ECE21 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

ECE21 v Minister for Home Affairs [2021] FCA 1447

File number: WAD 104 of 2021
Judgment of: JACKSON J
Date of judgment: 22 November 2021
Catchwords:

MIGRATION - application for judicial review of a decision made by the Minister under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the applicant's visa - whether the Minister failed to make findings on claims made by the applicant to engage Australia's protection obligations - whether the Minister engaged in an active intellectual process when considering the claims - characterisation of the Minister's findings - Minister rejected claims on the basis of lack of evidence - in the circumstances Minister not obliged to consider the probability that harm would occur - adequate engagement with the claims - application dismissed

PRACTICE AND PROCEDURE - suppression orders - applicant a citizen of South Sudan - Minister accepted that Australia owed non-refoulement obligations to the applicant - real risk of serious harm to the applicant if returned to South Sudan - s 91X of the Migration Act 1958 (Cth) not applicable - suppression order under s 37AF of the Federal Court of Australia Act 1976 (Cth) necessary to protect the safety of the applicant - applicant's name suppressed and pseudonym applied
Legislation:

Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG

Migration Act 1958 (Cth) ss 5AAA, 91X, 197C, 198, 501, 501CA
Cases cited:

AB (a pseudonym) v CD (a pseudonym) [2019] HCA 6; (2019) 364 ALR 202

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456

BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222; (2020) 385 ALR 286

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Eshetu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474

EXT20 v Minister for Home Affairs [2021] FCA 629

G v Minister for Immigration and Border Protection [2018] FCA 1229; (2018) 266 FCR 511

Minister for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569

Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166; (2020) 280 FCR 178

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590

MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123; (2010) 117 ALD 441

Perera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 403

Warnakulasuriya v Minister for Immigration and Multicultural Affairs (unreported, Finkelstein J, 6 April 1998)
Division: General Division
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Details
Case
[2021] FCA 1447
Decision Date

CaseChat Overview and Summary

The case of ECE21 v Minister for Home Affairs involved an application for judicial review of a decision made by the Minister under section 501CA(4) of the Migration Act 1958 (Cth) not to revoke the cancellation of the applicant's visa. The applicant, a citizen of South Sudan, had made representations to the Minister as to why the cancellation should be revoked, including claims that if he returned to South Sudan he could be killed by his father's enemies, by relatives of the victim of the assault in 2013, by rebels if he refused to join them, and by other tribes because of his Dinka ethnicity. The applicant claimed that he would be exposed to genocide and would die if returned. The Minister rejected the claims on the basis of a lack of evidence. The applicant sought judicial review on the basis that the Minister failed to make findings on his claims and did not engage in an active intellectual process when considering the claims.

The legal issues the court was required to decide were whether the Minister failed to make findings on the claims made by the applicant, whether the Minister engaged in an active intellectual process when considering the claims, and the characterisation of the Minister's findings. The court found that the Minister's findings were adequately expressed in the context in which they were made and that the Minister had engaged in an active intellectual process when considering the claims. The court found that in the circumstances the Minister was not obliged to consider the probability that harm would occur and that the Minister had adequately engaged with the claims. The application for judicial review was dismissed.

The court's reasoning and outcome were based on the fact that the Minister had considered the applicant's claims and had found that there was insufficient evidence to support them. The court found that the Minister's findings were adequately expressed in the context in which they were made and that the Minister had engaged in an active intellectual process when considering the claims. The court found that in the circumstances the Minister was not obliged to consider the probability that harm would occur and that the Minister had adequately engaged with the claims. The application for judicial review was dismissed, and the applicant was ordered to pay the respondent's costs of the application on a lump sum basis.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant must pay the respondent's costs of the application on a lump sum basis.

3. On or before 6 December 2021, the parties must confer and submit any minute of consent fixing an appropriate lump sum figure as to costs.

