DZX17 v Minister for Home Affairs
[2019] FCA 95
•8 February 2019
FEDERAL COURT OF AUSTRALIA
DZX17 v Minister for Home Affairs [2019] FCA 95
Appeal from: DZX17 v Minister for Immigration & Anor [2018] FCCA 1672 File number(s): QUD 431 of 2018 Judge(s): GREENWOOD J Date of judgment: 8 February 2019 Catchwords: MIGRATION – consideration of an application for an adjournment of the appeal – consideration of whether the primary judge fell into error in dismissing the appellant’s application before the Federal Circuit Court of Australia Legislation: Migration Act 1958 (Cth), ss 36(2)(a) and 36(2)(aa) Cases cited: DZX17 v Minister for Immigration & Anor [2018] FCCA 1672
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Border Protection v SZVFW and Ors (2018) 357 ALR 408
Date of hearing: 4 February 2019 Date of last submissions: 4 February 2019 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 61 Counsel for the Appellant: The appellant appeared in person Solicitor for the First Respondent: Ms Leith Helsdon, Sparke Helmore Lawyers ORDERS
QUD 431 of 2018 BETWEEN: DZX17
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
8 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The application for an adjournment of the appeal by the appellant is dismissed.
2.The appeal is dismissed.
3.The appellant pay the first respondent’s costs of and incidental to the appeal.
4.Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GREENWOOD J:
These proceedings are concerned with a notice of appeal filed on 28 June 2018 by which the appellant appeals from all of the orders of the Federal Circuit Court of Australia (Judge Vasta, the “primary judge”) made on 11 June 2018. The primary judge dismissed the appellant’s application before that Court filed on 6 September 2017 and his amended application filed on 28 November 2017. In these reasons, I will always describe the appellant as the appellant even though he was, obviously enough, an applicant in the Federal Circuit Court proceedings.
By his application and, particularly, the amended application of 28 November 2017, the appellant sought judicial review (and thus the issue of the constitutional writs) of a decision of the Immigration Assessment Authority (the “IAA”) by which the IAA affirmed the decision of the delegate of the first respondent Minister not to grant the appellant a Safe Haven Enterprise (Subclass 790) visa (a “Safe Haven visa”).
The appellant, before the delegate and on review before the IAA, sought the grant of a Safe Haven visa in reliance upon s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”). I will address aspects of those matters later in these reasons. However, for present purposes, it is sufficient to identify the summary of the appellant’s claims before the delegate and the IAA as set out in the IAA’s reasons. The appellant did not contest the accuracy of the summary and, in fact, relied upon the summary in his amended application of 28 November 2017: Particulars, ground 1, amended application.
The summary of the appellant’s claims for protection made before the IAA is this:
Applicant’s claims for protection
7.The applicant’s claims can be summarised as follows:
•He is a single, male, Hindu Tamil from Vavuniya in the Northern Province of Sri Lanka.
•His father was from Puthukkudiyiruppu in the Mullaitivu District and when the applicant was small the family lived in Mullaitivu until he was aged about ten years. The family then relocated to Vavuniya but the applicant’s father would go back to Mullaitivu to visit from time to time.
•In about 2002, the applicant went to his father’s village in Mullaitivu and lived there for about two years. While there he worked with his uncle at his shop selling petrol, kerosene and oil. In 2004, the applicant returned to Vavuniya.
•The authorities in Vavuniya were suspicious of the applicant’s father and he was interrogated and beaten by them many times. In about 2005, CID officers came to the applicant’s home and took the applicant’s father to Joseph Camp where he was beaten and sustained injuries to his chest and kidneys. His father’s health deteriorated and he was hospitalised in March 2008. On 22 March 2008, his father passed away due to cardiac arrest and renal failure.
•The applicant passed by the CID camp regularly on his way to and from work and after his father’s death, he was questioned by CID officers whenever he went past.
•On 23 November 2009, the applicant sponsored the release of his paternal uncle and his family (who originated from Vanni) from a displaced persons camp in Cheddikulam Vavuniya. The CID questioned the applicant six months later about why he had sponsored their release.
•In about 2010, the applicant was taken by the CID on his way home from work in the evening and detained at their camp until about 12 noon the next day. He was again questioned about why he had arranged the release of his uncle from the camp and was mistreated.
•During the following 18 months, the CID looked for him at his house. The applicant hid in the house or stayed somewhere else when he became aware they were coming to check for him.
•On about 2 September 2012 the applicant departed Sri Lanka illegally by boat and travelled to Australia.
•In late 2015, two unidentified people visited the applicant’s family home and made threatening gestures towards his family including making enquiries about the applicant’s whereabouts. The men wore civilian clothes and spoke in Sinhalese.
•In early 2016, three unidentified people, including one man from the previous visit, came to the family home and enquired about the applicant. The visitors attacked the applicant’s brother and caused injuries which required stitches to his head.
