FEDERAL COURT OF AUSTRALIA

ADE17 v Minister for Immigration and Border Protection [2018] FCA 282

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

(Revised from transcript)

GLEESON J:

1    This is an appeal from a decision of a judge of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the second respondent (“IAA”), which had affirmed a decision of a delegate of the first respondent (“Minister”) not to grant the appellant a protection visa: ADE17 v Minister for Immigration & Anor [2017] FCCA 2361.

2    The notice of appeal sets out the following grounds:

Ground one – did the Authority fail to consider a claim

The IAA failed to assess my claim under particular social groups of Tamil face sexual violence in Sri Lanka. I have given all the particulars of this ground in my Federal Circuit Court of Australia.

Ground two – DFAT reports

I have given all the particulars of this ground in my Federal Circuit Court of Australia.

Ground three – the Practice Direction

I have given all the particulars of this ground in my Federal Circuit Court of Australia.

In addition to the above grounds, I still rely on the grounds and the particulars for the judicial review with the Federal Circuit Court of Australia.

3    In support of his appeal, the appellant filed a written submission apparently also provided to the FCCA. The submission asserts that the IAA erred in eight respects. The submission does not provide any explanation of these assertions. The submission also states that the appellant has “a good case on the facts before the IAA” and that the appellant believes that the IAA’s decision “is not lawful, is not fair and is not valid”. At the hearing of the appeal, the appellant represented himself with the assistance of a Tamil interpreter.

Appeal ground 1: failure to consider claims

4    Although appeal ground 1 is limited to the claim based on membership of the particular social group, Tamils facing sexual violence in Sri Lanka, it is convenient to consider this ground together with the other elements of the first ground of review in the FCCA since the appellant states that he relies on all the matters raised by his grounds of review.

5    Ground 1 of the grounds of review in the FCCA states:

The Reviewer failed to consider relevant consideration and claims articulated by me and my immigration representative and failed to engage in constructive inquisitorial inquiry. The Tribunal failed to exercise its jurisdiction by failing to consider all aspects of my claims.

Particulars

a. I have mentioned in my statement (Para 14) that I faced sexual violence from the Sri Lankan authorities. The Reviewer failed to asses my claim under particular social group of ‘Tamil males face sexual violence in Sri Lanka’.

b. The Reviewer failed to adequately assess my claims under the particular social group of ‘Young Tamil males’.

c. The Reviewer failed to assess my claims either under the Refugee Convention or under the Complementary Protection under the particular social group of ‘eye witness of torture and killing by the Sri Lankan authorities’. In my statement, I noted that I am the only surviving eye witness.

d. The Reviewer failed to assess my claims under the religious ground. I mentioned in my application forms and in the entry interview that I am a Christian. The Reviewer failed to assess my claims either under religious ground or under the particular social group of ‘young Tamil Christian’.

e. The Reviewer failed to assess my claims under the particular social group of ‘Young Tamil businessmen’. I have mentioned that I had a business and faced problems due to my business dealings. The Reviewer failed to assess my claims adequately.

f. The Reviewer failed to assess my claims I mentioned in my entry interview. I mentioned that Sinhala boys used to threaten me. The Reviewer failed to consider my claims that I would face harm from Sinhala boys.

g. The Reviewer overlooked my claim of my imputed political opinion against the Sri Lankan government. The Reviewer only focused on the claim that I would be considered as a LTTE collaborator but failed to consider my imputed political opinion claim against the Sri Lankan government.

h. I mentioned in my entry interview that my brother may have been involved with the LTTE and is missing. The Reviewer failed to assess my claims on the basis of following particular social group ‘member of a family unit of a suspected LTTE member’. If the Reviewer had adequately assessed my claims under the above, he could have formed a different conclusion.

i. The Reviewer failed to ask relevant question whether I have any relatives who could provide personal or financial surety to release me from the detention upon my return to Sri Lanka. Without asking and checking the relevant information, the Reviewer formed a biased opinion that I would be able to furnish surety to get bail from the prison. There is no evidence to support the conclusion of the Reviewer that I would be able to furnish surety to get out from the prison.

j. The Reviewer failed to consider what harm I would face during a brief imprisonment as a result of unlawfully leaving Sri Lanka. The Reviewer failed to consider whether I would face any harm from the Sinhala inmates during that brief detention.

6    The FCCA judge dealt with ground 1 of the grounds of review at [23] to [36] of his Honour’s reasons.

7    Concerning the claim based on membership of the particular social group, Tamils facing sexual violence in Sri Lanka, the FCCA judge said (at [26] of his Honour’s reasons) that no such claim was advanced before the IAA and no such claim arose on the material before the IAA.

8    In response to appeal ground 1, the Minister submitted that the particular social group identified by the appellant is not a valid one as it is defined by a shared fear of harm: cf s 5L of the Migration Act 1958 (Cth) (“Act”). Further, the Minister submitted that the particular social group was never articulated by the appellant nor did it squarely arise from the appellant’s claims.

