FEDERAL COURT OF AUSTRALIA

DLC17 v Minister for Home Affairs [2018] FCA 1226

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal is dismissed.

2.    The applicant is to pay the first respondent's costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    This is an application properly described as an application for leave to appeal from the decision of the Federal Circuit Court that summarily dismissed, under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the applicant's application for judicial review of the decision of the Immigration Assessment Authority (Authority) to affirm the Minister's delegate's decision to refuse a safe haven enterprise visa (SHEV): DLC17 v Minister for Immigration and Border Protection [2018] FCCA 791. The filed papers have proceeded on the basis that the proceedings are an appeal, but the applicant in fact requires leave to appeal, as r 44.12(2) provides that a summary dismissal under r 44.12(1)(a) is interlocutory.

Background

2    The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival in August 2012.

3    The Minister exercised his power under s 46A(2) of the Migration Act 1958 (Cth) (Act) to allow the applicant to lodge a valid application for, relevantly, a SHEV.

4    The applicant by his solicitor and migration agent lodged an application. He attended an interview with a delegate of the Minister and was further interviewed by telephone in relation to claims concerning his father which were not tested at the first interview.

5    A delegate of the Minister decided not to grant the applicant a SHEV.

6    In accordance with s 473CA of the Act, the delegate's decision was referred to the Authority for review.

7    The applicant's new migration agent provided a submission to the Authority in relation to the delegate's decision.

8    Having had regard to the material provided by the Secretary under s 473CB of the Act and the submission provided on the applicant's behalf (save for aspects that comprised new information), the Authority affirmed the delegate's decision not to grant the applicant a protection visa by way of a SHEV.

Before the Authority

9    The applicant's protection claims can be summarised as follows:

(a)    in 1999 the applicant, a Tamil fisherman, relocated to Moonampiti by reason of conflict in the Mannar District;

(b)    the applicant and his family lived in areas controlled by the Liberation Tigers of Tamil Eelam (LTTE) and as a result the applicant and his family were suspected of having an involvement with the LTTE;

(c)    the applicant's uncle was detained by the Criminal Investigation Department (CID) in 2010 for two years;

(d)    in 2011 the applicant was asked by a naval person whether he was an LTTE Tiger and when he denied it, the person threw a cup of tea in his face;

(e)    in April 2012 while at a soccer ground, five officers from the CID accosted the applicant and he was slapped, before spectators intervened;

(f)    the applicant's father would drink and become violent and hit the applicant, but the applicant did not report episodes of the drunken violence to police as he did not want to involve police in the lives of his family, especially as they were Tamil;

(g)    the applicant fears persecution from the CID on the basis of being a Tamil and being imputed with an LTTE connection; and

(h)    he also fears persecution on the basis of his illegal departure and from his father.

10    The findings and reasons of the Authority can be summarised as follows:

(a)    the applicant had not raised domestic violence and alcoholism on the part of his father during his entry interview, despite referring to his father and stating that his father had organised and paid for his travel to Australia. However, the Authority was prepared to accept as credible his claims that he and his siblings suffered some abuse at the hands of his father. The Authority considered the harm was a private harm and took into account the information from the applicant that his father had largely stopped drinking and that the applicant kept in touch with him in finding that there was no real risk of significant harm from his father's conduct;

(b)    the Authority accepted that the applicant was assaulted by a naval person throwing tea in his face, considered that was a relatively trivial event and did not accept that the applicant had a profile with the navy which would cause the Sri Lankan authorities to target him for harm;

(c)    the Authority did not accept that the applicant's remote and minor links with the LTTE would cause the applicant to be a person of interest to Sri Lankan authorities or that he would be imputed with pro-LTTE or anti-government political opinion;

(d)    the Authority did not accept that the applicant would be subjected to discrimination or economic hardship, although it accepted that the military restricts access to some abundant fishing areas and that he may need to move to less-abundant areas to fish;

(e)    the Authority accepted the applicant's evidence as to the event at the soccer field and accepted that his uncle was detained by the CID, but on the basis of country information said that the overall situation has improved for Tamils in Sri Lanka and the evidence did not suggest that the applicant was the subject of adverse interest or ongoing interest to the CID between the soccer field incident and his departure from Sri Lanka;

(f)    the Authority was not satisfied that remote and minor links to the LTTE would be sufficient to cause the applicant to be a person of concern to the Sri Lankan authorities;

