EUL17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 534
•14 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EUL17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 534
File number: MLG 2330 of 2017 Judgment of: JUDGE SYMONS Date of judgment: 14 June 2024 Catchwords: MIGRATION – application for review of a decision of the Immigration Assessment Authority – where applicant claimed to fear harm based on his association with individuals who had been kidnapped and/or murdered – where applicant participated in interview with delegate – where applicant alleged that his participation was compromised by communication difficulties and lack of legal representation – where delegate decision referred to photographs appearing on the applicant’s smartphone – where photographs not before the Authority creating an “informational gap” – whether Authority acted unreasonably by failing to exercise or consider the exercise of s 473DC(3) of the Migration Act 1958 (Cth) to get the photographs – where the missing information was not of importance to the Authority’s reasoning and statutory task of review – no jurisdictional error – application dismissed with costs Legislation: Migration Act 1958 (Cth), ss 5J, 36, 473DC Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34.
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 (2021) 285 FCR 381; [2021] FCAFC 58.
Mundele v Minister for Home Affairs [2020] FCA 526.
WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131.
Division: Division 2 General Federal Law Number of paragraphs: 60 Date of last submissions: 21 May 2024 Date of hearing: 21 May 2024 Place: Melbourne The applicant: In person Counsel for the First Respondent: Ms J Lucas Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 2330 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EUL17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
14 JUNE 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application for judicial review filed on 30 October 2017 be dismissed.
3.The applicant pay the first respondent’s costs fixed in the amount of $8,371.30.
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 SYMONS:
INTRODUCTION
By an application filed on 30 October 2017, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 10 April 2017. The Authority affirmed a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (visa). The Minister opposes the application. The Authority enters a submitting appearance, save as to costs, and has not participated in the proceeding.
BACKGROUND
The applicant is a Sri Lankan citizen of Tamil ethnicity. He arrived in Australia on 10 September 2012 and, due to the circumstances of his arrival, has the status under the Migration Act 1958 (Cth) (Act) of an unauthorised maritime arrival.
On 11 December 2013, the applicant participated in an Irregular Maritime Arrival Entry Interview (CB 17-32).
On 13 September 2016, the applicant made a valid application for the visa with the assistance of a registered migration agent (CB 39-92).
The applicant’s claims for protection were set out in a statutory declaration dated 13 September 2016 (CB 80-83) as follows:
(a)The applicant is a Sri Lankan citizen of Islamic faith and Tamil ethnicity. He speaks Tamil.
(b)The applicant was born in Dambadeniya, Kurunegala, a North-Western province of Sri Lanka. He spent the first three to four years of his life in this area before relocating to Negombo, then Dematagoda, then Madampe and most recently Samaranayake Mw, Kolonawa.
(c)The applicant’s problems began when he started attending a fitness club where he became close with his “master” (the coach/instructor and owner of the gym) and another gym colleague, “S”.
(d)The applicant was aware that his master also worked at the wharf and had some enemies.
(e)On 23 July 2012 the applicant’s master was kidnapped and on 6 August 2012 “S” was also kidnapped.
(f)On 15 August 2012, four or five males came and asked for the applicant at the shop where he was working. The applicant was not there at the time and was told about the visit by a boy who worked at the store.
(g)On 20 August 2012, a group of men attended the applicant’s former home in Dematagoda, at which time his aunt answered the door, and asked for the applicant. It was at this time that the applicant learnt that his master and colleague “S” had been kidnapped.
(h)On 23 August 2012, the applicant departed Sri Lanka for Australia by boat along with his cousin.
(i)A few months after arriving in Australia, the applicant learnt that his master had been released by his kidnappers.
(j)On 21 January 2015, the applicant’s master was murdered in broad daylight in Grandpass by a group of six to eight men who cut him with knives whilst he attempted to defend himself. The attackers then left, and the master died 20 minutes later. The applicant believes that his master was murdered by the same men who had kidnapped him and who had come looking for the applicant.
(k)The applicant cannot return to Sri Lanka. If he was forced to return, he would be killed or abducted by the same group of men, including because of his association with his master and with “S”.
(l)As a member of a minority community (Muslim and Tamil), the applicant would be subject to these types of abduction and would not receive protection.
