EAU17 v Minister for Immigration
[2019] FCCA 91
•5 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EAU17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 91 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant believed for the most part but his fears found to be not well-founded – whether the Authority misunderstood the applicant’s claims, failed to identify elements of the process before the delegate, made an unreasonable finding, applied the wrong test or misunderstood country information considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DA, 473DB, 473DC, 473DD, 473DE |
| Cases cited: Applicant WAEE v Minister for Immigration [2003] FCAFC 184 CMY17 v Minister for Immigration [2018] FCA 1333 DOR16 vMinister for Home Affairs [2018] FCA 1864 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Ibrahim v Minister for Immigration (2000) 63 ALD 37 Kopalapillai v Minister for Immigration (1998) 86 FCR 547 Minister for Immigration v Eden (2016) 240 FCR 158 Minister for Immigration v Eshetu (1999) 197 CLR 611 Minister for Immigration v Li (2013) 249 CLR 332 Minister for Immigration v Singh (2014) 231 FCR 437 Minister for Immigration v EEI17 [2018] FCAFC 166 Minister for Immigration v Stretton (2016) 237 FCR 1 Minister for Immigration v SZMDS (2010) 240 CLR 611 NAHI v Minister for Immigration [2004] FCAFC 10 Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 SZVAP v Minister for Immigration (2015) 233 FCR 451 WAIJ v Minister for Immigration [2004] FCAFC 74 |
| Applicant: | EAU17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2797 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 13 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 5 February 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr D Taylor of Sydney West Legal and Migration |
| Solicitors for the Respondents: | Ms S Burnett of Clayton Utz |
ORDERS
The application as amended by leave granted on 13 December 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2797 of 2017
| EAU17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(as corrected)
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 18 August 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
On 26 May 2013, the applicant, a citizen of Sri Lanka, entered Australia at Cocos (Keeling) Islands as an unauthorised maritime arrival.[1]
[1] Court Book (CB) 16
On 6 September 2016, the applicant applied for a protection visa. On 1 December 2016, the delegate refused that application.[2]
[2] CB 21-69; 106-121
On 18 August 2017, the Authority affirmed the delegate's decision.
Protection claims
The applicant's claims are summarised by the applicant in his outline of submissions and in more detail in his statement attached to his application for a protection visa,[3] at Part 3 of the delegate's decision[4] and at [7] of the Authority's decision record.[5] The applicant claimed to fear harm from the Sri Lankan authorities and the Karuna group:
a)due to his past activities (media activities) [redacted] which were, or were imputed to be:
i)pro-Tamil;
ii)against the Sri Lankan authorities; and/or
iii)against the Karuna group;
b)as a member of a particular social group being "journalists targeted by the state for publishing material against the Sri Lankan government demanding transparency and accountability";[6]
c)because they will assume he intends to resume his media activities.
[3] CB 64-68
[4] CB 107-108
[5] CB 140-141
[6] CB 147 at [34]
The applicant also feared being detained, arrested, interrogated and physically harmed on his return to Sri Lanka as a failed asylum seeker who departed Sri Lanka illegally under the country's Immigrants and Emigrants Act (Immigrants and Emigrants Act).
Authority's decision
The Authority had regard to the information referred by the Secretary under s.473CB of the Migration Act 1958 (Cth) (Migration Act). It also considered, for the purposes of s.473DD of the Migration Act, two pieces of new information provided by the applicant being:
a)references to a website and a newspaper report contained in the applicant's submission to the Authority dated 9 January 2017 (information);[7] and
b)excerpts of a newspaper article dated 18 November 2016 concerning an attack on a journalist in Sri Lanka (Article).[8]
[7] CB 139 at [4]
[8] CB 139-140 at [5]
The Authority was not satisfied that the information or the Article satisfied s.473DD of the Migration Act and accordingly did not have regard to that information.
The Authority accepted that the applicant had co-owned and operated the radio station. It accepted that in the lead up to the September 2012 elections in Sri Lanka the applicant and other employees of the radio station:
a)received frequent threats from unknown persons;
b)suffered pressure and threats from the Karuna group over the radio station's perceived support for the Tamil National Alliance (TNA) in preference to Karuna's sister and the Tamil Makkal Viduthalai Puilikal (TMVP); and
c)were attacked at the radio station in August 2012.[9]
[9] CB 146 at [28]
However, the Authority found that the events listed directly above were the result of the "tense political environment" in the lead up to the 2012 elections.[10] The Authority observed that the applicant did not claim to have been a member of the TNA, or to have given any actual preference to TNA announcements following a protest in May 2012 at Vavuniya. It noted that:
a)the radio station gave additional air time to Karuna's sister and continued to give air time to the political advertisements of other parties; and
b)the applicant had not engaged in any political activities in Australia.[11]
[10] CB 146 at [29]
[11] CB 146 at [29]
The Authority did not accept that the applicant:
a)had been of adverse interest to the Sri Lankan authorities, the Karuna group, or any other persons since the 2012 elections;[12]
b)would be returning to Sri Lanka as an identifiable TNA supporter, political activist or high-profile journalist. The Authority considered that the problems the applicant and his co-workers faced in the lead-up to the elections were a product of the tense political environment at that time and the specific influence that Karuna tried to hold over his sister's publicity campaign;[13]
c)faced any threats or problems from Karuna or his associates, the TMVP, the Sri Lankan authorities or anyone else following the election on 8 September 2012. It did not accept that the applicant lived in hiding from October 2012 to May 2013 when he departed Sri Lanka. It was not satisfied that the visit to the applicant's aunt following his departure from Sri Lanka was related to his previous media activities or indicative of an adverse interest in the applicant. It noted that four years had passed since the applicant departed Sri Lanka and almost five years since the 2012 election and the closure of the radio station. The Authority observed that since that time there had been a significant shift in the political landscape nationally in Sri Lanka, but particularly in the applicant's home region.[14]
[12] CB 145 at [23]
[13] CB 146 at [29]
[14] CB 146-147 at [30]
