FJM17 v Minister for Immigration

[2019] FCCA 264

FEDERAL CIRCUIT COURT OF AUSTRALIA

FJM17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 264

Catchwords:
MIGRATION – Jurisdictional error – protection visa – contradictory country information – failure by the Authority to perform a statutory task of evaluating information – jurisdictional error found.

Legislation:

Migration Act 1958 (Cth)

Immigrants & Emigrants Act (Sri Lanka)

Cases cited:

Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114

Minister for Immigration & Cultural Affairs v Yusuf (2001) 206 CLR 323

Applicant: FJM17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 506 of 2017

Judgment of: Judge Young

Hearing date: 18 January 2019

Date of Last Submission: 18 January 2019

Delivered at: Darwin

Delivered on: 18 January 2019

REPRESENTATION

Counsel for the Applicant: Mr Guo

Solicitors for the Applicant: AUM Legal

Counsel for the Respondents: Ms Wells

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. That the decision of the Immigration Assessment Authority made on 20 January 2017 be quashed.

2. That the matter be remitted to the Immigration Assessment Authority for rehearing before a differently constituted Authority.

3. That the First Respondent pay the Applicant’s costs as agreed or taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 506 of 2017

FJM17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) to affirm a decision of the Minister's delegate made on 20 January 2017 to refuse the applicant a protection visa.

2. The applicant is a citizen of Sri Lanka.  He is 40 years old.  He arrived in Australia by boat in 2012.  His protection claims were summarised in his written statement in support of his protection visa under five headings: his ethnic background as a Sri Lankan Tamil; his perceived or imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (“LTTE”); his membership of a particular social group being a Tamil fishermen suspected of providing supplies for the LTTE; and as a person of mixed Tamil/Sinhalese[1] ethnicity.

   [1] The applicant’s submissions used “Sinhalese” and “Singhalese” interchangeably. The Authority used the more current “Sinhalese”.

3. The applicant's claims included that he was detained in 1996 or 1997 and accused of transporting “paraffin” (presumably kerosene) for the LTTE.  He said he was detained for 15 days by the Sri Lankan authorities and then released without charge.  He also referred to petty harassment by the Sri Lankan authorities over the years, particularly in relation to fishing or delays in obtaining permits to fish.  In 2005 he said he was shot in the leg from a Sri Lankan navy boat while fishing.

4. In 2008 he said he and a fisherman friend [whom I will refer to as “X”] “were arrested and detained for one day and accused of working for the LTTE”.  He said that two days later the CID (Criminal Investigation Department) came to X’s house and shot him.  The applicant said that he and others found X bleeding and unconscious but he died as they were taking him to hospital.

5. The applicant said he then went into hiding and moved districts.  He said he used to visit his home but was too afraid to stay there overnight.  He said his wife told him that the CID had searched for him many times.  He also said that X’s brother-in-law was abducted and another friend was also abducted about 10 days after X was shot.  He said he was afraid the Sri Lankan authorities would abduct and kill him too.

6. The applicant said that his wife had told him that the CID had visited the family home more than a few times after he left Australia. He said that his wife said that he had left for overseas; she didn't know where, so his wife was threatened too.

7. The applicant's claim as a person of mixed ethnicity was that he has one Tamil parent and one Sinhalese parent. He said that some Tamils think he is an informant for the army and some Sinhalese think he is LTTE.

8. The Authority found the applicant lacked credibility. It did not accept that he would be suspected of supporting the LTTE by the Sri Lankan authorities nor would he be seen as having an anti-government profile.

9. The Authority also considered whether there was a real chance the applicant would suffer serious harm as a returning asylum seeker.  Relying on a DFAT report, “Country Information Report – Sri Lanka”, dated 18 December 2015, it found that he would be detained at the airport and would undergo identification, character and security checks undertaken by the Department of Immigration and Emigration, the State Intelligence Service and the airport CID (see Authority’s decision [46]).  It concluded he would be “held on remand”, released on bail and ultimately fined for the offence of leaving the country illegally.  The Authority found the applicant would be held on remand for “a few hours” while the checks were completed.  If he arrived on a weekend or a public holiday this “could extend to a number of days”.

10. Quoting from the DFAT country information the Authority said:

    There have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment… Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low, including those suspected of offence under the Immigrants and Emigrants Act (at [49]).    

