EOM19 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1226
•20 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EOM19 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1226
File number(s): ADG 458 of 2019 Judgment of: JUDGE GERRARD Date of judgment: 20 November 2024 Catchwords: MIGRATION – Safe Haven Enterprise Visa – decision of the Immigration Assessment Authority – whether failure to consider claims – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)(aa), 36(2A), 473CB, 473DC(1), 473DD(b)(i), 473DD(b)(ii) Cases cited: BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384
Craig v State of South Australia (1995) 184 CLR 163
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Khaling v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 573
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294
MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
WZATH v Minister for Immigration and Border Protection [2014] FCA 969
Division: Division 2 General Federal Law Number of paragraphs: 62 Date of last submission/s: 21 September 2023 Date of hearing: 28 October 2024 Place: Adelaide Applicant: Self-represented with the assistance of a Tamil interpreter Counsel for the First Respondent: Alex Chan Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 458 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EOM19
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GERRARD
DATE OF ORDER:
20 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
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
JUDGE GERRARD:
INTRODUCTION
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (the IAA) affirming an earlier decision of the Minister to refuse to grant him a Safe Haven Enterprise (subclass 790) visa (SHEV). As will be explained, for the applicant to succeed in this Court he must establish that the IAA decision contains a jurisdictional error. This Court cannot undertake a review of the merits of the decision under review.
For the reasons set out below, the Court has not found any jurisdictional error in the IAA decision. On that basis, his application cannot succeed.
BACKGROUND
The applicant arrived in Australia as an unauthorised maritime arrival on 18 April 2013 (Court Book (CB) 160). He is an ethnic Tamil born in India to Sri Lankan parents (CB 36, 38).
On 25 September 2013, the applicant participated in an Irregular Maritime Arrival Entry Interview (CB 1). In that interview, he claimed that he left India because he was persecuted on account of being a Sri Lankan refugee (CB 8-9). If returned to India, he fears he will be arrested and jailed for departing India illegally (CB 9). If returned to Sri Lanka, he fears he will be detained and tortured by the authorities (CB 9).
On 11 May 2016, the applicant was invited to apply for a Temporary Protection (subclass 785) visa (TPV) or a SHEV (CB 21-22). On 19 May 2017, the applicant lodged a SHEV application (the visa) (CB 23-64), and on 15 April 2019, the applicant was invited to attend an interview scheduled for 8 May 2019 (CB 93). The applicant was accompanied at that interview by a migration agent (CB 102).
Following that interview, on 9 May 2019, the applicant and his representative were invited to provide further information within 14 days (CB 103-109). On 21 May 2019, the applicant’s representative provided further information in accordance with that invitation (CB 122-154).
On 17 September 2019, a delegate of the first respondent (the Minister) refused to grant the applicant the visa (CB 157-183).
On 23 September 2019, the delegate’s decision was referred to the second respondent, the IAA, for review (CB 186-187). On 13 October 2019, the applicant’s representative provided written submissions and new information with respect to the IAA review (CB 209-216).
On 28 October 2019, the IAA affirmed the delegate’s decision not to grant the applicant the visa (CB 220-242).
On 19 November 2019, the applicant applied to this Court for judicial review of the IAA decision.
THE IAA DECISION
To obtain assistance from this Court, the applicant must show that the IAA has fallen into jurisdictional error. It is thus useful to outline the IAA’s decision in some detail.
The IAA’s decision in this matter is 23 pages long and spans 72 paragraphs. This includes four pages containing extracts of relevant legislative provisions.
The IAA began by noting that it had regard to the material given by the Secretary under s 473CB of the Migration Act 1958 (Cth) (the Act) (at [3]).
The IAA observed that it had received and considered submissions from the applicant’s representative as provided on 13 October 2019. To the extent that the submissions made legal arguments and discussed matters before the delegate, the IAA did not consider this ‘new information’ for the purpose of s 473DC(1) of the Act, but it did have regard to that information in its assessment (at [4]-[8]).
