FTK17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 200
•6 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FTK17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 200
File number: MLG 2861 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 6 March 2024 Catchwords: MIGRATION – application for judicial review of a decision of the Immigration Assessment Authority – where applicant asserts that the Authority failed to afford proper weight to his claims – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5AA, 36, 473CA,
476, 477
Cases cited: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802
Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285; [2007] FCAFC 162
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17
Division: Division 2 General Federal Law Number of paragraphs: 37 Date of hearing: 1 March 2024 Place: Perth (via Microsoft Teams) Counsel for the Applicant: Mr B Amani Solicitor for the Applicant: Amani Lawyers Counsel for the First Respondent: Mr J Barrington Second Respondent: Submitting appearance, save as to costs. Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 2861 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FTK17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
6 MARCH 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 Sri Lankan Tamil who applied for a protection visa in Australia. A delegate of the Minister refused to grant the visa and the Immigration Assessment Authority (Authority) affirmed the delegate’s decision on 6 December 2017. The applicant seeks judicial review of the Authority decision under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The only ground pressed by the applicant at the hearing of this matter was that the Authority did not give sufficient weight and consideration to his claims for protection. This ground does not establish jurisdictional error in the Authority decision and the application to this Court is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
The applicant arrived in Australia by sea in October 2012 and is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
The applicant applied for a protection visa on 3 November 2016. In his visa application the applicant claimed that he would be discriminated against by the Sinhalese Government Army because of his Tamil ethnicity and because his nephew was in a high position in the Liberation Tigers of Tamil Eelam (LTTE).
The Minister’s delegate made a decision refusing to grant the applicant a protection visa on 30 March 2017. The matter was then referred to the Authority for review pursuant to s 473CA of the Migration Act.
On 6 December 2017 the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
SUMMARY OF AUTHORITY DECISION
The Authority accepted the applicant’s claim that he was detained on two occasions in the early to mid-1980s and that, while detained, he was questioned about his own LTTE knowledge and ordered to identify LTTE supporters and was seriously mistreated. The Authority considered that the applicant’s release on both occasions indicated that he was not a person of further interest to the Sri Lankan authorities at that time.
The Authority accepted that in 2001 the applicant received a telephone death threat from unknown persons who demanded that he pay a large sum of money, or he would be abducted. The Authority was not satisfied that the Sri Lankan Army (SLA) was responsible as the applicant claimed.
The Authority accepted that in 2001 the applicant was assaulted by unknown persons in his shop and required medical treatment. The Authority accepted that the applicant still had injuries from this incident.
The Authority placed little weight on an undated letter of support from a Sri Lankan member of parliament which indicated that the applicant could not stay in Sri Lanka any longer because of the threats to his life. The Authority did not accept that the applicant often received threats that he would be taken away and killed, that he was a person of interest to the Sri Lankan authorities at the time of his departure, or that the authorities had questioned his wife about his whereabouts and his wife was scared.
The Authority accepted that the applicant’s nephew held a senior position with the LTTE and may have received death threats after his release from a rehabilitation camp. The Authority found that the applicant’s evidence as to why his nephew’s LTTE past, or the death threats his nephew received, would cause problems for him was vague and unconvincing. The Authority was not satisfied that the Sri Lankan authorities would impute the applicant to have been involved with the LTTE because of his nephew.
The Authority was not satisfied that the applicant had been denied education, employment or the ability to subsist or earn a livelihood in the past, or personally experienced any other, lesser forms of discrimination.
The Authority was not satisfied that the applicant faced a real chance of harm as a Tamil male from the north, with familial LTTE links. The Authority accepted that the applicant was the victim of robbery in the past but was not satisfied that he faced a real chance of harm because of his public role as a shopkeeper, or for any other reason.
The Authority was not satisfied that the applicant was of interest to the Sri Lankan authorities at the time of his departure from Sri Lanka, or that he would be of adverse interest to the authorities upon his return to Sri Lanka. Having found that the applicant was not of any interest to the Sri Lankan authorities, the Authority was not satisfied that the applicant faced a real chance of harm for having sought asylum in Australia.