11. The Authority referred to reports contained in a UK Home Office report dated 19 May 2016 and information from TamilNet dated 31 May 2015 about arrests at Katunayake International Airport of Tamil men returning from overseas.  It said that almost all or all of these men were reported as being former LTTE members.

12. In his amended application for review the applicant outlined four grounds.  However, only Grounds 1, 2 and 4 were pressed.

13. Ground 1 alleges that the Authority “failed to consider” the applicant's claim that he faced a real risk of significant harm during any period of detention on return to Sri Lanka.  This ground relied on country information contained in a United Nation's Committee Against Torture (“UNCAT”) report (adopted by the Committee on 30 November 2016), which was referred to by the applicant in his submissions dated 21 February 2017 to the Authority.  This report was not included in the materials although a hyperlink reference appeared in the applicant's written submission to the Authority.  The submission asserted that the UNCAT report raised serious concern about the "continuing use of torture by Sri Lankan authorities".  The submission contained the following passages, although it was not clear in the submission whether this was a quote or a summary of material in the report:

    ·   The Committee notes allegations that the police investigators often fail to register detainees during the initial hours of deprivation of liberty or bring them before a magistrate within the time limit prescribed by law, during which time torture is particularly likely to occur (emphasis added in the applicant’s submission).

    ·   [The Committee] notes with concern that neither the Attorney General nor the judiciary exert sufficient supervision over the legality of the detention or the conduct of police investigations to prevent this practice.  In this regard, the Committee shares the concern of the Special Rapporteur on torture that magistrates often do not enquire into potential ill-treatment during pre-trial hearings, and accept the request of police officers to keep suspects on remand custody without further scrutiny (emphasis added in the applicant’s submission).

    ·   In addition, the Committee reports on the country’s administrative detention regime under the Prevention of Terrorism Act, including that there are a large number of documentation (sic) allegations of torture and denial of due process rights. 

14. The UNCAT report was not provided by the applicant or included in the Court Book.  However, using the hyperlink reference footnoted in the submission I have perused the entire report.  The first two dot points above would appear to be a more or less accurate précis of paragraph 9 of the UNCAT report which reads as follows:

    Allegations of routine torture during police detention

    The Committee remained seriously concerned at consistent reports from national and United Nations sources, including the Special Rapporteur on torture, indicating that torture is a common practice carried out in relation to regular criminal investigations in a large majority of cases by the Criminal Investigation Department of the police, regardless of the nature of the suspected offence.  The Committee is concerned that the broad police powers to arrest suspects without a court warrant has (sic) led to the practice of detaining persons while conducting the investigations as a means to obtain information under duress.  The Committee notes allegations that police investigators often fail to register detainees during the initial hours of deprivation of liberty or to bring them before a magistrate within the time limit prescribed by law, during which time torture is particularly likely to occur.  It also notes with concern that neither the Attorney General nor the judiciary exert sufficient supervision over the legality of the detention for the conduct of police investigations to prevent this practice.  In this regard, the Committee shares the concern of the Special Rapporteur on torture that magistrates often do not enquire into potential ill-treatment during pre-trial hearings and agree to the requests of police officers to keep suspects in remand custody without further scrutiny (arts.  2, 12 and 16) (emphasis added). 

15. The applicant said that because the Authority accepted the applicant is likely to be arrested and charged with an offence under the Immigrants and Emigrants Act in relation to his illegal departure from Sri Lanka, held on remand by the Sri Lankan authorities, including one or more of the Department of Immigration and Emigration, the State Intelligence Service and the airport CID, then the UNCAT report is directly relevant to the applicant’s situation. It therefore required evaluation in order for the Authority to be satisfied whether or not there was a real chance that the applicant would suffer serious harm. The applicant relied on the decision in Minister for Immigration and Border Protection v MZYTS [2013] FCFCA 114. He said that the Authority failed to refer to or to evaluate this country information and that constituted jurisdictional error.

