founder of the club Mr Pathmanathan is clear that the club/team was formed to provide a positive and healthy activity for Tamil asylum seekers and other Tamils in the Perth community. He states that the name Tamil Eelam was chosen with the aim of normalising this phase for the Tamil homeland and hopes that it will come to associated with the geographical location it refers to rather than the politicised concept which rose to prominence during the Sri Lankan Civil War. The letter acknowledges the club’s media and social media exposure and its popularity. It also states that their moderators have had to remove abusive comments from people who associate the name Tamil Eelam with the LTTE and Tamil separatism generally. The other articles provided also indicate that the founders’ intention of the club is consistent with what was stated in the letter, for example another co-founder Mr Nathan also expressed that the use of the term Tamil Eelam hoping to normalise it as a geographic location and remove its connotations to the Tamil Tigers.
35.Based on the materials provided, I accept there has been some media coverage about the club and its founders and players. I accept the team and its player have gained popularity through social media Facebook. I accept the use of Tamil Eelam as part of its name is perceived by some, in particular, social media user and bloggers as controversial and there are people who might have used the cricket club/team to promote Tamil separatism using social media platforms. However, I consider it is clear that the club itself or its founders do not have a pro Tamil separatism agenda and do not promote themselves as such, neither is there any indication that players playing for the club with a view of promoting post conflict Tamil separatism. The reported games played against players made from Sinhalese background further indicate neither the club itself nor the Sinhalese team/players/club views the Tamil Eelam cricket club as a group that supports Tamil Separatism. I do not accept the applicant lawyer’s assertion in the post interview submissions that the Tamil Eelam Cricket Club continues its tradition of promoting international recognition and visibility for the Tamil people’s aims of obtaining a separate Tamil homeland or the club asserts that it is the national team for a minority ethnicity in Sri Lanka.
36.The applicant’s lawyer in the post interview submission also seek to rely on the dictionary definition of ‘Eelam’, academic papers, discussion forum like Quora, search result entries of ‘Tamil Eelam’, the use of ‘Eelam’ as part of the names of some groups fighting for Tamil independence including TGTE and examples of Palestinian diaspora football club in Chile, the Kurdish football club in Sweden, the West Papuan Warrior Rugby Team and the Tibet National Football Team and argues that sports are being used as a means of expressing nationalist sentiment among the diasporas of ethnic groups who do not possess a sovereign state. I have also considered the controversy surrounding the proposed Australian census question in 2016 of including “Tamil Eelam’ as an optional answer to the question ‘country of birth’ and the reported influence from the Sri Lankan High Commissioner in Australia for its removal from the census. However, despite the media/social media coverages of the cricket club and its team and despite the club has been in existence since 2005, noting the large amount of materials provided, the applicant has not provided any credible report indicating that the Sri Lankan authorities (including the Sri Lankan High Commissioner in Australia) view the Perth based Tamil Eelam Cricket Club/team as being linked to Tamil separatism. I give little weight to the link to the “Transnational Government of Tamil Eelam” of the Wikipedia article about ‘Tamil Eelam national cricket team’, as any user could have added that link.
37.I note that the letter from Mr Pathmanathan also states that they have been extremely concerned to learn that families of some of their players whose name or image appear on their Facebook page have experienced harassment from the Sri Lanka authorities in Sri Lanka because of their membership of the club and they are gravely concerned about the possibility that team members could face harm if they were to return to Sri Lanka because of their involvement with the club. However, no further details were provided as to circumstances of the harassment and how he became aware of it. I give no weight to this letter as evidence that his team members’ families were harassed or the applicant’s family was visited by the Sri Lanka authorities in 2015 and his brother was beaten because of his involvement with the Tamil Eelam Cricket Club.
38.l do not accept that the Sri Lankan authorities has in the past linked the club or its founders/players to LTIE or Tamil separatism or it currently considers the club or its players to be promoting LTTE or Tamil separatism. I do not accept the applicant has been perceived by the Sri Lankan authorities as someone who is against the Sri Lankan government or promoting LTTE or post conflict Tamil separatism through his association with the Tamil Eelam Cricket Club. I do not accept that his family was visited. I do not accept that the applicant has drawn any adverse interest from the Sri Lanka authorities due to his involvement with the club.
(Emphasis added – see infra at paragraph 27 below. Errors in original.)
The IAA affirmed the decision of the delegate not to grant to the appellant a protection visa.
Proceedings in the Federal Circuit Court
The appellant then sought judicial review of the IAA’s decision in the Federal Circuit Court of Australia pursuant to s 476 of the Act. The primary judge dismissed the application on the basis that no jurisdictional error had been established.
By ground 1 the appellant contended that the IAA had wrongly determined that the submission made to it about the links to the TGTE on the Cricket Club’s Wikipedia entry demonstrating the symbolic importance of a sports club aligning itself with the Tamil Eelam separatist movement was “new information”.
