FEDERAL COURT OF AUSTRALIA

DOD16 v Minister for Immigration and Border Protection [2018] FCA 1359

Appeal from:

DOD16 v Minister for Immigration and Border Protection [2018] FCCA 1108

File number:

NSD 635 of 2018

Judge:

BANKS-SMITH J

Date of judgment:

6 September 2018

Catchwords:

MIGRATION - appeal from decision of Federal Circuit Court of Australia dismissing application for judicial review of Immigration Assessment Authority decision affirming delegate's refusal to grant protection visa - where alleged error by Immigration Assessment Authority in failing to differentiate position of appellant from that of his cousins in assessing risk of harm - where reasons indicate differences were taken into account - whether matters considered cumulatively by Immigration Assessment Authority - whether ex tempore reasons of Federal Circuit Court judge revealed sufficient consideration - appeal dismissed

Legislation:

Migration Act 1958 (Cth) ss 46A(2), 473CB

Cases cited:

BKL15 v Minister for Immigration and Border Protection [2016] FCA 802; (2016) 241 FCR 450

BKU16 v Minister for Immigration and Border Protection [2017] FCA 1402

Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188

Date of hearing:

28 August 2018

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

45

Counsel for the Appellant:

The Appellant appeared in person with the assistance of an interpreter

Counsel for the First Respondent:

Ms R Graycar

Solicitor for the First Respondent:

Minter Ellison

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice

ORDERS

NSD 635 of 2018

BETWEEN:

DOD16

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

BANKS-SMITH J

DATE OF ORDER:

6 September 2018

THE COURT ORDERS THAT:

1.    The appellant has leave to amend the appeal grounds to include the ground of appeal raised by his submissions dated 28 August 2018.

2.    The appeal is dismissed.

3.    The appellant 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 appeal from the decision of the Federal Circuit Court dismissing the appellant's application for judicial review of the decision of the Immigration Assessment Authority (Authority) to affirm the Minister's delegate's decision to refuse to grant the appellant a safe haven enterprise visa (SHEV): DOD16 v Minister for Immigration and Border Protection [2018] FCCA 1108.

Background

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

3    The Minister exercised his power under s 46A(2) of the Migration Act 1958 (Cth) (Act) to allow the appellant to lodge a SHEV and he did so in February 2016. He lodged with his application a statutory declaration setting out his claims for protection (summarised below). He also attended an interview.

4    On 13 September 2016 a delegate of the Minister refused the appellant's application for a SHEV.

5    Pursuant to s 473CA of the Act, the delegate's decision was referred to the Authority for fast track review. On 16 September 2016 the Authority wrote to the appellant informing him of the review and informing him that new information could only be considered in limited circumstances.

6    On 31 October 2016 the Authority decided to affirm the decision not to grant the appellant a SHEV. The Authority had regard to the material referred by the Secretary under s 473CB of the Act. No other information was provided.

7    The appellant applied to the Federal Circuit Court for judicial review of the Authority's decision and that application was dismissed.

8    The appellant now appeals from the decision of the Federal Circuit Court.

The protection claims

9    The protection claims made by the appellant in his SHEV application and considered by the Authority, taking into account his application and interview, were summarised by the Authority and included in the primary judge's reasons (save for some re-formatting) as follows:

(a)    the appellant is a Tamil from the Batticaloa District, Eastern Province, Sri Lanka;

(b)    the family had not experienced any problems with the authorities until 2004 when the appellant's cousin was abducted. This cousin was linked to the Liberation Tigers of Tamil Eelam (LTTE) and the appellant believes he was abducted by the paramilitary Karuna group. This cousin is still missing;

(c)    the appellant's father was involved in trying to locate the cousin as his own father (the appellant's uncle) was overseas at the time. The disappearance was reported to the International Committee of the Red Cross and the appellant's father lodged a complaint with the police;