16. The Authority did refer to the relevant country information referred to in the applicant's submissions provided on 21 February 2017, 6 March 2017 and 17 July 2017 (Authority reasons at [4]). [2]  The Authority described these submissions as follows:

    I also note that the additional material postdates the delegate's decision and is therefore new information which was not and could not have been provided to the delegate.  I also note that in considering whether there are exceptional circumstances to justify the consideration of the new information that they are submissions with legal argument based on country information reports which are from credible sources and which postdate the delegate's decision.  As current country information is directly relevant to the applicant's safety and critical in assessing the applicant's claims of fearing harm and (sic) now and in the foreseeable future.  I am satisfied there are exceptional circumstances to justify considering the new information. (at [4]). 

    [2] The submissions are dated 21 February 2017, 6 March 2016 (sic – an error for 2017) and 16 July 2017.

17. The Minister submitted that the only country information referred to in the applicant’s submission of 21 February 2017 was the reference to the UNCAT report.  The Minister said, adopting the wording used by the applicant in his application, that it followed that that material must have been “considered” by the Authority.  In the submission of 6 March 2017 the applicant's migration agent referred to the UNCAT report again and other matters.  The submission dated 16 July 2017 (presumably provided to the Authority on 17 July 2017) made a further submission about torture by Sri Lankan police and included a Guardian online newspaper article, headed "Torture by Sri Lankan police routine, says human rights lawyer." The body of the article quoted a UN special rapporteur saying that the use of torture is “endemic and routine, for those arrested and detained on national security grounds”. The article did not refer to any other category of arrested persons.

18. The Authority did not make express reference to the nature of this further country information in its decision. The material is included or referenced in the Court Book. The applicant’s submission of 21 February 2017 referring to the UNCAT report did not address the category of persons referred to in that report but merely asserted that because the applicant is "of interest to the authorities" (because of perceived LTTE links) he will come to the attention of those authorities on his return, he will be detained and consequently is at risk of torture or other serious harm. The submission dated 6 March 2017 refers to documented allegations of torture and denial of due process rights for those arrested under the Prevention of Terrorism Act. The submission dated 16 July 2017 and the enclosed newspaper article makes it clear, as noted above, that the UN special rapporteur referred to those arrested and detained on national security grounds.  

19. The Authority did not specifically refer to these claims.  It did acknowledge reports in a UK Home Office publication from May 2016 that some Tamils returning from abroad have been arrested and held for lengthy periods.  However, it said "almost all" of those arrested had been former LTTE members.

20. The Authority concluded that the applicant did not have any links to the LTTE and was of no interest to the Sri Lankan authorities and set out its reasons for reaching that conclusion. It may be inferred from the Authority’s reasons that because it did not accept that the applicant had LTTE links or was perceived to have such links it did not consider that the applicant was a person at risk of being arrested under national security legislation or the Prevention of Terrorism Act, the triggering events for the arrest, detention and abuses, including torture, referred to in the country information relied on by the Authority. It found he would not be sentenced to imprisonment as an organiser of people smuggling.  It was not suggested that these conclusions were not open to the Authority.

21. However, the Authority found that the applicant would be subject to identification, character and security checks following his arrival at the airport. It found that he would be charged with an offence related to his unlawful departure from Sri Lanka and “… held on remand, released on bail, to appear at a later date before a magistrate …”.  The Authority said “According to DFAT no returnee who was a passenger on a people smuggling boat has ever been sentenced to a term of imprisonment for illegal departure …”. The Authority went on to say:

    On the information before me I am satisfied that on being returned to Sri Lanka the applicant will be held on remand for a number of hours whilst the identity, character and security checks are completed.  This could extend to a number of days if he arrives on a weekend or public holiday.  DFAT states that if a person who departed unlawfully pleads guilty, they will be fined and discharged.  Generally, if a person pleads not guilty, they are granted bail and personal surety and may be required to have a family member act as a guarantor and if so may have to wait until a family member comes to collect them.

22. It is apparent, on the basis of the DFAT country information, that the Authority was satisfied that the applicant would be detained at the airport on return by the Sri Lankan authorities, including the Criminal Investigation Department of the police, charged with an offence, and held in custody for a period extending from some hours to, potentially, some days before being brought before a magistrate.  Implicit in these findings is an assumption that the police would bring the applicant before the magistrate in accordance with the time limits prescribed by law.  

23. The circumstances considered by the Authority on the applicant’s return have common elements with the circumstances considered in the UNCAT report: the involvement of the Criminal Investigation Department; detention in custody for a suspected offence, regardless of its nature; and a requirement that the police bring the detainee  before a magistrate within the time prescribed by law – a circumstance, according to the UNCAT report,  associated with allegations of torture and a concern that the judiciary fails to “exert sufficient supervision over the legality of the detention”.

