FEDERAL COURT OF AUSTRALIA

DDC16 v Minister for Immigration and Border Protection [2017] FCA 1356

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GRIFFITHS J:

1    This appeal relates to a decision of the Federal Circuit Court of Australia (FCCA), which rejected the appellant’s judicial review application in respect of a decision dated 26 September 2016 of the Immigration Assessment Authority (the IAA). The IAA affirmed a decision dated 22 July 2016 of the Minister’s delegate to refuse the appellant a Safe Haven Enterprise Visa. The IAA’s decision was said to have been made under Pt 7AA of the Migration Act 1958 (Cth) (the Act). The Minister has filed a notice of contention.

Summary of background facts

2    The appellant, who is a citizen of Sri Lanka, departed Sri Lanka in September 2012 and arrived in Australia as an unauthorised maritime arrival on 26 September 2012. The primary judge noted at [2] of DDC16 v Minister for Immigration and Border Protection & Anor [2017] FCCA 1267 that the appellant had previously travelled to India on two occasions between 2008 and 2010 and had travelled to Singapore on approximately 12 occasions between 2007 and 2011. The appellant also travelled to Malaysia from Singapore approximately four times.

3    The appellant claimed to fear harm from the Karuna Group. He said that he was a supporter of the Tamil National Alliance (TNA) and had helped with their election campaigns. He said that he had been abducted and harmed by that Group because of his work as a freelance photographer and journalists’ informant who made public injustices to the Tamil people from the Karuna Group and the Sri Lankan Army. He claimed to have been abducted by the Karuna Group in mid-2009 and detained for 9 or 10 days, during which time he said he was beaten and tortured. He claimed that in early 2008 he had witnessed and photographed a murder and had gone into hiding because he was a person of adverse interest to the Group. He said that he feared being harmed by the Sri Lankan Army and the Karuna Group (or the political wing of that Group, which is called Tamil Makkal Viduthalai Pulikal (TMVP)) for exposing the criminal activities of the Group. He claimed that he also feared that the Sri Lankan authorities would arrest him for departing the country illegally and, because he is a Tamil from the East of Sri Lanka, he would be suspected to have links with the LTTE.

The IAA’s reasons for decision summarised

4    In accordance with the relevant provisions of Pt 7AA of the Act, the appellant’s visa application was automatically referred to the IAA for review after the delegate refused the application.

5    The primary judge’s reasons for judgment summarise in [8]-[10] some of the reasons why the IAA rejected the appellant’s claims:

8    The Authority set out the applicant’s claims for protection and the applicant's evidence. The Authority found that the last time the applicant was politically active was in the lead up to the 2010 Parliamentary Elections. The Authority was not satisfied the applicant did photography work or that he provided photos and information to any journalists or media outlets. The Authority was not satisfied that the applicant would be perceived as a photographer, human rights advocate for exposing injustice or for having links to the media. The Authority was not satisfied that the applicant published photographs that are being used in an ongoing murder case or that he witnessed a murder and was questioned by police.

9    The Authority identified significant discrepancies which were regarded as inconsistent in respect of the applicant's claim concerning the Karuna Group, as well as inconsistencies in the measures that he allegedly took to avoid problems with the Karuna Group. The Authority accepted that the applicant had previously faced harassment including interrogations, threats and physical assault from the Karuna Group and SLA who were known to be aligned and conducted such activities in the Eastern Province at the time claimed. The Authority was not satisfied the applicant lived in hiding at any stage and was satisfied that at the time he departed Sri Lanka he was no longer of adverse interest to the Karuna Group or those (sic) SLA or police affiliated with them. The Authority did not accept that the applicant was of adverse interest to other authorities at any time.

10    The Authority was prepared to accept that the CID had visited the applicant's home but did not accept that the CID had made frequent visits or that the reason for the relocation of the applicant's wife and children was because of those CID visits.

6    The IAA was not satisfied that the appellant was a refugee within the meaning of the relevant provisions of the Act. It was not satisfied that he faced a real chance of harm now or in the reasonably foreseeable future on the basis of his ethnicity as a Tamil, or his ethnicity and origins from the East of Sri Lanka. Relying on country information, the IAA found that the appellant would not be at risk of persecution on account of being a Tamil of male gender, nor was it satisfied that his profile was such that he would be at risk upon return of being detained or harmed on the basis of any imputed LTTE support or links. Nor was the IAA satisfied that the operation of relevant provisions of Sri Lanka’s Immigration and Emigration Act 1988 provided a basis for the appellant’s claim to be a refugee.

7    For substantially similar reasons the IAA was not satisfied that the appellant met the relevant complementary protection criteria in s 36(2)(aa) of the Act.

The primary judge’s decision summarised

8    The applicant represented himself below. He provided an outline of written submissions in support of his judicial review grounds. The primary judge noted that the appellant’s originating application initially included the following three grounds (without alteration):

(1)    The IAA’s decision is tainted with jurisdictional error.

(2)    The IAA failed to consider all my claims and circumstances and not to so was procedurally unfair.

(3)    The IAA failed to consider my claims cumulatively.