9    I have read the submissions made on behalf of the appellant to the IAA. Those submissions do not articulate a claim based on the appellant’s membership of the particular social group, Tamils facing sexual violence in Sri Lanka. They do refer to the prospect that the appellant would face torture if he were to return to Sri Lanka. However, that claim was rejected by the IAA.

10    I am not satisfied that there was any error in the FCCA judge’s conclusions that no such claim was advanced before the IAA and no such claim arose on the material before the IAA.

Appeal ground 2: DFAT reports

11    This appeal ground relates to ground 2 of the application for review to the FCCA which states:

The Reviewer has failed to give a copy of the DFAT report which is not publically available and failed to provide me an opportunity to respond to the DFAT report. Though most of the reports mentioned in the DFAT may be available publically however, the comments made by the DFAT mentioned in the DFAT reports are not publically available. I was not given the opportunity to respond to the adverse comments in the DFAT report.

12    The FCCA judge addressed this ground of review as follows, at [38] of his Honour’s reasons:

The Authority’s reasons refer to the same DFAT reports as were identified by the delegate. The Authority had no statutory obligation to give the applicant either a DFAT report or any of the DFAT publications cited by the delegate. Those DFAT reports were not new information and also fell within that nature of country information identified in s.473DE(3)(a) of the Act. Further, the applicant had an opportunity to address the DFAT reports and that opportunity was taken advantage of in the applicant’s submissions. No jurisdictional error as alleged in ground 2 is made out.

13    Section 473DE of the Act provides:

(1)    The Immigration Assessment Authority must, in relation to a fast track reviewable decision:

(a)    give to the referred applicant particulars of any new information, but only if the new information:

(i)    has been, or is to be, considered by the Authority under section 473DD; and

(ii)    would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and

(b)    explain to the referred applicant why the new information is relevant to the review; and

(c)    invite the referred applicant, orally or in writing, to give comments on the new information:

(i)    in writing; or

(ii)    at an interview, whether conducted in person, by telephone or in any other way.

(2)    The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.

(3)    Subsection (1) does not apply to new information that:

(a)    is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or

(b)    is non-disclosable information; or

(c)    is prescribed by regulation for the purposes of this paragraph.

Note:    Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

14    The Minister’s submissions identified three documents which might be the relevant DFAT report. Of these, two reports were cited by the delegate and, accordingly, the IAA was not required to provide them to the appellant by reason of s 473DA(2).

15    The remaining document is entitled “CIS Request Sri Lanka Questions arising from recent applications”. The document is referred to in a footnote to the following finding:

Of the thousands of Tamil asylum seekers who have returned to Sri Lanka since 2009 from western countries including Australia and others with significant Tamil diaspora, there have been reports of mistreatment and torture.

16    Assuming in the appellant’s favour that this document constitutes “new information” within the meaning of s 473DE(1), it does not appear that the new information “would be the reason, or a part of the reason, for affirming the fast track reviewable decision” within s 473DE(1)(b) because it has been cited in support of a proposition that there have been reports of mistreatment and torture. Accordingly, it does not appear that there was an obligation on the IAA to provide the report to the appellant under s 473DE(1).

17    Further, the context in which it is cited suggests that it falls within s 473DE(3)(a), that is, it is not specifically about the appellant and is just about a class of persons of which the appellant is a member. These is no reason to believe that the document does not fall within s 473DE(3)(a).

18    Accordingly, I am not satisfied that appeal ground 2 identifies any error on the part of the FCCA judge.

Appeal ground 3: practice direction

19    This appeal ground relates to ground 3 of the application for review to the FCCA which states:

Due to the page restriction placed on me and on my legal representatives due to the operation of Practice Guidance I was deprived of providing my detailed legal and country submission articulating my claims. The operation of Practice Guidance is merely a directive by the IAA which is not law. As a result of reliance on a mere directive the IAA deprived my legal rights to provide detailed submission. As a result of that, the decision taken by the IAA should be declared void.

20    The FCCA judge addressed this ground of review as follows, at [38] of his Honour’s reasons:

In relation to ground 3, it is not apparent that there was any request for an increase in the page limit in respect of the submissions to be advanced. On the material before the Court, the applicant had a real and proper opportunity to adduce submissions and new information. The new information was not the subject of any page limit. In circumstances where no issue was advanced as to further material that the applicant wished to rely upon, the practice direction of the Authority did not preclude the applicant from providing submissions or an explanation that was longer than five pages. In the present case it is apparent that the applicant had a real and meaningful opportunity to put on submissions and new information. No jurisdictional error as alleged in ground 3 is made out.

21    In response to this appeal ground, the Minister submitted that the validity of the IAA’s Practice Direction was upheld by the Full Court in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12, and that the FCCA judge was correct to reject the ground of review.

22    The appellant’s submission to the IAA was made by a solicitor and registered migration agent. On its face, the submission does not suggest that the appellant was deprived of a reasonable opportunity to present his claims to the IAA. The material available to me does not suggest that the FCCA judge made any error in addressing the third ground of review.

23    Accordingly, I am not satisfied that there is any merit in ground 3 and it must therefore fail.

Conclusion

24    The appeal must be dismissed. Costs should follow the event.

Associate:

Dated:    9 March 2018