24. It should be noted that the DFAT report arguably dealt with the more specific circumstances of a returnee’s arrival at the airport and possibly reflected more specific information than the UNCAT report.  On the other hand, the UNCAT report (adopted November 2016) apparently post-dated the DFAT report (December 2015) by a significant period and, arguably, was more current.  These factors and others might have been relevant to an evaluation of the apparent differences in the two reports in relation to the applicant’s circumstances on return to Sri Lanka.  An evaluation of such factors might reveal a justification for the Authority preferring one report over the other. However, the Authority did not expressly undertake such an evaluation. The reason or reasons why the Authority preferred the DFAT country information over the UNCAT report in relation to the same or similar circumstances are not set out and, in my view, it is not possible to infer from the Authority’s reasons why the information in one report was preferred over the other.

25. The decision of the Full Court of the Federal Court in MYTZS was concerned with the question of whether there had been a “failure to consider” current country information about Zimbabwe by the AAT.  The political situation in Zimbabwe was said to be a “key question” in assessing whether the applicant in that case was owed protection obligations by Australia.  The Court said that the description “failure to consider” was “inapt” (at [72]) and the ground of jurisdictional error was better described as a “failure to perform the statutory task imposed on the Tribunal by the relevant provisions of the Migration Act” (at [31]) or “a failure to form the state of satisfaction (one way or the other) required for the purposes of the review in respect of the criterion in s 36(2)(a)” (at [46]).  Rejecting a submission by the respondent that the Court should infer that the Tribunal “simply preferred other material” the Court said at [49] and [50]:

    The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present – and what is absent – from the reasons may in a given case enable a Court on review to find jurisdictional error: Yusuf 206 CLR 323 at [10], [44], [69].

    We do not accept the Minister’s submission.  The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other.  In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over some other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given.  All these are matters for the trier of fact.  The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.

1. The Court rejected a submission that the issue was simply factual, did not go to jurisdiction and was a “mere failure to deal with evidence”. The Court said “it pertains to a fundamental feature of the visa applicant’s claim, consideration of which is an essential feature of the Tribunal’s statutory task” (emphasis in original).  

2. In my view those observations apply to this case. I am satisfied that the failure of the Authority to expressly evaluate the conflicting information and explain its preference for the DFAT country information over the UNCAT report as it pertained to the applicant’s claim constituted a failure to perform an essential feature of the Authority’s statutory task. In reaching this conclusion I do not overlook the fact that it was not the applicant but the Authority itself that raised the question of the risk of harm to the applicant posed by his likely detention at the airport on his return to Sri Lanka. However, once it raised the question the Authority was bound to evaluate all the information pertaining to an assessment of the risk in the way described by the Court in MYZTS. In my view, its failure to do so constitutes jurisdictional error.

3. Ground 2 was abandoned.

4. Ground 3 alleges that the Authority failed to consider the applicant's claim that there was a real chance of serious harm to the applicant due to other Tamils suspecting that he was an anti-Tamil informant. The applicant’s claims about this were made in his written statement in support of his protection visa application.  At paragraph 36 he said "I had another problem because some Tamils think I'm an informant to the Army and Singhalese think I'm LTTE".  At paragraph 49 he said "Also, I cannot go to any other part of the country, I am a Tamil and half Singhalese.  Tamils will suspect me and the Singhalese will target me, no authority will be able to provide me with safety".  I asked counsel for the applicant which category of the five grounds of claim set out in the applicant's summary of his claims this claim fell into.  Counsel suggested that the claims belonged in each category.  I do not accept that submission and I am satisfied that the claims relate to the fifth category of claim referred to by the applicant, that is, his claim "… as a person of mixed ethnicity".