•The same Sinhalese man and his associates have threatened the applicant’s sister when she was travelling to and from school and told his mother that the sister will be attacked and kidnapped if they are not told where the applicant is.
The IAA also summarised the appellant’s claims in this way:
The referred applicant (the applicant) claims to be a Hindu Tamil from the Vavuniya District in the Northern Province of Sri Lanka. He fears returning to Sri Lanka because he would be at risk of being harmed by the Sri Lankan authorities, including the CID [Crime Investigation Department], for imputed association with the Liberation Tigers of Tamil Eelam (LTTE) due to his ethnicity, having spent time in Mullaitivu and in connection with his father who was suspected of supporting the LTTE. He also fears harm on return to Sri Lanka from unidentified people who have visited and harassed his family since late 2015. On or about 3 September 2013, the applicant made an invalid application for a Protection (subclass 866) visa. On 27 January 2016, he lodged an application for a Safe Haven Enterprise (subclass 790) visa.
Although I will return to the relevant findings of the IAA later in these reasons and the reasoning of the primary judge, it is convenient to presently note that in his amended application before the Federal Circuit Court, the appellant relied upon the following grounds in support of his application:
Grounds of application
Ground-1
The IAA has committed jurisdictional error in my case. It has declined its jurisdiction in my case as it has failed to make a finding/proper evaluation or provide adequate explanation, as the IAA is required by law, on my central refugee claims although I have submitted reliable evidence to substantiate my central refugee claims.
Particulars:
Please refer to the “Applicant’s claims for protection” on page 3 of 18 and “Refugee assessment” in pages 4 of 18 to 13 of 18 of the IAA’s Decision and Reasons dated 3 August 2017.
Ground-2
Some findings, inferences, conclusions and reasoning of the IAA being occurred in the absence of evidence and/or supporting materials.
A reasonable IAA reviewer might reasonably arrive at a divergent conclusion on all the information and evidence before the IAA.
Particulars
The IAA’s reasoning and conclusions (Refugee Assessment) are substantially based on foot notes cited below the reason and findings in the IAA’s decision.
I need my protection visa interview CDS to listen [to] it and I also need to closely read the full evidence cited as footnotes in the IAA’s decision which will enable me to provide particulars of my grounds in my court submission to the court when the court orders me to do so.
These are my grounds of review and particulars at this stage and I will put all my grounds and particulars after I have obtained a Barrister’s opinion on the IAA’s decision.
On 11 June 2018, the primary judge dismissed the appellant’s amended application of 28 November 2017 (and the application filed on 6 September 2017) in the exercise of a power conferred upon the Federal Circuit Court by r 13.03C(1)(e) of the Federal Circuit Court Rules 2001. The rule is in these terms:
(1)If a party to a proceeding is absent from a hearing (including a first court date), the Court or a Registrar may do 1 or more of the following:
(a) adjourn the hearing to a specific date or generally;
(b) order that there is not to be any hearing, unless:
(i) the proceeding is again set down for hearing; or
(ii)any other steps that the Court or the Registrar directs are taken;
(c) if the absent party is an applicant – dismiss the application;
(d)if the absent party is a party who has made an interlocutory application or a cross‑claim – dismiss the interlocutory application or cross‑claim;
(e)proceed with the hearing generally or in relation to any claim for relief in the proceeding.
The power is a discretionary power and the primary judge elected to proceed with the hearing generally in relation to the grounds recited in the amended application. The primary judge described his approach as one of deciding the matter “on the merits”. The primary judge did so in circumstances where the appellant had failed to appear at the hearing of the application.
By his amended application of 28 November 2017, the appellant nominated an address for service at particular premises and also an email address for the receipt of documents and communications. The same premises address and email address had been nominated by the appellant in his application filed on 6 September 2017.
In his affidavit of 4 September 2017 in support of the application filed on 6 September 2017, the appellant said this:
1. I lodge my judicial review application myself.
2. I state my own grounds in respect of my judicial review application.
3.I intend to seek a barrister’s opinion on my grounds and particulars and to determine whether any other legal errors occurred in the IAA review.
4.I will provide all the grounds and particulars after the barrister’s opinion is obtained and when the Court orders me to file an Amended Application.
5.I need a copy of the Immigration interview CDs for this purpose.
In the amended application filed on 28 November 2017, the appellant concluded a statement of the grounds of the application with this observation (already quoted at [6] of these reasons):
These are my grounds of review and particulars at this stage and I will put [on] all my grounds and particulars after I have obtained a Barrister’s opinion on the IAA’s decision.