The Authority accepted that the applicant departed Sri Lanka illegally and that he may be charged under the Immigrants and Emigrants Act 1949 (Sri Lanka) (Immigrants and Emigrants Act) upon his return to Sri Lanka. Taking into account country information, the Authority was not satisfied that the treatment the applicant may expect to face for breaching the Immigrants and Emigrants Act would amount to serious harm or significant harm.
Taking into account these factual findings, the Authority found that the applicant did not meet the refugee criterion in s 36(2)(a) of the Migration Act or the complementary protection criterion in s 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The applicant filed his judicial review application on 27 December 2017, which is within the prescribed 35-day period to make his application: s 477(1) of the Migration Act.
The applicant’s grounds of application read as follows (without alteration):
1.The decision of the Independent Assessment Authority was affected by jurisdictional error in that it failed to exercise its jurisdiction and/or acted unreasonably.
Particulars
a)The Authority failed to consider the exercise of its discretion under s. 473DC(3) of the Migration Act to invite the applicant to make submissions to it on the question of his fear of persecution within Sri Lanka;
b)The Authority failed to consider the exercise of its discretion under s. 473CC(2)(b) of the Migration Act to remit the matter to the delegate for the issue of fear of persecution to be determined at first instance;
c)The failure to exercise the discretion was unreasonable.
2.The decision of the Independent Assessment Authority was affected by jurisdictional error in that it failed to consider the claims which the applicant had made.
Particulars
a)The Authority did not deal with the applicant’s claims being, amongst other things, that there were threats to his life all over Sri Lanka;
b)The Authority failed to deal with the particularity of the applicant’s claims, in the context of his personal circumstances, and considering the information which had been put forward.
3.The decision of the Independent Assessment Authority was affected by jurisdictional error in that it failed to properly consider material facts and circumstances of the applicant’s claims.
Particulars
a)The applicant’s claims including evidence of material facts and circumstances were not given proper consideration.
The applicant’s written submissions did not specifically address these grounds. Rather, the written submissions filed on behalf of the applicant comprised of 10 paragraphs addressing the reasons the applicant believes he should be granted a protection visa, followed by a final paragraph asserting:
The Authority made jurisdictional error in that the above matters should have been given greater weight and consideration. As a result, we submit that the Authority did not properly consider the applicant’s claims and fear of persecution.
I therefore asked Counsel for the applicant to identify at the hearing the grounds upon which he relies. Counsel for the applicant confirmed that he relies on ground 3 and that he abandons grounds 1 and 2. I therefore do not address grounds 1 and 2 in this judgment.
The evidence before the Court comprises a court book filed on behalf of the Minister on 11 October 2018.
HAS THE APPLICANT ESTABLISHED JURISDICTIONAL ERROR IN THE AUTHORITY DECISION?
The applicant’s written submissions were filed after the Minister had filed written submissions. Upon Counsel for the applicant indicating to the Court that only ground 3 was pressed, I observed that:
(a)the Minister submitted in writing that ground 3 should be dismissed because it did not contain sufficient particulars to be meaningfully understood;
(b)the applicant’s written submissions simply asserted that the Authority should have given greater weight to various matters going to the merits of the case;
(c)the weight to be attributed to evidence is ordinarily a matter for the Authority as part of its fact-finding function and the applicant has not indicated why that amounts to jurisdictional error in this case, so I would give the applicant’s Counsel an opportunity to explain why the applicant says that the weight given to evidence amounts to jurisdictional error; and
(d)if there are any procedural fairness issues that arise from the Minister not being on notice of the applicant’s case, the Court can make appropriate orders to address that.