(d)    the appellant's father was then targeted by unknown persons who said they were from the Criminal Investigations Department (CID). The appellant believes they may have been from the paramilitary Karuna group as they spoke in Tamil;

(e)    the family decided to move to the Badulla area in 2004 to avoid further harassment. The family remained there until moving back to Mandoor, Batticaloa district, in 2008. As they had recently returned to the area the Karuna group were interested in the family and the appellant's father was questioned about their activities and any links to the LTTE. The appellant believes his father was suspected of being linked to the LTTE because of his close relationship to his abducted nephew;

(f)    the appellant's father was arrested by the police in 2009 on suspicion of being involved with the LTTE. He was questioned and detained for two days. The CID came regularly to the family home in search of the appellant's cousin. In a separate incident in 2009 the appellant's father was taken by men claiming to be CID, held for the day and physically abused;

(g)    from 2009, the CID began to ask about the appellant and he was afraid the CID or Karuna group may harm him. He left the family home and stayed with friends and relatives in the Batticaloa and Ampara districts while studying and working. The CID continued to go to his parent's house in Mandoor looking for him;

(h)    the appellant's parents were concerned for his safety and made arrangements for him to leave Sri Lanka. The CID continued to visit his parents until 2013 and they relocated to Kallady to avoid further harassment;

(i)    the appellant fears that because of the link to his abducted cousin he has been imputed with an LTTE profile and will be harmed by the authorities or paramilitary groups on return to Sri Lanka. It was contended that the appellant meets a risk profile as a family member of an LTTE combatant; and

(j)    he fears that as he has departed Sri Lanka illegally he could be imprisoned on return and face harm whilst imprisoned.

Before the Authority

10    The Authority then considered the appellant's claims for protection. It generally accepted the appellant's account of events. In particular, it accepted that:

(a)    the appellant's cousin was abducted in 2014 and remains missing;

(b)    the appellant's father experienced harassment from various authorities or paramilitary groups in 2004 when making inquiries about his missing nephew and the family moved to Badulla to avoid further harassment;

(c)    upon return to Mandoor in 2008, his family 'came to attention' and his father was questioned and detained; and

(d)    inquiries continued to be made about the appellant from 2009 to 2013.

11    The Authority noted the appellant's contention that he was a family member of an LTTE combatant and meets a risk profile set out in the current UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka. Those Guidelines state that 'links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case', and that this may include 'persons with family links or who are dependent on or otherwise closely related to persons who were former LTTE combatants'.

12    The following paragraphs from the Authority's reasons are particularly important in that they refer to the respective positions of the appellant, his father and the cousin's brothers, matters that are addressed further below:

[12]    In assessing whether the applicant would be at risk of harm on the basis of an LTTE family link, I have also had regard to the situation of the cousin's two brothers. The applicant has stated that the situation was 'worse' for his family than his cousin's family as his father was involved in the initial search for the cousin and the cousin spent considerable time with the applicant's family. I note the two families were very close and the cousin's time with the applicant's family may have been noted by the authorities and indicated a close familial link. I accept the applicant's father's role in making enquiries about the missing cousin in 2004 may have contributed to the authorities attributing a close family link. I accept this would explain an interest from the authorities in the applicant, despite him being just a cousin, but I consider it does not rule out the authorities having an interest in the missing cousin's two brothers. I consider it highly likely that, if the authorities had an interest in the family of the missing cousin, this interest would extend to the cousin's brothers, as well as the applicant.

[13]    I note that both these brothers are living and working in Sri Lanka and there is no indication of any interest in them from the authorities. I note that one of the brothers left Sri Lanka for Qatar in 2007 and has since returned and is living again in Sri Lanka. There is no indication that he faced any problems departing or returning to Sri Lanka.

