DXK16 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 207
•6 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DXK16 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 207
File number(s): MLG 2752 of 2016 Judgment of: JUDGE EGAN Date of judgment: 6 March 2024 Catchwords: MIGRATION– where it was claimed that the Secretary of the Department had failed to provide all relevant information to the Authority – where such claim had not been made out – where it was claimed that the applicants were stateless – where such claim had not been made out – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss. 5H(1)(b), 473CB, 473DD and 473DE. Cases cited: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Division: Division 2 General Federal Law Number of paragraphs: 32 Date of last submission/s: 4 March 2024 Date of hearing: 4 March 2024 Place: Brisbane Solicitor for the Applicants: D. Taylor and Ms Harendran of Justice Law Practice Counsel for the Respondents: G. Johnson Solicitor for the Respondents: A. Moss, Clayton Utz ORDERS
MLG 2752 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DXK16
First Applicant
DXL16
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
6 MARCH 2024
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The Second Further Amended Application for Review filed by leave on 4 March 2024 be dismissed.
3.On the question of costs, the First Respondent have leave to file and serve written submissions and any supporting affidavit material on or before 4pm on 20 March 2024.
4.The Applicant have leave to file and serve written submissions in response on the question of costs on or before 4pm on 3 April 2024.
5.That judgment on the question of costs be delivered on the papers.
6.Each party have liberty to apply on the giving of two (2) days’ notice, each to the other.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
Introduction
On 29 April 2013, the applicants arrived in Australia as unauthorised maritime arrivals. The applicants were respectively aged about 16 years and 12 years at the time of their arrival and were brothers.
On 10 July 2013, the first applicant participated in an induction/arrival interview. In answer to question number 10. relating to his citizenship, the answer was recorded as “Sri Lanka”. [1]
[1] Court Book (CB) pp. 1-27
In paragraphs 1 to 4 inclusive of a signed statement dated 6 April 2016, the first applicant recorded that he was a citizen of Sri Lanka, and that he did not have a right to citizenship or a right to reside in any other country; that he was a Tamil and a Christian; that he was born on 7 May 1996 in the North-Western Province of Sri Lanka; and that he grew up with his family which consisted of his father, mother, two brothers and a sister. [2]
[2] CB 124 – 128.
In paragraphs 1 to 4 inclusive of a signed statement also dated 6 April 2016, the second applicant recorded that he was a citizen of Sri Lanka, and that he did not have a right to citizenship or a right to reside in any other country; that he was a Tamil and a Christian; that he was born on 9 January 2001 in the North-Western Province of Sri Lanka; and that he grew up with his family which consisted of his father, mother, two brothers and a sister.
Notwithstanding the surprising submissions made by Ms Harendran on behalf of the applicants that the first applicant was stateless, and that documents submitted on behalf of the second applicant relating to his Sri Lankan birth were bogus, [3] the Court accepts that the applicants were citizens of Sri Lanka, and that Sri Lanka would be the correct receiving country should the applicants be removed from Australia.
[3] See CB 150-152.
On 22 April 2016, the applicants lodged applications for Safe Haven Enterprise Visas (Class XE-790).
The way the visa application process unfolded was as set out in [2] of the reasons of the Authority as follows: [4]
Visa Application
1. …2.A delegate of the Minister for Immigration and Border Protection (the delegate) refused the visas and issued a decision dated 20 September 2016. On 27 September 2016 the Department of Immigration and Border Protection (DIBP) referred the delegate's decision in relation to the visas, together with relevant information, to the IAA. On 20 October 2016 the IAA contacted the DIBP and asked for clarification as, although both applicants were referred, there only appeared to be a determination in relation to Applicant 1. On 21 October 2016 the DIBP again notified the applicants that their visas were refused and issued a second decision from the delegate. This second decision also refused the visas and, somewhat oddly, was also dated 20 September 2016 and made determinations in relation to Applicant 1 as well as Applicant 2. In relation to the delegate's second decision dated 20 September 2016 I note that, except for making determinations as to whether Applicant 2 is a refugee or owed complementary protection, it otherwise contains identical findings of fact and law to the first decision dated 20 September 2016.
[4] CB p. 459
Although expressed to be a visa decision of the delegate in relation to both applicants, the first adverse visa decision of the delegate dated 20 September 2016 only made findings in respect of the first applicant. When that was brought to the attention of the department by the Immigration Assessment Authority (‘the Authority’), a second decision where findings were made in respect of both applicants, also dated 20 September 2016, was handed down. [5] The second decision refused the visa applications made on behalf of each applicant. The matter was referred to the Immigration Assessment Authority for review.
[5] See CB 249-259 for 1st delegate’s decision and CB 350-360 for 2nd delegate’s decision.
