EDR17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 592

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EDR17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 592

File number(s):	SYG 2885 of 2017
Judgment of:	JUDGE VASTA
Date of judgment:	14 June 2024
Catchwords:	MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed
Legislation:	Migration Act 1958 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	65
Date of last submission/s:	14 June 2024
Date of hearing:	14 June 2024
Place:	Brisbane
Counsel for the Applicant:	The Applicant appearing on his own behalf with the assistance of an interpreter
Counsel for the First Respondent:	Mr Gao, Solicitor
Solicitor for the Respondents:	Hwl Ebsworth Lawyers
Solicitor for the Second Respondent:	submitting appearance, save as to costs’

ORDERS

SYG 2885 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EDR17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	14 JUNE 2024

THE COURT ORDERS THAT:

1.The application for reinstatement is granted.

2.The application filed on 18 September 2017 is otherwise dismissed.

3.The Applicant pay the First Respondent’s cost of and incidental to the application fixed in the sum of $1200.

IT IS NOTED THAT:

A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
(Ex tempore)

JUDGE VASTA

1. On 1 September 2017, the Immigration Assessment Authority, (“the IAA”) affirmed a decision not to grant the Applicant, EDR17, a protection visa.  On 18 September 2017, the Applicant asked this Court to review that decision. 

2. The matter was mentioned before a Registrar on 16 October 2017 in Sydney.  The Registrar made orders as to the filing of material.  The Registrar set the matter down for final hearing for 14 February 2019 before Judge Manousaridis. The matter was not heard by His Honour, and it then became part of the National Migration Docket. The matter was transferred then to Judge Kendall in September 2023. 

3. On 15 September 2023, his Honour set the matter down for final hearing on 20 May 2024.  On that day, the Court proceeded on an understanding that the Applicant did not appear. His Honour dismissed the application because of the non-attendance of the Applicant.

4. For matters that I will explain very soon, the matter then was transferred to me and has been heard today, 14 June 2024. 

5. This means that it has been six years and nine months since the Applicant filed his application for the Court to get around to finalising it.  That is an inordinate amount of time, and on behalf of the Court, I apologise to EDR17 for the Court taking such a long time to hear and finalise his matter. 

6. The application before me today is, technically, an application for reinstatement of the claim for review.  The factual basis behind this is that when His Honour listed the matter, on 15 September 2023, he listed it for hearing at 3 pm Australian Eastern Standard Time on 20 May 2024.  His Honour noted that that was 1 pm Australian Western Standard Time.  His Honour would be sitting in Perth and hearing the matter, so as far as the Court was concerned, it was happening at 1 pm in the place where the judge was sitting.

7. On 15 May 2024, His Honour's associate sent to all the parties a link for the hearing.  The message from the associate reinforced that the hearing would occur at 3 pm Eastern Time, which was 1 pm Western Time.  The Minister, to ensure that the Applicant realised what was happening, also sent a message on 17 May 2024 again reinforcing the time of the hearing.

8. At the time that the judge was sitting in Court, the Court noted that the Applicant had not joined the meeting, nor had he clicked on the link.  Because the Applicant did not attend, His Honour made orders giving judgment in default dismissing the Applicant's application. 

9. The Applicant sent an email at 2.41 pm on Monday, 20 May which read:

   I'm in on time.

10. As can be seen by the time stamp, it would seem to me that the email was sent one hour and 41 minutes after the 1 o’clock Perth time commencement of the hearing. 

11. At 5.23 pm, His Honour's associate emailed the orders to the Applicant and the Minister which had dismissed the application It is doubtful that the Chambers of His Honour had received the email from the applicant before the Orders were distributed to the parties. 

12. On 21 May at 6.58 am, His Honour's Chambers received an email from a person called Paul Di Cristo.  That person is a director of an organisation called Cerno, or cerno.com.au.  The letter said this:

    I write on behalf of EDR17 and confirm that I assisted him to join the online meeting yesterday afternoon.

    I confirm EDR17 joined the Teams link provided at 2.45 pm and was waiting to be let into the meeting, which did not occur.

    EDR17 has advised me that he has been penalised for not attending the meeting.

    I can confirm all efforts made by EDR17 to attend the meeting and I would be happy to facilitate an online meeting to a future hearing.

    I ask that you please reconsider this matter.

13. His Honour's Chambers then wrote to the parties saying that “it appears that there may have been some confusion about the hearing time and given that the Applicant was unrepresented this was understandable and not uncommon”.  His Honour's chambers wrote:

    In the circumstances where the consequences of a dismissal for the Applicant are significant, his Honour proposes to withdraw his orders made at the hearing yesterday and bring the matter back before the Court on an expedited basis for a final hearing.

14. His Honour asked for availability and for responses.  The Minister responded to the effect that, because His Honour had already made the orders, he was in effect functus officio.

15. The Minister said that the matter had to proceed as an application for reinstatement.  Because there was now some apparent conflict between the representatives for the Minister and His Honour's Chambers, the matter was transferred to me. 