As to the procedural history of the Federal Circuit Court proceedings, the primary judge observes at [32] of the reasons that nothing further was filed by the appellant: DZX17 v Minister for Immigration & Anor [2018] FCCA 1672 (the “reasons”). Registrar Belcher ordered that submissions be filed by the parties at particular times prior to the date of the hearing. Registrar Belcher set the hearing down for 20 March 2018. Due to matters associated with the primary judge’s calendar, the primary judge instructed an email to be sent to the parties by his Honour’s Associate which was sent on 6 February 2018 in these terms:
Good afternoon
Please be advised [that] due to changes in the diary this matter will no longer be listed at 10.00am on 20 March 2018. The matter will now be listed for hearing at 10.00am on 11 June 2018.
That email was sent to the email address nominated by the appellant. The primary judge observes at [33] of the reasons that no notification was received by his Honour’s Chambers to the effect that the email had not been received at the nominated email address for the appellant. The primary judge also observes at [33] of the reasons that the appellant did not file any further material in the proceeding. The primary judge also notes these matters at [34] to [37] of the reasons:
34.I am informed that some three weeks or so ago, which would put the matter in mid to late May, the Applicant telephoned the solicitors appearing for the Minister. The Applicant informed the solicitor that he was moving from Brisbane to Wagga Wagga. He told the First Respondent’s solicitor that he wanted the matter transferred to Wagga to be heard. The solicitor, quite rightly, said that that was not a decision for her to make and it was a matter that the Applicant needed to contact the Court about. Nothing more was said or done as I have earlier recounted.
35.The solicitor also reminded the Applicant that the matter would be on for hearing today at 10.00am and that if he did not appear, the Applicant would be wanting to have the Court dismiss his application and order costs. There was nothing more done.
36.The matter has come on for hearing today. The interpreter has turned up. There was no notice given to the Court that the Applicant would not be here or arrange some form of appearance, including an appearance by telephone.
37.Given the history of the matter, it is a matter that I am of the view should be disposed of by the Court pursuant to r.13.03C(1)(e) of the Federal Circuit Court Rules 2001 (Cth) and the matter ought be heard on the merits.
As the observations at [36] and [37] of the primary judge’s reasons make clear, the appellant failed to appear at the hearing and, in consequence, the primary judge elected to take the course described at [37] in reliance upon r 13.03C(1)(e).
On 28 June 2018, the appellant filed a notice of appeal to this Court. In that notice of appeal, the appellant nominates an address for service at particular physical premises in Wagga Wagga and also nominates an email address for the receipt of documents and communications. In this document, the nominated email address is a different email address to that nominated in the application and amended application before the Federal Circuit Court.
In seeking to appeal from all of the orders of the Federal Circuit Court, the appellant relies upon these grounds:
1.The FCC Judge committed jurisdictional error when dismissing proceedings in the FCC without hearing my case or the reasons for my appearance.
2.I have not been provided with an opportunity to explain the reason for not being able to attend court on 11 June 2018.
3.It is unreasonable that I am prevented from being heard by the FCC as the [j]udge dismissed [my application] pursuant to rule 13.03C(1)(e).
As to ground 1, I take the phrase “without hearing my case or the reasons for my appearance” to mean that the application was dismissed without the primary judge hearing the reasons and arguments in support of the appellant’s application. Ground 2 is concerned with the appellant being deprived of an opportunity to explain the reason for not being able to attend Court on 11 June 2018. As to ground 3 (and all three grounds overall), in substance, the appellant says that the exercise of the discretionary power to proceed with the hearing generally in the absence of the appellant was “unreasonable” in the legal sense in which that term is understood.
At the hearing of the appeal on 4 February 2019, the appellant appeared before the Court assisted by an interpreter. A number of exchanges took place between the Court and the appellant and although the appellant did not initially say that he was seeking an adjournment of the hearing of the appeal, he ultimately came to the position that he wanted an adjournment of the appeal in order to obtain legal advice. As to the failure to appear before the Federal Circuit Court on 11 June 2018, the appellant said that he had been working for “Teys Bros” in Wagga Wagga. That company operates an abattoir in Wagga. He said that he had sought leave from the company to attend the Court hearing but had not been able to obtain approval to leave work until late in the afternoon or evening before the hearing. He said that he took a train from Wagga to Sydney and then took a bus from Sydney to Brisbane. He said that he arrived at the Federal Circuit Court hearing room at 11.00am on 11 June 2018 but by then the Court hearing had concluded.
As to steps taken by the appellant to obtain legal advice generally, the appellant said that after the publication of the decision by the IAA, he consulted a Tamil lawyer to obtain help in connection with addressing aspects of the decision. He says that the Tamil lawyer took a statement from him. He says that the Tamil lawyer helped him with the initial application to the Federal Circuit Court. He says that no other steps were taken to obtain any further legal assistance. He says that if the matter is adjourned, he will take steps to seek out legal advice from a Tamil lawyer. He says that he has “nothing further to add” in support of his appeal.