The Authority referred to country information indicating that the influence of the Karuna group and the TMVP had significantly faded in recent years. By contrast, the TNA's national influence had grown. Taking into account the country information, it did not accept that the applicant was of adverse interest to anyone when he departed Sri Lanka and would not be of interest on return as an identifiable TNA supporter, political activist or high profile journalist. It did not accept that the applicant faced a real chance of harm from Karuna or any of his associates, the TMVP, the authorities or anyone arising from his previous actual or imputed TNA association and support, his previous reporting on Tamil issues in the north and east of Sri Lanka or his refusal to give greater support to Karuna's sister or the TMVP in 2012. Nor was the Authority satisfied that the applicant would face a real chance of harm from the Karuna group, the TMVP or the authorities if he were to publically support and promote the TNA on his return to Sri Lanka.[15]
[15] CB 147 at [31]-[33]
In relation to the applicant's claim to fear harm as a member of a particular social group arising from his role as journalist in Sri Lanka, the Authority observed that the situation had changed for journalists since 2012. It referred to country information indicating that positive steps have been taken by the Sirisena government to improve media freedom. On the basis of the country information, the Authority was satisfied that journalists and broadcasters do not face the risks they once did under the Rajapaksa government. It also had regard to the nature of the applicant's previous media activities. Whilst it accepted that the applicant reported on political matters, it did not accept that he reported against the Sri Lankan government demanding transparency or accountability. Nor did it accept that his political reports were anti-government or pro-Liberation Tigers of Tamil Eelam (LTTE). It did not accept that the applicant's profile during his career was such that he would be returning as a high profile or identifiable anti-government journalist/broadcaster. Taking into account the applicant's profile and the changed country situation in Sri Lanka with respect to the treatment of journalists and members of the media, the Authority did not accept that the applicant faced a real chance of harm upon return to Sri Lanka in relation to any aspect of his previous reporting or radio broadcasting by reason of his profile as a member of the media. It was further satisfied that any journalism or broadcasting that the applicant would do upon return would not draw the adverse attention or impute him with an anti-government or pro-LTTE/Tamil separatism opinion or that he would, for reasons of his journalism or media profile, be otherwise considered a threat to the integrity of the Sri Lankan state.[16]
[16] CB 147-150 at [34]-[42]
The Authority accepted that there remained a degree of discrimination and harassment in Sri Lanka towards Tamils. However, it was satisfied that it was low level, continued to reduce, and would not constitute serious harm. It was not satisfied that the applicant faced a real chance of harm now or in the reasonably foreseeable future on the basis of his Tamil race, his origins from Batticaloa, his gender or his age (noting that he was a relatively young man). Even considered cumulatively, and with his journalist/broadcaster and TNA supporter profile, the Authority was not satisfied that the applicant had a profile which indicated he would be at risk upon return of being detained under the operation of the Prevention of Terrorism Act, or that he otherwise had a well-founded fear of persecution from the authorities.[17]
[17] CB 150 at [44]
Whilst the Authority accepted that the applicant would return to Sri Lanka as a failed asylum seeker, it was not satisfied that the applicant faced a relevant risk of harm on this basis. It referred to country information regarding the treatment of returnees and noted that they are treated according to standard airport procedures, regardless of their ethnicity and religion and that they are not subject to mistreatment during processing. It was satisfied that the applicant would not be perceived as a LTTE sympathiser, a journalist or human rights activist critical of the government or as a threat to the integrity of the Sri Lankan state. It was not satisfied that there was anything in the applicant's profile that would bring him to the adverse attention of the Sri Lankan authorities, either during the airport processing procedures or after he returned to his home region.
The Authority accepted that the applicant had committed an offence under the Immigrants and Emigrants Act. The Authority concluded, by reference to country information, that the applicant may be detained and questioned at the airport and if so face a brief period of detention. It also considered the conditions the applicant may face if detained but was satisfied that, whilst those are poor, it was due to economic reasons, resourcing and old infrastructure and not a result of any systematic or intentional conduct by the Sri Lankan authorities. It found any detention would be brief and was not satisfied that the conditions would rise to the level of a threat to the applicant's life or liberty, or to significant physical harassment or ill treatment or otherwise amount to serious harm for the applicant. The Authority found that the Immigrants and Emigrants Act laws and procedures were not selectively enforced and not applied in a discriminatory manner. It concluded that the process leading to the charge, conviction and punishment for breaching the relevant sections of the Immigrants and Emigrants Act would be the result of a law of general application applied to all Sri Lankans who depart illegally and did not amount to persecution for the purposes of ss.5H(1) and 5J(1) of the Migration Act.[18]
[18] CB 150-153 at [45]-[57]
Having considered the applicant's claims and evidence, individually, and in combination, the Authority was not satisfied that the applicant had a well-founded fear of persecution. Accordingly, it found that the applicant did not meet the requirement of the definition of refugee in s.5H(1) of the Migration Act and did not meet s.36(2)(a) of the Migration Act.[19]
[19] CB 153 at [58]
The Authority also considered each of the applicant's claims by reference to the complementary protection criteria. It was satisfied that none of his claims gave rise to a real risk of significant harm for the purposes of s.36(2)(aa) of the Migration Act.[20]
[20] CB 154-155 at [61]-[67]
The present proceedings
These proceedings began with a show cause application filed on 8 September 2017. The matter was listed for a show cause hearing, pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) on 14 June 2018. At that hearing the applicant was represented by a solicitor who handed up in court a proposed amended application and proposed outline of written submissions. In the light of those documents,[21] I made orders dispensing with a show cause hearing and listing the matter for a final hearing on 13 December 2018.
