ENE17 v Minister for Immigration and Anor
[2018] FCCA 3453
•30 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ENE17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3453 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the Authority erred in failing to consider review material provided to it by a delegate – whether the Authority erred in failing to comply with s.473DB(1) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.25 Migration Act 1958 (Cth), ss.5H, 36, 473CA, 473CB, 473DB, 473EA, pt.7AA Articles and other material cited: |
| Cases cited: DVB16 v Minister for Immigration & Border Protection [2018] FCA 1682 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 95 FCR 506 |
| Applicant: | ENE17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3122 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 23 August 2018 |
| Date of Last Submission: | 23 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 30 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp and Mr G Schipp |
| Solicitors for the Respondents: | Ms K Morris, Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3122 of 2017
| ENE17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 14 September 2017. The Authority affirmed a decision of a delegate of the Minister made on 16 March 2017 to refuse to grant the applicant a protection visa.
The applicant argues that the Authority failed to consider certain country information that was relevant to his claims which had been before the delegate when she made her decision. That argument requires some consideration of the applicant’s claims, the Authority’s statement of reasons for its decision, as well as the information said not to have been considered by the Authority.
Background
The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 5 September 2012 as an unauthorised maritime arrival. On 27 September 2016 he made an application for a protection visa. The claims made in support of that application were that he had helped a youth league in his village which supported the Tamil National Alliance (TNA). The youth league fought with a rival party, the Tamil Magal Viduthacai Pulegal (TMVP) over goods received and refused to provide the TMVP with the goods that they wanted. The applicant was not actively involved with the TNA but when he refused to give goods to that party the Sri Lankan Army came to him and warned him not to take part in activities supporting the TNA.
The central claim made by the applicant arose out of events that he claimed occurred on 27 June 2012. He said that on that day he was returning from his sister’s-in-law home after a funeral ritual for his wife’s grandmother and noticed that there was a motorcycle on fire. He claimed that he became involved in an altercation with unidentified men who took him to an army camp and questioned him there. He was told by them not to participate in charity work anymore and was also told to tell them who was responsible for the fire to the motorcycle.
The applicant later learned that the motorcycle had belonged to two men who had sexually assaulted a woman after forcing their way into her house and that the locals had set fire to the motorcycle as punishment. The applicant believed that those two men were Sinhalese from the Army and that they were trying to put the blame for the assault on him as a Tamil man as he would be seen as a “soft target” and was at the scene at the time. The applicant claimed that he had received threatening calls concerning this incident and that he was accused of supporting the TNA. He also said that he took the threats seriously and then moved to a different town and stayed with his wife’s elder sister.
The applicant claimed that he was affected by a data breach which occurred in February 2014 in which certain personal details of people who were held in immigration detention in Australia were accidentally published by the Department of Immigration. He claimed that in August 2014 his wife received threatening telephone calls asking for money and for the location of the applicant.
The applicant also believed that he would be harmed by the Karuna group and the Army as well as from supporters of TMVP due to his support for the TNA. He feared also that he would be arrested under the emergency regulations that were still in force in Sri Lanka. He later claimed at an interview with a delegate of the Minister that in 2002 and 2005 he was suspected of being involved in the Liberation Tigers of Tamil Eelam (LTTE) and was arrested and that in 2011 the TMVP extorted money from him.
By email dated 15 March 2017 the applicant’s advisor sent to the Department of Immigration certain country information on Sri Lanka which, it was submitted, was evidence of the possibility of torture by the Sri Lankan security authorities in questioning a suspect ethnic Tamil, that the Sri Lankan security forces effectively control all parts of Sri Lanka and were not legitimate within the international law and that although a new government was in power, it could not be said for certain that a Tamil was safe and free from persecution. One of the reports provided under cover of this email was from the United Kingdom Home Office described as “Country Information and Guidance Sri Lanka: Tamil separatism”. This was version 3.0 of that report and dated August 2016. It will be necessary to return to some of the content of that report in due course.
On 16 March 2017 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the matter was then referred to the Authority pursuant to s.473CA of the Migration Act 1959 (Cth).
