FEDERAL COURT OF AUSTRALIA

COA16 v Minister for Immigration and Border Protection [2018] FCA 475

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent be granted leave to rely on the notice of contention filed on 19 January 2018.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal except the costs of producing the appeal book.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an appeal from the decision of the Federal Circuit Court to refuse the appellant Constitutional writ relief against the decision of the Immigration Assessment Authority given on 16 August 2016, that affirmed the Minister’s delegate’s decision of 8 July 2016 to refuse to grant the appellant a safe haven enterprise (class XE) (subclass 790) visa for protection under s 36(2)(a) and (aa) of the Migration Act 1958 (Cth): COA16 v Minister for Immigration [2017] FCCA 838.

Background

2    The appellant is a citizen of Sri Lanka who arrived here as an unauthorised maritime arrival on 26 August 2012. The Minister allowed the appellant, under s 46A, to apply for the visa.

3    The appellant’s claims, both before the delegate and the Authority, included that he feared that he would suffer significant harm for the purposes of s 36(2)(aa) were he to return to Sri Lanka and be detained in prison as a failed asylum seeker. Those claims are no longer sustainable based on the findings of the delegate and the Authority, and the decisions of the High Court in Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 and SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405. I need not deal with them further in these reasons except to note that they formed the basis for ground 2 of the appellant’s notice of appeal in this Court challenging the Authority’s finding that he would not suffer significant harm for those reasons were he returned to Sri Lanka.

4    The delegate accepted most of the appellant’s claims as to his and his wife’s past experiences in Sri Lanka, on which he based his claims to protection, other than those on which he relied as having occurred immediately before he left and subsequently.

The delegate’s decision

5    The delegate found that the appellant and his family resided in the Mannar District in the northern province of Sri Lanka, he was ethnically a Tamil of Catholic faith and had been a fisherman who had continually practiced his trade for all his working life since the early 1980s. He found that the appellant’s wife and children had subsequently moved to the Vavuniya District and that she had continued to work there, where they had experienced no problems. He found that that no one had sought the appellant’s whereabouts from his family or others since he departed for Australia.

6    The delegate found that the appellant claimed to fear harm on the basis of his Tamil ethnicity, his religion as a Catholic, and his activities during the Sri Lankan civil war from 1990 to 2007 when he provided low level support to the Liberation Tigers of Tamil Eelam (LTTE) for payment by transporting food, fuels and medicines within the Mannar District on his fishing boat. The delegate found that from about 2004 to 2007, the appellant had to assist the LTTE between three and 10 times per month, being paid for each such activity. He claimed that, as a result of those activities, he would be imputed with a political opinion or being a member of a particular social group that supported the LTTE.

7    He also claimed that he had been interrogated in February 2008 when the Sri Lankan Army had advanced to his home region and that he had been held and interrogated for about eight hours by the army, navy and Criminal Investigation Department (CID) before being released to return to the community. He claimed that he had also participated in a Tamil festival and made verbal statements about the Sri Lankan Government during the ceasefire in the civil war between 2002 and 2006. He claimed his wife had been involved with the LTTE from 1985 to 1991 and that she had been monitored, but never harmed, by Sri Lankan authorities.

8    The delegate accepted the factual basis for all of those claims. He found that the appellant had provided low level support to the LTTE during the conflict through his transportation activities. He found that the Sri Lankan authorities did not consider the appellant to be a member or supporter of the LTTE. The delegate also noted that the appellant had claimed to have suffered some harm from the Indian Army prior to its departure from Sri Lanka in 1991 but that he no longer feared harm from them were he to return to Sri Lanka because the Indian Army was not present there. The delegate also accepted that the appellant had departed Sri Lanka illegally and, if returned, would be viewed as a failed asylum seeker but he had had no involvement in people smuggling activities himself.

9    The appellant had claimed that despite his release by the army in February 2008, following his eight hours of questioning, the Sri Lankan authorities had imputed to him that he had links with the LTTE. The delegate found that, on his own admission, the appellant had not been physically assaulted and had been released, after being questioned, by the authorities on the same day in February 2008 as he came to their attention and that that happened because the Sri Lankan authorities did not find or suspect him to be an LTTE member or sympathiser.

