Eiw20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)

[2024] FedCFamC2G 346

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EIW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2024] FedCFamC2G 346

File number(s):	PEG 286 of 2020
Judgment of:	JUDGE VASTA
Date of judgment:	7 March 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:	55
Date of last submission/s:	7 March 2024
Date of hearing:	7 March 2024
Place:	Brisbane
Counsel for the Applicant:	The Applicant appearing on their own behalf with the assistance of an interpreter
Counsel for the First Respondent:	Ms Ellis, Solicitor
Solicitor for the First Respondent:	Sparke Helmore

ORDERS

PEG 286 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EIW20

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	7 MARCH 2024

THE COURT ORDERS THAT:

1.The Application filed on 30 September 2020 be dismissed.

2.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $1,500.00.

NOTATION:

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 25 August 2020, the Immigration Assessment Authority “the IAA”, affirmed a decision not to grant the Applicant EIW20 with a protection visa.  On 30 September 2020, the Applicant asked this Court to review that decision. 

2. This matter has had a somewhat chequered history.  The Applicant arrived in Australia as an unlawful maritime arrival in October 2012.  From 10 December 2015, he was allowed to apply for the safe haven enterprise visa. 

3. On 2 May 2016, he applied for this protection visa.  He was interviewed by the delegate. 

4. On 5 October 2016, the delegate refused to grant the Applicant the protection visa. 

5. Because the Applicant was an unauthorised maritime arrival, once this occurred, his matter was referred directly to the IAA.  The IAA made its decision to affirm the delegate's decision on 7 April 2017. 

6. The Applicant then asked this Court to review that decision.  On 24 June 2020, this Court quashed the decision of the IAA, and remitted the matter back to the IAA for them to determine the matter again.

7. It seems that there were documents that the Applicant gave to the department in 2013 that had not been given to the Authority as part of its review material.  This was a jurisdictional error which caused this Court to do what it did. 

8. Upon remittal, the Authority wrote to the Applicant, and said that it was going to reconsider the matter.  The Authority ended up considering the matter with all of the material that it had, as well as some new material.  As I have already said, on 25 August 2020, the Authority affirmed the delegate's decision again.

9. The application was lodged on 30 September 2020, which at first blush would lead one to believe that it had been filed out of time.  When the matter came before a judge of this Court on 8 September 2021, that judge refused the extension of time.  That refusal ended up being reviewed by the Federal Court. 

10. On 4 December 2023, the Federal Court sent the matter back to this Court, explaining that, in their view, the application had not been filed out of time. 

11. The matter was then assigned to me to be heard today, 7 March 2024. 

12. This hearing was totally focussed upon the substantive application made by the Applicant.

13. The background of the matter is that the Applicant is a citizen of Sri Lanka.  He was born in a village in the Western Province of Sri Lanka.  The Applicant is a devotee of the Muslim religion.  The Applicant identifies his ethnicity as being Tamil. 

14. The Applicant claimed that his family was displaced, around 1990, because of the civil war conflict.  The family was in a refugee camp for some time before moving to another village in the North Western Province. 

15. In 2009, the family moved to another village in the Northern Province.  The Applicant said that when he was a student, he was involved in protests against teacher shortages.  The Applicant said that he was expected to be involved in political activities.

16. His uncle was a candidate for election to a political office.  His uncle was a candidate for the Muslim party known as SLMC.  This occurred during the 2011 local elections.  The Applicant supported his uncle's campaign by attending meetings, assisting with propaganda and printing campaign material. 

17. As part of this campaign, the Applicant helped a protest against the presence of a navy camp in their village.  Opposition party members were putting pressure on his uncle not to stand for election.  The Applicant said that opposition party members were involved in illegal smuggling activities, and they had the protection of the police and navy and other officials.

18. The opposition supporters disrupted the campaign and fought with the Applicant and other people who supported the uncle.  The Applicant was injured in these fights and was beaten with cricket wickets or stumps.  The Applicant said, on one occasion, these supporters disturbed a meeting at the uncle's house.  On this occasion, the Applicant said that he and others were taken in a van and beaten. 

19. He said he was warned by these supporters to stop supporting his uncle's campaign.  He said he needed hospital treatment for his injuries.  The Applicant said that he and his uncle, as well as other supporters, tried to lodge a complaint with police.  He said the police refused to file the complaint because they supported the opposition. 

