FEDERAL COURT OF AUSTRALIA

AQR17 v Minister for Immigration and Border Protection [2018] FCA 901

ORDERS

THE COURT ORDERS THAT:

1.    An extension of time within which to file an appeal from the Federal Circuit Court of Australia be granted.

2.    The appeal be dismissed with costs as agreed or as assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

ISSUES

1    This is an application for an extension of time within which to appeal from a judgment of the Federal Circuit Court of Australia (the “FCC”) dated 17 October 2017. The FCC dismissed an application for judicial review of a decision of the Immigration Assessment Authority (the “IAA”), the second respondent, to affirm a decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”), the first respondent, to refuse to grant a Safe Haven Enterprise visa (a “SHEV”). The Minister consents to the extension of time, which I ordered, but contends that the judgment below contained no appealable error.

2    The appellant was represented in the proceedings below but not before me.

BACKGROUND

3    The appellant is a Tamil, of Hindu faith, from Sri Lanka. He arrived in Australia in September 2012 as an unauthorised maritime arrival. Having previously lodged an invalid application for a Protection visa in August 2013, he lodged his valid application for a SHEV on 5 January 2016. On 31 August 2016, the Minister refused to grant this visa.

4    The IAA summarised the appellant’s claims of fear in the following terms:

•    While in high school, the applicant narrowly escaped death due to the exchange of gunfire between the Sri Lankan Army (SLA) and the Liberation Tigers of Tamil Eelam (LTTE). In year seven, the applicant ceased his studies due to the civil unrest in Sri Lanka;

•    A street vendor in the Nelli Adi market was killed during an air raid (date unspecified);

•    In 1987, the applicant’s uncle was killed by the SLA under suspicion of being a member of the LTTE;

•    In 2001, the applicant and his work colleagues were beaten by uniformed SLA personnel following an LTTE grenade attack at nearby army checkpoint;

•    The applicant worked in Qatar from October 2001 until July 2007;

•    On 20 September 2008, the applicant’s friend’s father was shot and killed by persons believed to be officers of the Criminal Investigation Department (CID);

•    Later that day, the men believed to be CID officers discovered that the applicant had alerted the Grama Sevaka (GS) of the shooting. The GS advised the applicant not to stay at home;

•    That evening, the applicant stayed at his sister’s home approximately two kilometres away. Later, armed men went to his parents’ home in search of the applicant and threatened and physically assaulted his parents;

•    Several days later, after the applicant had returned home, he fled when he heard the sound of motorbikes approaching. The applicant went to his aunt’s home where he stayed for a short period of time. While at his aunt’s home, a group of men on motorbikes went to his home and again physically assaulted his parents and some friends who were visiting;

•    As it was not safe to remain at his family home, the applicant fled to Negombo, Western Province, where he resided with a friend;

•    While in Negombo, Sinhala speaking men continued to search for the applicant at his family home in South Karaveddy;

•    While in Negombo, the applicant was beaten on several occasions by the Sinhalese majority. Following a specific attack in August 2012, which resulted in the need for nine stitches, the applicant decided to depart Sri Lanka;

•    The Sri Lankan military maintain a high presence in the applicant’s home region of Point Pedro and other Tamil areas in the north;

•    Since arriving in Australia, the applicant’s brothers were harassed by the CID and have since moved to Qatar;

•    The applicant fears he will be harmed by the Sri Lankan authorities due to:

-    him alerting the GS of the incident of 20 September 2008

-    his ethnicity as a Tamil

-    his illegal departure from Sri Lanka

-    his asylum application abroad.

The DeCISION OF THE IAA

5    The issue for determination by the IAA was whether the appellant had a well-founded fear of persecution if he were to return to Sri Lanka. His primary ground was the 2008 incident described above. The IAA accepted that the appellant’s friend’s father had been shot and killed, and that the appellant had attended the scene of this crime. However, due to inconsistencies in the evidence, it did not accept all of the appellant’s account of what occurred thereafter. It found that it was implausible that the appellant had come to the adverse attention of the Criminal Investigation Department (the “CID”) (or other unknown armed group). It also rejected the appellant’s associated claims that he and/or his family had since come to the adverse attention of the CID or other armed men. It was not satisfied that the appellant faced a real chance of serious harm now or in the foreseeable future, if he were to return to Sri Lanka.