[14]    I have had regard to the representative's submission that the brothers may have faced harm but that there is no information available. The applicant has stated that the families are very close, and that his cousins are almost like brothers. Considering the claimed strength of the relationship between the families, and that one of his sisters has lived with the cousin's family for many years, I find the claimed lack of information surprising. Both brothers are living and working openly in Sri Lanka and I find that they have not attracted adverse attention and that the authorities or paramilitary groups do not have an ongoing interest in the family of the missing cousin.

[15]    Furthermore, I note there is no ongoing interest in the applicant's father since the events in 2009. I accept the applicant's claims that his father is now older and frail, but I do not accept that his age or frailty would deter the authorities or paramilitary groups if they had an ongoing interest in this family on the basis of the LTTE activities of the missing cousin. I am not satisfied that the applicant has been imputed with an LTTE profile and I find that there is not a real chance of harm to him on return to Sri Lanka on this basis.

[16]    Noting that the applicant was able to study and work until his departure in 2012, and that his cousins, the brothers of the missing cousin, have not come to harm, I am not satisfied that the authorities or paramilitary groups have an interest in the family on the basis of the LTTE activities of the missing cousin. I am not satisfied that the applicant has been imputed with an LTTE profile and I find that there is not a real chance of harm to him on return to Sri Lanka on this basis.

13    The Authority then accepted that the appellant has a subjective fear of harm on his return to Sri Lanka but it was not satisfied that his fear is well founded.

14    It noted that there continue to be reports of ongoing arrests and disappearances in Sri Lanka but that the people who come to the adverse attention of authorities are those who have a profile of association with the LTTE (and the appellant was not in that category).

15    It had regard to the appellant's Tamil ethnicity and that current UNHCR guidelines advise that being of Tamil ethnicity alone does not give rise to protection needs. It also had regard to other country information about Tamils in Sri Lanka and was not satisfied that there is a real chance of serious harm arising for the appellant as a Tamil.

16    The Authority then had regard to country information about the treatment of returnees and considered it likely that the appellant would be charged under the Sri Lankan Immigrants and Emigrants Act, fined and released or released on his own surety. If detained, it would be for only a brief period and there was no real chance that the appellant would be subjected to torture or other treatment that would amount to serious harm or persecution.

17    The Authority said there was no information that suggested that the appellant's status as a failed asylum seeker would bring him to adverse attention upon his return, again taking into account that it did not consider the appellant has an actual or imputed LTTE profile.

18    The Authority concluded that the appellant did not meet the definition of a refugee.

19    It found, for the same reasons that there was no 'real chance' of serious harm for the purpose of the refugee criterion, that there was also no 'real risk' that the appellant would suffer significant harm within the meaning of the complementary protection criterion.

Before the Federal Circuit Court

20    The appellant sought to rely upon three grounds of review with various particulars by way of an amended application. Some of the particulars did not fit neatly under the ground to which they were said to relate but in this manner the primary judge was able to consider them all.

21    A copy of the amended application was also provided to me at the hearing. I was told that according to the Federal Circuit Court records, the amended application was filed prior to the hearing in that Court. Because the appellant seeks to in effect argue the same matters again, there is value in setting out in some detail the grounds of review and reasons of the primary judge.

22    By the first ground, the appellant contended that the Authority's finding was 'inconsistent and unreasonable, a decision that could not be made by a reasonable decision maker'. The particulars clarified that the complaint was with the Authority's finding that the appellant would not face harm if he were to return to Sri Lanka as his cousins, the brothers of the cousin who went missing in 2004, have not faced harm. The appellant said his situation was different to that of his cousins because he had departed Sri Lanka illegally and would be returning as a failed asylum seeker; that once the Authority accepted the country information about the risk profile of people with a close family connection to a member or former member of the LTTE it was obliged to find the appellant was at risk of relevant harm; and that the Authority had found that the authorities in Sri Lanka had an interest in him.