[21] which it appears have not been electronically filed
At that hearing, I gave leave for the applicant to rely upon a further amended application filed on 19 November 2018. The grounds in that application are:
1. The Authority misunderstood the Applicant’s claims concerning the assault against him at the radio station as an assault on him personally, by arguing with the semantic characterisation of the claim, that it was in the view of the Authority more properly characterised as an attack on the radio station and hence did not affect his profile of adverse interest:
Particulars:
i. The Authority stated [at 18]
I find the applicant’s response about the attack on the radio station being ‘personal’ rather than a public or community issue to be unconvincing.
ii. The Authority at 18 and at 35 characterised the severe assault the Applicant was subjected to as “the attack on the radio station”.
iii. The Authority misunderstood the severity of the assault on the Applicant, failing to identify the particulars of the assault from the Applicant’s evidence that his neck was squeezed, he was struck with a chair leg, and collapsed as a result. [Transcript, Lines 648, 656-657, 1027]
iv. The Delegate raised a concern with the Applicant that his own characterisation of the assault as a personal matter was less accurate than describing it as an attack on the radio station [Lines 715-720]
INTERPRETER: (01:15:49) So that is a personal matter when they attacked me.
CASE OFFICER: OK
INTERPRETER: That's a personal matter. This is a public community matter.
CASE OFFICER: But they attacked a community radio station They attacked your station (01:16:01)
APPLICANT: Yeah but community station but,
v. The concern was not a sensible concern because it failed to consider the Applicant’s subjective fear that he was identified by name and then subjected to a very serious assault, and hence understood that the attack was directed at him personally.
vi. In failing to consider the Applicant’s claim that the assault at the radio station was an assault directed at him personally, and misunderstanding the severity of the assault, the Authority underestimated the Applicant’s profile of adverse interest to the Sri Lankan authorities.
vii. Because of the Authority failing to understand that the attack at the radio station was an assault targeted on the Applicant personally rather than a generic attack on the radio station, it misunderstood the Applicants claims and profile of adverse interest.
viii. The Authority found [at 13] that the attack on the radio station was not necessarily related to the election but then contradicting this finding the Authority found [at 38] without any identified reasoning process that “any adverse attention the applicant and the radio station received was related to the election coverage…”
ix. The Authority failed to consider whether the serious assault on the Applicant as a person targeted by name at the radio station was linked to his reportage personally of the anti-government Vavuniya protest.
x. This possibility arises squarely on the materials, as the Authority accepted that the Applicant’s reportage of the Vavuniya protest was anti-government reportage and pre-dated the attack.
xi. The Authority failed to consider that if the personal targeting and serious assault of the Applicant at the radio station was in response to his announcements and reportage concerning the Vavuniya protest, then the Applicant’s profile of interest was not delimited by the election period, and continued indefinitely.
2. The process by which the Authority found that the announcement concerning the Kallady roundup did not occur [CB 144, at 18] was affected by jurisdictional error in that the Authority misunderstood the claims of the Applicant; in that it failed to consider that weighing in favour of making the made the announcement were his motivations of professional ethics as a journalist and member of the Tamil community; in that the Authority took into account irrelevant considerations and failed to take into account relevant considerations; in that the Authority made an unreasonable finding without cogent reasoning; in that the Authority exercised its power unreasonably in the process of determining its findings of fact; and in that the Authority placed irrational emphasis on questions of semantics in rejecting the claim;
Particulars
Part A of reasoning of IAA regarding the Announcement concerning the Kallady roundup
i. The IAA’s first and apparently primary reason for rejecting the claim that the Announcement concerning the Kallady roundup occurred, arose from an argument about semantic representations concerning an unrelated event, being the attack on the applicant at the radio station, which the Authority accepted occurred, stating [at 18]
I find the applicant’s response about the attack on the radio station being ‘personal’ rather than a public or community issue to be unconvincing.
ii. The above statement is out of place in a logical sense yet occurs as the primary reason for rejecting the announcement concerning the Kallady roundup, and thus infects the consideration of the incident as a whole.
iii. This statement refers to the Applicant’s response to a specific question of the Delegate about a concern raised by the Delegate that it didn’t make sense to her why the Applicant would encourage the community members to complain to the police when the police had not taken action in relation to his own assault.
iv. The Authority failed to identify any consideration of the Applicant’s response to the question of why the applicant announced to the community to contact the police [Transcript, lines 721-723]
Interpreter: Yeah because they were angry with the radio station. But when these people get together about ten people go and complain to the police, they might listen.
v. This Authority also misunderstood the claim of the Applicant, in that the reason for making this particular part of the announcement for the community members to contact the police, was that this was the terms of the instruction given over the phone to the Tamil MP by the officer from the Kallady Army HQ, and which was then conveyed by the MP to the Applicant. [Transcript Lines 712-714].
vi. This concern as a whole takes issue with unimportant issues of semantics and terminology about how the applicant viewed the assault upon himself, which was inevitably affected by the severity of the assault, and being the subject of the assault, including having his neck squeezed, being struck with a chair leg, and collapsing as a result. [Transcript, Lines 648, 656-657, 1027]
vii. The concern mixes up the Applicant’s characterisation of a claim which the Authority had already accepted occurred (the assault on him in the radio station and his complaints to the police), with consideration of whether the announcement concerning the Kallady roundup occurred.
viii. As a result the Authority erred in its reasoning process through consideration of irrelevant matters, by mixing consideration of the August 2012 attack on the Applicant personally but using the Applicant’s characterisation of that as an attack against himself as a reason to reject that he made the announcement concerning the Kallady roundup.
ix. The Authority has engaged in a process of looking too finely at the Applicant’s words with a view to finding error, and thereby exercised power unreasonably.
