DVS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1536
•9 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
DVS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1536
File number(s): SYG 3546 of 2016 Judgment of: JUDGE HUMPHREYS Date of judgment: 9 July 2021 Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (protection) visa – where leave is sought to rely on a further ground of judicial review – whether the decision of the Authority was infected by legally unreasonableness or illogicality – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed Legislation: Migration Act 1958 (Cth) Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
CQG 15 v Minister for Immigration and Border Protection [2016] FCAFC 146
DFB16 v Minister for Immigration and Border Protection [2021] FCA 113
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Minister for Immigration and Ethic Affairs v Wu Shiang Liang (1996) 185 CLR 259
Number of paragraphs: 43 Date of last submission/s: 6 July 2021 Date of hearing: 6 July 2021 Place: Parramatta Solicitor for the Applicant: Mr Hodges Solicitor for the Respondent: Mr Pipolo ORDERS
SYG 3546 of 2016 BETWEEN: DVS16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
9 JULY 2021
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The application is dismissed.
3.The Applicant to pay the First Respondent’s costs fixed in the amount of $5900.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a Tamil citizen of Sri Lanka. The applicant arrived in Australia as an unauthorised maritime arrival on 13 October 2012.
On 26 January 2016, the applicant lodged an application for a Safe Haven Enterprise (protection) visa. A delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a protection visa in a decision dated 18 August 2016.
The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 29 November 2016, the Authority affirmed the decision not to grant the applicant his visa.
The applicant now seeks judicial review of the Authority’s decision.
THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION
Given the grounds of judicial review set out below, it is not necessary to summarise the entirety of the Authorities’ decision. Relevantly, the applicant claimed that sometime 2009, five armed men came to his home. The applicant claimed that he was assaulted and that they took a hard-drive of the computer that he was working on. The applicant stated that his mother had work files on the computer, which he never looked at, but believes they may have contained information about human rights abuses and photographs taken in the areas to which she travelled.
At paragraph 10 of its decision, the Authority noted the applicant’s claim that two days later, the men returned with photographs of people, some in Liberation Tigers of Tamil Eelam (“LTTE”) uniforms, in which they asked the applicant to identify. The applicant claims that he believed that he was in the process of being kidnapped. After this, the applicant went to a nearby town for a few weeks, and then went to Colombo. The applicant stated that he lived in a high security area near the President’s residence and was often stopped and questioned in the street by security authorities. The applicant then went to another village at the end of 2011 and stayed there until he left Sri Lanka in 2012.
At paragraph 15 of its decision, the Authority noted that the applicant stated that his mother stopped working for a Non-Government Organisation (“NGO”) in 2011 and that personally, she had had no problems in her village since then. Further, the applicant stated that his family had experienced no problems since his departure, but this was because the security authorities were interested, solely, in him.
At paragraph 19 and onwards of its decision, the Authority considered relevant country information, and, in particular, information as it relates to Tamils in the eastern provinces. Relevantly, at paragraph 21 of its decision, the Authority accepted that the applicant’s mother worked for an NGO. This could have bought her under suspicion. The Authority accepted the applicant’s claim about the seizure of his mother’s computer in 2009. The Authority accepted that the applicant was questioned two or three days after the computer was seized about certain LTTE members. The Authority did not accept that either of these incidents represented an attempt to abduct the applicant. The Authority found that none of the material on the computer was thought by the security authorities to belong to the applicant as they did not ask him about it when they returned. The Authority did not accept that the applicant himself was really under suspicion as much harsher action would have been taken against him at the time.
At paragraph 22 of its decision, the Authority accepted that the applicant was frightened after the two incidents. Whilst the applicant may have been subjected to monitoring, questioning and security checks in Colombo, the Authority found that this was directed, not at the applicant personally, but because he was a young Tamil male living in a high security area. At paragraphs 25 and 26 of its decision, the Authority found that Tamils may be the subject of increased monitoring and interest by security authorities. The applicant was not at risk of serious harm amounting to persecution as a result of this routine monitoring. The Authority noted that the applicant’s evidence suggested that his family were not experiencing ongoing difficulties or of any ongoing interest in him or his whereabouts. The applicant would thus not face any escalated risk of harm upon his return.
Accordingly, the Authority found that the applicant did not meet the criteria for protection as a refugee, nor did he meet the criteria for complimentary protection and affirmed the delegate’s decision.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review relied upon are set out in an Initiating Application filed with the Court on 13 December 2016. They are as follows verbatim:
Ground one
The IAA’s reasoning appears to be inconsistent, and unreasonable.
Particulars
•The IAA at [25] states:
… I accept he was subjected to monitoring after the end of the war in 2009. I accept that his mother’s work may have brought him to the attention of the authorities and that this triggered an investigation and inquiries as to his knowledge of LTTE members, however, the evidence does not indicate that the applicant himself was suspected of involvement with the LTTE..