The IAA also observed that the submissions included information which was best described as general country information. The IAA did not accept that this was credible personal information which was not previously known and which may have affected the consideration of the applicant’s claims. The IAA also did not accept the applicant’s submission that this information could not have been provided prior to the making of the delegate’s decision as the application had been prepared at a limited assistance legal clinic. The IAA was not satisfied that the new information met the requirements of s 473DD(b)(i) or (ii) (at [5]). Nevertheless, with the exception of one report which was over four years old and another which had been replaced by a more recent version, the IAA was satisfied that it was appropriate to exercise its power under s 473DC to obtain the remainder of the reports submitted by the applicant for itself as well as the most recent DFAT country information report on India (at [6]-[7]). The IAA considered whether to obtain further information from the applicant relating to the 2018 DFAT report on India and the applicant’s claims to fear harm in India but ultimately decided not to do so (at [8]).
The IAA also decided not to have regard to information before it concerning the applicant’s criminal charges, as it did not consider that information to be relevant to the applicant’s protection claims (at [9]).
The IAA then summarised the applicant’s claims to fear harm in both Sri Lanka and India, as set out in a statutory declaration accompanying the applicant’s visa application (at [10]-[16]). In short, the IAA noted those claims were:
(a)The applicant claims to be of Tamil ethnicity and of the Hindu faith. He was born to Sri Lankan parents in a refugee camp in Tamil Nadu, India. His parents had fled Sri Lanka in 1990 during the civil war, due to suspicions that the father was a member of the Liberation Tigers of Tamil Eelam (LTTE).
(b)If returned to Sri Lanka, the applicant fears he will be detained, interrogated, tortured or killed by the authorities because of his Tamil ethnicity, his father’s purported support for the LTTE, and his family’s illegal departure from Sri Lanka. He also fears he will not be able to prove his Sri Lankan nationality because he has lived in India his whole life and has no official Sri Lankan identity documents.
(c)If returned to India, the applicant fears he will be detained and punished as a returning refugee. He claims he will face continued persecution and abuse from police and the government because he is a Sri Lankan Tamil refugee.
(d)The applicant also claims that, due to inadvertent disclosure of his personal information on the Department’s website, the Indian and Sri Lankan authorities will be aware of his protection claims and that they will seek retribution against him for this.
The IAA accepted the applicant’s claims as to his background, set out above (at [17]). The IAA also accepted that the applicant is not an Indian national and does not have a pathway to obtain Indian citizenship, nor does he have any right to enter or reside in India (at [19]).
The IAA found that the applicant would be considered a national of Sri Lanka and that Sri Lanka is therefore his receiving country (at [23]). If returned to Sri Lanka, the IAA found that he would reside in Mannar in the Northern Province, although he has never resided there and has no family there (at [25]).
In the event it was wrong about Sri Lanka as the receiving country, the IAA also considered the possibility that the applicant has no nationality and that India, as his country of former habitual residence, would be his receiving country (at [23). If returned to India, he would reside in Tamil Nadu as his family continues to do so (at [24]).
The IAA then made the following findings with respect to the applicant’s protection claims.
Claims with respect to India
The IAA accepted that the applicant and his family have lived in Sri Lankan Tamil refugee camps across Tamil Nadu for his entire life. It noted that the applicant’s oral evidence on this point was indicative of lived experience and largely consistent since his arrival in Australia (at [31]).
The IAA accepted that the applicant had been verbally insulted by some of his teachers and prevented from participating in sporting activities because he was a refugee (at [31]).
The IAA accepted that the applicant had been subjected to regular questioning by Q-Branch, that his movements were monitored, that he was asked to pay bribes, that he and his family had been physically and verbally assaulted, and that on one occasion, the applicant had been detained for two nights by the authorities (at [32]). However, the IAA did not find that the applicant had been detained or tortured by Q-Branch or other authorities on a regular basis, nor was of ongoing interest to Q-Branch or other authorities in India for any reason (at [32]-[33]).
The IAA found that this past treatment was due to the applicant being a Sri Lankan Tamil refugee, rather than because the applicant or his family were suspected of association with the LTTE (at [32]). Although the IAA accepted that the applicant had been subjected to such treatment, it did not accept that this amounted to serious harm of the kind contemplated by the Act (at [35]).