23    The primary judge addressed the reasons of the Authority as follows:

(a)    the primary judge noted that the appellant said his position was different to that of his cousins;

(b)    the Authority did not proceed on the basis there was a precise identity between the position of the appellant and the brothers of his cousin;

(c)    the Authority by way of reasoning compared the position of the brothers of the cousin and noted that the brothers had not come to adverse attention;

(d)    accepting that the cousin was involved in the LTTE, the relationship of family members of the cousin was relevant and provided a comparison as to how the appellant might be treated;

(e)    the brothers of the cousin are living and working in Sri Lanka without any indication of interest in them by the authorities;

(f)    the Authority had regard to the appellant's immediate family (referring to [15] and [16] of the Authority's reasons as set out above) and also the appellant's own ability to study and work without apparent harm until he departed Sri Lanka in 2012 in considering the appellant's position;

(g)    as to country information it was necessary to pay close attention to the individual circumstances of each putative refugee and that is what the Authority did;

(h)    the impugned 'finding' at paragraph [12] of the Authority's reasons to the effect that the Authority had found that the authorities in Sri Lanka had an interest in him misapprehends the Authority's statement. The relevant statement by the Authority was that, 'I consider it highly likely that, if the authorities had an interest in the family of the missing cousin, this interest would extend to the cousin's brothers, as well as the applicant'. That statement was made as part of its comparative reasoning: that is, the Authority hypothesized that if the authorities had an interest in his cousin's family, such interest would extend to the cousin's brothers and the appellant. However, having concluded after considering the various information that the family were not of interest to the authorities, the Authority concluded that by corollary they did not have an interest in the appellant.

24    The process undertaken by the Authority was not limited to considering the fact that both the appellant and his cousins are related to the cousin who was involved in the LTTE. The Authority also considered matters such as the fact that the cousin's brothers currently live and work in Sri Lanka. Although the primary judge did not refer to the appellant's father's position expressly, he referred to the position of the appellant's immediate family members by reference to paragraph [15] of the reasons, and that paragraph is concerned with the position of the appellant's father.

25    In my view, the Authority's approach in assessing evidence as to the position of the appellant and other family members, including his father, in order to assess the prospect of risk to the appellant was logical and was not unreasonable. It did not only consider the position of the cousin's brothers, but also took into account matters that were peculiar to the appellant (his ability to study and work, the role of his father). Accordingly, the primary judge was right to reject ground 1 of the review grounds before him.

26    Ground 2 of review complained that the Authority failed to take into account all the integers of the appellant's claims and, read with the particulars, appeared to be a complaint to the effect that the Authority, having found that the cousin had a connection to the LTTE and having accepted that there was a risk profile as a result, was obliged to find that the appellant had a well-founded fear of persecution.

27    The primary judge found that it was open to the Authority to conclude that the appellant was not imputed with an LTTE profile, despite the role of his cousin, and that clearly it was a matter or integer to which the Authority had regard. The Authority's findings that the appellant was not imputed with an LTTE profile was properly available to it on the evidence and its reasons were explained and were logical. The primary judge was right to reject ground 2 of the review grounds.

28    Ground 3 was a contention that the Authority had failed to consider the appellant's claims cumulatively. The primary judge referred to the Full Court decision of Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 as to what it means to deal with a claim 'cumulatively'. His Honour said this is no more than an acknowledgment of the obligation of the Authority to consider the whole of the appellant's claims, and that in this case that had occurred. Particular matters raised by the appellant and said to have been ignored (the fact his parents had moved after a visit in 2012) were in fact taken into account and referred to. The Authority considered his family's connection to a person with a connection to the LTTE, his Tamil ethnicity and the circumstance that he left Sri Lanka illegally and would return as a failed asylum seeker. The primary judge considered that each of these matters could be taken together, if accepted, to alter the appellant's risk of harm upon return to Sri Lanka, but the consideration of his claims as a Tamil were necessarily affected by the finding that he was not imputed with an LTTE profile. The Authority had considered the totality of the appellant's circumstances.