20. The Applicant said he began to be concerned for his safety, and he went to Colombo.  He also went to Kandy and moved around to avoid people.  The Applicant said his uncle warned him not to return to their village as it was not safe for him. 

21. The Applicant departed Sri Lanka illegally in 2012 and came to Australia. 

22. After he departed, the Applicant said that his family tried to negotiate with the opposition to secure his safety.  The Applicant said that the opposition refused to guarantee his safety. 

23. The Applicant said that in 2016, one of the opposition party leaders asked the Applicant's brother for information about the Applicant. 

24. The Applicant said that he feared that if he went back to Sri Lanka, he would be harmed by the opposition.  He said he cannot rely on the protection of the police, and his fear extends to every part of Sri Lanka.  He said he is concerned for his safety, especially following elections. 

25. The Applicant provided some letters of support from Sri Lanka that talk about the concern for his safety.  The Applicant's uncle is still politically active with the SLMC but is too scared to stand in another election.  The Applicant said that if he has to go back to Sri Lanka, there is no way for him not to be involved in politics. He said he has to help the people in his village.

26. The IAA carefully and thoroughly assessed these claims.  The IAA accepted that he was a citizen of Sri Lanka and that he was a Muslim.  Noting that there is often a difference as to whether people identify as Muslim or as Tamils, the IAA still accepted that the Applicant speaks Tamil and identifies as Tamil.  The IAA accepted that the family were displaced. 

27. The IAA accepted that the Applicant had been involved in protests regarding teacher shortages.  The IAA accepted that the uncle of the Applicant unsuccessfully stood for election at the 2011 local elections.  The IAA accepted that the Applicant assisted his uncle with the campaign.  The IAA accepted that there was violence done to the Applicant because of this support. 

28. The IAA found that it was plausible that the uncle was pressured to withdraw from the election.  The IAA also said that it was plausible that the opposition was involved in illegal smuggling operations.  The IAA was, with some hesitation, accepting of the Applicant's tale of being abducted from his uncle's house. 

29. The IAA accepted that as a result of all of this, the Applicant was concerned for his safety.

30. The IAA was not satisfied that following the election, the Applicant was of any interest to opposition party supporters.  The IAA noted what the Applicant's support to his uncle was and noted that the Applicant had no influential role.  Because he did not have any role of influence that could be of interest to the rivals of his uncle following the election, the IAA was not convinced of there being any continuing interest in the Applicant. 

31. The fact that the Applicant could not name the actual opposition political party that was doing the harassing meant that the IAA was of the view that the Applicant's role was at a very low level.

32. The IAA noted that the aim of the violence was to disrupt the campaigns of political rivals.  Because of this, the IAA was of the view that once the election was completed, there was no ongoing interest to opposition party members regarding the Applicant.  Notwithstanding that the Applicant said that he moved around to avoid detection, the IAA noted the dates involved.

33. The election was conducted in March 2011, and the Applicant left Sri Lanka in September 2012.  Yet his account was that he had to move around during this period to avoid detection.  But in his application, he had listed in his employment history that during this period he had ongoing work as a driver for a construction company. 

34. The IAA did not accept that the Applicant had to move around to avoid opposition party members.  The IAA did not accept that the Applicant's family attempted to negotiate with opposition party members to secure his safety.  The IAA did not accept that the opposition had refused to guarantee his safety.  The IAA did not accept that an opposition party leader asked the brother of the Applicant in 2016 for information about the Applicant.

35. The IAA conducted a lengthy investigation into country information.  The IAA was looking at what life was like in Sri Lanka for Muslims.  This was done in the context of different governments coming to power, and that at the time of the IAA’s assessment, the Rajapaksas were in power.  The IAA also looked at the situation concerning Tamils in Sri Lanka.  The IAA looked at the issue of corruption within Sri Lanka, and as to whether that corruption would be likely to cause significant harm to the Applicant.  The IAA looked at what would happen to the Applicant returning to Sri Lanka as a failed asylum seeker.  The IAA looked at the situation of the fact that the Applicant left the country illegally and may be dealt with for doing so when he returns. 

36. The IAA said, on the basis of everything that the Applicant claimed, both individually and cumulatively that (at paragraph 76):

    Considering the totality of the material before me, I am not satisfied there is a real chance that the Applicant would be persecuted on return to Sri Lanka.