I am not willing to grant the application for an adjournment of the hearing of the appeal. The appellant recited in his affidavit of 4 September 2017 in support of the application filed on 6 September 2017 that he would be taking steps to seek legal advice from counsel. In his amended application of 28 November 2017 he also said that he would be seeking out an opinion from counsel. The appellant did not take those steps at any time prior to the hearing of the proceeding in the Federal Circuit Court and had he arrived at the hearing room on time (rather than at 11.00am) he would not have had the benefit of any support from a lawyer. That follows because he had not taken any steps to seek out advice or support from a lawyer. In simple terms, the appellant has had a period of time from 6 September 2017 to now to seek out legal advice and he has not done so either in connection with the Federal Circuit Court proceedings or this appeal. Now, the appellant wants to adjourn the hearing of the appeal to take steps to obtain legal advice. Against that background, I am not willing to adjourn the hearing of the appeal. I have no confidence that the appellant will seek legal advice or, alternatively, should he do so, that he will have success in obtaining legal advice.
As to the grounds of appeal before this Court, ground 1 must necessarily fail because the primary judge did not fall into jurisdictional error when exercising the discretionary power to dismiss the appellant’s proceedings in the Federal Circuit Court by taking the steps in reliance upon r 13.03C(1)(e). The primary judge may or may not have fallen into error (correctable upon appeal by way of a re‑hearing) in dismissing the proceeding but the primary judge did not fall into jurisdictional error. If there is an error, it is an error within jurisdiction.
As to ground 2, the appellant contends that the exercise of the discretion conferred by r 13.03C(1)(e) miscarried because the election to proceed with the hearing generally in the absence of the appellant deprived him of an opportunity to explain the reason for not being able to attend the Court on 11 June 2018. The discretion did not miscarry. The primary judge was confronted with circumstances in which the appellant had failed to appear before that Court and having regard to the matters recited at [32] to [37] of the reasons, the primary judge exercised the discretion under the rule to “proceed with the hearing generally”.
As to ground 3, the appellant says that it is “unreasonable” that he is prevented from being heard in relation to the grounds he sought to agitate before the Federal Circuit Court. It must be remembered that a decision made in the exercise of a statutory discretionary power is unreasonable, in a legal sense, when it lacks “an evident and intelligible justification”: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 367 [76]. That may be so where a decision is one which no reasonable person could have arrived at: Minister for Immigration and Border Protection v SZVFW and Ors (2018) 357 ALR 408 at [10] and [12]. In this case, there is, as earlier described, an evident and intelligible justification for the exercise of the discretionary power by the primary judge to proceed with the hearing, in all the circumstances.
Grounds 1, 2 and 3 of the notice of appeal must fail as formulated.
However, it may be that the appellant, as a self‑represented person, is really trying to say by ground 1 of his notice of appeal that the primary judge fell into error in analysing the underlying contentions of the appellant raised by the amended application of 28 November 2017 when his Honour elected to proceed with the hearing generally and dismiss the application. That, of course, is not what he says by his notice of appeal. However, I propose to analyse the question of whether the primary judge fell into error in conducting the analysis reflected in his Honour’s reasons for judgment. I do so in order to determine whether there is error (or not) and for the purpose of explaining to the appellant the outcome of that examination.
As to that matter, I start with these observations about the IAA’s decision and its reasoning.
The IAA had before it the material referred by the Secretary under s 473CB of the Act.
The IAA also noted that the appellant had forwarded to it further information. That information consisted of a copy of an “electronic ticket” and “itinerary” in the name of a person for a flight from Colombo to London. The IAA understood that person to be the appellant’s younger sister. The IAA observed that this information was not before the delegate at the time of the decision and was “new information”. The IAA observed that no explanation had been given about why this information had not been provided to the delegate before the delegate’s decision or, indeed, how the information was “credible, personal information which may have affected the consideration of the applicant’s claims for protection”: IAA decision at [5]. The IAA concluded that as the information related to the appellant’s sister and there was no other information about the circumstances of travel, there was no basis to justify the IAA considering the “new information”. That is, “exceptional circumstances were not made out”.
The IAA also noted that the Department of Foreign Affairs and Trade (“DFAT”) had published on 24 January 2017 an updated Country Information Report on Sri Lanka entitled “DFAT Country Information Report – Sri Lanka”, 24 January 2017, CISEDB50AD105. The IAA observed that the report “provides information about the position of Tamils, persons perceived to have connections to the LTTE, persons who departed Sri Lanka illegally and returning asylum seekers”: IAA at [6]. The IAA considered that the report might be relevant in assessing the appellant’s application, was not before the delegate and constituted “new information”. The IAA observed that as the report was published after the delegate’s decision (and updated an earlier DFAT report on Sri Lanka published on 18 December 2015), there were “exceptional circumstances” to justify the IAA considering the new information in the form of the report.
