EXP24 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 634
•19 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EXP24 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 634
File number: SYG 1619 of 2024 Judgment of: JUDGE LADHAMS Date of judgment: 19 July 2024 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority to affirm a decision not to grant the applicant a protection visa – whether the Authority failed to consider claims made by the applicant – whether the Authority failed to consider country information – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5AA, 5J, 36, 473CA, 476, 477 Cases cited: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 12 July 2024 Place: Perth (by Microsoft Teams) Applicant: The applicant appeared in person Counsel for the First Respondent: Ms Q Ren Second Respondent: Submitting appearance by the second respondent, save as to costs Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
SYG 1619 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EXP24
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
19 JULY 2024
THE COURT ORDERS THAT:
1.The application is 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 LADHAMS:
INTRODUCTION
The applicant is a citizen of Sri Lanka who applied for a protection visa in Australia. A delegate of the Minister refused to grant the applicant a protection visa and that decision was affirmed by the Immigration Assessment Authority (Authority). The applicant seeks judicial review of the Authority decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant relies on two grounds which allege that the Authority made a jurisdictional error by failing to consider:
(a)that the applicant was suspected of having connections with the Liberation Tigers of Tamil Eelam (LTTE); and
(b)the country information, which shows that LTTE supporters are still persecuted in Sri Lanka and that persons like the applicant will be persecuted on return to Sri Lanka.
For the reasons explained below, the applicant has not established that the Authority decision is affected by jurisdictional error. The application for judicial review is therefore dismissed.
VISA APPLICATION AND DECISIONS
The applicant entered Australia by sea in April 2013 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 5 July 2016 the applicant applied for a protection visa. The applicant’s claims for protection were set out in a statement that accompanied his protection visa application and included that he feared harm on account of his past involvement with the Karuna Group, by whom he was forcibly recruited at the age of 15 years.
On 5 January 2017 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection.
A delegate of the Minister refused to grant the applicant a protection visa on 13 January 2017. The matter was referred to the Authority in accordance with s 473CA of the Migration Act.
The applicant provided to the Authority a written submission and supporting documents, which were received by the Authority on 9 February 2017.
On 27 September 2017 the Authority affirmed the delegate’s decision to refuse to grant a protection visa.
SUMMARY OF THE AUTHORITY DECISION
The Authority accepted that the applicant is a young Tamil male from the Eastern Province of Sri Lanka.
The Authority accepted that the applicant was forcibly recruited by the Karuna Group at age 15 and spent approximately four years with the group. The Authority accepted that the applicant underwent around four months of weapons training and served under three senior Karuna Group leaders. However, the Authority considered that given the applicant’s age and the manner in which he was recruited, the applicant was a low level Karuna Group employee.
The Authority accepted that the Karuna Group was working on behalf of the authorities, as well as carrying out its own criminal activities, and that the applicant would have witnessed the paramilitaries engaging in human rights violations, as he had claimed. The Authority considered that the applicant’s explanations as to why he was released by the Karuna Group were inconsistent with country information and instead found that by 2010 the paramilitaries had reduced their activities and the applicant was released from duties because he was no longer required.
The Authority accepted that the applicant was required to report to the Criminal Investigation Department (CID) each week after his release. The Authority accepted that in 2010 or 2011 the applicant tried to leave his home area to find work, but when he failed to report to the CID for a month, they threatened his family. The Authority accepted that when the applicant returned to his home area, the CID beat him. The Authority accepted that the applicant did not face further mistreatment from the CID after this.
The Authority did not accept the applicant’s claim that his mother shouted outside the CID office that they had killed her son and that the authorities therefore think he is dead. The Authority also did not accept that the applicant’s signature and fingerprints would be on record. The Authority did not consider it plausible that the CID believed the applicant possessed information detrimental to their interests. The Authority was not satisfied that the applicant’s reporting requirement was still in place in 2013 or that he breached a reporting requirement when he departed Sri Lanka by boat.
The Authority was not satisfied that the CID approached the applicant’s family in 2013 asking about him as he claimed, or that the family had moved to a different area in the district for this reason. The Authority was also not satisfied that the applicant put in a request in 2013 to voluntarily return to Sri Lanka, and then retracted the request for fear of his life. The Authority did not accept the applicant’s claim that the authorities harassed his family in 2017.
The Authority did not accept that the applicant’s brothers were living overseas for the reason claimed by the applicant, namely, that if they remained in Sri Lanka, they would be tortured for information about the applicant.
The Authority noted that the United Nations High Commissioner for Refugees (UNHCR) Guidelines indicated that those persons with familial links to the LTTE might be in need of protection. The Authority accepted the applicant’s evidence that many members of his extended family were killed or went missing during the civil war, including two of his uncles. The Authority was also prepared to accept that the applicant’s father had an adverse encounter with the authorities prior to his death. The Authority accepted that the applicant’s older brother was involved with the LTTE, but was not satisfied that the brother was of any ongoing interest to the authorities, noting that there was no evidence that the brother had any difficulties obtaining a passport or passing through the airport when he moved overseas. The Authority accepted that one of the applicant’s uncles was with the LTTE from 1987 until 2009, but did not accept that the uncle was currently of interest to the authorities, noting that the applicant’s evidence in relation to his uncle’s interactions with the authorities after the war was inconsistent and lacking in credibility. The Authority also noted that the applicant had not claimed that there had been any adverse consequences for himself or his family for any reason related to his father’s interactions with the Sri Lankan authorities, or his uncle’s or brother’s LTTE involvement.