16. While the Applicant has not actually filed an application for reinstatement, nor has he given any affidavits, the Court has still treated the matter in this way. 

17. There are three aspects that a Court looks at in such an application.  The first is what is the excuse or the reason for there not being an appearance on 20 May 2024.  The second thing the Court looks at is whether there is any prejudice to the Minister.  The third thing the Court looks at is whether there is an arguable case for the relief that is sought.

18. The Applicant appeared before me today unrepresented but assisted by an interpreter.  He said to me that, on the day, he was present on his phone, and he was given a link.  He clicked on the link.  He could see his face on the video, but he could see no one else.  While all of this may tend to show that the Applicant may have gotten his times mixed up, I accept the email from Mr Di Cristo that says that the Applicant was ready at 2.45pm. 

19. This means that the Applicant was not absenting himself from the hearing on 20 May 2024.  It seems more that there was a failure with the technology, or the understanding of the technology.  I am satisfied that this factual scenario is sufficient in and of itself to warrant the Court allowing the reinstatement. 

20. I am comforted in that decision by, firstly, the Minister conceding that there is no prejudice, but also in the fact that the Minister had to make lengthy and voluminous oral submissions today to justify why he submitted that there was no arguable case.  For those reasons, I have accepted the reinstatement and have proceeded, then, on the basis that this application was now the application for the review of the IAA decision.

21. The background to this matter is that the Applicant is a Sri Lankan citizen who arrived in Australia on 25 April 2013.  The Applicant was an unauthorised maritime arrival who was of the Hindu religion and of the Tamil ethnicity. 

22. The Applicant made claims that his father's cousin was shot and killed by an unknown person.  The Applicant does not know the circumstances of his father's cousin's death, or who shot him.  He said that, when his father went to collect the body of the cousin, the father was stopped by the Sri Lankan Army soldiers who threatened to shoot and kill him.  

23. He said that, about two months after this incident, the army and the Criminal Investigation Department began coming to the house of his parents.  He said that they were targeting his father, but he does not know why it was that they were coming to the family home.  He said that they frequently came in search of the father after the death of the cousin.  

24. He said that his father was a building contractor who built houses.  He said that when the army and the CID came in search of his father, the father moved to various other areas around the country.  He said that because his father wasn't home, the army and the CID started to cause problems for him, the Applicant.  He said this was because he was the eldest male in the family, and this meant that he was frequently questioned by the army, or the CID, asking where his father was.  

25. He said he was physically assaulted and seriously injured by the army and the CID.  He said that he has a scar on the left side of his face that was caused by a CID officer who assaulted him whilst he was being interrogated.  He said that he was questioned in his home and sometimes taken out of his home and that he was beaten several times. 

26. He said that because of these frequent visits by the army and the CID, he decided to depart Sri Lanka. 

27. He said that since arriving in Australia, he has learnt that the Sri Lankan authorities had gone to his parents' home in search of him.  He said that if he returned to Sri Lanka, he fears that he would be harmed by the authorities. 

28. He said that this would happen because he is a young Tamil male and he would be suspected of being part of the LTTE.  He said it would also happen because he had been sought in the past by the CID and because he claimed asylum in Australia and he departed Sri Lanka illegally. 

29. The IAA set about considering these claims. 

30. The IAA had before them the Applicant's arrival interview, his statutory declaration for his application and the interview that he had with the delegate of the department who assessed his claims. 

31. The IAA noted some serious contradictions amongst those three items of evidence that the Applicant had given. 

32. In his arrival interview, he said that he left Sri Lanka because his father was going far away to work and he was alone.  In that interview, he said that the army came in search of his father and beat him in the early part of 2012.  In his arrival interview, he did not mention anything about his father's cousin having been killed. 

33. In his statutory declaration, he said it was some time in 2011 that the cousin was shot and killed, and it was two months after that that the army and CID began to harass the father. 

34. In his interview with the delegate, he said that the father's cousin was killed in 2008, and it was only in 2011, three years later, that the army and the CID started to question them.

35. The IAA said that they had serious doubts about the credibility of the Applicant's claim regarding his father and himself being targeted by the army and the CID after the cousin's death.  The IAA said that, notwithstanding their concerns, they were prepared to accept that the cousin was shot and killed in 2008 and the father went to retrieve the body.  The IAA accepted that the father was stopped and threatened at checkpoints, but he was still able to retrieve the body.

36. The IAA did not accept all of the ramifications of this particular incident.  The IAA accepted that the Applicant experienced a level of harassment and discrimination on the basis of his Tamil ethnicity, but this was generalised harassment that happened to all young Tamil males in that area.  The IAA was of the view that the reason the Applicant's father moved from location to location was the result of his job as a builder and not because of any fear from the army or CID.

37. The IAA was not satisfied that there was any event or incident that would spark interest in him from the Sri Lankan authorities.  The IAA did not accept the claim that the Applicant was targeted because he was the eldest male in his household.  The IAA was not satisfied that the Applicant had a profile that would have attracted the attention of any Sri Lankan authorities.  The IAA did not accept that the Applicant's father had any profile that would have attracted the attention of Sri Lankan authorities.