THE DECISION OF THE FCC

6    The appellant sought judicial review of the IAA’s decision before the FCC. The grounds which were said to identify jurisdictional error were set out in the appellant’s amended application for review and reproduced by the primary judge at [17] as follows:

1.    The applicant claimed that shortly after 20 September 2008 he fled from his home village of Muthalaikuli to Negombo as it was not safe for the applicant to remain in Muthalaikuli. The Immigration Assessment Authority (‘the IAA’) accepted that the applicant moved from Muthalaikuii to Negombo around that time, but did not consider or deal with the applicant’s claim that the reason or motivation for his move was because it was not safe for him to remain in Muthalaikuli. The IAA thereby overlooked and failed to deal with an aspect of the applicant’s claims which is a jurisdictional error.

2.    In August 2013 the applicant provided a protection visa application to the Department which contained evidence of the applicant in support of his claims. The IAA overlooked or failed to deal with this evidence which is a jurisdictional error.

7    The primary judge rejected the first ground in these terms (at [19]):

[Counsel for the appellant, Mr Zipser,] took the Court to the applicant’s statutory declaration in 2015, identifying his asserted reasons for fleeing to Negombo. It is apparent on a fair reading of the [IAA’s] reasons, that the [IAA] took into account the applicant’s claims and evidence and made adverse findings in relation to the applicant’s claims concerning the alleged consequences of the incident that occurred on 20 September 2008. Whilst the [IAA] accepted that the applicant may have reported the incident to the GS, the applicant’s claims thereafter were the subject of adverse credibility findings. Those adverse credibility findings subsumed the applicant’s evidence in relation to his claimed motivation. There was no failure by the [IAA] to address a component integer of the applicant’s claims. No jurisdictional error as alleged in ground 1 is made out.

As to the second error contended for, the primary judge said (at [20]-[21]):

In relation to ground 2, Mr Zipser of counsel took the Court to the statutory declaration made by the applicant at the time of the invalid application for protection and to the later statutory declaration of the applicant in 2015. Mr Zipser submitted that as there is no reference in the [IAA’s] reasons to the 2013 statutory declaration, it should be inferred that the [IAA] had overlooked the same in relation to the assessment of the credibility of the applicant and in particular, the adverse credibility findings concerning the inconsistencies in the applicant’s evidence in relation to the taking of his identity card.

The [IAA’s] reasons identify having regard to the whole of the material referred to the [IAA] and it is not necessary for the [IAA] to refer to every piece of evidence. There is no proper basis to infer that there was a failure by the [IAA] to take into account the 2013 statement. The adverse credibility findings by the [IAA] were open on the material before the [IAA]. The applicant has failed to establish that the [IAA] overlooked or failed to deal with any material evidence in the circumstances of the present case. No jurisdictional error as alleged in ground 2 is made out.

NOTICE OF APPEAL

8    The grounds relied upon for this appeal, which are set out in the draft notice of appeal, are, in substance, the same as the grounds relied upon in the FCC and set out at [6] of these reasons.

THE APPEAL

9    At the hearing before me, Mr Singleton of counsel appeared briefly for the appellant. An adjournment was sought until a date in August to give the appellant time to obtain legal representation. Given the history of the matter, I declined to grant the adjournment sought, but did give Mr Singleton 14 days within which to file and serve any written submissions on behalf of the appellant, with the Minister to respond within seven days thereafter. I also informed the parties that whether I would convene a further hearing for oral argument would depend upon the content of any submissions filed. As it happens, no written submissions were filed, although Mr Singleton informed the Court (by email) that this was not be taken as a comment on the merits of the appeal. The Court is indebted to Mr Singleton for the assistance he gave the appellant.