10    The appellant claimed that he had been targeted by the Sri Lankan authorities just prior to his departure for Australia in August 2012. He claimed that, because he was generally known under a different name to his birth name, the Sri Lankan authorities had made inquiries about a person using his birth name. The delegate found that because he was known in his home district under his other name, the authorities knew of that other name and could locate him using it, even if they also knew his birth name. The delegate, as a result, did not accept that the Sri Lankan authorities, including the CID, were looking for the appellant in July and August 2012, shortly before he left for Australia.

11    The appellant also claimed that about six months before his interview with the delegate, Sri Lankan authorities had approached his wife to question her about her role 25 years earlier in the LTTE. The delegate considered country information and the fact that the appellant had told him that his wife had not been harmed by Sri Lankan authorities since she left the LTTE. He accepted that she had been monitored but found that she had never been harmed by the Sri Lankan authorities.

12    The delegate considered country information about the treatment of fishermen in the Mannar area by the Sri Lankan authorities, including its navy. He found that there were some reports that Sri Lankan navy officers, who had been the subject of criminal proceedings in Sri Lanka’s courts, had engaged in mistreatment of fishermen. He found that the navy perpetrators were the subject of action by the Sri Lankan authorities, which indicated that State protection was available for fishermen such as the appellant, and that there was no country information that Sri Lankan fishermen were being arrested or harmed for any Refugees Convention reason.

13    The delegate found, that based on country information, there was no real chance that the appellant would face persecution or serious harm on the basis of any of his claims were he returned to Sri Lanka. Accordingly, the delegate refused to grant the appellant a protection visa.

The proceeding before the Authority

14    The Minister referred the delegate’s decision to the Authority. On 4 August 2016, the appellant provided the Authority with, first, an undated letter from the Human Rights Commission of Sri Lanka, addressed to his wife in Tamil with a certified translation (made on 1 August 2016) informing her that the Commission had received a report from a police station related to a complaint she had made on 10 July 2015, and secondly, a letter from a Sri Lankan member of parliament, dated 20 July 2016.

15    The Authority said that the appellant had given no reasons why either document could not have been provided before the delegate made a decision. The delegate’s decision had been given on 8 July 2016. It found that while the letter from the member of parliament and the translation of the undated letter post-dated the delegate’s decision, they recounted matters that predated it. It based that finding on the facts that the parliamentarian’s letter contained an account of what he said had happened relating to the appellant in 2012 and the Human Rights Commission’s letter related to a complaint that had been created in July 2015 concerning an incident that did not itself have a date.

16    The Authority referred to the fact that during his interview with the delegate on 22 January 2016, the delegate had told the appellant about the need for him to provide the delegate with any further information and about the limits on the Authority’s ability to receive new information after the delegate made any decision.

17    The Authority found that the information in the Commission’s letter did not relate directly to the appellant. It also found that the information in the parliamentarian’s letter referred to the appellant being subject to “frequent torture”, which was contrary to the appellant’s own claims. Accordingly, it found the parliamentarian’s letter not to be credible, so that it did not fall within the definition of credible personal information within the meaning of s 473DD(b)(ii). The Authority found, as a result, that it was not able to consider either letter as new information within the meaning of s 473DD.

18    The Authority accepted the appellant’s claim that he had been forced to work for and interact with the LTTE from 1990 to 2008, as he claimed, and that he had taken part in events and rallies during the LTTE’s control of the area in which he lived, as he claimed. But it rejected his claim that he had also been asked to help Tamil groups and parties. The Authority accepted that his wife was a member of the LTTE from 1985 to 1991 and involved in training other LTTE cadres, but it was not satisfied that she had a training role that equated to a senior role within the LTTE.

19    Like the delegate, the Authority accepted that the appellant had been questioned by the authorities in February 2008 when the Sri Lankan army arrived in his home area but had not been harmed, although he had been threatened, and after eight hours he and his family were released and settled and registered in a town in his area.