The IAA found that the appellant provided “a detailed and credible account of his upbringing but presented conflicting information about his father’s movements between Vavuniya and Mullaitivu and his own residence in Mullaitivu between 2002 and 2004”. The IAA examined the detail of those matters and noted that there were some inconsistencies in the narrative. The IAA took into account the explanations of the appellant when considering any inconsistency between the information presented at the time of entry and during later contacts with the Department: IAA at [14]. At [15], the IAA noted that the appellant’s 2016 visa application shows that he received assistance in completing it from a volunteer Uniting Church person who was not a registered migration agent and that the 2016 application replicates a large amount of the information contained in the 2013 application without change. The IAA also observed that although the appellant “struggled” with the “chronology of his personal timeline”, the IAA’s “impression” was that the appellant was “genuinely attempting to present his narrative in its correct form and his answers not evasive”: IAA at [15]. The IAA observed that “having regard to the applicant’s presentation during interview, that his 2016 application appears to be largely drawn from his 2013 application, and he did not have the benefit of a registered migration agent when preparing his 2016 application, I have not made any adverse credibility findings about the applicant on the basis of the inconsistencies in his testimony”: IAA at [15].
The IAA accepted as plausible that the family spent time residing in both Mullaitivu and Vavuniya as the appellant was growing up, and that when the family was resident in Vavuniya, the appellant’s father would return to his home village from time to time. Consistent with Country Information, the appellant contended that Mullaitivu was an LTTE‑controlled area during the civil war: IAA at [16]. The IAA also accepted that the appellant’s description of his father’s travel and his own movements between Mullaitivu and Vavuniya was consistent with Country Information before the delegate about the ability of Tamils to move freely at the relevant time. The IAA accepted this part of the appellant’s narrative: IAA at [16].
The IAA accepted the appellant’s claim that following his father’s relocation to Vavuniya, he became the subject of adverse interest from the local Criminal Investigation Department due to having come from an LTTE‑controlled area. The IAA accepted that “he [the appellant’s father] was suspected of being involved with the LTTE on this basis and was detained, questioned and mistreated by the CID”: IAA at [17]. The IAA seemed to accept that the appellant’s father died in 2008. However, given the passage of time of three years between the father’s detention and his death, the IAA was not satisfied that the injuries he sustained during questioning by the CID were the cause of his death. Nevertheless, the IAA did accept, based on the appellant’s testimony, “that his father was mistreated and sustained serious injury as a result”: IAA at [17].
The IAA also accepted that due to the time the appellant spent in Mullaitivu between 2002 and 2004 and by reason of his status as the eldest son in the family, the appellant also experienced harassment and questioning from CID officers following his father’s death: IAA at [17]. The IAA also accepted that the appellant experienced “a degree of harassment and questioning by the local CID which was consistent with treatment generally being experienced by other Tamils in his local area”: IAA at [18].
Because the appellant had been free to travel to Colombo to make an application for a passport without any difficulties or questioning by authorities, the IAA considered that although the appellant was experiencing a degree of harassment generally from CID officers in his local area, “he was not being targeted as a person suspected of being involved with the LTTE, despite having spent time in Mullaitivu and his connection to his father”: IAA at [18].
The IAA also accepted that the appellant had sponsored the release of his paternal uncle and family from a detention camp in November 2009 (apparently called the “Joseph camp”). The IAA also accepted that the appellant’s uncle may have been “initially imputed with LTTE involvement on the basis of his area of origin” but considered that the agreement by the authorities to his release in November 2009 into the appellant’s custody indicated that “neither the uncle nor the applicant were considered to hold a profile for LTTE involvement or be considered a security or political threat to the government at that time”: IAA at [19]. The IAA observed that Country Information before the delegate suggested that a Tamil originating from an LTTE‑controlled area would be subject to monitoring, harassment and possibly ill treatment during detention: IAA at [21]. The IAA observed that having regard to the Country Information and the appellant’s testimony about his questioning and release, it was satisfied that “the local CID were initially suspicious of the applicant’s motives in seeking the release of his uncle but following the questioning of the applicant, these suspicions were alleviated and he was not considered to be involved with the LTTE”: IAA at [21].
The IAA accepted that the appellant felt concerned for his safety following the incident with the CID at the “Joseph camp” and as a result the appellant took “some measure to maintain a low profile in his village”: IAA at [22].
The appellant contended that CID officers came to his home looking for him on two or three occasions. However, the IAA observed that as the appellant continued to reside and work in the local area, it had “considerable doubt that if the CID had been looking for him they would not have engaged in more aggressive searching methods and questioned his neighbours”: IAA at [22]. The IAA considered that the activities of the CID described by the appellant during this period were “more consistent with routine monitoring, particularly in the context of the applicant adopting changed work patterns which would have reduced the frequency of his travel past the CID camp”: IAA at [22]. Although the IAA accepted that the CID may have visited his home “a couple of times over many months” the IAA was not satisfied that they did so “with adverse intentions towards the applicant or because they considered him to hold a profile for LTTE involvement”: IAA at [22]. The IAA concluded that it was satisfied that the appellant “was not of any interest to the Sri Lankan authorities, including the CID, for imputed LTTE involvement or because he was otherwise considered a security or political threat, at the time of his departure from Sri Lanka”: IAA at [22].