Part B of reasoning of IAA regarding the announcement concerning the Kallady roundup:
x. The Authority stated, (in a multi-clause sentence), [at 18]:
Taking all the circumstances into account I also have concerns about the plausibility of the Kalladi SLA HQ denying the round-up and issuing the claimed instruction when the country information that was before the delegate indicates that round-ups were occurring in Batticaloa around this time and that forced registration of Tamils in the North and East was continuing and about a Kalladi HQ officer almost immediately threatening the applicant over an instruction that had come from their own HQ.
xi. The above sentence when broken down, divides into two implausibility concerns;
a. That it was implausible that the Sri Lankan army would not admit to conducting a Tamil roundup when questioned on the phone by an MP, when country information now available indicates these roundups were occurring at the time.
b. That it was implausible that an HQ Officer would threaten the Applicant for repeating on public radio the communication from the Army HQ to the Tamil MP that they were not involved and that those affected should contact the police.
xii. The first part of this concern (a) presupposes that when contacted on the telephone by a Tamil MP, the Army HQ would necessarily admit that it was conducting roundups of Tamil civilians.
xiii. The reference to country information indicates that the Authority misconceived that either the Army would always communicate truthfully about its actions, or otherwise that there was a point in time error, being that the Authority considered that the [later] availability of country information would have affected the Army HQ such as to ensure that any information it gave to the Tamil MP would be truthful.
xiv. In contrast to the IAA decision, it is plausible that the SLA would, over the telephone to a Tamil MP, deny abusing the human rights of the Tamil community members in this way, even while conducting such actions.
xv. The second part of the above concern of the Authority in the second sentence of the paragraph 18 [summarised at xi (b) above] was unreasonable:
“I also have concerns about the plausibility … about a Kalladi HQ officer almost immediately threatening the applicant over an instruction that had come from their own HQ”
xvi. This statement presupposes that the army would not punish the applicant for broadcasting on radio the private statement of the Army HQ to the … Tamil MP about roundups occurring, outside of the control of the Army.
xvii. The IAA has implicitly found that the instruction given by the Kallady Army HQ officer to the Tamil MP was made with the intention or consent that it should be broadcast on the radio, when this was not claimed by the Applicant.
xviii. In doing so this part of the decision raises a new concern not previously raised by the Delegate during the PV interview.
xix. The Delegate [Transcript Lines 944-948] asked the question why the Applicant would still be at risk of being targeted over the announcement concerning the Kallady roundup five years later in 2017;
You have been in Australia you left Sri Lanka in early in May 2013 and a few years have passed. The political landscape in Sri Lanka has changed, or I should say been improved significantly since the new government came to power in 2015. To me I find it hard to accept that if you were to return to Sri Lanka now Karuna will still target you because you refused to broadcast for his sister, or the Sri Lankan army will still want to harm you because you broadcast a round up in October 2012.
xx. The Authority failed to identify that the concern was not clearly and separately raised, as it mixed concerns over two separate persecuting bodies in the one question, with an emphasis on the time that has passed and the political changes which appeared to have occurred in Sri Lanka since the Applicant left the country.
xxi. The finding was unreasonable in that it is not implausible that the Kallady Army HQ would threaten the Applicant, and continue to hold an adverse interest in him, as a result of him broadcasting on radio the effect of a conversation between the Tamil MP and the Army HQ, because making the announcement itself would indicate that the roundup was occurring.
Part C of reasoning of IAA regarding the announcement concerning the Kallady roundup
xxii. The IAA stated [at 18] the following sentence:
Additionally, given that the earlier threats against the radio employees had resulted in people already being too afraid to come into work, that the applicant believed the persons who attacked the radio were SLA members and that the station had deliberately decided not to cover political issues, I do not accept the applicant … would have sought to cover any story on the SLA and draw attention to himself and the station by carrying out this broadcast.
xxiii. The Applicant did not claim that the announcement was a “story on the SLA”, as the object of the announcement, but rather that the news announced was the instruction from the SLA. [Transcript of interview, Lines 356-370, 705-711].
[356]
INTERPRETER; … So army headquarters have informed him saying no they are not doing a thing like that. So the headquarters had said if someone is coming and tapping at the door and doing things like that, for us to inform the police. So that [Y][22] gave that information to me
[22] The name has been anonymised
CASE OFFICER: Ok so you broadcast that one? Alrighty, so you personally broadcast that one?
APPLICANT: Yes
…
[705]
INTERPRETER: … so I called Yogeswaran the MP. So he called the headquarters and he checked with headquarters whether these things are happening like this. So Headquarters said ‘no we not doing things like that. So if things are happening like that just to go and complain to the police station the nearest police station’ that's what they have said. So that is the last announcement that I did in the radio station. Because we informed and we broadcast that news if something happening like that we educated the people to go and inform the closest nearest police station.
xxiv. The Authority [at 7, CB141] effectively restates the claim from the Statement of Claims without clarifying the claim from the further comments during the PV interview, such that the Authority does not clarify the claim as to what exactly was announced, and also does not identify that there is an issue with the clarity of the claim.
xxv. The IAA [at 18] did not specify whether the claim made by the Applicant was that
- A. The Army is not conducting the roundup and anyone affected should contact the police; or
- B. The Army stated that it is not conducting the roundup, and that anyone affected should contact the police.
xxvi. The Authority then stated that “,,, I do not accept the applicant the applicant [sic] would have sought to cover any story on the SLA …”
xxvii. In making this finding the Authority failed to identify that the claim was not “a story on the SLA”, but rather the publication of an instruction ‘from the SLA’.
xxviii. Given that the Authority’s identification of the claim was ambiguous, it ought to have considered putting the concern or otherwise requesting further information from the Applicant concerning this claim under s.473DC of the Migration Act 1958.
xxix. As the IAA did not clearly identify the claim, it was unable to make a finding concerning that claim, as it had misunderstood the claim.
3. The Authority misunderstood the claims of the Applicant, failed to intellectually engage with the response of the Applicant, and unreasonably exercised its powers, in the process by which it came to the finding that the announcement over the Kallady roundup did not occur;
Particulars.
i. The Delegate asked a direct question on the motivation for making the announcement but did not raise any concern about whether the announcement had occurred;
[Transcript Line 725]
CASE OFFICER: (01:16:18) OK. You also said after the attack your station stopped reporting political news and live program. Why would you broadcast this round up about Sri Lankan army, it seems political to me?