•The IAA accepted at [23] that the applicant may have been monitored by the authorities when he stayed with his cousins, end 2011 [14].
•At [25] the IAA impliedly accepts that the applicant (though he may not have been “seriously considered”) was nevertheless considered a threat to the Sri Lankan government, or security situation or as a past member or supporter of the LTTE. It is for this reason that even in 2011 the applicant was monitored by the authorities, a claim that was explicitly accepted by the IAA.
Ground two
Not pressed at hearing.
Ground Three
Withdrawn as it has been negated by more recent Authority.
Ground Four
The following is proposed as a new ground:
The IAA failed to deal with a ground raised by the applicant. In the alternative, the IAA failed to deal with a ground which arose on the evidence.
Particulars
•The applicant clearly raised the ground that he feared harm if returned to Sri Lanka because the applicant’s mother worked for a Norwegian humanitarian group. At least part of the activities of the applicant’s mother involved collecting information as to human rights abuses. This information included collecting photographs.
•Information as to the human rights abuses including photographs were stored on a computer that the applicant used and which was in his room at home.
•The applicant was using the computer one night in December 2009 when five armed men came into the home, into the applicant’s room, assaulted the applicant and took the computer hard drive.
•Two days later the men returned to the home with photos of people, some in Tiger uniforms, and asked the applicant to identify them.
•At about that time people were exposing human rights abuses and torture that had been happening. Maybe the authorities thought the applicant’s family was the source of the information.
•The IAA noted UNHCR Guidelines that state certain witnesses of human rights violations and victims of human rights violations seeking justice may also be at risk of harm.
THE APPLICANT’S SUBMISSIONS
In relation to ground one, it was submitted that the Authority found that applicant was not suspected of involvement in the LTTE. The Authority accepted that the applicant was monitored by the authorities. The Authority accepted that the applicant may have been questioned after the seizure of the hard-drive as to the identities of LTTE members.
In paragraph 26 of its decision, the Authority weighed up the risk of harm to the applicant in the context of human rights abuses still occurring in Sri Lanka. The Authority first stated that the applicant would be at no risk of serious harm but provided no reasons as to this conclusion. The Authority then goes on to find that the applicant would not face an escalated risk of harm. The solicitor for the Applicant submits that the inference to be drawn is that there is a risk of harm, it is simply not escalated. The applicant submitted that the risks described by the Authority as “no risk” in one sentence and “no escalated risk” (with attendant inference of some level of risk) is illogical.
In relation to ground four, the applicant claimed a risk that arose because he was found in possession of a hard-drive which contained information regarding human rights abuses and included photographs. It was submitted on behalf of the applicant that such risk is included in the United Nations High Commissioner for Refugees (“UNHCR”) guidelines referred to.
The Authority appeared to accept that there was, or may have been, evidence of human rights abuses including photographs. The Authority accepted that the applicant was working on the computer when the hard-drive was seized. The Authority appeared to accept that the applicant used the computer for his own purposes. The Authority accepted that the men returned two days later and asked the applicant questions about the identity of people, some in uniform.
It was submitted that it was highly unlikely that the hard-drive of the computer had been analysed and that the results would have been known two days later when the men returned. It was submitted that the hard-drive is something of a “time bomb”, liable to put the applicant at risk whenever its contents were exposed.
Absent evidence that the authorities knew that the human rights material was gathered by the applicant’s mother, the authorities would simply have information that the applicant was working on a computer and it was in his room. The impression created on the evidence would be that it was the applicant’s computer.
It was submitted that the Authority needed to deal with the claim by the applicant that he was at risk because of the evidence of human rights abuses that were on the hard-drive of the computer in his room.
The Authority must correctly construe and consider each claim (including each element or integer of each claim and the cumulative effect of each claim) made by the applicant. The Authority is in error if it failed to consider the component integers of each claim made by an applicant. This includes claims that are expressly raised by the applicant or are apparent on the material before the Authority.
There was plainly a claim before the Authority that the applicant feared harm because information about human rights abuses were on the hard-drive of a computer he was using at the time his home was raided by armed men.
THE FIRST RESPONDENT’S SUBMISSIONS
Ground one takes issue with the Authority’s finding at paragraph 26 of its decision, that the applicant would not face “an escalated risk of harm”. The applicant submitted that the Authority found, at paragraph 26, that the applicant would not be at risk of harm “but stated no reasons” for such a finding before proceeding to find that the applicant would not face an “escalated” risk of harm as a Tamil because of the Sri Lankan security situation. The applicant submitted that the Authority’s determination that there was “no risk” but also referring to the potential for “escalated risk” to the applicant in the same paragraph is illogical.