On 21 March 2017, the applicant participated in a SHEV interview with a delegate of the Minister.
On 10 April 2017, a delegate of the Minister made a decision to refuse to grant the applicant the visa (CB 130-145).
Amongst other findings, the delegate was not satisfied that the applicant’s master (also identified as “P”) and friend (“S”) had been kidnapped in 2012 as claimed nor that the applicant had become a person of interest to a group of unidentified men as a result of any such kidnappings (CB 137).
Under the heading “Master’s murder in January 2015”, the delegate recorded the following (CB 137):
I acknowledge material evidence of the master’s death in the form of photographs supplied by the applicant at interview. These images were shown to me on the applicant’s smartphone and included one that appeared to be of a memorial booklet containing a portrait and [P’s] full name. A photograph of the claimed murder site depicted a car park and a stain on the asphalt. Beyond acknowledging that the date on the photograph, 24 January 2015, is in keeping with the timeline of events provided by the applicant, I have insufficient evidence to draw a firm conclusion that this photograph depicts the murder site as claimed.
I note the funeral photographs submitted contain August 2015 dates, but draw no adverse credibility finding in this regard as the date relates to the receipt of these photos on the applicant’s smartphone and not necessarily the date the image was first taken. I also acknowledge the applicant’s emotion when showing me these photos and discussing his master’s death.
The delegate independently located information (in the form of an article) relating to the attack of a man named “P” in Colombo on 21 January 2015. The delegate was satisfied that the applicant knew a man named “P” who was attacked at knifepoint at Grandpass, Colombo on 21 January 2015 but found that this did not constitute evidence that the applicant was also targeted for harm by the perpetrators of “P’s” stabbing (CB 138).
The delegate found that the applicant’s claims to fear harm based on his association with “P and “S” did not engage a persecution reason as defined in s 5J(1)(a) of the Act and assessed his claims only against the complementary protection criterion (CB 139).
In this regard, the delegate was not satisfied that there was a real risk of the applicant suffering significant harm as a result of his relationship with these individuals because the delegate did not accept the applicant’s account regarding his becoming a person of interest to the attackers, because the applicant had not presented evidence that anybody else associated with the master had come to harm since 21 January 2015 and because the passage of time since the applicant left Sri Lanka would further reduce any chance that the attackers would maintain an interest in the applicant (CB 143).
REFERRAL TO AND DECISION OF THE AUTHORITY
On 13 April 2017, the decision of the delegate was referred to the Authority for a review (CB 150-163).
On 20 October 2017, the Authority affirmed the delegate’s decision and produced a set of written reasons (Reasons) (CB 173-189).
The Authority noted that it had had regard to the material given by the Secretary under s 473CB of the Act and that no further information had been obtained or received (Reasons [4]-[5]).
The Authority summarised the applicant’s claims as they appeared in the applicant’s statutory declaration. The Authority accepted that the applicant was a Tamil-speaking Muslim who came from Sri Lanka’s Central Province (Reasons, [9]).
The Authority acknowledged that the applicant had attended an interview with the delegate on 21 March 2017 (Reasons, [10]).
The Authority identified the applicant’s “key claim to fear harm” as one based on his close relationship with P and S, both of whom had (according to the applicant) been kidnapped in 2012 and, in the case of P, murdered in 2015 (Reasons, [11]).
However, the Authority was concerned with what it described as “a number of aspects of the applicant’s evidence that appear to be implausible or to lack credibility”. The Authority noted that even if the applicant’s claims of a close association with persons who had been kidnapped (and in the case of P, murdered) were true, the applicant had not explained or provided any evidence to indicate why he would be at risk from the same unknown persons (Reasons, [12]).
The Authority continued (also at Reasons, [12]):
…Although he has speculated that the men may think he knew ‘secrets’ about P or P’s business, he does not know what these ‘secrets’ might be. In any event, he does not know the reason behind the kidnappings and is only speculating that it relates to P’s business. If this reason is true, I note that the applicant was not involved in the business at all and was associating with P in a master/student role and some social contact. There is no evidence before me that he had any other type of association or involvement in P’s business that might impute him with having ‘secret’ knowledge of business or other dealings.