The learned primary judge agreed with that submission. No issue arises about it in this court because the Minister accepted the correctness of his Honour’s finding on the new information point.
The primary judge, however, held that the failure by the IAA to consider that new information was not material and thus dismissed ground 1 for the following reasons:
117.The IAA (at [36]) states that it gave:
…little weight to the link to the “Transnational Government of Tamil Eelam” of the Wikipedia article about ‘Tamil Eelam national cricket team’, as any user could have added that link.
118.Here, although the IAA’s finding that the “very fact that the Tamil Eelam Cricket Club Wikipedia entry links readers to the TGTE entry demonstrates the symbolic importance of a sports club aligning itself so blatantly with the Tamil Eelam separatist movement” was “new information” was an error, the error is not material. This is so because the IAA gave little weight to the link as constituting evidence of something that imputed the Cricket Club with a pro-LTTE opinion.
By ground 2, the appellant contended that the IAA had erred relevantly by failing to consider evidence that was central to the appellant’s claim that membership of the Tamil Eelam Cricket Club presented a real risk of harm by reason of being imputed with a political opinion. The primary judge dismissed that ground because he did not accept that the material upon which the appellant relied had not been engaged with.
Notice of appeal
On 8 October 2020 the appellant filed a notice of appeal. The grounds were in substance the same as the two grounds contended for before the primary judge, namely:
1.The learned primary judge erred in wrongly finding that the error made by the Immigration Assessment Authority in respect of the Sporting Separatism Information was not material, further or alternatively, that whether the error was jurisdictional was the subject of an assessment as to materiality ([118]).
Particulars
a.The learned primary judge correctly found that the Sporting Separatism Information comprised two aspects: the ‘very fact’ of a Wikipedia link (the Link Aspect) and the information that the ‘symbolic importance of a sports club aligning itself so blatantly with the Tamil Eelam separatist movement’ was not new information ([109]-[110]) (the Alignment Aspect).
b.The Alignment Aspect was distinct and separate from the Link Aspect.
c.In finding that the error in respect of the Sporting Separatism Information was not material, the learned primary judge wrongly conflated the Alignment Aspect and the Link Aspect
2.The learned primary judge erred in wrongly finding that the evidence put forward by the Appellant to the Immigration Assessment Authority was not ‘so material to the applicant’s claim that it would be expected that the IAA would explain why it accepted or rejected them’ ([151]).
Particulars
a.The Appellant’s evidence was expressly put forward to the Immigration Assessment Authority as proof connecting ‘the Applicant to political movements which are campaigning for a separate Tamil state’, that the Appellant might be identified as ‘a supporter of the struggle for an independent Tamil state’, and that the ‘imagery [in the evidence] is connected to the armed struggle for a separate Tamil state’. Contrary to the finding of the learned primary judge, the evidence was not put forward just ‘to address the visibility of the Cricket Club’ ([154]).
Ground 1
The substantive issue that arises with respect to ground 1, and the substantive issue decided adversely to the appellant by the learned primary judge, is whether the IAA’s error in finding that the Sporting Separatism Information was new information was a material error in the sense that the High Court has explained, namely, that had the error not been made, there could realistically have been a different result. See eg Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45], [49] (Bell, Gageler and Keane JJ), affirmed in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590 at [2] (Kiefel CJ, Gageler, Keane and Gleeson JJ) (“Materiality … involve[s] a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different … [is] a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof”).
In his written submissions, counsel for the appellant contended as follows:
The Sporting Separatism Information was plainly at least probative of the risk of being imputed with a separatist political opinion. It cannot be confidently said that had the IAA not rejected that proposition at the new information threshold, it would have just as stridently rejected the Appellant’s fear of being imputed with a separatist opinion as it did at [38] of its reasons. The IAA should have faith placed in it to approach matters with fresh eyes if the evidence base before it is different. There is an analogy to be drawn with the warnings of this Court and the High Court about how one should be alert to the possibility that a fresh consideration of one matter going to credit may cause other matters going to credit to be revisited in a new light. (Citing VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [79]; Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at [81].)
In oral submissions, counsel for the appellant added that:
[T]he submission that was made which [the IAA] wrongly concluded was new information and, therefore, by definition did not consider[,] [was the] submission that a sporting club can be linked to a political movement …
The Minister contended that the IAA’s error was not material having regard to the following:
(1)The IAA did consider the fact that there was a link to the TGTE on the Cricket Club’s Wikipedia page, and found:
(a)that there were no credible reports indicating that the Sri Lankan authorities viewed the cricket team as being linked to Tamil separatism; and
(b)that any user could have added that link to the Wikipedia page, which was a matter that was significant in the IAA’s decision to give little weight to the Wikipedia printout.