Although the appellant provided the IAA with a letter of support concerning his claims for protection from the parish priest of a particular Church in Vavuniya (apparently dated 19 January 2013), the appellant acknowledged in the course of the visa interview that a number of statements contained in the letter relating to his family background were incorrect. The IAA chose not to give any weight to the letter. A letter from a Member of Parliament in the relevant district dated 17 January 2013 was also submitted. During the visa interview, the appellant said that his mother knew the Parliamentarian and obtained the letter on the appellant’s behalf. The appellant also acknowledged that this letter contained inconsistencies concerning a number of matters. As a result, the IAA gave “little weight” to the letter: IAA at [23].
The IAA accepted that given the appellant’s prior experience of detention, harassment and monitoring by authorities, he was concerned about future treatment by the authorities including the CID should he return to Sri Lanka: IAA at [24]. However, the IAA observed that recent reports of Country Information did not support a conclusion that Tamils, including young Tamil men from the Northern Province, were being “systematically targeted and subjected to serious harm because of their race and/or area of origin”: IAA at [24]. The Country Information relied upon for that conclusion is the DFAT report of 24 January 2017 at pp 28‑29.
The appellant claimed before the IAA that since his departure from Sri Lanka, unidentified men had come to his family’s home and had threatened and harassed and mistreated his family members to gain information about the appellant’s whereabouts. The appellant identified one visit which occurred in late 2015 when two unidentified men visited his family’s home. The appellant said that “the men spoke in Sinhalese, wore civilian clothing and one of them was suspected of working for the CID”: IAA at [25]. The appellant claimed that during the visit they threatened his mother but “ran away” when neighbours “started to make a lot of noise”. The IAA observed that it had “considerable doubt” that if the men were linked with the Sri Lankan government and the CID that they would have been “scared off” by neighbours making noise: IAA at [25].
The appellant also claimed that his family reported to him in early 2016 that three unidentified men, including the same person suspected of being a member of the CID, again came to the appellant’s house, threatened his mother and assaulted his brother who was present at the time and who intervened to assist his mother. The appellant claimed that at about the same time his younger sister was being harassed by unidentified men on the way to school and threatened with abduction if the appellant’s whereabouts were not revealed. The appellant claimed that his brother and sister had subsequently gone to live with in‑laws and other relatives: IAA at [26].
The IAA accepted that the appellant’s family were harassed and threatened by unidentified men in late 2015/early 2016 and that his brother and sister may have opted to reside with in‑laws and other relatives as a result: IAA at [27]. However, the IAA concluded that in circumstances where the family members could not understand the language used by the men and those men were not recognised or identified by their clothing, the IAA could not be satisfied that the men were affiliated with the Sri Lankan government or that one of them worked for the CID: IAA at [27]. In addition, because the IAA had found that the appellant did not hold a profile “for LTTE involvement at the time of his departure from Sri Lanka three years earlier, and his family could not understand Sinhalese”, the IAA could not be satisfied that the men “made any threats or enquiries in relation to the appellant’s whereabouts”: IAA at [27]. The IAA also concluded that it could not be satisfied that the visits and harassment by the unidentified men towards the appellant’s family were connected to the applicant or his claims for protection or his departure from Sri Lanka: IAA at [27].
The appellant claimed that he would face harm on return to Sri Lanka as a “returned asylum seeker”. The IAA observed that implicit in that claim is the notion that he would be an “illegal departee”. The IAA considered whether there is a real chance of serious harm occurring to the appellant on that footing should he return to Sri Lanka. The IAA accepted that the appellant had departed Sri Lanka illegally in September 2012: IAA at [31]. It accepted that should he return to Sri Lanka as a returned asylum seeker he would be likely to be identified “as such”: IAA at [31]. The IAA observed that Country Information suggested that Sri Lanka’s Constitution entitles any Sri Lankan citizen freedom to return to Sri Lanka. The IAA observed that there was no information before it which indicated that Tamils who have lived for prolonged periods abroad are facing “serious harm” on return to Sri Lanka due to time spent abroad: IAA at [31].