20    It noted that the appellant had told the delegate that he had not been specifically targeted by the authorities in Sri Lanka prior to or after the defeat of the LTTE in May 2009 until 10 days before he left for Australia, on 7 August 2012. It accepted, as had the delegate, that several fishermen, including a person called Gilbert, who, like the appellant, had delivered supplies for the LTTE during the hostilities, had been specifically targeted and remained missing. The Authority rejected, as implausible, the appellant’s claim that in July 2012, about 10 days before he left for Australia, the CID were looking for him. It also rejected as implausible that the CID would suddenly wish to question his wife about her membership of the LTTE after showing no interest in that matter for 25 years. The Authority noted that the appellant had explained that he had not mentioned this claim previously because it had only happened six months before his interview with the delegate. It noted that his application for a protection visa had been made four months prior to that interview.

21    The Authority accepted the appellant’s evidence that he faced time and geographic restrictions on his fishing that the Sri Lankan navy had imposed, that sometimes members of the navy and army would ask him for money or fish, and that his boat and nets had been damaged by the navy. However, it found that, notwithstanding those incidents, the appellant had been able to fish and support his family throughout the post-war period in Sri Lanka. It concluded that the incidents that the appellant had experienced did not impact on him to such an extent that they threatened his capacity to subsist or otherwise constituted serious harm.

22    The Authority also accepted that the appellant’s day-to-day activities as a Tamil fisherman were subject to military registration and a day pass system, and that he may well face the same situation were he to return to Sri Lanka. It accepted that this was discriminatory and systematic conduct by the Sri Lankan authorities that presented a level of day-to-day harassment while the appellant undertook fishing and may, in the future, impact on his capacity to earn a living. However, the Authority found that the evidence did not suggest that he or his family were in the past unable to maintain and support themselves through his work as a fisherman or, were he to return to Sri Lanka, that this harassment would operate to such an extent that it would threaten his capacity to subsist or otherwise would constitute serious harm.

23    The Authority considered the eligibility guidelines of the United Nations High Commissioner for Refugees for Sri Lanka relating to persons who had acted or had perceived links with the LTTE that might give rise to the engagement of Australia’s protection obligations. It found that, notwithstanding the appellant’s activities transporting goods for the LTTE and his wife’s activities from 1985 to 1991 as a member of the LTTE, having regard to those eligibility guidelines, he was not at risk of harm because, first, the work in transporting goods had been forced and arose out of his residence in an LTTE controlled area and not from the appellant’s active support for the LTTE, secondly, the authorities were aware of the work that he had done for the LTTE after his questioning in 2008 and showed no further interest in him after he had been released and, thirdly, the authorities had not shown any interest in his wife in the 25 years or so since she left the LTTE. The Authority concluded that, therefore, were he returned to Sri Lanka, he would not be subject to any outstanding investigation that might cause him harm or to be identified as a person of interest to the current Sri Lankan authorities because of any associations in the past with the LTTE or as a fisherman.

24    The Authority noted that the appellant had not expressly raised any claims to fear harm on account of his being Catholic and that he had accepted, during his interview with the delegate, that when he had problems, his bishop had been able to raise matters directly with the Government. It noted that while under the previous Sri Lankan Government acts of violence towards Christians had occurred, there was no real chance at the time of its decision that he would experience harm for that reason or in the reasonably foreseeable future.

25    The Authority found that the appellant did not have a well-founded fear of persecution for a Refugees Convention reason. It then considered his claim to complementary protection under s 36(2)(aa) of the Act, but, based on its findings on his refugee claims, it also found that Australia’s protection obligations were not engaged.

The proceeding before the trial judge

26    In the Federal Circuit Court, the appellant represented himself, as he did before me. His application contained two grounds of review, namely that the Authority had, first, made a jurisdictional error because it failed to find that he was a supporter of the LTTE and would face persecution accordingly on his return to Sri Lanka and, secondly, failed to comply with s 424 of the Act because the Authority had not put relevant material to him before rejecting his claims.

27    His Honour noted that during the hearing the appellant submitted a new explanation to him as to the circumstances of the letter from the Human Rights Commission that he had provided to the Authority. His Honour noted that the appellant had not given that explanation to the Authority and that it concerned an allegation that the person who obtained the letter had been beaten. His Honour observed that the new explanation was information that the appellant provided to the Court had not been given to the Authority and thus it could not have been new information that the Authority had before it. The appellant also argued that he could not return to Sri Lanka and that the Authority had erred because it found he could.