INTERPRETER: (01:17:06) So that was the last and final one I did because I couldn't take it up to my heart. because of things happening, because normally when they go like this they take all the young crowd and they take them and they kill them things are happening so I felt like I have to do that.
ii. The Delegate did not challenge this statement with any concerns.
iii. The Authority’s decision was unreasonable in that it failed to consider the Applicant’s motivation as a trained professional journalist to report an issue of importance and vital concern to his Tamil community.
iv. The IAA’s decision was unreasonable in that it assumes that people always act in their own perceived best interest by avoiding all risks, without regard to loyalty and responsibility to his local Tamil community and his professional and personal ethics as a journalist.
v. The Authority failed to consider that the Applicant as a professional journalist would have gone through a weighing process in relation to his obligations expressed by him in the interview [both professionally and personally] viz the personal risks, in relation to the decision to make the announcement.
vi. The Authority’s finding was unreasonable in that the decision by the radio station not to run the political programs did not prevent the Applicant from making the announcement.
4. The Authority made a jurisdictional error, in failing to identify that the Delegate had not raised a concern with the Applicant at the PV interview about the actual occurrence of the announcement concerning the Kallady roundup; in failing to identify that the Delegate had given the Applicant cause to believe that she did not have any such concerns; and in failing to consider whether to invite the Applicant to give further oral evidence on this issue under s.473DC(3) of the Migration Act 1958.
Particulars:
i. The Applicant and Delegate discussed the announcement concerning the Kallady roundup in the PV interview from transcript Lines 356 to Line 370 without the Delegate raising any concerns.
ii. The Applicant and Delegate further discussed the announcement concerning the Kallady roundup from Lines 697-746, in respect of which the Delegate raised two queries as follows:
- Why the Applicant would encourage people to complain to the police when the police had not done anything after he was attacked,
- [discussed between the Case Officer and Applicant from Lines 712-723]
- Why the Applicant made the announcement when the station had stopped reporting political news and live programs, when the announcement seemed political [discussed between the Case Officer and Applicant from Lines 724-731]
iii. The Delegate gave no indication to the Applicant in the PV interview that there were any concerns about whether the actual announcement concerning the roundup actually took place.
iv. The Delegate subsequently raised a generalised concern expressed in an aggregated sentence, about the applicant’s profile of interest in the context of the passage of years and an improved political landscape, and sought comment why Karuna would still be interested in him concerning his sister, and (crucially), why the Army would still be interested in him over the announcement concerning the Kallady roundup many years later [Transcript Lines 928-948].
v. This caused the Applicant to believe that the Delegate did not have any concerns about the fact that the announcement was made, but only held concerns about the consequences in relation to his profile of interest, of having made the announcement concerning the Kallady roundup.
vi. Because the Delegate in the interview did not raise a concern about the actual occurrence of the incident, or gave the Applicant cause to believe that if there had been any such concerns they had been satisfied, the Applicant was denied an effective opportunity in oral evidence to address the Delegate’s post-interview concern that the announcement concerning the Kallady roundup did not occur at all.
vii. The Applicant could not have a further opportunity to provide oral evidence to the IAA to address the concern that the announcement concerning the Kallady roundup occurred, because the Authority is restricted from considering new information except in very limited circumstances of s.473DD of the Migration Act 1958.
viii.In respect of the concern that the announcement concerning the Kallady roundup ever occurred at all, the Authority failed to consider putting this concern to the Applicant and inviting the Applicant to give oral or written evidence on the issue under s.473DC of the Migration Act 1958.
5. The IAA’s finding [at 19] that it was implausible that the Applicant would continue to move between Negombo and Batticaloa when people were looking for him in both cities, was an unreasonable finding
Particulars
i. It was not inherently implausible that the Applicant with nowhere else to go, would keep moving between houses of his family members, out of fear of staying in one place for too long, as he had nowhere else that he could go.
6. The IAA in finding [at 19] that it was implausible that the Applicant would not be located when the authorities were looking for him, applied the wrong test.
Particulars
i.The Authority found it implausible that he would not have been located if the Authorities were looking for him[at 19]
ii.However not being located does not prove that the Applicant was not being sought, as there are only limited resources that can be applied to tracking down a single individual.
7. The IAA in considering the risks to the Applicant misunderstood the Applicant’s profile, misunderstood the political landscape in Sri Lanka, and applied the wrong tests;
Particulars
i.The Authority failed to assess the Applicant as a journalist who had made anti-government reportage concerning the Vavuniya protest (which was accepted) and been personally targeted for serious assault;
ii.The Authority misjudged the political landscape by failing to consider that there could be a reversion to rule or Government of the former President Mahinda [Rajapaksa] with the attendant increased risks for journalists who have reported anti-government reportage.
[Lawyer’s note regarding publication, the name [Y] has been referred to as “the Tamil MP” in this Application for purposes of deidentification of the Applicant’s personal circumstances and we request this be applied also to the references in the Transcript]
(applicant’s emphasis removed)
At the trial, the applicant’s solicitor stated that Ground 1 should be treated as a particular of Ground 2 and that particular (i) in Ground 7 should also be treated as a particular of Ground 2.
In addition to the court book filed on 20 October 2017, I have before me as evidence the affidavit of Christine Joy Palomo made on 13 November 2018, which annexes a transcript of the applicant’s interview with the delegate.
The applicant and the Minister both filed further written submissions for the purposes of the final hearing and also made oral submissions through their solicitors at that hearing. I have been assisted by the Minister’s submissions, which I have accepted.
Consideration
In general terms, the applicant takes issue with the Authority’s fact finding from [9]-[24].[23] The applicant contends that the Authority misunderstood his claims and evidence in critical respects and that certain factual findings were not open on the evidence or were illogical to the point of being legally unreasonable.
[23] CB 141-145
It is useful to pay regard to the applicant’s claims in their temporal context.
Date Applicant's claims Early 2004 The applicant and nine others created a radio station. The applicant was the managing director, co-owner and journalist of the station and supervised 15 staff.