(g)    the Authority considered there is no credible claim of any serious harm to the applicant by reason of him being a Tamil and was not satisfied that the applicant faces a real chance of serious harm due to any imputed links to the LTTE;

(h)    the Authority did not accept that any penalty the applicant might face on his return to Sri Lanka on account of his illegal departure would constitute persecution, taking into account that country information was to the effect he would likely be charged, fined and then released;

(i)    the Authority did not accept the applicant would be harmed by the Sri Lankan authorities on the basis he would be a failed asylum seeker, based on country information;

(j)    accordingly, the Authority did not accept that the applicant satisfied the criteria for being a refugee as defined in s 5H(1) and under s 36(2)(a) of the Act; and

(k)    the Authority did not accept that the applicant would suffer consequences on account of his illegal departure or that there was a level of societal discrimination against Tamils in Sri Lanka that would constitute significant harm for the purposes of s 36(2)(a) of the Act, and did not accept that the applicant satisfied the complementary protection criterion.

Before the Federal Circuit Court

11    The applicant applied to the Federal Circuit Court for judicial review of the Authority's decision. The grounds of application were set out as follows:

1.    Jurisdictional error;

2.    Bias based on conscious or unconscious prejudice by ignoring relevant material; and

3.    Identifying a wrong issue on a wrong question.

12    The application was listed originally for a final hearing on 30 March 2021, but on 8 February 2018 the primary judge made orders for a show cause hearing under r 44.12 of the Federal Circuit Court Rules to be held on 19 March 2018. The applicant attended both hearings.

13    The applicant was on notice by his attendance at the 8 February 2018 hearing and also by written notice that the show cause hearing was proceeding on 19 March 2018.

14    For ease of reference, I include the paragraphs from the primary judge's reasons that explain the hearing dates:

1.    … On that occasion [8 February 2018] I said the following -

This case is presently fixed for hearing on 30 March 2021, three years from now. I have read the papers in this case and there are issues about whether an arguable case has been raised by you. In those circumstances it seems to me to be best not to wait for three years but to bring this case on for a show cause hearing next month.

2.    A little later in the exchange the following took place -

THE INTERPRETER:    OK. So, are you telling me, my lord, that that next month you are going to fix a hearing for me?

HIS HONOUR:     Next month I am going to hear this case.

THE INTERPRETER:    Yes. I agree.

3.    I told the applicant that he should ask for legal help if he had any concerns. The exchange went as follows –

HIS HONOUR:    Thank you. If you have any concerns, you should ask for legal help.

THE INTERPRETER:    Okay. Understand.

HIS HONOUR:    Have you followed everything so far?

THE INTERPRETER:    Yes, I understand. That means you're telling next month you will have the hearing, and I will prepare myself.

HIS HONOUR:    Excellent. Thank you.

15    I also note that the applicant attended in person for the hearings in the Perth Registry, while the primary judge was located in the Melbourne Registry. According to the applicant, the hearing of 19 March 2018 commenced by video-link but the link failed, and it then proceeded by telephone link. Video and audio links for Federal Circuit Court hearings are permitted by s 66 of the Federal Circuit Court of Australia Act 1999 (Cth).

16    The primary judge delivered ex tempore reasons on 19 March 2018 and ordered that the application be summarily dismissed.

17    The primary judge dismissed the application for the following reasons:

(a)    the applicant's grounds were not particularised and on that basis the primary judge was entitled to dismiss the proceedings (relying on, amongst other authorities, AQN15 v Minister for Immigration and Border Protection [2016] FCA 571);

(b)    the applicant did not say what the Authority did that was wrong, despite the primary judge asking him that question three times;

(c)    the applicant said in response only that he really did not know what the Authority did that was wrong but there are problems in his country and because of that he cannot go back, and the Authority did not accept what he said;

(d)    ground 1 relied upon was not a proper ground of review;

(e)    ground 2 was a baseless allegation of bias and far from there being evidence of bias, the Authority had properly and diligently considered all claims the applicant raised;

(f)    it was a matter for the Authority as to what country information it relied upon (relying on VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29);

(g)    the manner in which the Authority undertakes its task is circumscribed by the terms of Part 7AA of the Act and in any event the Authority appeared to have discharged its statutory obligations properly;

(h)    ground 2 was therefore rejected;

(i)    ground 3 failed to identify any error and was rejected;

(j)    the applicant therefore failed to make out that he had advanced a reasonably arguable case that he was entitled to relief;

(k)    at no stage had the applicant put forward details of why he asserted the Authority had erred, despite opportunities to provide written submissions and the opportunity at the hearing to articulate any such errors he relied upon; and

(l)    despite the caution required in ordering summary dismissal, there were no contentions advanced such that the primary judge should not dismiss the case.