4. If no agreement is reached, the costs will be referred to a Registrar to determine an appropriate lump sum figure.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the same reasons, I have made a similar order in another proceeding the applicant brought in this court (now concluded) to which it has been necessary to refer below.Background to the present application The applicant is a citizen of South Sudan. He is of Dinka ethnicity. According to the findings of the sentencing judge, the applicant suffered a life of great deprivation in South Sudan. He was recruited as a child soldier at the age of 12 and saw many traumatic things, including torture and killings. This had a devastating impact on him, and he suffers from depression, anxiety and post-traumatic stress disorder. The applicant escaped from the army after four to five years and spent more years in a refugee camp in Kenya before coming to Australia in 2008 as a refugee, at the age of 26. He stayed in Australia under a Class XB Subclass 202 Global Special Humanitarian visa. From September 2011 onwards the applicant was convicted of a range of offences involving violence, damage to property and breach of a restraining order. In 2013 he committed a particularly serious crime. He got into a fight with an acquaintance. The acquaintance hit the applicant over the head with a glass bottle, which shattered and cut the applicant's head. The acquaintance began to walk away. The applicant followed him and punched him in the head and, when he fell to the ground, the applicant punched him repeatedly until other people intervened. The acquaintance has become severely and permanently disabled as a result. He suffers severe cognitive deficits and lives in a nursing home, unable to stand or sit without being held in place in a wheelchair. The applicant pleaded guilty to the offence of unlawfully causing grievous bodily harm with intent to do so. In December 2014 he was sentenced to 6 years and 10 months imprisonment, and was eligible for parole after 4 years and 10 months. A delegate of the Minister cancelled the applicant's visa under s 501(3A) of the Migration Act on 25 July 2018. The applicant then made representations under s 501CA(3) as to why the cancellation should be revoked. The then Minister made a decision not to revoke the cancellation. In a previous proceeding in this court the applicant applied for judicial review and in that proceeding, by consent, the Minister's decision was quashed. The Minister subsequently made a second decision not to revoke the cancellation, this one on 23 March 2021. It is that decision which is the subject of the present application for judicial review.The Minister's decision The Minister was satisfied that the applicant had made representations in accordance with s 501CA(3) of the Migration Act. He was not satisfied that the applicant passed the character test. Accordingly, the Minister proceeded to determine under s 501CA(4)(b)(ii) whether there was 'another reason why the original decision should be revoked'. The Minister summarised the representations that the applicant made as including a claim that if he returned to South Sudan he could be killed by his father's enemies, by relatives of the victim of the assault in 2013, by rebels if he refused to join them, and by other tribes because of his Dinka ethnicity. The applicant claimed that he will be exposed to genocide and will die there, if returned. The applicant also expressed fear about returning to South Sudan because of a publication he had made while in Australia in which he was critical of political figures in South Sudan. He also said he feared that he would be killed because of discussion of similar matters on his Facebook account.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Minister subsequently made a second decision not to revoke the cancellation, this one on 23 March 2021. It is that decision which is the subject of the present application for judicial review.The Minister's decision The Minister was satisfied that the applicant had made representations in accordance with s 501CA(3) of the Migration Act. He was not satisfied that the applicant passed the character test. Accordingly, the Minister proceeded to determine under s 501CA(4)(b)(ii) whether there was 'another reason why the original decision should be revoked'. The Minister summarised the representations that the applicant made as including a claim that if he returned to South Sudan he could be killed by his father's enemies, by relatives of the victim of the assault in 2013, by rebels if he refused to join them, and by other tribes because of his Dinka ethnicity. The applicant claimed that he will be exposed to genocide and will die there, if returned. The applicant also expressed fear about returning to South Sudan because of a publication he had made while in Australia in which he was critical of political figures in South Sudan. He also said he feared that he would be killed because of discussion of similar matters on his Facebook account. When the Minister turned to examine these claims, he noted that in 2019 the applicant had applied for a protection visa. The delegate had refused the application on the ground that the applicant, having been convicted of a particularly serious crime, was a danger to the Australian community. The delegate had, however, accepted that Australia had non-refoulement obligations to the applicant because there was a real risk that he would be targeted for serious harm in South Sudan. The Minister then assessed each of the applicant's claims to fear persecution or harm on return to South Sudan. There were several heads of claim. The Minister's treatment of the first four of these are the focus of the application for judicial review so it is necessary to set that treatment out in full (italics in original, some details have been anonymised):Threats from his father's enemies25.In his request for revocation, [the applicant] submits that 'in 2007 my dad had a fight in Bor with someone over the cattle during which both men were injured. In 2012 that man died of unknown causes and his family complained to the police and my dad was charged for murder by the corrupt police who were related to the victim'. He further submits that, resulting from that charge, his father was convicted and sentenced to a term of imprisonment. He was incarcerated in a prison in Bor but after war broke out in 2013 'My dad … escaped from the prison and he run to Juba where he was kidnaped and killed by relatives of the victim as a pay back'. [The applicant] further submits that his cousin, [redacted] 'advised me on the phone that I should not come to South Sudan because those enemies are waiting for me and they made it clear that they will kill me if I come to South Sudan'. He also submits that his father's killer is now a 'top security advisor to president' and 'for me to be safe in that lawless country is absolutely zero'.26.I note the discussion of this claim in the Protection visa decision and the delegate's conclusion that a number of discrepancies cast serious doubt on these claims. The delegate noted that there had been some historical dispute between [the applicant's] family and the man his aunt married and who later killed her and his family, one of whom, [Person X], was a person of considerable influence - having been [a senior state government official] in Sudan and later [a Minister]. However, the delegate found that the evidence did not establish that [the applicant's] father's death in 2015 was clearly caused by [Person X] or was due to suspicious circumstances.27.I find that the available information does not support a contention that [Person X] or other members of that family would now seek vengeance on [the applicant] because of his father's limited involvement in a family dispute many years ago. Accordingly, I am unable to make a finding in relation to this claim.Danger from the family of the person he assaulted on 7 October 2013 (in Australia)28.[The applicant] further submits that in South Sudan he would be killed by the family of the person he assaulted and seriously injured (in Australia) on 7 October 2013, whose father holds a position of police commissioner there.29.I note [the applicant] has not submitted any independent corroborating evidence to identify the victim's father or his claimed position, nor has he provided any evidence of threats or other evidence of danger to him in South Sudan from this source.30.As such, I am unable to make a finding in relation to this claim.Claims made - Facebook account31.In his submission dated 7 May 2020, [the applicant] states that he will be subjected to harm at the hands of South Sudanese authorities because of his remarks on his Facebook account about war crimes and atrocities the politicians committed. He also claims that he was threatened on Facebook by [Person Y, a relative of a high-ranking political figure in South Sudan], 'because she knew I am in the immigration detention centre' adding 'the issues of civil wars and human rights violation by the South Sudan government is extremely a great concern worldwide and Australia government need to be careful with the language of deporting refugees to South Sudan'.32.[The applicant] has submitted two screenshots from his Facebook account, stating that their contents are evidence of him being threatened by [Person Y]. I note that the identity of the person who responded to his Facebook posts has not been verified, nor has [the applicant] provided any evidence that he placed posts or videos about war crimes or that he publicly expressed his political opinions regarding South Sudanese politicians or that he made any remarks on war crimes, or atrocities committed by anyone in South Sudan, on his Facebook account as he claims.33.I further note the findings of the delegate regarding this claim, in particular that a review of [the applicant's] Facebook account had not found any evidence of the posts he claimed to have made.34.Given the lack of information or evidence, I am unable to make a finding in relation to this claim.Forcible conscription to the rebel army35.[The applicant] further states that if forced to return to South Sudan, he would be at risk from rebels operating there 'if I refuse to join them and fight a war I believe is against humanity …' enlightening [sic] 'If I am deported to South Sudan and to my village of Bor, the rebels will conscripted me by force into their army to kill innocent women and children'.36.Again, [the applicant] has not provided independent documentary evidence that he is likely to be conscripted by rebel forces. Accordingly, I am unable to make a finding in relation to this claim.