The Authority also recorded the following findings about aspects of the applicant’s account that he was a person of interest to kidnappers:
First, the Authority found it was implausible that, if the kidnappers wanted to kidnap the applicant, they would warn him by telling his aunt. The Authority also found it implausible that if this threat was made, neither the applicant nor any member of his aunt’s household had reported the incident to the police (Reasons, [13]).
Second, the Authority noted that the applicant had not claimed that any persons had been looking for him at his workplace or former residence since the two claimed visits that had occurred in August 2012 (Reasons, [13]).
Third, the Authority acknowledged the applicant’s claim that his wife and child had moved house twice since his departure but did not consider it plausible that the wife’s relocation was due to the unknown men’s search for the applicant because the applicant’s wife had not identified this as a motive when she had communicated with the applicant. The Authority considered it implausible that if the wife believed it was not safe for the applicant to return, she did not warn or at least tell the applicant about this (Reasons, [14]).
The Authority was ultimately not convinced that the applicant would face a real chance of any harm for any reason arising from his association with P and S (Reasons, [15]).
The applicant also claimed to fear harm based on his status as a Tamil-speaking Muslim but conceded that he did not have any Sinhalese enemies and noted that P and S were both Sinhalese. The applicant, in this context, had told the delegate that the Bodu Bala Sena (BBS) (a Sinhalese group) had been attacking Tamils in Sri Lanka. The Authority noted, by reference to country information, that there had not been a large-scale attack by the BBS since June 2014, and that there had been a 60% reduction in violence compared with 2014, at the time of decision. The Authority noted that Muslims were well represented in the Sri Lankan government and that the new government has encouraged national unity with reports of abuses against religious minorities having diminished since 2014 (Reasons, [17]-[22]). The Authority found, based on this information, that the applicant would not face harm upon return to Sri Lanka for reason of his status as a Tamil-speaking Muslim (Reasons, [22]-[23]).
The Authority also considered whether the applicant might be at relevant risk of harm by reason of his status as a failed asylum-seeker who had departed Sri Lanka illegally. The Authority acknowledged that the applicant might be questioned on return as part of the airport screening process but found, based on country information and its finding that the applicant was not of any adverse interest to the authorities for any reason, that the applicant would not be at risk on return on the basis of any adverse security or criminal profile. The Authority found there was not a real chance that the applicant would be subjected to harm because he was a returning Tamil-speaking asylum-seeker (Reason, [29]).
The Authority found that as the applicant had left Sri Lanka in breach of the I&E Act, there was a real chance he would be charged and fined under that law. However, because the applicant did not have an adverse profile and there was no information to implicate him in people smuggling, the Authority was satisfied that the applicant would likely receive a fine rather than a custodial sentence which, according to country information, could be paid by instalment and would not cause the applicant economic hardship or otherwise threaten his capacity to subsist (Reasons, [31]).
The Authority acknowledged that the applicant might be subject to a period of detention for several days while awaiting an opportunity to appear before a magistrate but found that any such, relatively brief, detention would not constitute serious harm as defined in the Act (Reasons, [33]).
The Authority found that the applicant was not at risk of serious harm based on his association with P and S, his religion, language, ethnicity, residence or any imputed political opinion, or for being a failed returned asylum seeker, and therefore did not satisfy the requirements of the definition of refugee in s 5H(1) and did not meet s 36(2)(a) of the Act.
The Authority also found that the applicant did not meet s 36(2)(aa) of the Act essentially because it had rejected the factual substratum of any claims for complementary protection and because its findings about an absence of a “real chance” transposed to findings that there was no “real risk” of significant harm (Reasons, [39]).
APPLICATION FOR JUDICIAL REVIEW
The application seeking judicial review filed by the applicant on 30 October 2017 identifies the following grounds of application.
1.The Immigration Assessment Authority did not afford me procedural fairness.
2.The Immigration Assessment Authority applied the wrong legal test.
On 10 October 2023, the applicant filed written submissions in support of his application which instead of addressing the two grounds described above instead identified the following concerns with the decision-making process adopted by the delegate. The applicant submitted that due to his English language difficulties, he was unable to send information to the delegate on time. He also stated that he could not understand some of the questions at interview clearly and that this miscommunication affected the delegate’s decision. The applicant also submitted that his participation in the interview was compromised by the inadequate legal assistance that he had received.