The Authority was not satisfied that the applicant would face a real chance of harm if he returned to Sri Lanka on account of his status as a young Tamil male, his origins, his familial LTTE links, his previous Karuna Group involvement and/or interactions with the CID, including witnessing their activities.
The Authority did not accept that the applicant would face a real chance of harm on account of having sought asylum in Australia. The Authority accepted that the applicant left Sri Lanka illegally and could be penalised for breaching the Immigrants and Emigrants Act. The Authority considered the treatment that the applicant may face upon his return to Sri Lanka as a result of breaching the Immigrants and Emigrants Act and was not satisfied that it would amount to serious harm. The Authority also considered that country information indicated that the Immigrants and Emigrants Act applied to all Sri Lankan citizens and was not discriminatory on its face or in its application and therefore any treatment the applicant may face for breaching the Immigrants and Emigrants Act was not persecution within the meaning of s 5J(4) of the Migration Act.
Based on these findings of fact the Authority was not satisfied that the applicant met the refugee criterion in s 36(2)(a) of the Migration Act.
The Authority also found that the applicant did not meet the complementary protection criterion in s 36(2)(aa) of the Migration Act. The Authority did not consider that the applicant would face a real risk of significant harm as a result of being forcibly recruited by the Karuna Group and having to work for them for a four year period, the requirement that he had to report to the CID for a period of time, that he was beaten on one occasion for attempting to leave his area, or as a young Tamil male from a former LTTE controlled area. The Authority also considered that the treatment the applicant may face for breaching the Immigrants and Emigrants Act would not amount to significant harm.
JUDICIAL REVIEW APPLICATION
The applicant filed his application on 26 October 2017 and therefore made the application within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The applicant raises two grounds in his application (reproduced without alteration):
Ground 1
IAA made a jurisdictional error by not considering a relevant issue.
Particulars
Applicant was suspected of LTTE connections and will be imputed with LTTE profile because of the deaths of family members.
Ground 2
IAA made a jurisdictional error by not considering the country information.
Particulars
LTTE supporters are still persecuted in Sri Lanka
There was other information suggesting that persons like the Applicant will be persecuted on return to Sri Lanka.
Pursuant to an Order made by a Registrar of this Court on 28 February 2024, the applicant was required to file and serve written submissions, any amended application and any further evidence at least 28 days before the hearing. The applicant did not file any documents in accordance with the Order. The Minister filed written submissions ahead of the hearing as required by the Order.
The evidence before the Court comprises an affidavit of the applicant filed on 26 October 2017 annexing a copy of the Authority decision, the court book filed on behalf of the Minister on 10 July 2024[1] and an affidavit of service of Mengqi Ren filed on behalf of the Minister on 6 July 2024.
[1] This court book is an updated version of a court book filed on 31 March 2018. The electronic copy of the court book was updated to include bookmarks and an updated index.
During the course of the hearing, it became apparent that the applicant did not clearly understand why the Authority affirmed the delegate’s decision. At my request, Ms Ren, Counsel for the Minister, summarised the Authority’s decision for the applicant, so that it could be interpreted for him. Ms Ren’s summary was comprehensive and accurate and I thank Ms Ren for her assistance.
CONSIDERATION OF THE JUDICIAL REVIEW APPLICATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Authority decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Authority decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if he establishes that the Authority decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12 (LPDT), where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
An error made by the Authority will only amount to a jurisdictional error if it was material, ‘in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred’: LPDT at [7]; see also Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45].
Ground 1
By ground 1, the applicant asserts that the Authority made a jurisdictional error by failing to consider a relevant issue, namely, that he was suspected of LTTE connections and will be imputed with an LTTE profile because of the deaths of family members.
At the hearing, the applicant submitted that his father and other members of his family are no longer there and that is why he cannot return to Sri Lanka. There will be problems for him there too. He left the country because it was not safe. He gave everything to the Authority and he does not know why they rejected it.
After the Authority decision was explained to the applicant, the applicant submitted that his father and his father’s relations are no longer living and he provided death certificates to show this. He submitted that only his mother and sister remain in Sri Lanka. He submitted that the CID killed thousands of people and, at that time, there were bodies all over.
The applicant’s oral submissions invite the Court to review the merits of the Authority decision. As discussed above, this Court does not have jurisdiction to review the factual merits of the Authority decision.