Ratio Decidendi

Legal Principle Established

In the particular facts and circumstances of CTB19, the Full Court decided that by proceeding on the assumption that it was not required to reach a 'specific' determination on the claim, the Tribunal failed to consider what findings it could have made: at [31]. It was not possible to tell from the passages from the Tribunal's decision quoted above the extent to which CTB19's claim that he would be killed weighed in his favour, which suggested that it had not been adequately dealt with or given the attention such a serious claim deserved. The question was not so much whether the Tribunal had to reach a definitive finding, but whether it had to actively explore the issue given its seriousness and the centrality to the claim, and weigh the claim in a meaningful way in its analysis of whether there was another reason to revoke the cancellation decision. That did not necessarily require a quantitative assessment but did at least require a meaningful qualitative assessment of the risk that CTB19 would indeed be killed on return to Iraq: see CTB19 at [31]‑[39].ConsiderationCharacterising the Minister's findings With respect, counsel for the applicant was correct to depart from the characterisation of the Minister's findings at paras 25‑36 that he put in his written submissions. The submission that the Minister made no finding at all was, as I have said, understandable. It is the literal meaning of the repeated formulation, 'I am unable to make a finding in relation to this claim'. But considered in context, I do not think that is the objective meaning of that phrase. For example, in relation to the first claim, about fearing harm from the family of a man the applicant's father was said to have killed, the Minister recounts the applicant's evidence, and then notes that in the discussion of the claim in the protection visa decision, the delegate reached the conclusion that a number of discrepancies cast serious doubt on the claims. He describes some difficulties with the evidence before the delegate. His full conclusion (at para 27) commences by saying that 'the available information does not support' the relevant contention. It is after this where the Minister says: 'Accordingly, I am unable to make a finding in relation to this claim'. Understood in that preceding context, this is a statement that the Minister is unable to find what the applicant is asking him to find, namely that the events on which the applicant relied had occurred, or that the applicant would currently face the risk on return to Sudan as claimed. It is true that the findings at paras 28‑30 in relation to the claim to fear retribution from the family of the victim of the assault in 2013 are expressed more briefly, and given that these findings were the subject of the most sustained attack by counsel for the applicant, it will be necessary to return to them. But the findings about the next claim, concerning the applicant's activity on Facebook, follow a similar pattern to the findings about the first claim. At para 32 of his reasons the Minister says that the applicant has not provided 'any evidence' of relevant posts he says he has made on Facebook. At para 33 he notes that the delegate also had not found any evidence of the posts the applicant claimed had been made. At para 34 the Minister then said: 'Given the lack of information or evidence, I am unable to make a finding in relation to this claim'. The reference to a lack of information or evidence bases the conclusion on the previous paragraphs and, taken in context and as a whole, is a finding that the applicant has provided no verification of his assertion that he made remarks on Facebook that may expose him to harm on return to South Sudan. It is a finding that the claims have not been made out.