The IAA observes that DFAT has reported that persons who depart Sri Lanka other than via an approved port of departure (people described as “illegal departees”), may be liable for imprisonment and a fine although penalties for such illegal departees are “discretionary and are almost always a fine”. The IAA observes that as the appellant does not have a profile for LTTE involvement or would not otherwise be considered a security or political risk by the Sri Lankan authorities, the appellant would not, in its view, be targeted or subjected to processes on re‑entry to Sri Lanka that would be different from the usual procedures that apply as identified by the IAA: IAA at [32]. As to those procedures, the IAA notes that, as noted by the delegate, persons who depart Sri Lanka irregularly by boat (such as the appellant) may be considered to have committed an offence under the Sri Lankan Immigration and Emigrants Act 1949 (the “I&E Act”). The IAA observes that upon arrival in Sri Lanka, such persons are processed by a number of agencies who check travel documents and identity information. Processing of such people returning to Sri Lanka may take several hours and involves interviews and other administrative practices. The IAA also notes that because these persons are processed en mass, individuals are unable to leave the airport until all returnees have been processed. The IAA also observes that DFAT’s assessment is that such persons are processed in accordance with “standard procedures regardless of ethnicity and are not subjected to mistreatment during processing at the airport”. The IAA’s reliance on DFAT information is referenced to the DFAT Country Information Report concerning Sri Lanka dated 24 January 2007 as earlier mentioned. The IAA observes that persons who have departed illegally who have been arrested can remain in custody at the CID’s Airport Office for up to 24 hours after arrival if a Magistrate is not available within this time, such as, for example, because of the intervention of a weekend or public holiday. In those circumstances, the relevant person may be held at a nearby prison: IAA at [35]; cited DFAT report at p 34. The IAA says this at [36] to [40]:
36.I accept the applicant departed Sri Lanka illegally as a passenger on a boat. I accept that should he plead guilty he would be fined and would then be free to go. I am not satisfied that, having regard to this discretion coupled with the country information in the referred materials that indicates the ability to pay the fine by instalment, a financial penalty would amount to economic hardship to the applicant giving rise to serious harm.
37.Returnees who plead not guilty, will, in most cases, be immediately granted bail by a Magistrate and released on the basis of a surety (personal or guarantees by a family member) and will rarely be subject to any conditions in relation to the bail or any general requirement to report to police or police stations between court attendances.
38.There is no evidence before me that suggests the operating procedures under the I&E Act are discriminatory on their face, nor does the country evidence suggest it is applied in a discriminatory manner. Accordingly, I am not satisfied on the evidence that detention arrangements for the purpose of being charged under the I&E Act and financial penalties imposed upon a plea of guilty are applied in a discriminatory manner.
39.Alternatively, I have considered whether detention of the applicant for a short period and/or receipt of a financial penalty upon a plea of guilty would amount to serious harm. As he would have the opportunity to pay a fine by instalment I consider this treatment, both separately and taken together, would not amount to serious harm.
40.DFAT assesses the risk of torture or mistreatment for the majority of returnees is low and continues to reduce. The evidence before me does not support a conclusion that returning Tamil asylum seekers face a real chance of harm. For the reasons stated above, I am not satisfied the applicant will face a real chance of serious harm on the basis of being a returned asylum seeker and/or for illegal departure.
The IAA summed up the evidence at [41] and concluded that it could not be satisfied that the appellant faces a real chance of serious harm now or in the reasonably foreseeable future should he return to Sri Lanka. Thus, the IAA concluded that the appellant does not meet the requirements of s 36(2)(a) taken in conjunction with s 5H(1) of the Act and other relevant provisions such as s 5J and the elements of relevant provisions set out at pp 14 to 18 of the IAA’s reasons.
The IAA then considered whether it could be satisfied that Australia has protection obligations owed to the appellant because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to Sri Lanka, there is a real risk that the appellant will suffer significant harm: s 36(2)(aa); s 36(2A).
The IAA observes that the appellant has not made any specific claims for complementary protection separate from his claim for refugee status. The IAA observes that “having regard to the applicant’s profile at the time of his departure from Sri Lanka, the passage of time and the inability of the applicant’s family to understand Sinhalese, I am not satisfied the visits by unidentified men in late 2015/early 2016 involved people associated with the Sri Lankan government, including the CID, or that the visits were in connection to the applicant or indicate that he would face serious harm on return to Sri Lanka arising from the visits”: IAA at [46]. The IAA concluded that as there had been no further incidents since 2016 and the appellant’s mother and brother continue to reside at the family home without having experienced any apparent difficulties, “there is not a real chance the men would resume their harassment and threatening behaviour towards the applicant’s family or the applicant in the event he returned to the family home”.