The Authority handed down its review decision on 17 November 2016 in respect of both applicants. The Authority affirmed the decision of the delegate.
Grounds of Review
At the hearing before the Court, the applicant was granted leave to read and file (without objection) a Second Further Amended Application for Review, the draft of which was attached as Annexure DRT2 to an affidavit of Mr Taylor (the solicitor for the applicants) filed on 6 July 2023.
The grounds of review contained in that Second Further Amended Application for Review, and which were relied upon at the hearing, were as follows:
1. The Review by the Authority under s. 473CC of the Delegate’s decision miscarried because:
i. The IAA failed to make a fresh or independent determination as the same Reviewer considered and made decisions with respect to the Applicants and the Adult Cousin as the same and overlapping time frame without disclosure of this to the Applicants.
ii.The information about the Adult Cousin was relevant information for the IAA but not new information as it was actually and constructively before the Delegate at the time of the Delegate making the decision.
iii.The Secretary failed to review and provide the information relating Adult Cousin to the IAA under s. 473CB.
iv.The IAA improperly obtained new information outside of s. 473DC and 473DD.
v.The IAA improperly considered the information about the Applicant’s Adult Cousin, without going through the mandatory pre-requisites required by s. 473DD.
vi.The IAA improperly considered the new information about the Applicant’s Adult Cousin, without the mandatory procedural fairness disclosure required under s. 4733DE of the Migration Act 1958.
vii.the Authority’s decision was affected by actual or constructive bias through the same Reviewer considering both cases simultaneously without disclosing this fact to the applicant.
vii.The Authority’s decision was affected by a constructive failure to exercise the jurisdiction [MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133]
…
4)The authority failed to consider a claim arising directly on the materials that the first applicant satisfies s5H(1) because of significant discrimination as a person who was not registered in Sri Lanka, lacked registration or identity documents.
As to ground 1, it was submitted by Mr Taylor on behalf of the applicants that the provisions of ss. 473CB, 473DD and 473DE had not been complied with. The argument so advanced was that there had been a failure on the part of the Secretary of the Department to provide relevant material to the Authority, namely material as disclosed in a delegate’s decision relating to visa applications made on behalf of two (2) cousins of the applicants, which material allegedly related to the mother of the applicants having undertaken a hunger strike in response to the disappearance, via the CID driving a white van, of her husband. It was not in dispute that the same delegate who handed down the second delegate’s decision dated 20 September 2016 in respect of the applicants was the same delegate who also handed down the adverse visa decision in respect of the applicants’ cousins on 20 September 2016.[6]
[6] See decision of delegate in respect of the cousins at Annexure DRT4 to the affidavit of Mr Taylor filed
There was no reference in the delegate’s second decision concerning the applicants to any hunger strike having allegedly been undertaken in protest by their mother, presumably because the applicants made no mention of any such occurrence to the delegate at the time of their interview.
In the applicant’s written submissions filed on 17 November 2023, it was submitted that there was so much similarity in the findings of the delegate in respect of each of the applicants and the applicants’ cousins that there must have been a “copy and paste” exercise having been undertaken by the delegate, and that in such circumstances, the review material before the Authority ought to have included not only that which was provided by the Secretary in respect of the visa refusal decision concerning the applicants, but also the material which was before the delegate in respect of the visa applications lodged on behalf of the cousins. The Court does not accept such argument.
First, there was no obligation upon the Authority to consider claims made by others concerning the applicants’ mother’s alleged hunger strike when the applicants themselves had not made any such claim before the delegate.
Secondly, it is not surprising that there was a similarity between the reasons of the delegate who made the adverse visa decision concerning the applicants, and the reasons for the adverse decision of the delegate in respect of the visa applications made on behalf of the cousins, particularly in circumstances where the claims for protection arose from circumstances involving the father of the applicants, who was also the uncle to the cousins. Both of the respective claims for protection relied upon the claim that the father of the applicants was said to have been abducted on or about 10 June 2006 by officers of the CID who were driving a white van, and the claim that each of the mothers of the applicants and the applicants’ cousins had been publicly demonstrating about the alleged abduction.
The claims of the applicants as recorded in the delegate’s second decision were recorded as follows: [7]
[7] CB p. 351-352.
The Applicant’s claims for protection and supporting evidence are contained in CLF2015/65835 or were provided at interview. The Applicant’s claims for protection are summarised below:
·The Applicant was born in Puttalam District of North Western Province in Sri Lanka into a Tamil Christian family
·The Applicant is unmarried and has no children, but is in Australia with his younger brother
·The Applicant’s father was a travelling salesman who sold clothing and incense sticks
·On 9 June 2006 the Applicant’s father returned home from a sales trip, accompanied by a friend from Chilaw. The Applicant’s newly married aunt and paternal uncle, a maternal uncle, and two other male guests were also staying in the house at the time
·At 4am on 10 June 2006 a white van with CID people visited the house and searched the house. They arrested the Applicant’s father, his friend from Chilaw, and the Applicant’s newly married paternal uncle. The police took them to the police station. The two male guests were left alone.