29    Having carefully considered the Authority's reason as a whole, I agree that the Authority in fact considered the totality of the appellant's circumstances, that there was no jurisdictional error and that ground 3 was properly rejected.

Notice of appeal

30    The appellant filed a notice of appeal from the decision of the Federal Circuit Court on 26 April 2018. The notice of appeal specifies two grounds of appeal, being in effect that the primary judge delivered ex tempore reasons, and failed to give proper consideration to the appellant's submissions by dismissing the hearing on the date it was heard.

31    At the commencement of the hearing before me the appellant provided written submissions which did not address the appeal grounds, but raised an alleged error on the part of the primary judge, to the effect that the Authority and the primary judge had failed to take into account his claim that the position for the appellant's family was worse than for his cousin's family because it was his father who had made inquiries about his missing cousin.

32    Having considered those submissions, counsel for the respondent was in a position to properly address the new claim and the hearing proceeded on the basis that the new ground formed an appeal ground.

33    Ground 1 has no substance. The fact that reasons are delivered ex tempore does not of itself disclose error.

34    The Court considered such an appeal ground in BKL15 v Minister for Immigration and Border Protection [2016] FCA 802; (2016) 241 FCR 450 (Flick J). His Honour referred to the desirability, especially in high volume jurisdictions such as migration, of delivering ex tempore reasons, but noted that the clear issue is not whether the reasons were delivered ex tempore, but whether the reasons are adequate to sufficiently expose the basis upon which the Federal Circuit Court judge proceeded (at [27]).

35    It is not the brevity, length or timing of the publication of reasons that determines appealable error: the content is the principal issue. Counsel for the Minister referred by way of example to this Court's dismissal of five grounds of appeal in eight paragraphs in BKU16 v Minister for Immigration and Border Protection [2017] FCA 1402 (Jagot J).

36    In this case, the primary judge's reasons are detailed and include a close assessment of the somewhat convoluted manner in which the grounds and particulars were raised below. The reasons clearly enunciate the reasons for his decision. They disclose close engagement with the issues.

37    The first ground is dismissed.

38    The second ground invites the grounds below to be reconsidered insofar as they refer to matters the subject of the appellant's submissions before the primary judge. I have undertaken that task in the consideration of the primary judge's reasons set out above, and repeat that in my view the judge was right to find that there was no jurisdictional error disclosed.

39    The third ground of appeal, made by way of submission handed up in Court, was to the effect that the primary judge erred in failing to find that the Authority had failed to give any weight to a further factor that differentiated his position from that of his cousin's brothers, being that it was the appellant's father who had made inquiries with authorities about the whereabouts of his cousin.

40    However, as is clear from paragraph [12] of the Authority's reasons, it understood that such submission was made by the appellant and that it was claimed that it differentiated the position of the appellant from that of his cousin's brothers. The Authority found that even absent such an additional link the authorities did not have an interest in the cousin's brothers, as discussed above with respect to ground 1 before the primary judge. Clearly the matter was dealt with by the Authority and formed part of its reasoning, and the primary judge paid close attention to paragraph [12].

41    As already addressed, the manner in which the Authority took into account the role of the father was not illogical or unreasonable and the primary judge did not err in finding that to be the case.

42    A review of the Authority's reasons reveals that it correctly identified the law that applied in the circumstances of this case, being the provisions of Part 7AA of the Act. For example, as is apparent from the extract from the findings set out above, the Authority considered carefully the respective positions of the appellant, his father and his cousin's brothers, and made factual findings that were open to it on the evidence.

43    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 the Authority's decision cannot properly be described as unreasonable or revealing jurisdictional error, and the primary judge did not err in dismissing the application.

Determination

44    Having carefully considered the various matters raised by the appellant in his oral submissions before me and having reviewed the Authority's reasons and those of the primary judge, I am not satisfied that there is any error in the decision reached by the primary judge.

45    Accordingly, I would dismiss the appeal and costs should follow the event.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith.

Associate:

Dated:    6 September 2018