38. The IAA accepted that the Applicant had a scar on his left cheek but did not accept that it was the result of being interrogated and beaten by the army or the CID.  The IAA did not accept that since arriving in Australia, the Sri Lankan authorities had gone to the Applicant's parents' home to search for him.  

39. The IAA then looked through quite a deal of country information.  

40. Having regard to all those matters, the IAA found that there was no real chance of the Applicant suffering harm on the basis of being a young Tamil male from the eastern province of Sri Lanka if he returned to Sri Lanka now or in the reasonably foreseeable future. 

41. The IAA then looked at the risk to the Applicant as a returning asylum seeker who departed illegally.  Again, after looking at country information, the IAA was not satisfied that the Applicant faced a real chance of persecution on returning to Sri Lanka. 

42. The IAA concluded that the Applicant did not meet the requirements of the definition of refugee in the Migration Act.

43. The IAA then looked at the complementary protection criteria.  The IAA concluded that they were not satisfied that the Applicant fulfilled those criteria either. 

44. For that reason, the IAA affirmed the decision not to grant the Applicant of a protection visa.

45. The Applicant had two grounds of application when filed back in September 2017.  I will deal with them seriatim.  Ground 1 is that:

    1.The IAAs decision was inconsistent, illogical and so unreasonable no reasonable decision maker would have reached the same decision.   

46. The gravamen of this ground is that, on the evidence before the IAA, there was no other outcome that could have been reached other than that the Applicant met the criteria for a protection visa.

47. What the Applicant is really arguing, in this ground, is that, on the evidence that was before the IAA, the IAA could not have come to any other conclusion, other than that the Applicant fulfilled the criteria to be given a protection visa.  

48. In the particulars given, it was claimed that the IAA had accepted the killing of the relative, the fact that the Applicant experienced harassment because of his ethnicity, and that he would be detained for a short time when he returned to Sri Lanka.  

49. The IAA was very thorough in looking at the claims.  While it accepted that the relative was shot and killed in 2008, the IAA did not accept that there were ramifications because of that incident.  

50. It is not incongruent for the IAA to accept the shooting and killing of the relative, but also to not accept that there was any harassment or targeting that followed that killing.  While it is that the Authority accepted that the Applicant had experienced harassment and discrimination during the time of the conflict, it is not incongruent to say that, on the country information, things had changed since the time of the conflict, such that the Applicant would not experience that same harassment and discrimination in Sri Lanka upon return.

51. The IAA accepted that there may be some period of detention upon the Applicant's return to Sri Lanka, but the same country information that led them to accept that proposition, also illustrated why that detention would not amount to serious harm. 

52. The conclusion of the IAA was open to it, and therefore there is no jurisdictional error.  On a fair reading of the reasons of the IAA, it is clear that the findings that were made by the IAA were well and truly open.

53. On a fair reading of the decision of the IAA, the conclusions were not illogical or unreasonable.  For this reason, ground 1 fails. 

54. Ground 2 is that:

    2.The AAT [sic] failed to consider a claim or an integer of a claim made out on the facts.

55. The particulars of what claim the IAA had failed to consider were these claims.  Firstly, the claim that the Applicant said that he was assaulted and seriously injured by the army in CID and that he had a scar on the left side of his face. 

56. The IAA did deal with this claim at paragraph 16 of their reasons.  The IAA said that they did not accept that the scar on his left cheek was because of being interrogated and beaten by the army or the CID. 

57. The second particularised claim is that the Applicant said that, as the eldest in his family, he was frequently questioned to account for his father's whereabouts. 

58. The IAA did deal with this claim also in paragraph 16 of their reasons.  The IAA said they did not accept that claim because they were not satisfied that there was any event, or incident, that would spark interest, in the Applicant, from the army. 

59. Given that those two were the only particularised claims that were alleged not to have been considered by the IAA, ground 2 also fails. 

60. The Applicant did not seek to supplement either of those grounds with any oral submissions but today simply said to me that he believes that the IAA did not look at all his claims. 

61. In my recitation of the reasons of the IAA, it was clear that the IAA enumerated all of the claims and dealt with them. 

62. The Applicant submitted to me that he has been here for nearly 12 years and if he goes back to Sri Lanka, he will be treated like a refugee and that he does not know what would happen to him.  As sympathetic as that claim is, and as understandable as that claim is, because anyone in the world would want to live in Australia rather than where they were living, it does not disclose a jurisdictional error.

63. While it is impossible not to feel sorry for the Applicant, the Court cannot act upon sympathy.  The duty of the Court is to only act upon a jurisdictional error that has been found. 

64. The Court, after thoroughly examining the reasons of the IAA, has not been able to discern any jurisdictional error.

65. Therefore, I dismiss the application, with costs fixed in the sum of $1200.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of Judge Vasta.

Associate:

Dated:       4 July 2024