10    I now turn to consider each of the grounds of appeal.

11    As to the first ground, I am satisfied that the IAA took into account the appellant’s reasons or motivation for going to Negombo. Paragraph [4] of the IAA’s reasons include the following statement:

As it was not safe to remain at his family home, the applicant fled to Negombo, Western Province, where he resided with a friend…

12    Then at [19] and [22] the IAA said:

In his SHEV statement, the applicant claimed that around one to two days after returning to the family home, he heard the sound of motorbikes approaching at night. The applicant feared he would be harmed so he escaped through the rear entrance of the home and fled to his aunt’s home where he remained for a week. In the SHEV interview, the applicant claimed that he stayed at his aunt’s home for nine to ten days. Later in the interview, the applicant said that he stayed with his aunt for one week.

…

The applicant claimed that soon after the shooting incident of September 2008, he travelled by ship to his friend’s home in Negombo, Western Province, where he remained until he departed Sri Lanka in August 2012.

13    When these three paragraphs are read together, it is plain that the appellant’s reasons for going to Negombo were considered by the IAA. Ground one is rejected.

14    The Minister made the following submission in writing in relation to the ground two:

The [IAA] does not expressly refer to the invalid Protection visa application in its reasons for decision. However the mere fact that a document is not referred to in a decision-maker’s reasons does not necessarily mean the matter was not considered: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [31]. There is no evidentiary foundation on which to infer that the [IAA] overlooked the applicant’s invalid application for a Protection visa. The applicant bears the onus in this respect: SZGUR at [67].

Further and in any event, the applicant has not demonstrated that any part of the invalid Protection visa application was of some import when regard is had to its cogency and its significance to the decision-maker’s reasoning: see Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67 at [54], [56], [58]. In Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, Robertson J held at [111] that the ‘fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error’ and, at [112], that whether the Tribunal is obliged to consider evidence depends ‘on the circumstances of the case and the nature of the document’, including ‘first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims.’ See, similarly, SZSRS at [29].

15    With respect, that submission should be accepted. The statutory declaration which accompanied the invalid Protection visa application was before the IAA as part of the material sent to it pursuant to s 473CB of the Migration Act 1958 (Cth). At [3] the IAA said:

I have had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act). No further information was obtained or received by the IAA.

There is no reason to suspect from the detailed narration of the facts that it was not considered. In any event, its contents did not add anything to, or contradict, the facts found by the IAA.

16    On the one contested issue concerning production of the appellant’s identity card, I am satisfied that the statutory declaration added nothing to the statements made by the appellant in his SHEV application, which was expressly considered by the IAA. The statutory declaration given in support of the SHEV application relevantly states:

One of the four men spoke in Tamil and asked what was the problem and as to why I was taking the GS to Karaveddy. I told them that my friend’s father had been shot and killed. The men took my National ID card (NIC) from me and asked me what was my involvement in this incident.

At that moment the GS and the four armed men got into a heated argument. The GS who was a Tamil spoke Sinhala hence he was able to communicate with the armed men. The GS prevented the men from taking away my NIC.

17    The statutory declaration given in support of the invalid Protection visa application describes the incident in similar terms. It states:

They asked me what my problem was, and why I was taking the GS Officer to Karaveddy. They also asked how I was related to [S] and demanded my National ID Card. I replied that [S] was my friend's father.

At that point, the GS Officer had a heated discussion with the four men in Sinhala, four [sic] around 15 minutes. He didn’t allow the masked men to take my National ID Card.

18    The foregoing evidence is also consistent with what the appellant had said in his SHEV interview, considered in the reasons of the IAA. In each case, the appellant’s claim remained essentially the same, namely that the Grama Sevaka prevented production of the identity card to the four men.

19    In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, French, Sackville and Hely JJ said at [46]:

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

20    In my view, if there was a failure on the part of the IAA to refer to or consider the statutory declaration given in support of the invalid Protection visa application, it was not evidence that might have led the IAA to make a different finding of fact.

21    The appeal is dismissed with costs as agreed or assessed.

Associate:

Dated:    15 June 2018