It was submitted that, to succeed on such a ground, the applicant would need to prove that the illogicality of the reasoning was “extreme” and this is to be measured against the standard that it is not enough for the question “to be one which reasonable minds might come to different conclusions”: see CQG 15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [60]. That threshold is not easily met: see DFB16 v Minister for Immigration and Border Protection [2021] FCA 113 at [24].
In any event, the allegation in ground one mischaracterises the Authority’s actual findings and reasons when read in their proper context. Relevantly, in the paragraph immediately preceding paragraph 26 containing the impugned term “escalated risk”, the Authority, at paragraph 25 of its decision, relied upon independent country information that indicated that the Tamil population was monitored for behaviour in support of the LTTE.
The Authority, at paragraph 26 of its decision, then accepted that abuses of human rights still occurred; “problems remain” in Sri Lanka and “some Tamils continue to be subjected to human rights abuses”. Correctly appreciating that some Tamils were exposed human rights abuses, the Authority turned its mind to whether these circumstances might apply to the applicant. The Authority found, however, that the applicant’s evidence was that his family were not experiencing ongoing difficulties, nor was there any ongoing interest in the applicant or his whereabouts.
Taken together, paragraphs 25 and 26 of the Authority’s decision indicate that the Authority correctly appreciated that Tamils could be subject to human rights abuses, but nonetheless found that the applicant would not be subject to such abuses, given his own evidence that there were no ongoing difficulties faced by “or any ongoing interest in” him or his family. The term “escalated risk” was clearly a reference to its earlier acknowledgement that some Tamils “continue to be subjected to human rights abuses” and that problems remain in Sri Lanka. The Authority’s finding that the applicant would be at no risk of harm reflects its lack of satisfaction that the applicant was a Tamil who might face acknowledged human rights abuses and problems in Sri Lanka (subsequently referred to in shorthand as an “escalated risk”).
This finding was clearly supported by the Authority’s further finding that the Sri Lankan authorities had a further three years after the accepted events in 2009 and before the applicant departed Sri Lanka in late 2012 to investigate his activities, but this resulted in only one further visit to his home, also in 2009. At this visit, the applicant was not asked about his own activities but whether he could identify various LTTE members. It was also supported by the applicant’s own evidence that his family have experienced no ongoing interest from the authorities and did not face ongoing difficulties.
Ground four alleges that the Authority failed to deal with the claim that the applicant was at risk because there was evidence of human rights abuses on the hard-drive in the following circumstances. First, the Authority accepted that the first incident occurred and the computer’s hard drive was taken by armed men. Second, it was “highly unlikely” that the hard-drive was analysed in the two or three days before the armed men returned for the second incident. Thirdly, it is alleged on behalf of the applicant that the hard-drive was a “time bomb”. It was submitted by the applicant that once the authorities reviewed the contents of the hard-drive, they would have seen evidence of human rights abuses. The applicant submitted that the authorities would have concluded that the applicant had been working on the computer and, absent evidence that the materials were gathered by the applicant’s mother, the impression would have been that it was the applicant’s computer.
The first respondent submitted that this analysis relies on a series of speculative assumptions that do not obviously, or reasonably, arise on the available material. Instead, they reflect a selective analysis of the applicant’s claims and evidence. For example, there is nothing to suggest that the authorities were not able to analyse the seized hard-drive in the two or three days after the first and before the second incident, or even at some point later in the three years after this event and before the applicant departed Sri Lanka in late 2012.
The significance of the period of two or three days between the first and second incidents is neither explained, nor apparent in circumstances where the Authority found that the evidence supported a finding that the Sri Lankan authorities demonstrated no real interest in the applicant in the three years after the accepted events in 2009 and where the Authority accepted the applicant’s evidence that he and his family face no ongoing difficulties and there was no ongoing interest in them by the authorities.
Secondly, the contention that there was no evidence that the Sri Lankan authorities would have known the hard-drive (and human rights material it contained) were actually the applicant’s mother’s ignores the applicant’s own evidence at interview before the delegate, where he expressly claimed that Sri Lankan authorities were “closely monitoring” his mother and her activities. It also ignores the Authority’s express finding that Sri Lankan authorities would have known the material on the hard-drive was the applicant’s mothers and not the applicants.
Any claim that the applicant was at risk because that there was evidence of human rights abuses on the hard-drive belonging to his mother might have renewed the Sri Lankan authority’s interest in him was clearly subsumed by other findings of greater generality or the Authority’s rejection of a factual premise upon which the complaint in proposed ground four relies: see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47].
The Authority first accepted that the applicant’s mother worked for an NGO and this could have bought her under suspicion of the Sri Lankan authorities. Secondly, the Authority did not accept that the first and second incidents were an attempt to abduct the applicant. Thirdly, the Authority found that even if the men (from the Criminal Investigation Department) had real concerns with the material on the hard-drive, they would have questioned the applicant’s mother as it would have been evident that, as an NGO employee, the hard drive belonged to her.
