FJQ17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 1094

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FJQ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1094

File number:

MLG 2681 of 2017

Judgment of:

JUDGE SYMONS

Date of judgment:

29 November 2023

Catchwords:

MIGRATION – application for judicial review of decision of the Immigration Assessment Authority – where applicant claimed harm for reason of the expression of his political opinion in the future – what political opinion claim was the Authority obliged to consider – the Authority was not required to consider a claim based on the future expression of a political view - no jurisdictional error in the decision of the Authority – application dismissed with costs

Cases cited:

AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89

BLR17 v Minister for Immigration and Border Protection [2019] FCA 2167

CFK16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 470

ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 283 FCR 164; [2021] FCAFC 44

SZULW v Minister for Immigration and Border Protection [2018] FCA 1335

Division:

Division 2 General Federal Law

Number of paragraphs:

46

Date of last submissions:

14 November 2023

Date of hearing:

14 November 2023

Place:

Melbourne

Counsel for the Applicant:

Mr M Kenneally

Solicitor for the Applicant:

WLW Migration Lawyers

Counsel for the First Respondent:

Mr J Barrington

Solicitor for the Respondents:

Sparke Helmore

ORDERS

MLG 2681 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

FJQ17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE SYMONS
DATE OF ORDER:	29 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The application for judicial review filed on 8 December 2017 and amended on 19 October 2023 be dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $8371.30.

3.The name of the first respondent be amended to “Minister for Immigration, Citizenship, and Multicultural Affairs”.

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

1. By an application filed on 8 December 2017 and amended on 19 October 2023, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 29 November 2017 pursuant to s 476 of the Migration Act 1958 (Cth) (Act). 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

2. The applicant is a citizen of Sri Lanka, of Tamil ethnicity, who first arrived in Australia as an Unauthorised Maritime Arrival on 14 October 2012. On 31 December 2012 the applicant participated in an Irregular Maritime Arrival Entry Interview (CB 1-16).

3. On 21 March 2016, the applicant made a valid application for the visa (CB 37-103). The applicant was assisted in his application by a registered migration agent and lawyer. The application was accompanied by documents that included a statutory declaration made by the applicant on 10 March 2016 (CB 79-85). The statutory declaration set out what was described as a “summary of [the applicant’s] claims for protection” and foreshadowed that the applicant would “provide further information in relation to my present claims during my interview with the DIBP case officer” (CB 79).

4. On 11 November 2016 the applicant, along with his legal representative, participated in a SHEV interview with an officer of the (then) Department of Immigration and Border Protection. A transcript of this interview is before the Court.[1]

   [1] Annexure “ML-1” to the affidavit of Mai Luong affirmed 19 October 2023 which was read by the applicant without objection.

5. On 3 February 2017, a delegate of the Minister made a decision to refuse the applicant the visa (CB 141-160).

6. On 8 February 2017, the refusal decision was referred to the Authority for a review (CB 162-163).

7. On 13 February 2017, the Authority released to the applicant’s representative the recording of the SHEV interview (CB 174).

8. On 28 February 2017, the applicant’s representative sent the Authority what was described in the cover email as a “submission” but which took the form of a statement of the applicant in which he “explain[ed] the reasons why I do not agree with the Delegate of the Minister for Immigration and Border Protection (the Delegate) decision to refuse my application for a Safe Haven Enterprise (Subclass 790) Visa” (CB 176-178).

9. On 29 November 2017, the Authority made a decision to affirm the decision not to grant the applicant the visa and produced a written statement of decision and reasons (Reasons) (CB 181-197).

10. On 8 December 2017, the applicant filed an application seeking judicial review of the Authority decision in this Court (CB 199-203) and on 19 October 2023 filed an amended application for review and a set of written submissions addressing the single ground raised in the amended document. On 1 November 2023 the Minister filed responsive written submissions.

11. The hearing of the application took place on 14 November 2023. The applicant was represented by Mr Kenneally of counsel and the Minister by Mr Barrington of counsel.

    THE ISSUE FOR DETERMINATON

12. The amended application alleges a failure on the part of the Authority to consider the applicant’s claim to fear harm for reason of the expression of his political opinion in the foreseeable future. The applicant says this claim was clearly articulated in these terms and/or arose or was implicit from the material and information before the Authority. The Minister contends as his primary position that a claim of this kind was never raised. The central issue for determination is therefore whether and on what terms a claim of harm based on the holding of a future political opinion was made.