By email of 9 April 2017 the applicant’s advisor sent submissions to the Authority as to why the applicant disagreed with the delegate’s decision, together with a further statement made by the applicant and further country information concerning Sri Lanka.
On 14 September 2017 the Authority made a decision to affirm the decision of the delegate not to grant the applicant a protection visa.
Authority’s reasons
The Authority accepted that the applicant had experienced a level of harassment and discrimination on the basis of his Tamil ethnicity during the time of the conflict and may have been caught in round ups, however did not accept that he was otherwise targeted on suspicion of LTTE membership or involvement: [13].
The Authority also accepted that the applicant had put up TNA posters and had distributed donations following the floods and helped the TNA with minor tasks and that he had not been actively involved with the TNA: [15]. The Authority accepted that there had been tensions between the TMVP and the TNA and that they fought over goods and that the TMVP would report the applicant to the Army as claimed. Further, it accepted that the applicant was warned against taking part in activities to support the TNA.
The Authority accepted that members of the TMVP approached the applicant at his grocery store and demanded that he pay money, however considered that it was an opportunistic, one-off event. It was not satisfied that the applicant went into hiding as a result of it or that as a result of the incident the applicant had left Sri Lanka: [17].
The Authority accepted that the applicant attended a funeral ritual for his wife’s grandmother in June 2012 and noted that a motorcycle was on fire when he was returning home. However, it did not accept that the Sri Lankan authorities attempted to frame him for the sexual assault of a woman or indeed that any woman was sexually assaulted on that occasion by the Sri Lankan authorities or other persons. It did not accept that he was being looked for by the police or that any criminal charges had been laid against him. As a consequence, it did not accept that he would be arrested under the Emergency Regulations in relation to that incident, or that the applicant would have sparked any further interest from the Sri Lankan authorities or paramilitary including the Army, Police, Karuna group or TMVP: [20].
As a consequence of those findings, the Authority did not accept that the applicant had been threatened as claimed or that his wife had received threatening telephone calls asking for money or his whereabouts in August 2014: [21].
The Authority next considered country information concerning the situation of Tamils in general (at [24]-[26]), as well as information concerning the TNA. It concluded at [28] that while the applicant suffered harassment and discrimination on the basis of his ethnicity during the conflict, it was not satisfied that the applicant was singled out or targeted on that basis and did not consider that the applicant would be imputed to hold any pro-LTTE opinions or be suspected of ever having been involved with that group himself: [28].
While the Authority accepted that the applicant had put up TNA posters and distributed donations and otherwise helped the TNA with minor tasks it found that there was no independent evidence to suggest that such low level support for that group would indicate a real chance of harm, particularly so many years after the elections had taken place: [29]. For those reasons, and given that the applicant had not indicated that he would continue to assist the TNA in the future, the Authority considered that any such involvement would not result in a real chance of serious harm if he were to return to Sri Lanka.
At [31] the Authority found that, viewing the evidence together, the applicant did not face a real chance of serious harm from any Sri Lankan authority or paramilitary organisation on the basis of being a young Tamil male from the Eastern Province or from an area formerly controlled by the LTTE, his support for the TNA, suspicion of involvement with the LTTE, being extorted for money by the TMVP or the incident involving the burning motorcycle.
Finally, at [33]-[38], the Authority considered the possibility the applicant might be harmed as a returning asylum seeker who departed from Sri Lanka illegally. Principally, the Authority considered the situation that might arise immediately upon the applicant’s arrival in Australia and in connection with his illegal departure under the Immigrants & Emigrants Act (Sri Lanka) (I&E Act). In that respect, it considered that there was no real chance that the applicant would encounter serious harm and that, in any event, the treatment of the applicant under the I&E Act was not discriminatory but rather the application of a law which applied to all Sri Lankans.
Next, it considered more broadly the prospects of harm that might arise to the applicant upon return to Sri Lanka including outside the airport. The Authority’s reasoning in this respect was found at [37] where it said:
I have considered the evidence before me and while there are reports of failed asylum seekers returning to Sri Lanka being detained on arrival at the airport or after returning to their villages, and then being mistreated and subjected to torture particularly if they are detained for prolonged periods, the country information, considered as a whole, indicates that the key risk factor is whether the returnee is a Tamil has actual or perceived links to the Liberation Tigers of Tamil Eelam (LTTE). Merely being a failed asylum seeker is not enough, in my view, to give rise to a real chance of harm on return.