Summary of the applicant’s submissions
Counsel for the applicant in his oral submissions submitted that the claims made by the applicant, in particular that his nephew was involved in the LTTE and the family connection of the applicant with someone in the LTTE would put the applicant’s life in danger, would, had they been given due consideration, have resulted in a favourable outcome for the applicant. The claims should have been given greater weight in favour of the applicant.
I have considered this in conjunction with the applicant’s written submissions. In summary, the written submissions refer to the applicant’s fear that he will be targeted for harm for the following reasons:
(a)his nephew was a political advisor in the LTTE and the applicant will face a threat to his life from the Sri Lankan government as a family member of a person with links to the LTTE;
(b)he was involved in a security incident in 2001 in which people from the SLA demanded money from the applicant, attacked him and threatened his life;
(c)he repeatedly received threatening calls from different numbers warning and threatening him and while he has been in Australia, his wife has received many calls asking about his whereabouts; and
(d)he left Sri Lanka illegally and stayed away for several years.
Summary of the Minister’s submissions
Counsel for the Minister submitted that the applicant, by this ground, repeated matters that were expressly considered by the Authority and then argued that those matters should have been given greater weight and consideration by the Authority. That is a paradigm example of a merits review submission. Counsel for the Minister submitted that the matters referred to by the applicant were all identified by the Authority in its summary of the applicant’s claims at [10] of its reasons and were all considered by the Authority.
In relation to the applicant’s claims regarding his nephew being a member of the LTTE, being the matter upon which Counsel for the applicant placed the most emphasis in his submissions to the Court, Counsel for the Minister submitted that this was expressly considered by the Authority at [23] and [24] of its reasons. The Authority accepted that the applicant’s nephew held a senior position in the LTTE but rejected that this gave rise to a real risk of harm, principally because the Sri Lankan authorities never raised the matter with the applicant and none of his relatives ever faced negative consequences. Counsel for the Minister submitted that the Authority’s reasons show an evident and intelligible reason for rejecting the claim. More importantly, the Authority’s reasons show that the Authority considered the claim, in the sense that it read, identified and evaluated the relevant claims: see Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 (Plaintiff M1) at [9], [24]. Counsel for the Minister submitted that the Court should not scrutinize the quality of that consideration by asking whether it was genuine, proper and realistic consideration, particularly in circumstances where the applicant’s submissions do not explain how the Authority’s consideration of the claim was insufficient.
Resolution
The applicant’s ground does not establish jurisdictional error.
The applicant’s submissions assert that the Authority did not give sufficient weight to his claims, without making any meaningful attempt to explain why that may amount to jurisdictional error. The weight given to evidence provided by an applicant is generally a matter for the Authority as part of its fact-finding function: see Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285; [2007] FCAFC 162 at [95]; Plaintiff M1 at [24]. As Counsel for the Minister submitted, the applicant’s submission is essentially a merits review submission. This Court does not have jurisdiction to review the factual merits of the Authority decision: Minister for Immigration and Ethnic Affairs v Wu Shang Liang (1996) 185 CLR 259 at 272; [1996] HCA 6. Alternatively or additionally, the submissions advanced on behalf of the applicant amount to an expression of disagreement with the outcome of the review conducted by the Authority. Disagreement, even emphatic disagreement, with an administrative decision does not, of itself, establish jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
The Authority was required to consider the claims advanced by the applicant and their component integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802 at [42]. I accept the Minister’s submission that the Authority considered the claims of the applicant referred to in the applicant’s submissions to the Court.
The applicant’s particular focus at the hearing before this Court was on his claim that he will face the requisite chance of harm on account of his nephew’s involvement in the LTTE.
The Authority considered this claim at [23] and [24] of its reasons, where it said:
23.I accept the applicant’s nephew held a senior position with the LTTE. During the [Safe Haven Enterprise visa (SHEV)] interview the applicant advised the delegate that his nephew was in the LTTE’s political wing, and was in charge of the … district. The applicant believes his nephew was arrested at the end of the civil war and put into a rehabilitation camp. The applicant has heard from relatives that in approximately 2015 his nephew was released from the rehabilitation camp, but started to receive death threats and his since gone overseas. While I accept that this may be the case, the applicant’s evidence as to why his nephew’s LTTE past, or the death threats his nephew received after his release, would cause problems for him, was vague and unconvincing.