37. For these reasons, the IAA concluded that the Applicant did not meet the requirements of the refugee criteria.

38. The IAA then considered the complementary protection criteria.  After examining those matters, the IAA was of the view that the Applicant did not meet those criteria either.

39. For those reasons, the IAA affirmed the decision not to grant the Applicant a protection visa.      

40. The grounds of the application for review, as filed on 30 September 2020, were these:

    1.   The decision of the Second Respondent Immigration Assessment Authority falls into an error of law and/or jurisdictional error. The Reviewer made facts finding error, ignored relevant material and relied on irrelevant in reaching their decision and reasons on 25 August 2020.

    2.   Such an error is a jurisdictional error which will invalidates decision of Immigration Assessment Authority.

41. The ground itself is extremely general.  It does not identify which facts were made in error.  It does not identify what material was relevant.  This is especially important because, for the material to be relevant, it was mandatory for the IAA to consider it.

42. Relevant material means that the IAA must consider that material.  Irrelevant material means material that the IAA is prohibited from considering.  There is no identification of what was said to be either relevant or irrelevant. 

43. When the Applicant appeared before this Court in September 2021, he handed up a document.  This was made exhibit 2 by that particular judge.  The document contained a submission that the IAA had spoken about things that were happening to Muslims in Sri Lanka that were very concerning.  This included:

    (a)The events concerning a bombing that occurred around Easter in 2019. 

    (b)That up to 2,000 Muslims had been questioned, and many of them detained on the basis of limited evidence.

    (c)That security measures were put in place, including military checkpoints on major Muslim travel routes.

44. The Applicant submitted that the DFAT report stated that there was a potential for more reprisal attacks against the Muslim community.  The Applicant said that the IAA's conclusion was not a proper one.  The IAA had said that:

    Overall, I find there is not a real chance the Applicant would face serious harm on the basis of being Muslim.

45. The Applicant submitted that the IAA had failed to properly take into account those relevant issues or facts before making such a conclusion.  The fact that the IAA has mentioned what the material was before it, means that they have considered it.  The IAA came to a conclusion on all of the country information, including that which the Applicant had emphasised.  The weight that is given to such country information is a matter for the IAA alone. 

46. The fact that the IAA looked at that information and still came to the conclusion that there was not a real chance the Applicant would face serious harm on the basis of being a Muslim was a conclusion that was open on the evidence.  The submission of the Applicant is merely a disagreement with the conclusion made.  In reality, the Applicant is attempting to have this Court conduct a merits review on the conclusion.

47. When the Applicant appeared before me today, he was assisted by an interpreter.  He spoke in English but required the assistance of the interpreter on many occasions.  The Court utilised the services of the interpreter, especially when explaining matters to the Applicant, and in delivering these ex-tempore reasons.

48. The Applicant said to me that he had now been in Australia for 12 years.  He said that every year it is different in Sri Lanka, and that the situation can change any day.  He said that he needed to explain all of this in person to the IAA, but the IAA did not allow him to come in and be interviewed.  The Applicant said that the IAA's decision not to allow him to be interviewed was a jurisdictional error. 

49. During the hearing, I read out paragraphs 21 and 22 of the IAA decision.  I do not need to repeat what is in those paragraphs.  The power to allow an Applicant to be interviewed is used extremely rarely by the IAA.  It should not be used unless there is an informational gap in the evidence.  In this case, there was no such gap.  The fact is the Applicant had told the IAA that he had already provided the information he wanted to provide.  The IAA said that they were not satisfied that, in these circumstances, the IAA having an interview with the Applicant was warranted. 

50. I do not find that this constituted a jurisdictional error. 

51. I have been very thorough in explaining what the IAA has concluded to the Applicant, both during the course of the hearing and during these ex tempore reasons. 

52. There has been no fact-finding error that has been established.  There has been no relevant fact that has been ignored.  There has been no irrelevant fact that has been relied upon. 

53. The conclusions reached by the IAA were open to it.  This includes the conclusion that, overall, the Applicant did not face a real chance of serious harm on the basis of being Muslim.

54. This included the decision by the IAA not to request an interview with the Applicant. 

55. Having thoroughly gone through the reasoning of the IAA, I can find no infection by jurisdictional error.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated:       18 April 2024