    The applicant’s argument

13. It is agreed between the parties that the applicant squarely raised a claim to apprehend harm on return to Sri Lanka based on his past political activism for and in connection with the party known as Akila Ilankai Tamil United Front (Akila). The claim, identified by reference to the applicant’s statutory declaration, involved the following elements:

    (a)The applicant joined Akila in 2011 and ran as a candidate in the municipal election scheduled for 8 October 2011;

    (b)On 25 September 2011, the applicant was assaulted by 10 men. The men threatened to kill the applicant if he continued working for Akila;

    (c)The applicant made a police complaint. That night the men attended the applicant’s family home and told the applicant’s mother they would kill him if he made a police complaint. The applicant made a further police complaint. Two days later the applicant was attacked again.

    (d)Following the second attack, the applicant fled to Trincomalee. The applicant’s eldest brother arranged for the applicant to join him in Qatar. On 18 November 2011, the applicant travelled to Qatar.

    (e)On 14 September 2012, the applicant and his brother returned to Sri Lanka. On 20 September 2012, a group of men came to the family home while the applicant was out. The men beat the applicant’s brother and stole the applicant’s identity documents. The applicant left Sri Lanka (ultimately for Australia) on 27 September 2012.

14. However, despite the focus of these claims on the applicant’s past involvement with Akila, the applicant submits that his claim to fear harm due to his political opinion contained a second and distinct component based on the expression of his political opinion in the future and that by failing to consider this claim, the Authority fell into error in a manner closely analogous to the case considered in BLR17 v Minister for Immigration and Border Protection [2019] FCA 2167 (BLR17).

15. The applicant says that he expressly claimed to fear harm for his political opinion in his statutory declaration in passages that include the following:

    Who I believe will harm or mistreat me upon my return to my home country:

    39.I am fearful that I will be harmed and/or mistreated by the Sri Lankan government and especially the SLA, CID and para military groups.  They can easily identify me and know all the information about me.  They have taken my passport from my house.

    Why I believe I will harm or mistreat me if I go back:

    40.I believe that I will be harmed and mistreated by the above individuals on account of my ethnicity as a Tamil and a single male and having a political opinion.

    41.I am a young Tamil male who was a member of a Tamil political group.

    …

    Why I believe I will suffer significant harm:

    45.I believe that I will suffer significant harm as I may be killed, tortured or treated in a cruel manner because I am a young Tamil male with a political opinion.

    46.I left the country since I feared of getting killed.  I strongly believe I will be killed if I am forced to return to Sri Lanka.

16. The applicant also gave answers during the SHEV interview, including:[2]

    [2] Transcript of SHEV interview at [140]-[147], [178]-[179], [182]-[183] and [233]-[234].

    Delegate:        Why did you join them?

    Applicant:      Because in Sri Lanka, as a Tamil, we didn’t have any support. So because of that, I was motivated to join this party.

    Delegate:        What motivated you to join this party over another party like the Tamil National Alliance?

    Applicant:      Because TNA also works for the Tamils and the party that I joined, they also work for the Tamils, so instead of all be in one party, when we have in different parties and we can acquire more votes, and I thought that we can win back our rights.

    …

    Delegate:Okay.  Can you tell me a bit about the Akhila Ilankai Tamil United Front?

    Applicant:      Yes.  Now, Tamils are sort of kept under up to today in that place, the country.  The basic things that they demand is the basic rights that others are enjoying, the Tamils also should enjoy, Tamils also should get, so that is their motive.  Because their objective was that to win back the basic rights of the Tamils, so I also was motivated that I should join this party to win back our rights.

    …

    Delegate:       …So you left before the election happened?

    Applicant:No. During the election, only because of the problems, I was hiding. And then I left for Batticaloa…

    …

    Delegate:       I’m trying to understand what attracted you to this party [Akila]…

    Applicant:Yes, the thing is I also like to do lots of community work, volunteer work, so I liked that. Yes. So during the time when I was doing lots of voluntary work in my village, members of this party who came and told me we are also working for the Tamils to win their rights, so will you join our party and help. So I liked their policies, so I joined. And I didn’t think of the other parties.