(2)The IAA rejected the appellant’s claims of links to the LTTE and:
(a)found that the appellant had fabricated his story of training with the LTTE and his claim that his friends’ deaths or disappearances were due to him (IAA’s reasons at [20]);
(b)had serious doubts that the appellant was involved in organising his school’s rally and, whilst it was prepared to accept he had some involvement in his capacity as a prefect ([22] and [57]), did not accept that the appellant was questioned by the Sri Lankan Army in 2005 regarding the rally ([22]);
(c)did not accept that the appellant was of any particular interest to the Sri Lankan Army or Criminal Investigation Department when he left Sri Lanka in 2008 ([25]-[26]);
(d)did not accept that the appellant had been perceived by the Sri Lankan authorities as someone who was against the government or promoting the LTTE or post conflict separatism ([38]);
(e)had serious concerns about the late claims as to the appellant’s engagement in political activities in Australia, and did not accept any of his claimed participation in political activities in Australia, aside from one staged protest in January 2017 ([47]-[49] and [59]); and
(f)found that the appellant was not a credible witness, and had demonstrated a tendency to create and introduce new claims to build himself a profile ([50]).
(3)Given the IAA’s findings that the appellant was not a person of interest to Sri Lankan authorities prior to his departure, and given the rejection of his claims to have had LTTE links, it was open to the primary judge to conclude that the error was not material.
In my view, and in particular in circumstances where the IAA:
(1)did not believe the appellant’s claims of links to the LTTE;
(2)found that the appellant had, among many other things, fabricated his stories of training with the LTTE;
(3)found that he would not be perceived by the Sri Lankan authorities as someone who was against the government for promoting the LTTE; and
(4)found that the appellant was not a credible witness,
the IAA’s failure to have regard to the Cricket Club’s Wikipedia entry link said to “demonstrate the symbolic importance” of it “aligning itself” with the Tamil Eelam movement is not something which, if express regard had been had to it, could realistically have resulted in a different decision, or involved any practical unfairness. Cf Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 and Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180. Further, it seems to me that any “symbolic association” with the LTTE on the Cricket Club’s Wikipedia entry was not material, in the relevant sense, in circumstances where the IAA had found, in any event, that the appellant had no actual association with the LTTE. For those reasons, ground 1 has no merit.
Ground 2
Ground 2 is related. The essence of it is that the primary judge erred in finding that country information and a print out of a video (which were exhibits Z – ZF and ZI below and which had been put forward by the appellant to the IAA) were not so material to the claims that it would be expected that the IAA would explain why it accepted or rejected the evidence.
The fatal difficulty with the appellant’s contention in that regard is that the IAA quite plainly did have sufficient regard to that material. So much is readily apparent from the emphasised portions of the relevant paragraphs of the IAA’s reasons set out above at [13].
If I may say so with respect, no error is contained in the reasons of the learned primary judge with respect to this ground. On the contrary, his Honour’s reasons, the relevant paragraphs of which are set out below, are unimpeachable:
149.The IAA’s reasons are detailed and comprehensive. The IAA does not make a broad, generalised statement that it had had regard to the materials provided by the applicant. Rather, the IAA analyses particular annexures and explains how those annexures form part of its determination of whether the applicant, by virtue of his involvement with the Cricket Club, would be imputed with an association to the LTTE and Tamil separatism.
150.It is accepted that the IAA is not required to refer to every piece of evidence – only those that are material to the findings made. Here, the IAA has done just that.
151.The Court does not accept that the materials the applicant says “were not engaged with” were so material to the applicant’s claim that it would be expected that the IAA would explain why it accepted or rejected them. As emphasised in [Singh v Minister for Home Affairs (2019) 267 FCR 200], the materials must be considered in the context of how the materials were presented, what was before the IAA and the IAA’s reasons as a whole.
…
154.In relation to Annexures Z-ZI, the applicant’s submission to the delegate in relation to these annexures was to the effect that they showed that the Cricket Club had received “attention both online and in the printed press in Sri Lanka and internationally.” Hence, in context, they were presented to address the visibility of the Cricket Club – not to address whether any imputations arose from the materials. The IAA accepted that there had been media coverage about the Cricket Club and the players. In context, the IAA clearly “considered the evidence”.
155.In any event, the applicant largely relies on a paragraph (or single line) in the annexures to suggest that the IAA has not engaged with the evidence. When one considers the articles as a whole, and in light of the other materials, it is apparent that the Cricket Club was not conveyed in the media (or those articles) as promoting Tamil separatism. Rather, the articles seek to distance the Cricket Club from any political or separatist ideology.
…
158.In context, and in circumstances where the applicant provided a large volume of material and the IAA’s reasons are detailed, it cannot be said here that central evidence was overlooked. In light of all of the materials that were before the IAA and the context in which they were presented in support of the applicant’s claims, it cannot be said that the IAA did not properly engage with the evidence to determine whether the applicant would be imputed with a Tamil separatist ideology as a result of his involvement with the Cricket Club.
For those reasons, ground 2 fails.
Disposition
The appeal will accordingly be dismissed with costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan. Associate:
Dated: 18 August 2021
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