This application

18    This proceeding was purportedly commenced by notice of appeal lodged on 8 April 2018. By that notice, the applicant seeks to appeal from the whole of the judgment of the primary judge of 19 March 2018. The sole ground of appeal is stated to be:

Jurisdictional error due to no following or facts presented.

19    Bearing in mind that the applicant requires leave to appeal, I must take into account the statements of principle in Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397, to the effect that this Court will generally grant leave to appeal where the applicant shows that there is sufficient doubt as to the correctness of the judgment subject to the proposed appeal to warrant review and, further, if that judgment is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused.

20    Self-evidently, the purported ground does not disclose any identified error and no particulars were provided.

21    The applicant was ordered to file a written outline no later than 10 days prior to the hearing before me. He did not do so. He did, however, file an affidavit that states (to paraphrase) that he was the subject of harassment on the basis that he is a Tamil and his family have connections with the LTTE; the armed forces of Sri Lanka had 'tremendous power' and he is sure that if he is returned to Sri Lanka he will be arrested and detained; the UNHCR is investigating allegations of human rights abuses against Sri Lankan Tamils; he has a well-founded fear of returning to Sri Lanka; he was confused by a video-link that apparently failed and was replaced by a telephone link and was therefore not given a proper chance to make submissions before the Federal Circuit Court. I accepted the affidavit but on the basis that apart from the evidence he seeks to rely on as to the hearing of 19 March 2018, the matters otherwise set out in effect purport to particularise the grounds of appeal and comprise submission, and are not accepted as new evidence on the appeal.

22    During the course of the hearing before me, the applicant handed up submissions. Those submissions state (verbatim):

1.    I am the appellant in the above case.

2.    The second Respondent and the primary court judge did not examine the laws of Sri Lanka in examining my case for a Protection Visa under the Migration Act 1958.

3.    The Prevention of Terrorism Act was aimed against the Sri Lankan Tamils who fought for a separate state as they were persecuted by the government of Sri Lanka which is dominated by the Sinhalese who are the majority ethnic community of Sri Lanka.

4.    The primary judge erred by completely agreeing with the decision of the second Respondent and thereby fell into jurisdictional error.

5.    Reference is made to paragraphs 10, 12, 14, 18, 20, 21 of the judgment handed by the primary judge on the 19th of March 2018.

6.    My submission is that your honour orders a new inquiry be made to my application to remain in Australia with Protection Visa under the provisions of the Migration Act 1958.

23    The applicant is unrepresented. At best, it could be said that two of the matters he raised relate to the decision of the primary judge, being the applicant's claim in his affidavit that he was unable to make submissions before the primary judge, and the assertion in his submissions that the primary judge erred by agreeing with the Authority. The latter assertion can be dealt with briefly. The mere fact that a Federal Circuit Court does not find error in the decision of the Authority is not a valid ground of appeal and does not disclose error. I will return to the contention as to lack of an opportunity to make submissions.

24    Otherwise, the matters the applicant raises are matters that challenge the reasons of the Authority and its treatment of the applicant's protection claims (including as to country information). Allowing some tolerance and latitude to the applicant, and having regard to the nature of the SHEV application, I will treat the matters that touch on protection claims referred to in his affidavit and submissions as amounting to a complaint that the primary judge erred in failing to accept that those matters revealed jurisdictional error on the part of the Authority.

25    The Authority's reasons are detailed and I have summarised the main findings above. It accepted much of the applicant's evidence. It accepted as credible the claims that the applicant and his siblings had suffered some abuse at the hands of his father. It accepted there was an assault by a naval person and that the event at the soccer field occurred, but did not accept that the applicant had a profile such as would make the applicant a target in Sri Lanka. It took into account the nature of that conduct in coming to that conclusion, a conclusion that was open to it on the evidence as to the type of assaults and the country information before it. The Authority gave careful consideration to country information about the treatment of Tamils and the manner in which the applicant might be treated upon any return to Sri Lanka, taking into account that he would be a failed asylum seeker. The country information referred to provides a rational basis for its findings on those matters. There is nothing in the reasons that suggests a proper foundation for an allegation of bias. Having carefully reviewed the Authority's reasons and the material in the Court Book that was before the primary judge, it seems to me that its decision cannot properly be described as unreasonable or revealing jurisdictional error.