    …

    Delegate:So in the week that you returned [from Qatar to Sri Lanka], you were visiting your sick mother.  Did you do any sort of political things?

    Applicant:No, I didn’t do any political thing, but I came to see my mother. And for me, I was interested to safeguard my life, because if I safeguard my life only, I can do anything. That was my motive.

17. Further, the applicant’s legal representative at the SHEV hearing explained the applicant’s claims in the following terms:[3]

    ….the applicant is a person of interest to the Sri Lankan authorities. The applicant faces a real chance of serious harm when he returns to Sri Lanka for reasons being a person who has a political opinion that is seen as a risk to them by the Sri Lankan government.

    He’s a young Tamil man who has enrolled in politics for the freedom of Tamils and to fight for the Tamil rights. Sri Lankan authorities do not like anyone who wants to fight in any way for the Tamils. He’s seen as a threat. Therefore, if he’s forced to return, he will go through significant physical harassment and there is threat to his life. Persecution of Tamils by the Sinhalese government continues even today and Tamils suffer from fear.

    The Sri Lankan government continues to commit forced disappearances, arbitrary arrests and physical intimidation, including murder and torture of Tamils. If the applicant is forced to return, he will be targeted by the PTA. The PTA has been used since the end of war, including under the present government, to detain and torture people, including forcibly returned asylum seekers. With the new government in Sri Lanka, the element of fear has muted, but still exists. The applicant has a profile as a Tamil young male, had a political involvement and is seen by a threat by the Sri Lankan authorities…

    [3] Transcript of SHEV interview at [275]

18. The applicant submits that these statements and evidence, construed as a whole, reveal that the applicant articulated a claim that he had an enduring political opinion in the nature of being pro-Tamil rights and a supporter of the Akila party and that, especially in his statutory declaration, was claiming to fear harm due to the expression of these opinions on return to Sri Lanka. The applicant had supplied a reason as to why he did not return to political activism on his brief return to Sri Lanka in 2012 (he wanted to “safeguard” his life) and the fact that the applicant had not identified his political opinion in terms of it being “imputed” was further confirmatory of the claim being one that relied upon an ongoing active expression of political opinion.

19. The applicant accepts that he did not supply any information about how the expression of such views might manifest upon his return to Sri Lanka, but he contends that the explanation for this omission is supplied by his statement given to the Authority on 28 February 2017 that he believed he was “a person whose name appears on a computerised list accessible at the airport, comprising a list of those against whom there is an extant court order or arrest warrant” and that he would “be stopped at the airport and handed over to Criminal Investigation Department (CID) and the Prevention of Terrorism Act” (CB 177 [7]). In these circumstances, the Authority should have understood that there would be no occasion on return to engage in political activism.

    The Minister’s argument

20. The Minister submits that the applicant’s political opinion claim rested solely upon the factual substratum of his involvement in the Akila party around the time of the 2011 elections and that read fairly, and in context, his claim to fear harm by reason of having a political opinion, comprehended only the work he had done for Akila in the past. The applicant never said that, if he returned to Sri Lanka, he would continue to engage in political activism, whether with the Akila party or in some other way.

21. The Minister submits that this more limited articulation is supported by the statement made by the applicant in his statutory declaration at [41] (refer [15] above) which references his membership (in the past tense) of a Tamil political group and the explanation given by the applicant in his statutory declaration that he returned to Sri Lanka after fleeing to Qatar because “[t]he election was over, I thought it was safe to return home” (CB 82 [31]).

22. The Minister places importance on the failure of the applicant to challenge the restricted view taken by the delegate of his political claim. In this regard, the parties accept that the decision of the delegate dealt only with a claim that was “back-ward looking”; under the heading “Assessment – Fear of harm for political opinion”, the delegate considered whether the applicant was “a person of ongoing interest to the Karuna group or the Sri Lankan Army or any other para-military groups for reasons of his involvement in Akila Ilankai Tamil United Front” (CB 148-150).

23. The Minister submits that not only did the applicant fail to take issue with the delegate’s conceptualisation of the claim in his statement to the Authority but his evidence in his statement that, after his brief stay in Qatar, “I did not participate in any political activities on my return, [but] my attackers were angry with me for my previous involvement in politics” (CB 176 [2]) reinforced that the applicant’s claim was one based on his historic association with Akila.