Although it accepted that the applicant has suffered past harassment from Q-Branch and other authorities, the IAA found that the applicant had not been denied access to food, services, housing or employment in the past in Tamil Nadu, and that if returned there, he would not face such hardships (at [34]). The applicant’s family continues to reside in the refugee camp and the applicant’s evidence did not disclose any recent incidents of harassment or serious harm (at [35]).
The IAA found that the applicant has not engaged in any activity in support of the LTTE and he does not intend to do so. He would therefore not face any real chance of harm for that reason (at [36]).
The IAA accepted that some of the applicant’s details were inadvertently released on the Department’s website but that it did not include details of the applicant’s protection claims. The IAA was therefore not satisfied that release of that information would lead to a real chance of harm if the applicant were to return to India (at [37]). Similarly, although the IAA found that the applicant would be identified in India as a failed asylum seeker, it did not accept there was a real chance that he or his family would be subject to serious harm for this reason.
The IAA found that the applicant would also not face punishment for his illegal departure from India because the applicant was born in India and would therefore not be returning illegally (at [38]).
The IAA ultimately found that the applicant did not face a real risk of serious harm if returned to Tamil Nadu, now or in the reasonably foreseeable future, on the basis of an actual or imputed LTTE link, his status as a Sri Lankan refugee, his status as a returnee, his illegal departure from India, his statelessness, or any other reason claimed (at [38]-[39]).
Claims with respect to Sri Lanka
The IAA accepted the applicant’s evidence about his family background in Sri Lanka and that the authorities had detained and questioned his father on several occasions regarding suspected support for the LTTE. The IAA accepted that his father had been beaten on these occasions and that this is why he and his wife fled Sri Lanka (at [41]).
The IAA found, however, that the situation in Sri Lanka has changed since that time and that conditions have significantly improved for Tamils. The IAA found that the applicant would not face a real risk of harm in Sri Lanka solely on the basis of his Tamil ethnicity, even if he were to be identified as a stateless Tamil returnee (at [42]-[47], [50]).
The IAA was not satisfied that the applicant’s father’s activities or purported association with the LTTE were such that the applicant would now be of interest to Sri Lankan authorities. The IAA observed that the applicant himself was never a member of the LTTE, and the IAA found that there was nothing to indicate the applicant would be suspected of LTTE membership or support. The IAA was not satisfied that he faces a real chance of being arbitrarily arrested, detained or mistreated for this or any other reason on return to Sri Lanka in the reasonably foreseeable future (at [48]-[49]).
The IAA found that the applicant would face no real risk of harm for departing Sri Lanka illegally because he was born in India and had never in fact departed Sri Lanka (at [51]).
The IAA accepted that some of the applicant’s details were inadvertently released on the Department’s website but that it did not include details of the applicant’s protection claims, and the applicant would not face a real risk of harm for this reason if returned to Sri Lanka (at [52]).
The IAA acknowledged, however, that the applicant would be identified as a failed asylum seeker upon return to Sri Lanka and would become known to the authorities for that reason (at [52]). The IAA found that the applicant may be questioned upon arrival in Sri Lanka but that this would not amount to a real risk of serious harm (at [53]).
The IAA was not satisfied that the applicant would have difficulty obtaining identity documents or be exposed to any risk associated with this, including statelessness, upon return to Sri Lanka (at [56]).
Although the IAA acknowledged that the applicant may face difficulties re-integrating and finding suitable employment in Sri Lanka, especially without family support and never having lived there himself, the IAA found that he would not be stigmatised to such a degree that he would be unable to find employment, accommodation and access to basic necessities (at [57]).
The applicant did not claim to fear harm on the basis of separation from his wife and family, however the IAA found that this would not amount to a real risk of serious harm in any event (at [58]).
Having made those findings and considered the claims individually and cumulatively, the IAA was not satisfied that the applicant would face a real risk of serious harm or persecution on return to Sri Lanka, now or in the reasonably foreseeable future, for any of the reasons claimed. He therefore does not have a well-founded fear of persecution (at [60]).