The IAA then examined the notions of “real chance” and “real risk” and observed that it was satisfied that there is no real risk of significant harm “on these bases” (that is, due to the appellant’s age, Tamil ethnicity and/or because he originates from the Northern Province of Sri Lanka, or for imputed LTTE involvement due to his connection with his father and uncle or because he has spent time residing in Mullaitivu between 2002 and 2004, having regard to the conjunction of [47] and [48] of the IAA’s reasons), should the appellant be returned to Sri Lanka. The IAA then considered the appellant’s likely treatment under the criminal justice system as a result of illegal departure. It also considered conditions in prison in Sri Lanka on remand for detainees and the consequence of the appellant pleading guilty to an offence under the I&E Act. The IAA also considered whether questioning on arrival, being detained for a short duration or suffering a financial penalty, would amount to severe pain or suffering or suffering that might be considered cruel or inhuman or degrading. The IAA was not satisfied that these factors would meet those statutory descriptions. The IAA examined the elements of s 36(2)(aa) and, in particular, s 36(2A) relating to the notion of suffering “significant harm” and found that it could not be satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the appellant will suffer significant harm and thus the elements of s 36(2)(aa) were not satisfied.
At [53], the IAA said this:
Accordingly, I am not satisfied that there is a real risk the applicant will face the death penalty, arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment, including as a result of conditions he may face as a necessary and foreseeable consequence of being returned to Sri Lanka as an illegal departee.
I have examined these elements of the IAA’s decision comprehensively to test whether the primary judge fell into error in addressing, in the absence of the appellant, the grounds of appeal relied upon by the appellant before the Federal Circuit Court. Those grounds are set out at [6] of these reasons.
As to ground 1, the appellant contended that the IAA fell into jurisdictional error as it failed to make a finding on the appellant’s central refugee claims; it failed to make a proper evaluation of those claims; and/or it failed to provide an adequate explanation for its decision, notwithstanding that the appellant had “submitted reliable evidence to substantiate [his] central refugee claims”.
As to that ground, the appellant, by his Particulars, referred to the claims for protection at p 3 (which extend to p 4) of the IAA’s decision as a statement of his claims for protection. He also relied upon the IAA’s decision generally as reflecting his contentions described at [51] of these reasons.
An examination of the IAA’s reasons demonstrates that it made findings in relation to the claims and it took into account all of the elements of the claims for protection made by the appellant. It also gave a clear explanation for the decision it reached in relation to the appellant’s claims. It weighed the evidence and the claims made by the appellant in support of matters related to s 36(2)(a) and s 36(2)(aa). The appellant essentially contends that he “submitted reliable evidence to substantiate” his central refugee claims and that evidence ought to have been accepted. In fact, the Tribunal made many findings in favour of the appellant but notwithstanding those findings the Tribunal could not be satisfied of the relevant integers going to the claims for protection.
As to ground 2, the appellant says that a reasonable IAA reviewer “might reasonably arrive at a divergent conclusion on all the information and evidence before the IAA”. The circumstance that minds might differ about the facts or inferences to be drawn from facts or conclusions arising out of an evaluation of all of the material, does not give rise to jurisdictional error. On all the material, the IAA could not reach the relevant state of statutory satisfaction. To the extent that the appellant says that the IAA made findings in the absence of evidence or that it drew inferences which were not open or that it reached conclusions in the absence of evidence to support those conclusions, the appellant seems to be suggesting that the reasoning and conclusions of the IAA are only supported by material noted in the footnotes. The appellant says that the conclusions are “substantially based on foot notes cited below the reason and findings in the IAA’s decision”. In fact, the IAA analyses the evidence in a deliberative way throughout the reasons and to the extent that the IAA had regard to material such as DFAT reports, it made footnote references to those documents. Each of the conclusions reached by the IAA emerge from a deliberative evaluation of the evidence overall. There is no extant finding detached from an assessment of the claims and the evidence.
As to the approach adopted by the primary judge, the primary judge said this about ground 1 at [38] of the reasons:
The IAA has looked at that evidence [the evidence submitted by the appellant] and not concluded that the Applicant has met the criteria of either the refugee definition or the complementary protection criteria. That is a matter where such a conclusion was within the province of the IAA. To delve into anything further, as alleged by ground one, would mean conducting an impermissible merits review. Therefore, there is no substance in ground one.
There is no error on the part of the primary judge in reaching that conclusion. I have examined the reasoning of the IAA more comprehensively than the primary judge so as to be satisfied that that is so.
As to ground 2, the primary judge observed that the proposition that a reasonable IAA reviewer might reasonably arrive at a different conclusion on all the information and evidence before the IAA does not give rise to jurisdictional error.
The primary judge did not fall into error in reaching that conclusion.
Again, I have examined the reasoning of the IAA more comprehensively than the primary judge so as to determine whether, in the absence of the appellant before the primary judge, the ground contended for by him has merit or not. The primary judge also observed that, at least as to some of the language adopted in ground 2, the appellant seemed to be necessarily acknowledging that the conclusion of the IAA was open although, in the appellant’s view, it ought to have come to a different conclusion.
There is no error on the part of the primary judge.
The application for an adjournment of the appeal must be dismissed and the notice of appeal must be dismissed with costs.
I certify that the preceding sixty‑one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 8 February 2019
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