24. In this regard, the Minister relies on authority to the effect that the question of whether the applicant made a claim to fear harm because of the future expression of his political beliefs is a matter which must be assessed having regard “to the way [the] applicant’s claims are presented over time” (referring to AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 (AYY17) at [18(e)]) and the principle stated in cases including SZULW v Minister for Immigration and Border Protection [2018] FCA 1335 at [80] that “[u]nless there are reasons to think otherwise, it may be assumed that the claims which a represented applicant wishes to make before the [Authority] are the ones expressly articulated by him or her and his or her advisers and that any other arguable claims which are not expressly articulated are not pressed”.

25. The Minister also took the Court to the decision of CFK16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 470 in which the Federal Court (Anderson J) recorded a finding that the appellant had abandoned a claim that had been made explicitly in an earlier invalid protection application by the time that his matter came before the Authority including because the appellant had made no mention of the claim during his SHEV interview and because the submissions made to the Authority did not refer (expressly or impliedly) to the appellant’s earlier claim, including by way of complaint about the delegate’s failure to consider it (at [59]).

26. The Minister also referred the Court to the decision of DKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1372 in which the Federal Court (Thomas J) rejected a submission that a claim by the appellant that he would engage in similar conduct in the future to oppose corruption in Iraq clearly arose on the material before the Administrative Appeals Tribunal (Tribunal). The Court found that each of the factors relied upon by the appellant referred or related to past activities and noted that “[t]he fact that a person does something in the past, in circumstances faced in the past, does not necessarily mean that person would repeat the actions in the future” (at [30]).

27. Against these arguments, the applicant urged the Court to proceed cautiously in transposing principles derived from cases involving reviews undertaken by the Tribunal (under Part 7 of the Act) to the Part 7AA environment. The applicant referred in this context to the decision of ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44 where at [67] a Full Federal Court (Reeves, Banks-Smith and Anastassiou JJ) observed:

    The statutory scheme under Part 7AA of the Act expressly provides for a fast track review process, in which adverse decisions made by the Minister are automatically referred to the Authority for review by operation of s 473CA of the Act. While visa applicants are permitted to provide additional written submissions, Practice Direction 20 strictly limits those submissions to five pages. It is important to observe that those submissions supplement the material before the Authority and must be considered. The submissions do not, however, alter the Authority’s statutory obligation to consider the review material, including the claims that were dealt with by the delegate.

1. The applicant submitted that especially in circumstances where the submission to the Authority consisted of a two page, 10 paragraph statement that was not in the nature of a legal submission and did not, therefore, create the occasion or vehicle in which to identify what the applicant would do on return (by way of political activity), the Authority was not absolved of its responsibility to consider the political opinion claim in both of its manifestations.

   CONSIDERATION – WHAT POLITICAL OPINION CLAIM WAS THE AUTHORITY OBLIGED TO CONSIDER?

2. The decision of AYY17 (referred to earlier at [24]) contains an acknowledgement by the Full Court that nothing in the statutory constraints to be found within Part 7AA of the Act affects the existing case law on the topic of the duty to consider claims and issues arising from material before it as that law applies to the Tribunal.

3. This means that in determining the nature and breadth of the applicant’s political opinion claim I must be cognisant of the following principles (themselves recorded by the Full Court at [18] of AYY17):

   ·The Authority review function requires it to consider all claims made by an applicant and its essential components or integers.

   ·The Authority is only required to consider such claims where they are either:

   (a)the subject of substantial clearly articulated argument, relying on established facts; or

   (b)clearly emerge from the materials.

   ·Whether a claim clearly emerges is to be evaluated having regard to considerations including that:

   (a)such a finding is not to be made lightly;

   (b)the fact that a claim might be said to arise from materials is not enough;

   (c)to clearly emerge from the materials, the claim must be based on “established facts”.

4. I am not persuaded that the Authority was required to consider a claim that had a future dimension to it, in the sense that the applicant feared harm arising from the expression of his political opinion in the future or, to the extent it is different, the holding of a future political opinion.