·That morning on 10 June 2006 the Applicant’s mother went to the police station in Chilaw to speak with the Applicant’s father, but the detained men were not there. The police said the men were taken to Colombo
·The Applicant’s mother went to Colombo but could find no trace of the men there
·The Applicant’s mother looked for three months and then contacted the Human Rights Commission who promised to help, but did not assist
·Over the next four years, the Applicant’s family made representations to many government representatives including (names omitted). The Applicant’s family also attended demonstrations against the CID and white van disappearances. These events were covered by the media
·As a result of the family’s activism about the white vans and the CID, the family drew adverse attention by the SLA, CID and even local Sinhalese people who would refer to the Applicant as the ‘Kottige Puttha’ (Tiger’s son)
·The CID and non-uniformed army intelligence offers would make frequent visits to the Applicant’s house. The Applicant was fearful and hid in the bedroom of the house
·The Applicant’s mother was fearful that the Applicant and his brother would suffer the same fate as their father, so she made arrangements for them to seek asylum in Australia
The claims of the applicants’ cousins as recorded in the delegate’s decision were recorded as follows: [8]
[8] See p. 25 of Annexure DRT4 of Taylor affidavit.
The Applicant’s claims for protection and supporting evidence are contained in CLF2015/63866 or were provided at interview. The Applicant’s claims for protection are summarised below:
•The Applicant was born in Puttalam District of North Western Province in Sri Lanka into a Tamil Hindu family. The Applicant now considers himself to be a Christian because his mother sent him to a local Pentecostal Church hoping they might help cure his skin conditions.
•The Applicant stopped attending school because he was discriminated against on the basis of his skin condition that local doctors were not able to properly diagnose and treat.
•The Applicant is unmarried and has no children, but is in Australia with his younger brother.
•The Applicant’s uncle was abducted in a white van (in approximately 2006). The family of the Applicant’s uncle lived next door to the Applicant’s house, and the Applicant’s uncle had three young sons and a daughter.
•When he was 15-16 years old, the Applicant was beaten up by Sinhalese people when he defended his mother and sister in the street who were being verbally abused.
•The Applicant was not properly treated in the public hospital for his skin conditions and the hospital staff also mistreated his grandmother and father because they were Tamils.
•The Applicant’s mother and aunt launched a big campaign to find out where the Applicant’s uncle had been taken after his abduction.
•The Applicant’s mother and aunt started to fear that their sons would also be abducted by Sri Lankan authorities, so organised for the Applicant to take his brother and two male cousins (FUL024 and FUL022) to Australia for the purposes of seeking protection.
•The Applicant’s boat was intercepted by the Sri Lankan authorities before departing and the Applicant was bailed from court but departed again before reaching Australia.
The claims of the applicants and the applicants’ cousins that they would be imputed with LTTE involvement by reason of the alleged disappearance of their father/uncle in a white van, and by reason of the subsequent alleged public protests by their mothers, arose out of almost identical facts. In such circumstances, the fact that it was asserted by the cousins that their aunt (the mother of the applicants) had undertaken a hunger strike was of no moment.
The Court finds that had the Authority been provided with the reasons of the delegate who made the adverse visa decision in respect of the cousins, the Authority could not realistically have arrived at a different decision.
In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:
“[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”
The Authority at [34]-[41] of its reasons carefully considered country information which it had before it. At [42]-[46] of its reasons the Authority found that the applicants would not face a real chance of serious harm from the Sri Lankan authorities, should they be returned there, on the basis of any perceived links to the LTTE, for any perceived anti-government activism, or because they were young Tamil males. At [42]-[45] of its reasons, the Authority found as follows:
42. I accept that the applicants' father was abducted by the CID on 10 June 2006, together with an uncle and a family friend, that the men's fate remains unknown and that the circumstances surrounding their abduction suggests they were suspected of involvement with the LTTE by the CID. I accept that their mother's efforts to search for her husband and the other missing men included meeting a range of politicians, including former President Rajapaksa; she approached the HRC; she attended a number of demonstrations and meetings to bring attention to his abduction by the CID, including some that were covered by the media; and that she attended many police stations, SLA camps and the CID head office in Colombo where she was involved in confrontations with the authorities. I accept that their mother often took her family along engaged in these activities, including taking Applicant 1 to two demonstrations around 2006 and 2007 and taking Applicant 2 on numerous visits to police stations, SLA camps, CID head office in Colombo and when she was asked to identify some burnt bodies. I accept that the applicants' mother was often yelled at, called a tiger person, threatened and told to go away when she confronted the authorities at police stations, SLA camps and CID offices and that the SLA and CID visited their family home on many occasions to gather details. I also accept that SLA and CID continued to visit their mother to gather details after the applicants left Sri Lanka.