5. In his written statement the applicant did not provide any evidence or specific or concrete information that he was suspected to be an informant for the army, nor did he point to any threats or specific risk of harm as a result. The applicant's written claim is, in my view, a general assertion that as a person of mixed ethnicity he is likely to be suspect to both sides in Sri Lanka where ethnicity, according to the findings of the Authority, is heavily politicised (at [19]).  The Authority referred to a claim by the applicant that he had “been beaten up by Sinhalese boys in the past” but no more detail was provided (Authority’s reasons at [19]). The Authority referred to country information and accepted that the applicant may continue to face "Some harassment from Sinhalese people and from the Sri Lankan authorities because he is part–Tamil and of mixed Tamil and Sinhalese ethnicity." (at [22]).  The Authority went on to say that because of legal protections preventing discrimination and the absence of country information suggesting any discrimination against people of mixed ethnicity that the chance of the applicant facing serious harm because of his mixed ethnicity now or in the foreseeable future is remote.

6. The Minister submitted that, although the Authority did not expressly consider the specific claim that the applicant was suspected by some Tamils of being an informant, the claim was subsumed under the general finding that the applicant was not at risk of serious harm because of mixed ethnicity.  I accept that submission.  In context, the applicant was not making a separate claim that he was at risk from some Tamils but rather his mixed his ethnicity was a "problem".  In my view, given the lack of any concrete detail about the claim and the countervailing country information there was a proper basis for the Authority to reject that claim.

7. Ground 4 alleges that the Authority’s conclusion that "the chance of the applicant facing serious harm because Sri Lankan authorities have made enquiries regarding his whereabouts is remote" (Authority’s reasons at [36]) was illogical and constituted jurisdictional error.

8. This ground arose from the applicant's claim in his written statement  that the CID has visited his "family home and made enquiries about me I don't know how many times but it has been more than a few …."

9. The Authority described the applicant's claim as follows:

   The applicant claims that the CID has visited his family home many times and asked his wife about his whereabouts.  I accept that given the applicant's absence from his home since October 2012 inquiries may have been made regarding his whereabouts.  However I do not accept that these inquiries are because the applicant is suspected of involvement with the LTTE or any activity aimed at Tamil separatism or anti-government activity.  I find that the chance of the applicant facing serious harm because Sri Lankan authorities have made enquiries regarding his whereabouts is remote.

10. The applicant submitted that this reasoning was illogical and the Authority’s conclusion was not open.  The applicant said that if the Authority accepted, as the applicant asserted it had, that the CID had visited his family home “many times” and asked his wife about his whereabouts that it was not open to conclude that these enquiries were not because the applicant is suspected of involvement with the LTTE or any activity aimed at Tamil separatism or anti-government activity.

11. The applicant said that if the Authority concluded, as it did, that the applicant was not suspected of involvement with the LTTE or any activity aimed at Tamil separatism or anti-government activity, then it follows that the visits of the CID, which the applicant said the Authority accepted as having occurred, were motivated by some other reason. Counsel asked rhetorically what other reason could there be other than the applicant was suspected of LTTE or anti-government links.  This was said to be the illogicality.

12. The Minister submitted that this characterisation misrepresented the Authority’s reasoning.  It said that the use of the word "may" merely admitted the possibility of the CID making such inquiries.  The submission went on to say that the use of the plural word "inquiries" at most admitted that the CID may have visited more than once.  The submission went on to say that the applicant's interpretation of the passage was with "an eye keenly attuned to error".  

13. The Authority's formulation is imprecise and ambiguous. The use of the word “may” seems to indicate acknowledgement of possibility, no more.  However, the next sentence appears to suggest acceptance of the claim of visits by the CID. In my view the imprecision and ambiguity of the language is not a sturdy enough foundation to support the applicant’s submission. Further, it appears to me that the applicant’s submission, although this was disavowed by counsel for the applicant, amounted to a submission that the Authority in the circumstances was bound to provide some plausible explanation for the (possible) visits by the CID. In my view this ground has little merit.

14. In discussion with counsel I asked about the basis for the Authority’s adverse credibility findings about the applicant's claims about the death of X (Authority’s reasons at [31]).  The applicant sought and was granted leave to add a further ground of review in relation to those matters to be filed at a later date. The Minister was given leave to file a transcript of the hearing before the delegate which was said to provide the basis. Given my conclusion that Ground 1 of the application for review is made out and because I propose to set aside the Authority’s decision and order a new hearing before a differently constituted Authority it is not necessary to consider any further ground and I will revoke leave for the applicant to amend his application.

15. There will be orders setting aside the decision, remitting the matter for rehearing before a differently constituted Authority and for the Minister to pay the applicant’s costs to be agreed or taxed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  8 February 2019