Complementary protection assessment
The IAA then considered the applicant against the complementary protection criterion (at [62]-[72]. The IAA relied on the same findings of fact with respect to each country as it did in its assessment of the refugee criteria.
The IAA concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to India or Sri Lanka, there is a real risk that the applicant will suffer significant harm for the purposes of ss 36(2)(aa) and 36(2A) of the Act (at [72]).
Having regard to the above, the IAA concluded that the applicant was unable to meet the relevant visa criteria.
APPLICATION TO THIS COURT
The application for judicial review filed by the applicant on 19 November 2019 contains a single ground of review, as follows:
The Immigration Assessment Authority made a jurisdictional error in my case.
The applicant filed an affidavit with that judicial review application on 19 November 2019. The affidavit annexed a copy of the IAA’s decision.
The applicant appeared before the Court on 28 October 2024 without legal representation but with the assistance of a Tamil interpreter. The Court confirmed with the applicant that he had received copies of the Court Book and the Minister’s written submissions.
The materials before the Court include the application for judicial review and supporting affidavit filed by the applicant on 19 November 2019 (the affidavit being taken as read and in evidence at the hearing on 28 October 2024), a Court Book numbering 242 pages (marked as Exhibit 1) and written submissions filed on behalf of the Minister on 21 September 2023.
The applicant was not represented and the Court was thus mindful of the comments of Colvin J in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] and Feutrill J in BKT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 384 at [24] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review). That sensible and appropriate course is now the standard procedure in this Court: see, by way of recent example, Khaling v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 573 at [61]. Accordingly, at the hearing of this matter on 28 October 2024, the applicant was invited to tell the Court what he believed to be wrong with the IAA’s decision and/or procedure.
The Court also took some time to explain that it could not undertake a merits review of the IAA’s decision (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272) and could only consider whether or not the IAA decision revealed jurisdictional error. The Court explained that in migration decisions such as the decision being challenged by the applicant, common categories of alleged jurisdictional error include:
(a)where the decision-maker identifies the wrong issue or asks the wrong question (Craig v State of South Australia (1995) 184 CLR 163 at 178 (Craig));
(b)where the decision-maker ignores relevant material (Craig at 178);
(c)where the decision-maker relies on irrelevant material (Craig at 178);
(d)where the decision-maker fails to follow mandatory procedures (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294 at 354-355, [2005] HCA 24 at [207]-[208]);
(e)where the decision-maker fails to consider the entirety of an applicant's claims (or integers of the claims) made (Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111]);
(f)where the decision-maker shows actual or apprehended bias (SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [2]); and
(g)where the decision is illogical, irrational or unreasonable (Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28, [2022] FCAFC 3 at [33]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648, [2010] HCA 16 at [131]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 445, [2014] FCAFC 1 at [44]).
However, it was also explained to the applicant that this was not an exhaustive list, and he should tell the Court why he said the IAA had fallen into error.
Against this background, the applicant told the Court that the IAA did not consider his father’s connection with the LTTE. The applicant told the Court that his parents lost everything in Sri Lanka, that they told him everything that had happened to them in Sri Lanka, and that they were still in the refugee camp in India. He told the court he didn’t have any family connections in Sri Lanka. In reply to the Minister’s submissions, the applicant reiterated that his father had supported the LTTE.
CONSIDERATION
As outlined above, the application for judicial review contains a single unparticularised ground asserting jurisdictional error. Noting that the applicant was unrepresented in this matter, the Court has endeavoured to interpret the applicant’s ground as broadly as possible (as per the principles in MZAIB v Minister for Immigration and Border Protection[2015] FCA 1392). Subject to what is set out below, a bare assertion that there is jurisdictional error without any additional particularisation or clarification is inherently difficult to establish. Nevertheless, the Court has reviewed the IAA’s decision to ascertain whether any of the common species of jurisdictional error set out above at [49] of these reasons arise.