24.While the applicant has claimed in his written SHEV statement that the SLA know his nephew held a senior position in the LTTE, the applicant has not given any evidence that the Sri Lankan authorities have ever raised this matter with him. While the applicant has not specified which side of the family his nephew is from, he has not claimed that any of his relatives have faced any negative consequences as a result of this familial connection. On the evidence I am not satisfied that the Sri Lankan authorities would impute the applicant to have been involved with the LTTE because of his nephew.
I accept the Minister’s submission that the Authority’s reasons show an evident and intelligible reason for rejecting the claim. In essence, while the Authority accepted that the applicant’s nephew held a senior position with the LTTE, the Authority was not satisfied that this would result in the applicant being imputed with a pro-LTTE political opinion, in circumstances where the applicant’s evidence was vague and unconvincing and the applicant did not claim that the Sri Lankan authorities had ever raised with him his nephew’s involvement in the LTTE or that any other relatives had faced difficulties as a result of the nephew’s involvement in the LTTE. The finding made by the Authority was open to a logical and rational decision-maker on the material before the Authority and does not disclose any illogicality or irrationality: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [135].
The Authority also considered the other claims that the applicant referred to in his submissions to this Court. In particular:
(a)The Authority considered the applicant’s claim based on the harm he faced in 2001 at [16] to [19] of its reasons. The Authority accepted that the applicant received a telephone death threat from unknown persons who demanded that the applicant pay a large sum of money or face abduction. The Authority also accepted that, later in 2001, the applicant was seriously assaulted by unknown persons in his shop and required medical treatment. However, the Authority did not accept that the SLA was responsible for these incidents and did not find the applicant’s explanations that the SLA were involved to be convincing.
(b)The Authority considered the applicant’s claims to have received threats at [21] of its reasons. The Authority accepted that the applicant may have been well-known because of his role as a shopkeeper, but on the evidence before it, the Authority did not accept that he often received threats that he would be taken away and killed. The Authority did not accept that the applicant was a person of interest to the Sri Lankan authorities at the time of his departure from Sri Lanka in 2012 and, on this basis, did not accept that the Sri Lankan authorities had been questioning the applicant’s wife about his whereabouts.
(c)The Authority considered the applicant’s illegal departure from Sri Lanka, and that he would be returning as a failed asylum seeker, at [30]-[39] and [44]-[45] of its reasons. The Authority accepted that the applicant had departed Sri Lanka illegally and that he would be returning as a failed asylum seeker. The Authority did not consider that the fact that the applicant sought asylum in Australia would result in him being imputed with an anti-Sri Lankan government opinion. The Authority considered country information in relation to the treatment of persons who departed Sri Lanka in contravention of the Immigrants and Emigrants Act and was not satisfied, on the basis of this information, that the treatment the applicant could expect to receive on return to Sri Lanka, as a result of his illegal departure, would amount to serious or significant harm. To the extent that the applicant’s submissions to the Court refer to the length of time that he has lived in Australia, I cannot locate any evidence before the Court to show that the applicant raised a protection claim on this basis before the Authority or the Department and I therefore cannot be satisfied that this was something that the Authority was required to consider.
The findings made by the Authority in relation to the applicant’s claims were all open to it on the evidence before it.
I am satisfied that the Authority considered all of the claims raised by the applicant and made findings that were open to it. The weight attributed to the evidence given by the applicant and the Authority’s assessment of his claims does not demonstrate any illogicality or irrationality.
The applicant’s ground therefore does not establish jurisdictional error.
CONCLUSION
Given that the applicant has not established that the Authority decision is affected by jurisdictional error, his application to the Court for judicial review must be dismissed.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 6 March 2024
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