I otherwise accept the Minister’s submission that the ground fails at a factual level because the Authority did consider whether the applicant would be imputed to be a supporter of the LTTE because of the deaths of his family members. As submitted by the Minister:
(a)in summarising the applicant’s claims for protection, the Authority expressly referred to the applicant’s claim to fear that the Sri Lankan authorities, and the Karuna Group, would detain, interrogate, torture or kill him because of his familial LTTE connections;
(b)the Authority referred to the UNHCR Guidelines that identified that individuals with familial links to the LTTE are among those with risk profiles who may be in need of protection;
(c)the Authority accepted that members of the applicant’s extended family were killed or went missing during the civil war, including two of his uncles;
(d)the Authority accepted that the applicant’s father may have had an adverse encounter with the Sri Lankan authorities prior to his death;
(e)the Authority accepted that the applicant’s older brother was involved with the LTTE, but did not accept that the applicant’s brother continued to be of interest to the authorities and did not accept that the applicant’s brother left Sri Lanka because the applicant was of interest to the authorities as claimed;
(f)the Authority accepted that one of the applicant’s uncles was with the LTTE from 1987 until 2009, but found that the applicant’s uncle was not of interest to the authorities, noting that in his arrival interview, the applicant gave evidence that his uncle was watched very closely by the CID and in his protection visa interview the applicant stated his uncle was in jail;
(g)the Authority noted the applicant had not claimed to have faced any adverse consequences, or that his family had faced adverse consequences, for any reason related to his father’s interaction with the Sri Lankan authorities or the LTTE involvement of the applicant’s uncles or brother;
(h)the Authority was not satisfied that the Sri Lankan authorities, the Karuna group or any other person would have any adverse interest in the applicant because of his status as a young Tamil male, his origins or his familial links to the LTTE.
While the applicant may not agree with the Authority’s assessment, it cannot be said that the Authority failed to consider the applicant’s claims to be imputed with an LTTE profile because of his familial links to the LTTE. I have considered the findings of the Authority and I am satisfied that the findings were open to it on the evidence before it.
The applicant has not established jurisdictional error as asserted in ground 1.
Ground 2
By ground 2, the applicant asserts that the Authority made a jurisdictional error by failing to consider country information. In the particulars, the applicant asserts that LTTE supporters are still persecuted in Sri Lanka and that there was other information suggesting that persons like the applicant will be persecuted on return to Sri Lanka.
In his oral submissions, the applicant submitted that even now the Sri Lankan authorities are persecuting people. He submitted that he did not know the status of one uncle and whether the uncle was dead or alive. The applicant further submitted that he has been living here now for 13 years and cannot return to Sri Lanka.
Again, the applicant’s oral submissions invite the Court to impermissibly review the factual merits of the Authority decision. The matters raised in oral submissions do not establish jurisdictional error.
The applicant’s ground is addressed at a high level of generality, and the applicant has not identified any particular country information that he believes the Authority should have considered and which it did not consider.
The Authority cited several different sources of country information in its decision, including country information published by the Department of Foreign Affairs and Trade, the United Kingdom Home Office, the United States Department of State and the United Nations High Commissioner for Refugees. The choice of, and weight to be given to, country information is generally a matter for the Authority as part of its fact-finding function: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].
The Authority considered the information published by the UNHCR in addressing whether the applicant had the profile of a person who was at risk of harm from being imputed as an LTTE supporter. It was open to the Authority to have regard to this country information in considering this issue.
In relation to the second particular to ground 2, in addition to the applicant not identifying with any specificity which country information he believes the Authority ought to have, but did not, consider, the applicant has not identified what attributes he is referring to when he refers to the persecution of people like him. Based on a detailed review of the Authority’s reasons, which are summarised above, I am satisfied that the Authority considered all of the claims for protection advanced by the applicant and made findings that were open to it on the evidence before it, including by referring to country information where appropriate.
Ground 2 does not establish jurisdictional error.
Further issue raised in the applicant’s oral submissions
The applicant raised concerns in his submissions that information about his claims was published on the internet in December 2023.
I explained to the applicant at the hearing that I cannot take into account, for the purposes of determining whether the Authority decision is affected by jurisdictional error, events that have occurred after the Authority decision.
I nevertheless explored with the applicant and Counsel for the Minister the issue that the applicant was raising to determine if there is any further action that the Court should take to protect the applicant’s identity.
Upon exploring the issue with the parties, it appears that the applicant’s concerns may relate to an incident in which electronic data held by the law firm representing the Minister was compromised. There is insufficient information before the Court to determine the nature and extent of the personal information of the applicant that may have been disclosed without authorisation during the incident and whether it was accessed by any person, although I understand that there may be some concerns that the information was temporarily accessible on the dark web.
To reduce the risk of the applicant being identified in this judgment by anyone who may have previously had unauthorised access to information about this proceeding and the applicant’s claims, the Court has allocated a new pseudonym and file number to the matter.
If the applicant has any further concerns about the unauthorised disclosure of his personal information, including in relation to whether it gives rise to any sur place claims after the Authority decision, it would be open to him to raise his concerns with the Minister’s Department. It would then be a matter for the Minister’s Department to ascertain whether any further action would be appropriate.
CONCLUSION
The applicant has not established that the Authority decision is affected by jurisdictional error. The application to this Court for judicial review of the Authority decision is therefore dismissed.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 19 July 2024
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