[redacted]
30 October 2012 The radio station was unable to generate income and the staff were afraid to work. It closed. April 2013
The applicant tried to apply for approvals from the Sri Lankan Broadcasting Corporation to reopen the radio station. Subsequently, he received threating phone calls. May 2013 The applicant felt he had no choice but to leave Sri Lanka.
The grounds in the further amended application may be summarised in the following terms:
Ground 1
The Authority mischaracterised the applicant's claim regarding the August attack as one against the radio station rather than as a personal attack on the applicant (particulars 1 to 6).
The Authority misunderstood the applicant's claims and profile of adverse interest by failing to consider whether the August attack was in response to the applicant's reporting on the Vavuniya protest (particulars 7 to 11).
Ground 2
The reasoning of the Authority by which it found that the announcement concerning the Kalladi round-up did not occur was unreasonable.
The Authority took into account irrelevant considerations and failed to take into account relevant considerations, namely the applicant's evidence before the delegate.
Ground 3
The Authority misunderstood the claims of the applicant and failed to consider the applicant's position as a professional journalist.
Ground 4
The Authority failed to identify that the delegate had not raised a concern with the applicant regarding the asserted announcement concerning the Kalladi round-up.
The Authority failed to identify that the delegate had given the applicant cause to believe that she did not have any concerns regarding the applicant's evidence and claims concerning the asserted announcement concerning the Kalladi round-up.
Ground 5
The Authority's finding that it was implausible that the applicant would continue to move between Negombo and Batticaloa was unreasonable.
Ground 6
The Authority applied the wrong test in finding that it was implausible that the applicant would not be located by the authorities.
Ground 7
The Authority applied the wrong test in considering the risks to the applicant and misunderstood the applicant's profile and the political landscape in Sri Lanka.
Although the grounds are arguable, on analysis, they do not rise above a disagreement over the Tribunal’s fact finding and reasoning process and its references to particular items of evidence.
Ground 1
Whether it is considered as a free standing ground, or as a particular to Ground 2, the first ground, while asserting factual errors, does not establish any factual errors going to jurisdiction.
Particulars 1 to 6
Contrary to the assertions of the applicant under Ground 1, the Authority found that the August attack was on the applicant personally. It also found that it was an attack on the radio station itself. At [13]-[15] of the Authority's reasons,[24] it considered the applicant's claims and evidence relating to the August attack. It accepted that:
a)the August attack occurred and that the attackers questioned the applicant and his employees about their political allegiance and threatened them;
b)the threats were being directed to the radio station and its employees, including the applicant;
c)the attackers were members of the SLA or otherwise connected to, or supporters of, Karuna, his sister or Karuna's political wing, the TMVP;
d)the applicant and/or his employee(s) informed the police of the August attack; and
e)the police took no action against the perpetrators.
[24] CB at 142 and 143
On a fair reading of the Authority’s reasons, no error is disclosed in the characterisation by the Authority of the August attack as one against the applicant personally (as well as one against the radio station and its employees). The Authority's finding on the nature of the attack on the radio station was open to it on the material before it.[25]
[25] Ibrahim v Minister for Immigration (2000) 63 ALD 37 at [11] and see Kopalapillai v Minister for Immigration (1998) 86 FCR 547 and Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407, 423
In terms of the motivation of the August attack, the Authority was not prepared to accept (as asserted by the applicant) that the attack on the radio station was in response to the applicant's refusal to provide live coverage of Karuna's sister's campaign. It rejected this claim in circumstances where the request for live coverage was made 2.5 weeks before the election and the attack pre-dated the election by more than one month.
The Authority did, however, accept that the radio station and the applicant were accused of giving preferential air time to the TNA but noted that the applicant:
a)did not claim to have been a member or to have given preference to TNA announcements following the Vavuniya protest;
b)referred to only two examples of specific pro-Tamil reporting outside the election announcements (one of which it did not accept occurred); and
c)had not engaged in any political activities in Australia.
On this basis, whilst the Authority accepted that the applicant personally favoured the TNA and faced problems on account of radio programming, it was not satisfied that his reporting or broadcasting was objectively biased towards the TNA or that the applicant would be identifiable as an TNA supporter, political activist or high-profile journalist. Rather, the Authority found that the August attack was the result of the "tense political environment" in the lead up to the 2012 elections.[26]
[26] at [29]
I find that the Authority did not mischaracterise the August attack by reference to the evidence of the applicant before the delegate or otherwise. Rather it reached a conclusion that was open on the material before it and based on facts having logical and probative weight.[27]
[27] WAIJ v Minister for Immigration [2004] FCAFC 74; Minister for Immigration v Eshetu (1999) 197 CLR 611 and SZVAP v Minister for Immigration (2015) 233 FCR 451
Particulars 7 to 11
The Authority did not misunderstand the applicant's profile or claims as contended by reference to particulars 7 to 11 of the amended application. It was open for the Authority to find that the applicant would not be identifiable as a TNA supporter, political activist or high-profile journalist given the applicant's limited degree of involvement in the TNA or in political protests or broadcasts suggested by his evidence. The Authority did not accept the applicant:
a)had been of adverse interest to the Sri Lankan authorities, Karuna group, or any other persons since the 2012 elections;[28]
b)would be imputed as a pro-TNA supporter, political activist, or high-profile journalist if returned to Sri Lanka;[29]
c)faced any threats or problems from Karuna or his associates, the TMVP, the SLA or anyone else following the election on 8 September 2012; or
d)lived in hiding from October 2012 to May 2013.[30]
[28] CB 145 at [23]
[29] CB 146 at [29]
[30] CB 146-147 at [30]
It also observed that four years had passed since the applicant left Sri Lanka and five since the September 2012 election. Based on country information, the Authority noted that there had been a “significant” shift in the political landscape nationally in Sri Lanka and particularly in the applicant's home region.
The Authority's findings as detailed above, were open on the material before it. Both the choice and the assessment of the weight of country information are matters for the Authority. A court cannot substitute its own view of the material, even if it has a different view to the Authority.[31] No error is disclosed in the Authority's reasoning.