5. The statement made by the applicant at [40] of his statutory declaration represents the high point of his future political opinion claim. However, it is equivocal at best given that it is immediately followed by a statement that arguably contextualises the claim by reference to the applicant having been a member of a political party, and the fact that the statutory declaration otherwise contains significant detail concerning the applicant’s involvement with the Akila party in 2011 and 2012 and articulates his apprehension of harm on return by reference to this association and related events.

6. Factually, this case can be distinguished from the case considered in BLR17.  In the latter case it was evidently significant to the disposition of the appeal that the appellant had articulated his political opinion claim in terms that included the following, taken from [6] of the judgment:

   …the applicant’s views are of a kind likely to expose him to persecution if removed to Iran.  The Department must have regard to the nature of the applicant’s views, not merely the ways in which he has expressed them.  The applicant instructs that he opposes the oppression and corruption that is endemic in the Iranian government and their affiliated groups, and in particular, the way in which the Iranian regime restricts freedom of expression and religion.

   We contend that the risks faced by the applicant cannot be assessed upon the implicit premise that the applicant could remain silent or lie about his political views…

7. This submission involved an explicit articulation of a future political expression claim as well as an exhortation to the Authority that it examine whether he was likely to express those anti-regime political beliefs in the future. This exposition was absent from the applicant’s material.

8. More significantly, the applicant does not supply, in the statutory declaration or subsequently, any detail as to how any future political opinion or activity might manifest in a contemporary environment, beyond it representing the continuation of beliefs that attracted the applicant to the Akila party and the pro-Tamil cause.

9. In this respect, I reject the applicant’s submission that the Authority should have inferred from the applicant’s statement that he would likely be detained upon return that this provided the explanation for any such omission and that such a claim nonetheless remained at large. The obligation reposed in the Authority did not require it to speculate as to how the applicant might propose to give future expression to any extant political belief. This was especially the case where the applicant (including through his legal representative) had failed to complain about the approach taken by the delegate insofar as it did not consider a future political claim and where the applicant (or more particularly, his legal representative) had been reminded in the Practice Direction made under s 473FB of the Act that had accompanied the referral letter that (CB 168):

   Submissions and new information

   20.For the purposes of the review, you may provide a written submission on the following:

   •why you disagree with the decision of the Department

   •any claim or matter that you presented to the Department that was overlooked

   (emphasis added)

10. While I accept that, generally speaking, an applicant for review within the Part 7AA framework will be afforded fewer opportunities to articulate their case then if the matter was before the Tribunal, this does not impose additional obligations on the Authority to identify claims from the material that is before it. The Authority is not required to conduct a review in relation to a case not advanced by a visa applicant.

11. The analysis here does not reflect any abandonment of claims on the part of the applicant but rather a pragmatic view taken of the applicant’s claims having regard to how they were presented over time.

12. It follows that the Authority was not required to consider a claim based on the future expression of a political view.

13. However, if I am wrong in this conclusion, I consider that in circumstances where the applicant supplied no information or detail concerning how any such future political expression might occur or suggest that it would involve conduct or views of a character distinct from the applicant’s past association with Akila, the Authority’s reasoning, which operated on country information that the applicant accepted was capable of being responsive to a future political opinion claim, could be understood as involving a high-level rejection of the applicant’s claims to fear harm on account of his political opinion, however they were expressed and over which time-frame they purported to operate.

14. This is because, as the Minister submits, the Reasons yields to the following analysis:

15. First, the Authority considered that the election results (where the Akila party won only .12% of the vote) demonstrated that the “applicant is not likely to be regarded as a political threat” (Reasons, [17]).

16. Second, the Authority referred to country information concerning the “greatly improved” security situation in the north and east, and to the absence of mention of extortion demands and other crimes committed by paramilitary groups (Reasons, [25]).

17. Third, the Authority found that any interest in the applicant because of his past activities was “very remote” (Reasons, [26]).

18. Fourth, the Authority concluded that the applicant was not “regarded as a political threat to the Sri Lankan government nationally or local government in his home area” (Reasons, [29]).

    ORDERS

19. As I have found that the Authority did not err in the manner alleged by the applicant it must follow that the application filed on 8 December 2017 and amended on 19 October 2023 be dismissed. The applicant must also pay the Minister’s costs in a fixed amount.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons.

Associate:

Dated:       29 November 2023