Fourthly, the Authority found the applicant’s evidence, in regards to how he was subsequently treated by Sri Lankan authorities did not indicate that they seriously considered that he was involved with the LTTE for any reason. Fifthly, the Authority found the applicant’s evidence about his treatment by the Sri Lankan authorities did not indicate that they actually thought the material on the computer was his. Sixth, the Authority found, that despite the accepted events in 2009, the Sri Lankan authorities had another three years to investigate the applicant’s activities before he left Sri Lanka in late 2012. This indicated that the applicant did not have any profile that was a particular adverse interest to the Sri Lankan authorities and that when he was questioned in the subsequent visit to his home, it was not about his own activities, but the activities of others.
CONSIDERATION
The Court notes that leave has been granted for the filing of the first respondent’s written submissions on the day before the hearing, due to their need to respond to the new proposed ground, and the first respondent has been able to do so.
In circumstances where the first respondent has been able to properly respond to the new ground, the Court is of the view that, is in the interests of justice, the applicant be able to rely upon the proposed new ground and for it to be considered on its merits. In so doing, the Court notes that there is no actual disadvantage to the first respondent in terms of further delay of the hearing or in relation to costs. Accordingly leave was granted to rely upon proposed ground four subject to a properly completed Amended Initiating Application being filed by close of business 6 July 2021.
Ground one is a claim of legal unreasonableness. The test for unreasonableness is “stringent” and will only arise in rare cases: see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [113]. Further, reasons should not be read with an eye too finely attuned to error: Minister for Immigration and Ethic Affairs v Wu Shiang Liang (1996) 185 CLR 259.
A fair reading of paragraphs 25 and 26 of the Authority’s decision together indicate that the Authority specifically turned its mind to any particular risk to the applicant. The Authority firstly accepted the applicant was the subject of monitoring after the end of the war in 2009. The Authority accepted that the applicant’s mother’s work may have bought him to the attention of Sri Lankan authorities and that this triggered an investigation and enquiries as to his knowledge of LTTE members. Specifically, the Authority found that the evidence did not indicate that the applicant himself was suspected of involvement with the LTTE. The Authority found that, even accepting that the applicant was assaulted on one occasion during the initial seizure of the computer hard-drive, and that he was questioned once more at his home in 2009, the Authority did not consider that this constituted serious harm, even in the light of subsequent routine monitoring and surveillance.
At paragraph 26 of its decision, the Authority noted changed security conditions in Sri Lanka but found that there was no real chance that the applicant would be subjected to serious harm upon his return. The Authority specifically found that the applicant’s family were not experiencing ongoing difficulties or even any ongoing interest in him or his whereabouts. It was on this basis that the Authority found that the applicant would not face any escalated risk of harm upon his return. The Authority then went on to state that it accepted that the applicant may face some questioning, but the Authority did not accept that this would amount to any form of serious harm.
Read in its totality, there is no extreme illogicality or irrationality in the findings of the Authority. The Authority specifically turned its mind to the security situation in Sri Lanka as it would be were the applicant to return. The Authority concluded that the applicant was not at risk of serious harm, nor any escalated risk due to the previous incidents relied upon by the applicant. The Court is not satisfied that the ground is made out. The conclusion of the Authority is both logical and consistent with the information it had before it. Accordingly, ground one has no merit.
Ground four submits that the applicant faces a risk of harm because he was found in possession of information about human rights abuses, including photographs that were on a hard-drive of a computer that was taken by Sri Lankan authorities. The first respondent quite rightly notes that applicant was later questioned, not about his own activities, but about the activities of others. Further, this incident occurred in 2009 and nothing adverse is alleged by the applicant in the three years up until 2012 when he left Sri Lanka. The Court agrees with the submissions of the first respondent that this ground relies upon a series of speculative assumptions.
If there was evidence on the hard-drive which implicated the applicant, one might reasonably conclude that Sri Lankan authorities would have analysed it, if they were going to do so, within the three years after its seizure and prior to the applicant leaving Sri Lanka, noting the applicant’s own evidence, that he was stopped and questioned in Colombo on multiple occasions. There was no evidence to suggest that the applicant, nor his mother, to whom the material belonged, has been the subject of interest by authorities since the applicant left Sri Lanka. The Authority, at paragraph 21 of its decision, specifically found that if the Sri Lankan authorities had issues with the material on the hard-drive, the applicant’s mother would have been questioned.
In these circumstances, there cannot be doubt that the Authority considered the issue and rejected it as outlined above for the reasons it gave. Accordingly, ground four has no merit.
CONCLUSION
The application is dismissed.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 9 July 2021
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