[31] NAHI v Minister for Immigration [2004] FCAFC 10
Ground 2
By Ground 2, the applicant essentially:
a)cavils with the Authority's finding that it did not accept the applicant would have sought to cover the story on the SLA and draw attention to himself by conducting a broadcast (Broadcast claim); and
b)otherwise, by the numerous particulars set out under Ground 2, scrutinises the Authority’s reasons with an eye keenly attuned to error, an approach which is not permitted by a court.[32] So much is apparent from the applicant's complaint at particular xxvii that "[in] making this finding [that the applicant would not have sought to cover any story of the SLA] the Authority failed to identify that the claim was not ‘a story on the SLA’, but rather the publication of an instruction ‘from the SLA’."
[32] Applicant WAEE v Minister for Immigration [2003] FCAFC 184 at [46]
Contrary to the assertions of the applicant, the Authority engaged with the applicant's evidence in support of his Broadcast claim but for the comprehensive reasons it gave, did not accept that claim to be plausible. The Authority is not required in its reasons to set out its findings on all of an applicant's evidence.[33] At [16] and [17] of its reasons,[34] the Authority referred to the Broadcast claim of the applicant and his evidence in relation to it at the interview of the delegate. It is therefore to be inferred that the Authority had regard to, and considered, the applicant's evidence and claims. The Authority's finding that the applicant would not have sought to cover any story of the SLA was a finding of greater generality which subsumed (and rejected) the claim made by the applicant that he announced on the radio that people should go to the police if they were affected by visits made by the SLA Kalladi headquarters.[35]
[33] Minister for Immigration v EEI17 [2018] FCAFC 166 at [49]: “The IAA is not required to do more than set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. The fact that a matter is not mentioned in a statement of reasons does not mean that it was not considered; see Minister for Immigration v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [32], [32] (French CJ, Kiefel J, Heydon J and Crennan J agreeing); BVD17 at [45]; AQR17 v Minister for Immigration and Border Protection [2018] FCA 901 at [14]-[15]”
[34] CB 143 and 144
[35] Ibid at [47]
The applicant's particulars under Ground 2 are misconceived and, in part, hard to understand. No illogicality or unreasonableness is disclosed in the Authority's reasoning process nor did it take into account irrelevant consideration or fail to take into account relevant considerations in reaching its conclusion. At [18] of its reasons[36] the Authority set out the basis for its rejection of the Broadcast claim. The Authority:
a)found that the applicant's response about the August attack as being “personal” rather than being a public or community issue to be unconvincing;
b)had concerns, taking all the circumstances into account, about the plausibility of the Kalladi SLA headquarters denying the Kalladi round-up. It referred to country information indicating that round-ups were occurring in Batticaloa and that forced registration of Tamils in the North and East was continuing at this time; and
c)did not accept the applicant would have sought to cover any story concerning the SLA and draw attention to himself and the radio station given:
i)earlier threats against radio employees had resulted in many being too afraid to come to work;
ii)the applicant believed SLA members attacked the radio station; and
iii)the radio station had determined not to cover political issues.
[36] CB 144
Given the nature of the stringent test for concluding that legal unreasonableness is established, or in determining that a decision lacked an intelligible basis, no error is disclosed by [18] of the Authority’s reasons or otherwise by the Authority's rejection of the Broadcast claim. In this regard:
a)to the extent that by Ground 2, the applicant asserts the Authority failed to consider a relevant consideration or had regard to an irrelevant consideration, he must demonstrate that any such failure caused the decision to be manifestly unreasonable. As stated by the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Limited at 41-42:[37]
in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that a decision is manifestly unreasonable…
it has been held that an appellant court may review a discretionary judgment but has failed to give proper weight for the particular matter, but it would be slow to do so because the mere preference for a different result will not suffice…so to, in the context of administrative review, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors least it exceed its supervisory role by reviewing the decision on its merits.
b)unreasonableness in a decision sufficient to constitute jurisdictional error will only be found where, following a consideration of the subject matter, scope and purpose of a provision, and in light of the reasons given for the decision, a finding is “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, or “obviously disproportionate”.[38] Similarly, “illogicality” or “irrationality” sufficient to constitute jurisdictional error requires a finding be one which no rational or logical decision-maker could arrive at on the same evidence.[39] These remain stringent tests, as findings of legal unreasonableness are “fairly rare and would only occur in relatively clear cases”.[40]
[37] (1986) 162 CLR 24
[38] Minister for Immigration v Li (2013) 249 CLR 332; Minister for Immigration v Singh (2014) 231 FCR 437; Minister for Immigration v Stretton (2016) 237 FCR 1. These authorities were collected in Minister for Immigration v Eden (2016) 240 FCR 158 at 171-2
[39] Minister for Immigration v SZMDS (2010) 240 CLR 611, 647-8
[40] Eden at 180 and see also DOR16 vMinister for Home Affairs [2018] FCA 1864 at [7] and [11]
Under Ground 2, the applicant also asserts, by particular xxix, that the Authority ought to have considered requesting further information under s.473DC of the Migration Act relating to the Broadcast claim. No jurisdictional error is disclosed by this complaint.
First, it is for an applicant to prove his or her claims. Secondly, s.473DA(1) of the Migration Act confirms that the provisions of Part 7AA form "an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the … Authority".[41] Within Part 7AA, s.473DB(1)(b) of the Migration Act confirms that, subject only to the exemptions set out in ss.473DC, 473DD and 473DE, the Authority is required to "review" a "fast track reviewable decision" referred to it, "without accepting or requesting new information".[42] Whilst under s.473DC(1) of the Migration Act, the Authority may obtain new information which was not before the delegate and it considers may be relevant, s.473DC imposes no duty on the Authority to do so.[43]
[41] Section 473DA(1) of the Migration Act
[42] See Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16 at [22], [87]-[88]
[43] Section 473DC(2) of the Migration Act; CMY17 v Minister for Immigration [2018] FCA 1333
Ground 3
As with Ground 2, the applicant's complaint under Ground 3 is that a factual finding made by the Authority was unreasonable. The particulars under Ground 3 do no more that cavil with the Authority's findings. No error is disclosed.