(References omitted)
The Authority did not accept that the applicant would be imputed with a pro-LTTE or anti-government dissident beliefs by the authorities for any reason and it found that he did not face a real chance of harm on returning to Sri Lanka. For that reason, it was not satisfied that the applicant met the requirements of the definition of refugee in s.5H(1) of the Act and so did not meet sub-s.36(2)(a) of the Act. For similar reasons, the Authority found that the applicant did not satisfy the requirements of sub-s.36(2)(aa) of the Act and so affirmed the decision of the delegate.
Consideration
The applicant abandoned the second ground of his application and pursued only one ground. He sought leave to add a further particular to that ground. The Minister raised no objections to this.
The sole ground relied upon by the applicant was that the Authority failed to consider review material that had been provided to it by the delegate and in doing so had failed to comply with s.473DB(1). Section 473DB(1) is as follows:
...
(1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
“Review material” is defined in s.473CB:
...
(1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision before the decision was made;
(c) any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review…
(Emphasis in original)
The “review material” that was given to the Authority in this case included the report from the United Kingdom Home Office entitled “Country Information and Guidance Sri Lanka: Tamil separatism” (see [8] above). The applicant argues that the Authority did not consider the following parts of that report:
a)6.5.2[1]: “… A security force insider testified since the presidential election in 2015 that military intelligence officials from Joseph Camp were actively looking for any Tamils returning home from abroad in order to interrogate them...”
b)6.5.5[2]: “Tamils returning from abroad continue to be arrested under the PTA [Prevention of Terrorism Act] on suspicion of old LTTE involvement...”
c)6.6.3[3]: “Human rights violations by the security forces continue with impunity and a predatory climate against Tamils prevails...”
d)6.6.5 – Tamils had been abducted by the authorities for the
6.6.9[4]:apparent purpose of extracting a ransom.
[1] Exhibit A, p.122.
[2] Exhibit A, p.122.
[3] Exhibit A, p.124.
[4] Exhibit A, pp.125 – 126.
The applicant argued that the Court could conclude that the Authority had failed to consider this material because it was not referred to in the Authority’s statement of reasons. This was particularly so in the context of pt.7AA as a whole which, it was argued, heightened the obligation under sub-s.473EA(1)(b) of the Act (understood in the light of s.25D of the Acts Interpretation Act 1901 (Cth)) to provide reasons.
Justice Lee rejected this last submission in DVB16 v Minister for Immigration & Border Protection [2018] FCA 1682 at [28] – [30]. His Honour found, at [30], that the particular nature of the review under pt.7AA did not alter the nature of the inferences that can, and will in appropriate cases, be drawn either to support a conclusion that the Authority did not consider an issue relevant or that it failed to give an issue proper consideration.
It is well established that the obligation under provisions such as sub-s.473EA(1)(b) does not require a decision-maker to refer to all the material before it. The obligation does enable a Court to infer from the fact that information is not mentioned, that that information was not the basis for the decision-maker’s findings of material facts: see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 95 FCR 506. However, the fact that information is not referred to in a statement of reasons does not mean that the information was not considered at all: Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [31]; Minister for Immigration & Border Protection v SZSRS (2014) 309 ALR 67 at [34].
That said, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons: SZSRS at [34] referring to Minister for Immigration & Border Protection v MZYTS (2013) 230 FCR 431 at [52].
This issue is to be decided by having regard to the information itself in the context of both the applicant’s claims and the Authority’s reasons for its decision.
As I have noted at [8] above the version of the UK Home Office report to the Department of Immigration, sent by the applicant, was version 3.0 and dated August 2016[5]. It was said to have been approved on 13 July 2016 and valid from 15 July 2016. The applicant claimed that that report, along with a report from DFAT[6], which was also sent by the applicant, showed that there was a possibility that the applicant would be tortured by the Sri Lankan security forces when they question and suspect him as an ethnic Tamil. He also submitted that the most recent UNHCR[7] report suggested that expatriate Tamils should not be sent back home because there were still incidents of torture taking place.