28    His Honour found that the appellant’s submissions, in effect, sought merits review, which the Court was not able to undertake.

29    His Honour rejected the first ground on the basis that the Authority had provided reasons for its finding that the appellant had not been a supporter of the LTTE and that nothing that the appellant had put suggested that there was any illogicality or unreasonableness in the Authority’s reasons that could amount to jurisdictional error. I agree.

30    As I have noted above, the Authority considered the appellant’s circumstances in detail, as had the delegate, and explained why it concluded that, following his interrogation and release in February 2008, because there had been no further interaction with the Sri Lankan authorities, neither the appellant nor his family was considered by them to be associated with the LTTE in an adverse way.

31    His Honour noted that the second ground below related to s 424. He said that section was contained in Pt 7 of the Act and that, as the Minister had argued below, Pt 7AA contained, in s 473DA (which the trial judge’s reasons incorrectly described as s 473BA), different requirements and its own exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority. His Honour then went on to observe that the Authority had complied with “its statutory obligations in the conduct of the review” in providing the appellant with procedural fairness, because it gave him an opportunity to provide new information and to put on submissions. He dismissed the application with costs.

This appeal

32    The Minister seeks leave to file out of time a notice of contention challenging his Honour’s finding on the basis that in the circumstances, relevantly, s 473DA(1) exhaustively stated the requirements of the natural justice hearing rule in relation to the conduct of reviews by the Authority. He contended, that contrary to the trial judge’s observation, by force of s 473DC(2), those requirements did not require the Authority to provide the appellant with an opportunity to provide new information or to put on submissions. There is no prejudice to the appellant in granting an extension of time for the Minister to file and rely on the notice of contention. I grant that extension.

33    Before me, the appellant argued that he could not be made to return to Sir Lanka. He said that he had a friend who had been hospitalised, who had helped him with the English documentation in the case. He said he needed a lawyer to put his case. He told me that the authorities were looking for him because he had transported goods for the LTTE and that he could not go back because he would be in danger. He also alleged that, following his Honour’s decision, he had visited the Department’s office where he had been threatened by an officer that his file would be sent to the authorities in Sri Lanka if he did not leave this country promptly.

34    The notice of appeal asserted two grounds, the second of which, as I noted above, cannot succeed because of the decisions in WZAPN 2524 CLR 610 and SZTAL 347 ALR 407. The first ground of appeal asserted that the appellant could not be returned to Sri Lanka because he would face restrictions and discrimination as a fisherman amounting to persecution based on the Authority’s findings of the harassment that it accepted he may face. The ground also contended that the evidence before the Authority indicated that the situation in Sri Lanka was “fluid” and that the Authority had failed to consider, and thereby fell into a jurisdictional error, that there was a real possibility that the Sri Lankan authorities would increase the restrictions and discrimination placed on Tamil fisherman in the north.

Consideration

35    It is convenient to deal first with the notice of contention. Relevantly, in a case like the present, s 473DB(1) provided that, subject to Pt 7AA, the Authority had to review a fast track reviewable decision, such as the delegate’s, that the Minister had referred to it under s 473CA, by considering the material that the Secretary provided it under s 473CB. Importantly, s 473DA(1) provided that Div 3 of Pt 7AA (and ss 473GA and 473GB which are not relevant to this appeal) was deemed to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. Next, s 473DB(1) provided that, subject to Pt 7AA itself, the Authority had to review the delegate’s decision on the papers without accepting or requesting any new information and without interviewing the applicant for a visa.

36    Subdivision C of Div 3 of Pt 7AA limited the receipt of new information by the Authority to those instances identified in s 473DD, namely, that the Authority had to be satisfied that there were exceptional circumstances to justify it considering the new information and, where relevant, the visa applicant satisfied the Authority that, in relation to any new information that he or she gave or proposed to give it, that information, first, was not and could not have been provided to the Minister or his delegate before the decision under review had been made and, secondly, was credible personal information that was not previously known and had it been known, may have affected the consideration of that applicant’s claims.