26    The primary judge accurately summarised the applicant's protection claims before the Authority and also noted that the Authority did not accept that the applicant would be subjected to discrimination or economic hardship, or would be persecuted upon his return. The primary judge noted that the applicant's links with the LTTE were minor and would not cause the applicant to be a person of interest to the Sri Lankan authorities. The primary judge also referred in his summary of the Authority's reasons to the fact that the Authority was not satisfied that the applicant satisfied the criteria of being a refugee or Australia's complementary protection criterion. The primary judge clearly took into account that the Authority referred to country information, as evidenced by the primary judge's comment that it was a matter for the Authority as to what country information it relied upon. Therefore, the primary judge was clearly aware of and addressed the various protection matters before the Authority and raised by the applicant in his affidavit and submissions provided to me.

27    The applicant has not pointed to any deficiency in the manner in which the primary judge reviewed the evidence or matters raised before the Authority. Nor has he pointed to any error on the part of the primary judge as to the manner in which his Honour's discretion was exercised to summarily dismiss the application. Nor did the applicant raise by oral submission before me matters that supported any argument that the primary judge's reasoning as to the Authority's findings was incorrect.

28    As to the applicant's claim that he was confused and not given the proper chance to make submissions before the Federal Circuit Court, I am not persuaded that there was any relevant lack of procedural fairness. The applicant was aware of the show cause hearing. The primary judge set out in his reasons that he asked the applicant three times and gave him the opportunity to explain alleged errors on the part of the Authority. The applicant was clearly provided with the opportunity to file written submissions prior to the hearing and did not do so. The applicant says the hearing commenced by video link and then proceeded by telephone link. He does not suggest that such course prevented him from making the submissions he wished to make. He simply says that he was 'confused' by that process. That is different to a denial of an opportunity to present submissions.

Additional documents handed up in Court

29    I should add that during the course of the hearing before me the applicant sought to rely upon two further documents. The applicant contended before me that he was not allowed to provide the documents to the primary judge. One was a copy affidavit affirmed by the applicant on 27 February 2018. The Federal Circuit Court records indicate the affidavit was filed in that Court on 2 March 2018. Further, the Minister's written submissions filed in the Federal Circuit Court and dated 9 March 2018 refer to the affidavit. Accordingly, I am not persuaded that the affidavit was not available to the primary judge or that the applicant was unable to file or rely upon it. The affidavit repeats the applicant's claims and attaches country information dated 5 February 2018.

30    The other document was a submission. There is no record that it was filed. It is dated 19 March 2018. I accepted the submission in order to understand the applicant's submission that he had been unable to provide the document. It asserts that the Authority failed to examine 'the real country situation in Sri Lanka' and attaches country information dated March 2018.

31    The task of the Authority is to make the correct and preferable decision on evidence as at the date of its decision: Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39; (1979) 24 ALR 577 at 589; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at 298-299 [35]-[38], 304 [60] (Kirby J). There is no suggestion the information was before the Authority or was ignored by the Authority. It was not for the primary judge to accept evidence of country information subsequent to the decision of the Authority. It was not for the primary judge to make factual findings as to country information: that was the task for the Authority. The weight to be attached to country information is a matter for the Authority: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] in the context of the former Refugee Review Tribunal, applied in the context of the Authority in BPC16 v Minister for Immigration and Border Protection [2018] FCA 920 at [60]–[63].

Determination

32    Having carefully considered the various matters raised by the applicant in his affidavit filed in this appeal and his written and oral submissions and having reviewed the Authority's reasons, I am not satisfied that the proposed ground of appeal has sufficient merit to warrant leave being given to the applicant to raise it on appeal. I do not consider there is sufficient merit in an argument that the primary judge's assessment of the decision of the Authority was wrong. I consider the decision to summarily dismiss the application was open to the primary judge on the materials before him, and in light of the lack of merit in the application for review. No error in the exercise of his discretion to order summary dismissal is established.

33    Therefore, the application for leave to appeal is dismissed with costs.

Associate:

Dated:    16 August 2018