[5] Exhibit A, p.100.
[6] Department of Foreign Affairs and Trade, DFAT Country Report: Sri Lanka, 16 February 2015.
[7] United Nations High Commissioner for Refugees.
The UK Home Office report was divided into 6 parts. The second part was titled “Consideration of Issues” and included a section titled “Assessment of risk.” In that part, the report stated that simply “being a Tamil does not of itself give rise to a well founded fear of persecution or serious harm in Sri Lanka”[8] and then recorded a decision of the Upper Tribunal of the United Kingdom which identified four categories of persons at risk of persecution or serious harm in Sri Lanka[9]. The report then stated that, since that decision, there had been positive developments under the new government[10].
[8] Exhibit A, p.104 at [2.3.1].
[9] Exhibit A, p.105 at [2.3.5].
[10] Exhibit A, p.106 at [2.3.6].
The information said by the applicant not to have been considered is found in part 6 of the report: “Human Rights situation for persons perceived to support the LTTE or to be involved in Tamil separatism”[11]. That part was, in turn, divided into 10 parts. The information in question was contained in the fifth and sixth sections of that part: “Treatment of Tamil returnees” and “Torture/ill-treatment”.
[11] Exhibit A, pp.114 – 136.
As I have observed, the UK Home Office report was included in the material given to the Authority for the purposes of the review. In its reasons, the Authority expressly stated that it had had regard to the material given to it: [3]. That may not be decisive of the issue, but it is a clear indication that the Authority did have regard to the report as there is no reason why it would have excised the report from the other material given to it.
During the course of its reasons, the Authority considered the applicant’s claims and gave references to the country information on which it based its findings. Thus, on the basis of country information the Authority accepted, at [16], that there were tensions between various political groups. One of the sources of that information was version 2.0 of the UK Home Office report dated 19 May 2016[12]. The same version of the report was referred to by the Authority in connection with the TMVP ([25] and footnote 6) and the decline of the LTTE ([26] footnote 11). The fact that version 2.0 was referred to and not version 3.0 does suggest that the Authority did not have regard to version 3.0; however, that is not conclusive of the issue for determination. The question is whether it considered the information in the report.
[12] See footnote 2.
At the conclusion of version 3.0 of the UK Home Office report there is information called “Version Control and Contacts”. It states there that the change from the last version of the guidance was to para 3.1.2: “Clarification of Policy Summary”. I infer that none of the other information was changed and that the information in question was in both versions 2.0 and 3.0 of the report.
The fact that the Authority specifically referred to parts of the UK Home Office report strongly supports the view that it had considered that report.
The Authority dealt with each of the claims in respect of which the information was relevant: abductions for ransom[13], and mistreatment of Tamils returning from abroad[14]. In each case it referred to information on which it based its conclusions. It may be noted that that information included a DFAT report dated 24 January 2017, far more recent than the UK Home Office report.
[13] See Authority’s Decision and Reasons at [25].
[14] See Authority’s Decision and Reasons at [37].
The UK Home Office report was not, in the context of the applicant’s claims, such that I would infer that the Authority overlooked any aspect of it. The general tenor of it was that there were difficulties facing certain groups of Tamils although, generally speaking, the circumstances facing Tamils in Sri Lanka had greatly improved since the end of the war in 2009 and, more recently, since the election of the new government in 2015. Much of the information concerning risk to Tamils was premised on there being some link between those at risk and the Tamils in question: see for example 6.6.3. It will be recalled that the overall assessment of risk was that being a Tamil alone does not give rise to a well-founded fear of persecution or serious harm: 2.3.1.
The applicant did not suggest that the information relied on by the Authority did not support its conclusions.
In all of those circumstances, I am not satisfied that the Authority failed to consider any of the information in the UK Home Office report.
Conclusion
There is no jurisdictional error in the Authority’s decision. The application must be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 30 November 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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