During the hearing, the Minister’s counsel, Ms Lucas, informed the Court that to assist the applicant with particularising his claim that he had experienced communication difficulties during the SHEV interview, a link to the audio file of the SHEV interview had been provided to the applicant on 13 March 2024. At hearing, the applicant (who was assisted by an interpreter in the Sinhalese language) confirmed that he had received a link to the audio file but when asked whether he wished the Court to consider the audio file as part of his evidence he responded in the negative.
The applicant was invited to tell the Court what errors the Authority had made in considering his case. The applicant responded that he had said everything at the interview, but the delegate had not given consideration to what he had said. When asked to provide examples of what the Authority had failed to consider, the applicant told the Court that he did not know why the Minister did not accept his claims for protection. He did not make any submissions regarding the decision of the Authority.
Minister’s submissions
In his written submissions filed on 13 March 2024 the Minster submitted that the generally expressed grounds identified by the applicant in his application document did not expose any legal (or jurisdictional) error.
The “informational gap”
The Minister’s submissions were principally concerned with what was described as a further issue that required the Court’s attention, being whether the Authority had potentially breached s 473DC(3) of the Act, in circumstances where information that was before the delegate (being the photographs viewed by the delegate but not retained on the Department file), was not before the Authority, thereby creating an “informational gap”.
The Minister acknowledged that s 473DC(3) gave the Authority a discretion to get new information in the form of any documents or information that was not before the Minister when the Minister made the decision and the Authority considered may be relevant to the review and that in a succession of cases, a failure to exercise this discretion to fill an “informational gap” had been found to involve jurisdictional error.
However, the Minister cautioned against a narrow interpretation of the leading decision on this category of error – ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 – and instead emphasised, by reference to the joint judgment of Kerr and Mortimer JJ in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19(2021) 285 FCR 381, the lack of prescription about the kinds of circumstances in which an “informational gap” will have consequences for a review and that “[i]t will be for the Authority itself to determine the significance of any such gap to the conduct of its review, acting reasonably and rationally, as it must” (AWT19 at [77]).
Consistent with this approach and the nature of the review, the Authority “will need to assess the likely importance of the missing material to its task, and what should be done about the fact of missing material. In some circumstances, it may not need to do anything: see EMS18 at [67]-[70]” (AWT19 at [79]).
Applying this approach to the facts of the case, the Minister submitted as follows:
First, the Minister accepted that there was no mention of the existence of the delegate having viewed the applicant’s photographs in the Authority’s reasons. It was therefore arguable that the Authority did not have regard to this fact in conducting its review.
Second, the Minister submitted that any “informational gap” was not significant given the nature of the delegate and the Authority’s findings.
In support of this submission, the Minister noted that the delegate had observed that the evidence contained in the photos did not constitute evidence that the applicant was also targeted for harm by the perpetrators of P’s stabbing (CB 138). This was in circumstances where the delegate had earlier observed in respect of the SHEV interview that the applicant had given evidence which was “vague, unrelated or deflective in a manner inconsistent with the rest of his demeanour at interview.” It also found the applicant to be “deliberately evasive” (CB 136). The delegate concluded that, it could not be satisfied the applicant’s master and friend were kidnapped in 2012 as claimed and that the applicant became a person of interest to a group of unidentified men as a result of any such kidnappings (CB 137).
The Minister submitted that the circumstances in which the delegate accepted that P had died demonstrated that this was a matter which was separate and distinct from the question of whether the applicant was also targeted for harm by the perpetrators of P’s stabbing. Therefore, given the Authority’s findings turned on its lack of satisfaction that the applicant was the target of harm from some of the same unknown persons who kidnapped P and his friend and came searching for the applicant in 2012, this was not a matter that could have realistically been influenced by what was shown in the photos (based on the description given in the delegate’s decision – refer [9] above). The missing material was therefore not of importance to the Authority’s statutory task.