37    His Honour did not identify the source of any obligation of procedural fairness that required the Authority to afford an applicant, in the circumstances, any opportunity to provide new information or put submissions. There is nothing in Pt 7AA that prevents an applicant for a visa putting submissions or providing whatever he or she wishes to the Authority for it to consider as new information. However, the material before me does not suggest that, in the circumstances, Pt 7AA imposed on the Authority any obligation to afford an applicant any opportunity to provide new information or put submissions to it.

38    To the extent that the statement by his Honour formed part of his reasons, as opposed to being an unnecessary observation, it was wrong in the circumstances, for the reasons I have given. The Authority had no obligation to provide the appellant with an opportunity to provide new information or put submissions, albeit that he exercised his freedom to provide new material, in the form of the two letters and the translation, to the Authority. It considered those letters and found that it was not able to take them into account as “new information” within the meaning of s 473DD, for the reasons that I have set out above, and those reasons appear to me to have been both open to it and correct.

39    In effect, the appellant’s first ground in his notice of appeal challenges the Authority’s qualitative finding of the nature and degree of the discriminatory and systematic conduct it found that the Sri Lankan authorities had engaged in, and may in the future engage in, in respect of the appellant as a Tamil fisherman seeking to pursue his living. The Authority found that that conduct could impact on his capacity to pursue his living but only to a degree that did not threaten his ability to subsist or otherwise rise to the level of serious or significant harm as defined in ss 5J(4), (5) or 36(2A) of the Act. Under s 5J(5) of the Act, instances of serious harm for the purposes of the assessment of a claim for protection from persecution under the Refugees Convention included a threat to the person’s life or liberty, significant physical harassment or ill treatment, significant economic hardship that threatens the person’s capacity to subsist and the denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist. The definition of “significant harm”, for the purposes of the complementary protection ground under s 36(2A), involved immediate physical impacts on a person such as threats that the person would have the death penalty carried out, be arbitrarily deprived of his or her life, subjected to torture, cruel or inhumane treatment or punishment, or subjected to degrading treatment or punishment.

40    The Authority had regard to the definitions of serious or significant harm. The more limited findings of the impact of the harassment and discrimination that the Authority found that the appellant may suffer were he to be returned to Sri Lanka, did not on their face, amount to the degree of harm that could satisfy either definition.

41    In rejecting the appellant’s claim that he would suffer serious harm for the purposes of s 5J(4) and (5), the Authority performed an evaluation of the degree to which the discriminatory and systematic harassment that it found would threaten the appellant’s capacity to subsist or go about earning his livelihood. In essence, the Authority came to the conclusion that harassing, and no doubt upsetting, as those activities may be and despite their capacity to interrupt the orderly conduct of one’s life as a fisherman, the degree of interference, as found, was not sufficiently substantial to threaten the appellant’s capacity to earn a living that would enable him and his family to subsist.

42    The role of the Court in such a situation is to consider whether the decision-maker, here the Authority, has acted in conducting its review in accordance with the requirements of the Act. It must arrive at a decision that correctly identifies the question which the Act requires it to consider, not take into account irrelevant considerations, take into account all relevant considerations and have a reasoning process, that is rational not illogical, nor otherwise unreasonable. The formation of an assessment of the impact of conduct on a person for the purposes of determining whether he or she has, or will, suffer serious or significant harm within the meaning of statutory definitions such as are found in the Act is an important part of the Authority’s functions.

43    It is not the role of the Court, in conducting judicial review in proceedings such as these, to agree or disagree with the factual assessment at which the Authority arrives. While other persons may have formed a different view as to the nature and degree of the Sri Lankan officials’ conduct that the Authority found amounted to harassment and its potential impact on the appellant’s capacity to subsist or otherwise earn his livelihood, I am not able to see that the Authority made a jurisdictional error in that assessment.

44    For these reasons, I am of opinion that ground 1 must be dismissed.

Conclusion

45    It follows that, since ground 2 is not maintainable and that the appellant has not raised any argument today suggesting that the Authority committed a jurisdictional error, the appeal must be dismissed with costs, other than the costs of producing the appeal books which included a copy of the delegate’s decision that was barely readable because of a faulty printer.

Associate:

Dated:    10 April 2018