In written submissions, the Minister submitted that the failure to particularise an assertion of jurisdictional error is a sufficient basis to dismiss this ground, relying upon WZATH v Minister for Immigration and Border Protection [2014] FCA 969. The Court, however, is acutely aware that a self-represented applicant will often express their disagreement with an IAA decision in relatively simple terms. Furthermore, the fact that the applicant has only asserted jurisdictional error on the part of the IAA does not lead inexorably to a conclusion that his ground should be summarily dismissed for that reason. A self-represented applicant may very well believe there is something wrong with a decision even if they are not able to properly articulate what that error might be. Where jurisdictional error is asserted in a matter involving a protection visa, even absent further clarification, it is consistent with the authorities and the administration of justice to review the IAA’s decision for obvious jurisdictional error.
The Court has reviewed the IAA decision in respect of its assessment of the applicant’s claims. In particular, it has considered the applicant’s assertion at the hearing of this matter that the IAA did not consider his father’s connection, or purported connection, with the LTTE.
The Court finds that the applicant’s claim that the IAA did not consider his father’s connection with the LTTE fails on a factual level. It is apparent that the IAA expressly considered those claims. Specifically:
(a)The IAA accurately set out that the applicant had claimed that the Sri Lankan Army suspected his father of being a member or supporter of the LTTE and of transporting weapons for the LTTE. Further, the IAA accepted that his father had been detained by the Sri Lankan Army on two occasions and beaten [11]. The IAA accepted that this was grounded on the fact that the LTTE had taken two of the applicant’s father’s fishing boats [11].
(b)The IAA accepted most of the applicant’s claims in relation to his father. It accepted that the applicant’s family had provided food to the LTTE and that the LTTE had taken two of the applicant’s father’s fishing boats. It accepted that the Sri Lankan Army detained the applicant’s father on several occasions because they suspected he was an LTTE supporter including suspicion that he transported weapons on his fishing boats. It accepted that the applicant’s father was beaten when detained and it was for this reason that the family departed Sri Lanka [41].
(c)However, having considered in some detail the relevant country information, the IAA reached the conclusion that the activities of the applicant’s father did not place him in the category of high or low level member or supporter of the LTTE such that he might attract interest from the Sri Lankan authorities. The IAA expressly found that the past suspicions of the applicant’s father assisting the LTTE, including suspicion of his father transporting weapons and providing food, did not place him in the category of those who would be of interest to the authorities [48].
Ultimately, the IAA did consider the claims made by the applicant in respect of his father. It accepted the applicant’s evidence in this respect. However, when reviewing those claims against the most recent country information, the IAA found that they did not support a finding that the applicant would suffer a real chance of harm in Sri Lanka. That finding was properly grounded in the material before the IAA and was clearly open to it.
Insofar as the applicant asserted that the IAA failed to consider the claims he made in respect of living in a refugee camp, once again, it is clear that the IAA accurately summarised those claims at [14] of its decision. The IAA then went on to consider those claims in some detail in paragraphs [28]-[39]. It is apparent that the IAA properly engaged with those claims on an intellectual level. It reached conclusions which were open to it on the evidence.
The Court has otherwise reviewed the claims made by the applicant to see if any were overlooked, or not properly engaged with, by the IAA. In the Court’s view, it is evident from the findings of the IAA set out above at [14]-[41] of these reasons that the IAA comprehensively considered and engaged with the applicant’s claims. It accepted the applicant’s claims as made. However, when considered against credible country information, particularly the most recent country information from DFAT, it found that the applicant simply would not be at risk of harm.
The Court finds that all of the findings made by the IAA were open to it on the evidence before it and for the reasons that it gave. Further, there is nothing to suggest that the conclusions reached by the IAA were illogical or irrational. All of the material it considered was relevant to the decision it was required to make.
The Court also asked counsel for the Minister whether there were any matters which his client, who is subject to a direction to behave as a model litigant, wished to draw to the Court’s attention in terms of any concerns or doubts about the IAA’s decision. There were none. It is also not evident to the Court that any other potential arguable error arises in respect of the IAA decision.
CONCLUSION
The application for review, supporting affidavit and additional submissions made by the applicant have failed to identify any jurisdictional error on the part of the IAA.
Accordingly, the application is dismissed.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gerrard. Associate:
Dated: 20 November 2024
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