The same argument, according to the Minister, sustained a conclusion that any error in failing to exercise the s 473DC(3) discretionary power, was not jurisdictional; there was not a realistic possibility that the Authority’s decision could have been different even had it exercised its discretion to obtain the photographs in question.
Miscommunication in delegate interview
The Minister also addressed the applicant’s submission that language difficulties compromised his participation in the SHEV interview and affected the delegate’s decision because information was not effectively conveyed during the process.
The Minister noted that the applicant had been represented by a registered migration agent for the purposes of the review to the Authority (CB 164) but no submission had been made to the Authority to the effect that the applicant had difficulties with communication during the SHEV interview. It was also the case that in the context of this judicial review proceeding, the applicant had not provided particulars of the alleged miscommunications or how such instances of miscommunication had affected the findings recorded by the Authority.
CONSIDERATION
I am not persuaded that the Authority decision is liable to be set aside for jurisdictional error.
As far as the applicant’s generally expressed grounds of review are concerned, I am not able to discern any procedural error in the approach adopted by the Authority in circumstances where the applicant did not make any effort to put submissions or information before the Authority and where the Authority’s review was otherwise circumscribed by the limited nature of the statutory review conducted under Part 7AA of the Act.
I am likewise unable to identify any error in the nature of an application of the wrong legal test in the decision of the Authority. The Reasons contain correct statements of the statutory provisions directed at an assessment of whether the applicant was able to satisfy either s 36(2)(a) (refugee assessment) or s 36(2)(aa) of the Act (complementary protection assessment). The Authority rejected the applicant’s claims under both provisions because it rejected important aspects of the applicant’s claims and evidence and because contemporary country information was to the effect that conditions in Sri Lanka (especially for Tamil-speaking Muslims) had significantly improved.
I accept that the applicant genuinely considers that his participation in the SHEV interview was compromised, including because he no longer had the benefit of legal assistance; it would appear that he received assistance for the purpose of making his application for the visa but not on an ongoing basis (CB 85).
However, despite being given the opportunity to explain the nature and/or identity of the communication difficulties and to explain how these difficulties impacted on findings recorded by the delegate and, in turn, the Authority, the applicant was unable to advance this argument in any meaningful way.
The applicant is understandably aggrieved by the decision of the Authority but having heard from him in person, it would appear that in substance, his complaints are that the Authority did not accept his claims.
While I appreciate the difficulties encountered by a self-represented litigant in this jurisdiction, the Court cannot provide redress for arguments that are wholly unparticularised or unsubstantiated. The onus is on an applicant to establish that through communication difficulties (whether misinterpretation or otherwise) he has been prevented from giving evidence: WALN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 131 at [29]. Neither can the Court countenance an approach that would suggest that a lack of representation, without more, infects the review process. Such an approach would be contrary to authority: see, for example, Mundele v Minister for Home Affairs [2020] FCA 526 at [5]. It is also the case that the applicant did appoint a representative when his matter was before the Authority although it is not clear what assistance this individual provided to the applicant (CB 170).
Finally, I do not consider that the failure of the Authority to exercise, or more likely to consider the exercise, of the power contained in s 473DC(3) of the Act, in the circumstances of this case, involved legal error.
The reasoning adopted by the Authority was premised, explicitly, on the possibility that the kidnapping of P and S had taken place and, implicitly, on the possibility that S had never been located and that P had been murdered by the same group of individuals in July 2015.
However, like the delegate beforehand, the Authority’s principal concern was the inability of the applicant to establish, to its satisfaction, a probative basis in the evidence and in experience that the perpetrators would have an interest in pursuing the applicant as it had his master and friend. Seen in this light, the photographic evidence depicting events associated with the death of P were of contextual significance only. The gap these photographs created, when evaluated in the context of the path of reasoning taken by the Authority, was not one that required filling.
I further accept that any error in the approach taken by the Authority to the photographs was not jurisdictional. This is because I am satisfied that there is no reasonable possibility that the decision that was made in fact could have been different if the error had not occurred.
ORDERS
The applicant has not established jurisdictional error in the decision of the Authority. It follows that his application seeking judicial review should be dismissed and an order made that the applicant pay the Minister’s costs in a fixed amount reflecting the Court scale.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 14 June 2024
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