9    The primary judge also permitted the appellant to raise some additional proposed grounds, as set out in the appellant’s written submissions. In summary, those grounds were as follows (all of which were particularised):

(1)    proposed ground 1, which was to the effect that the IAA failed to consider the real risk of significant harm the appellant may face due to his “proximity” to the Karuna bases and Army camp;

(2)    proposed ground 2, which was to the effect that the IAA’s reasoning was inconsistent and illogical with its own findings in the sense that, even though the IAA found that the influence of the Karuna Group and the TMVP had significantly faded, there remained a risk of the appellant being harmed by the Army or police if he were to return to Sri Lanka and engage in politics;

(3)    proposed ground 3, which was to the effect that the IAA’s reasoning was inconsistent and illogical with its own findings in respect of its finding that it did not accept the appellant’s claim that he had witnessed a murder, yet the IAA explicitly and implicitly accepted that he had knowledge of “their crimes” and was a witness; and

(4)    proposed ground 4, which was to the effect that the IAA’s reasoning was infected with legal error by reference to the Full Court’s decision in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; 243 FCR 556 (SZTAL Full Court).

10    The primary judge rejected each of the three grounds set out in the originating application, as well as the proposed four additional grounds summarised above.

11    In respect of ground 1 in the originating application, the primary judge noted that the generalised assertion of jurisdictional error was unparticularised and no jurisdictional error was made out.

12    In relation to ground 2, the primary judge found that no jurisdictional error was made out because there was no claim or circumstance identified by the appellant which the IAA failed to take into account.

13    In relation to ground 3, the primary judge found that the IAA had expressly referred to taking into account the appellant’s claims cumulatively in respect of both ss 36(2)(a) and (aa) respectively.

14    In relation to proposed ground 1, the primary judge found that the IAA’s reasons disclosed that the IAA was aware of the proximity of the appellant’s location to the Karuna Group’s bases and the Army camp. The primary judge noted that the appellant’s argument amounted to a disagreement with the IAA’s adverse findings.

15    In relation to proposed ground 2, the primary judge rejected the contention that there was illogicality or inconsistency in the IAA’s approach which involved identifying past harm done to the appellant and then assessing the risk of future harm. His Honour also found that the IAA took into account the appellant’s fears of harm from the Karuna Group, the Army and police affiliates.

16    In relation to proposed ground 3, the primary judge rejected the appellant’s contention that it was not open to the IAA to address past matters of the appellant’s abduction and his further claim of having witnessed a murder as a factually distinct claim.

17    In relation to proposed ground 4, the primary judge noted that he was bound by the Full Court’s decision in SZTAL Full Court and he refused to adjourn the proceedings pending the appeal to the High Court. SZTAL Full Court was subsequently upheld by the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34.

The appeal

18    The notice of appeal, which was prepared by the appellant (who represented himself and was assisted by an interpreter at the hearing), contained a single ground as follows (without alteration):

1.    The Federal Circuit Court Judge made a legal error when dismissing proceedings. The FCCA Judge failed to consider all of the grounds that was raised and failed to afford me procedural fairness

a.    More details to be provided once the decision is published.

19    Standard directions were made for the parties to file and serve written outlines of submissions. As noted above, the Minister filed a notice of contention dated 13 September 2017. In essence, the Minister contended that, in rejecting ground 2 of the originating application, the primary judge ought to have held that the effect of s 473DA(1) of the Act was that Pt 7AA exhaustively states the requirements of the natural justice hearing rule in relation to IAA reviews.

20    On 18 November 2017, the appellant filed a two page written outline of submissions. Those submissions were principally directed to opposing the Minister having leave to rely on the notice of contention on the basis that it was filed outside the time limit specified in r 36.24 of the Federal Court Rules 2011 (Cth). The appellant also submitted that his application should be remitted to the FCCA “for reasons outlined in this submission and grounds raised in the lower court”.

21    At the commencement of the hearing of his appeal, the appellant was invited to make oral submissions. In brief, he submitted that all of his claims had not been considered. In response to the Court’s invitation for him to identify any specific claim which had not been considered, he made reference to his involvement with the TNA and the harm he feared from the Karuna Group and the Sri Lankan Army because of things he had witnessed. When it was pointed out to the appellant that these claims had been considered by both the delegate and the IAA but rejected, the appellant said that his complaint was that it was wrong to reject these claims. The appellant was unable to identify any appealable error in the primary judge’s reasons for rejecting his judicial review application which, as noted above, included a claim that the IAA had failed to consider his risk of harm because of his “proximity’ to the Karuna Group’s bases and the Army camp, together with his claim regarding the murder he said he had witnessed.

22    I am not satisfied that the appellant has established any appealable error in the primary judge’s orders or reasons. The primary judge’s reasons for rejecting the seven grounds of judicial review identified by the appellant in his originating application and written submissions below are brief but, in the particular circumstances, adequately explain why the primary judge rejected each of those grounds. The primary judge’s reasons are responsive to the case as presented below by the appellant. The appellant did not claim that the reasons were inadequate in law (see BKL15 v Minister for Immigration and Border Protection [2016] FCA 802; 241 FCR 450 at [8] – [16] per Flick J). It may be noted that extensive reasons were given by both the delegate and the IAA for rejecting the applicant’s claims (219 and 71 paragraphs respectively). The appellant failed to identify any ground raised by him below which was not addressed by the primary judge. Nor did he identify any procedural unfairness.

Conclusion

23    For these reasons, the appeal should be dismissed and the appellant ordered to pay the costs of the first respondent, as agreed or assessed. It is unnecessary to determine whether the Minister should have leave to rely upon the notice of contention.

Associate:

Dated:    27 November 2017