43. Having regard to the UNHCR guidelines and the other information before me, I do not consider the applicants to be at risk of harm as a result for a number of reasons. First, although their father, an uncle and a family friend were abducted by the CID on suspicion of LTTE links in June 2006, there is no suggestion in the evidence that either of the applicants, their mother or any other family members have been arrested or detained by the Sri Lankan authorities on suspicion of supporting or involvement with the LTTE in the ten or so years since the abductions occurred. Secondly, neither of the applicants claimed they were questioned by the Sri Lankan authorities at any time about any matter. Thirdly, although the applicants' mother was known to the authorities for anti-government activism because of her efforts to bring attention to her husband's abduction by the CID and had a number of confrontations with the authorities, the only consequence she faced was ongoing monitoring in the form of visits to her house. Fourthly, notwithstanding that the applicants were taken by their mother to a number of her meetings, demonstrations and confrontations, their mother was the focus of the Sri Lankan authorities monitoring and not the applicants, as demonstrated by the applicants often hiding when the authorities called at their house without consequence and the lack of questioning of the applicants in any event. Fifthly, country information suggests that monitoring of Tamils by the former Sri Lankan Government was routine. Sixthly, on my findings, the Sri Lankan authorities have shown no interest in the applicants since they left Sri Lanka. Seventhly, country information suggests white van incidents are much reduced and the Sirisena Government is making some positive general steps in relation to the issue of missing and disappeared persons as shown by the establishment of the OMP and the signing of the ICPAPED. Given the above factors, and the country information, I consider any risk of harm to the applicants from the authorities based on this profile to be remote.
44. Applicant 1 does not have a profile that country information suggests he is at risk of harm. I do not accept that he would have faced adverse action of any kind from the Sri Lankan authorities for any perceived LTTE links or anti-government activism if he remained in Sri Lanka or that there is a real chance of harm if he returns to Sri Lanka.
45. Applicant 2 has not claimed, and there is no other evidence to suggest, he was a child soldier, sex worker, child labourer nor facing an underage marriage. Applicant 2 does not have a profile that country information suggests he is at risk of harm. I do not accept that he would have faced adverse action of any kind from the Sri Lankan authorities for any perceived LTTE links or The Authority likewise found that the applicants would not face a real risk of significant harm if he returns to Sri Lanka.
The applicants have failed to establish any extreme illogicality in the reasoning of the Authority. The Authority carefully considered all of the evidence before it, both singularly and cumulatively, and arrived at a reasoned decision. The Authority did not have before it any evidence which would have supported a finding that the applicants were members of any particular social group which would have given rise to their having such a profile as to result in them coming to the attention of the Sri Lankan authorities. The decision of the Authority did not lack an evident and intelligible justification. [9]
[9] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] per Hayne, Kiefel
Further it cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131]What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
There is no merit to Ground 1.
As to Ground 4, Ms Harendran made submissions on behalf of the applicants. Though reliance upon Ground 5 was specifically abandoned at the hearing, Ms Harendran nonetheless made the surprising submissions, first that there was no evidence that the first applicant was a citizen of Sri Lanka, and secondly, that proof of birth documentation provided to the department on behalf of the second applicant was bogus.
As to the first submission, there was an overwhelming body of material, in part referred to above, which supported the proposition that the applicants were Sri Lankan citizens. At the time of the interview before the delegate, the applicants were represented by migration agents who had provided to the department the written statements which identified each of the applicants as being Sri Lankan. At the interview before the delegate, the applicants identified as Sri Lankans. The first submission was entirely unfounded.
As to the second submission, the Court noted the concerns raised by Counsel for the first respondent concerning the submission made by Ms Harendran that bogus documentation had been provided to the department on behalf of the applicants. In that regard, the Court makes no finding.
In circumstances where each of the applicants had given interviews in which they had claimed that they were Sri Lankans, there is no merit to the claim that they were stateless, and therefore could not be considered as refugees under s. 5H(1)(b) of the Migration Act 1958 (Cth) (‘the Act’). Although minors, the applicants were of an age where they knew where they had come from, and where they had been born. Ground 2 is without merit.
The applicants have failed to establish jurisdictional error on the part of the Authority.
The Second Further Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 6 March 2024
on 6 July 2023.
and Bell JJ.
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