As outlined above, on the basis of the country information considered by the Authority and the evidence of the applicant that:
a)earlier threats to employees had resulted in people being too afraid to attend work;
b)he believed the people who made the August attack were SLA members; and
c)the THEAN radio station had deliberately decided not to cover political issues,
it was open to the Authority not to accept that "the applicant would have sought to cover any story on the SLA and draw attention to himself and the station by carrying out this broadcast".[44]
[44] CB 144 at [18]
To the extent the applicant's complaint under Ground 3 is that:
a)the delegate failed to query the response of the applicant (particulars (i) to (iii)) to a concern raised by the delegate to the evidence given by the applicant, there was no obligation on the delegate to do so. Further, the exchange set out under particular (i) of Ground 3, followed a series of questions raised by the delegate relating to the applicant's Broadcast claim;[45]
b)the Authority's decision was unreasonable because it assumes people always act in their own interest or that the Authority failed to consider that the applicant was a professional journalist and would "weigh" the risks involved in making the Broadcast claim, again no error is disclosed. As outlined above in response to Ground 2, the Authority had regard to the applicant's evidence at [16] and [17] of the decision record and, in particular, at [17] of the decision record referred to the applicant's motivation for allegedly making the announcement concerning the Kalladi round-up, namely "that this was their last report and he had taken the issues affecting the young Tamils to heart and felt he had to do it". Ultimately, the Authority rejected the Broadcast claim and again, in light of the stringent test for concluding that legal unreasonableness is established or in determining that a decision lacked an intelligible basis, no error is disclosed by the Authority's finding.
[45] Transcript of interview before the delegate at line 691 (page 26) to line 731 (page 27) annexed to affidavit of Ms Palomo
Ground 4
Ground 4 discloses no jurisdictional error. The Minister contends that the delegate was under no duty to raise with the applicant concerns she may have had regarding the plausibility of his claims or his evidence in relation to the Broadcast claim or at all. In any event, I accept that the delegate did raise a number of concerns in relation to the Broadcast claim with the applicant to which he responded as recorded at particular ii of Ground 4.
To the extent the applicant asserts that the Authority ought to have considered inviting the applicant to give oral or written evidence under s.473DC of the Migration Act.[46] That contention is fundamentally flawed. The Authority is under no obligation to do so.
[46] particular vii, see [51] above
Further, by reference to the delegate's decision, the applicant was on notice that the delegate found his response to her queries to be "unpersuasive and inadequate".[47] Additionally, the applicant was provided with, and did take up, the opportunity to comment on the delegate's decision. By letter dated 6 January 2017, the applicant's representatives forwarded submissions to the Authority on the delegate's decision, amongst other material, which were considered by the Authority.[48] In the circumstances, contrary to the applicant's complaint, he was on notice of the delegate's concerns, and had an opportunity to address them.
[47] CB 110
[48] CB 132-135 and CB 139 at [3]
Grounds 5 and 6
Grounds 5 and 6 express disagreement with the Authority's factual findings and otherwise take issue with the findings and reasoning of the Authority at [19].[49] The Authority considered it implausible that:
a)the applicant would continue moving between the two cities in which he was allegedly targeted (and which it noted were 300 kilometres apart on opposite sides of the country); and
b)he had sufficient information to know when to leave each city or avoid one city and go to another when he did not know the identities of the people looking for him.
[49] CB 144
No error is disclosed. Such findings were open to the Authority on the material it considered, including the evidence of the applicant.
Ground 7
A fair reading of the decision record discloses that the Authority considered the applicant's circumstances when considering whether he had a well-founded fear of persecution or a real risk that he would suffer significant harm. So much is apparent at [57] of the Authority’s reasons where it states:[50]
I have considered all of the applicant's circumstances. However, I am satisfied he was not of adverse interest to any authorities, individuals or groups when he left Sri Lanka and has not become of adverse interest to them subsequently. I have considered the applicant's claims individually and cumulatively and I am satisfied that the applicant, a relatively young Tamil, male journalist/broadcaster and TNA supporter from the Eastern Province who faced problems in the lead up to the 2012 Eastern Provincial Council elections (but not subsequently) and who would be returning as a failed asylum seeker who left illegally does not have a well-founded fear of persecution.
[50] CB 153 and see also CB 155 at [66] in relation to the Authority's consideration of the applicant's risk of suffering significant harm
In so far as the applicant's complaint under Ground 7 is that "the Authority misjudged the political landscape by failing to consider that there could be a reversion to rule or government of the former President Mahinda [Rajapaksa]", no error is disclosed. The Authority referred to country information which it considered in detail and outlined at [31] to [42] and at [48] to [53] and [56] of its reasons.[51] It is clear that the Authority relied on that country information in making its assessment of the necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, and further that the conclusion it reached was open to it on the basis of the material it used. Both the choice and the assessment of weight of the country information were matters for the Authority. A court cannot substitute its own view of the material, even if it has a different view from that reached by the Authority. By reference to the applicant's complaint under Ground 7, he merely expresses a different view to that reached by the Authority.[52]
[51] CB 147-153
[52] NAHI at [13]
Conclusion
The applicant is unable to demonstrate that the decision of the Authority is affected by any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 28 February 2020
CORRECTIONS
Paragraph 8a, line 3 identifier deleted
Paragraph 9, line 1
Paragraph 10, lines 2, 4
Paragraph 11a, line 1
Paragraph 12c, line 10
Paragrah 28, line 2
Paragraph 40b, line 1
Paragraph 42, line 3
Paragraph 43, line 1
Paragraph 51c, line 2
Paragraph 51c(ii), line 1
Paragraph 51c(iii), line 1
Paragraph 56c, line 1
Paragraph 6a, lines1-3 “as the … station)” redacted
Paragraph 26, line 4 “the [identifier]” replaced with “a”
Paragraph 26, lines 8-38 redacted
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