FEDERAL COURT OF AUSTRALIA

DSC17 v Minister for Immigration and Border Protection [2018] FCA 1414

ORDERS

THE COURT ORDERS THAT:

1.    Appeal dismissed with costs.

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

REASONS FOR JUDGMENT

Revised from the transcript

LEE J:

1    Before the Court is a notice of appeal from the Federal Circuit Court filed in April this year. It is an appeal against the whole of the judgment made by the Federal Circuit Court on 26 March 2018. The orders made by the primary judge dismissed an application for review of the decision of the second respondent (Authority) on 31 July 2017. The Authority affirmed a decision made in December 2016, by a delegate of the first respondent (Minister), to refuse the appellant a visa, being a Safe Haven Enterprise visa.

2    There are four grounds of appeal, which are in the following form:

1. The Federal Circuit Court made errors in fact finding and ignored relevant facts and thereby made a jurisdictional error on the grounds of procedural fairness.

2. The IAA made jurisdictional errors by rejecting my relevant claims completely by giving unreasonable reasons in rejecting the appellant’s claims.

3. The IAA misconstrued and misinterpreted the appellant’s claims and rejected them without any legitimate reasons or explanations and thus made jurisdictional errors.

4. The IAA used excessive authority in rejecting in the fundamental claims and made jurisdictional errors.

3    The grounds of appeal substantially overlap. This can be seen, in part, by the various particulars given to the grounds including the contention in the particulars to Ground 1 that the primary judge is alleged to have “acted in haste by ignoring the discrepancies and relevant facts” and that the primary judge reached “a finding without any logical or probative basis”. A broadly similar complaint is made in Ground 2 in relation to the process engaged in by the Authority in asserting that the authority gave “no valid reasons” for rejecting the appellant’s claims. Ground 3 is particularised by alleging the Authority’s reasons were “unreasonable, unethical and arbitrary”. Ground 4 suggests that the Authority’s decision was based on “speculation, imagination and misconstruction of the real facts”.

4    A common theme emerged which was reflected in the oral submissions made today on behalf of the appellant, who appeared in person. The overriding complaint was that the decision of the Authority was infected by a reliance on facts drawn from generalised country information, and that jurisdictional error is established by reason of the fact that the Authority purported to affirm the delegate’s decision while failing to descend to the detail of considering the individual aspects of the claim made by the appellant. The error of the primary judge, it was contended, was a failure to accept that the Authority’s decision was infected by this error. I will come back to the grounds of appeal and, more generally, to this overriding complaint below, but it is appropriate initially that I provide some further background to the decision of the Authority.

5    The appellant is a Sri Lankan citizen who arrived in Australia in October 2012. He applied for a visa in 2016 and claimed to fear harm on the basis of his association with the Liberation Tigers of Tamil Eelam (LTTE). This association arose by reason of the fact that his older brother was a former LTTE combatant who was arrested during the civil war and who, the appellant claims, has been held in custody continuously since that time with his present whereabouts being unknown.

6    The appellant claimed that in 2007 he was forcibly recruited into the LTTE and underwent training for three days. After telling the LTTE details as to his brother’s involvement as a fighter, the appellant was sent to work in an LTTE run restaurant, which, after relocation, was destroyed in 2008 by shelling. The appellant took the opportunity to flee and was reunited with his family.

7    In 2009, the appellant claims he was taken to a detention camp where he was held and beaten on suspicion of involvement with the LTTE. While at the camp the appellant fell ill and was taken to a hospital by an army escort. His contention, which he repeated during the course of oral submissions today, is that he eventually escaped from the hospital. He also alleges that at some time thereafter he went into hiding in a nearby paddy field or forest. The authorities visited the family home near where he was hiding in August 2012 in search of him and also beat his father. This prompted the appellant to depart Sri Lanka.

8    As noted above, in December 2016, a delegate refused the grant of a visa and pursuant to the regime set out in Part 7AA of the Migration Act 1958 (Cth) (Act) the appellant’s matter was referred to the Authority. In January 2017, the appellant provided submissions and country information to the Authority and raised a new claim that his younger brother was taken for interrogation with the Tamil Investigation Division. After the decision under review was affirmed by the Authority, in July 2017, proceedings were commenced in the Federal Circuit Court leading to the judgment which is the subject of this appeal.

9    When the matter was before the Federal Circuit Court, the primary judge, after summarising the Authority’s decision, the information before the Authority and the applicant’s claims, then summarised the procedure adopted by his Honour at the hearing. At the commencement of the hearing, the primary judge had explained to the applicant the nature of the hearing and the procedure to be adopted in receiving submissions from the appellant, who was unrepresented. The primary judge then recorded the appellant’s submissions, and at [28]-[31] noted as follows:

From the bar table, the applicant posed a rhetorical question as how does anyone know that he will not be killed if returned to Sri Lanka. The applicant maintained that he still did not know his brother’s whereabouts, and asserted that recently his family had been beaten, that he was in hiding and that there were adverse findings, that it was impossible for him to provide documents about being in hiding. The applicant maintained that he had no guarantee, if returned to Sri Lanka, of his life, and that there are still problems in Sri Lanka and that his family home was only 500 metres away from an army camp.

The applicant maintained that he did not know how he could provide documents and took issue with the adverse findings made by the Authority. The Authority in its reasons, as summarised above, expressly took into account the applicant’s claim concerning his older brother and accepted as plausible that the applicant may not know his whereabouts, but did not accept that he was still being detained as a result of his role with the LTTE. That was a finding in respect of which the Authority took into account country information and provided reasons in support of the same that were logical, rational and open to the Authority on the material before the Authority.

In relation to the applicant’s complaint that he did not have records to support his hiding and his claims, the Authority provided logical and rational reasons, as summarised above, in relation to the applicant’s claims. Those reasons, as summarised above, were open to the Authority and cannot be said to be unreasonable. Insofar as the applicant referred to his family home being some 500 metres from the army camp, that was a matter referred to by the Authority on three occasions in its reasoning, and the adverse reasons by the Authority in relation to the applicant’s claims were open for the reasons given by the Authority.

I accept the submission of the first respondent that in substance, the applicant’s submissions from the bar table were an invitation to this Court to engage in impermissible merits review. Nothing said by the applicant from the bar table identified any jurisdictional error.

10    I set out this extract because, in very large measure, the submissions made before the primary judge reflect the submissions made before me after I adjourned for a period in order to allow the appellant to ensure that the written reasons of the primary judge, the notice of appeal and the Minister’s submissions had been interpreted to him by a qualified interpreter.

11    Having set out this background, it is next appropriate to turn to how the primary judge disposed of the grounds of review advanced before him. With respect to an allegation that the Authority had erred in failing to take into account country information as “new information” (Ground 1 below), the primary judge found the Authority did not apply an erroneously narrow meaning of exceptional circumstances as provided for in s 473DD of the Act, noting that the Authority referred to both limbs of that section, which sets out the circumstances which amount to exceptions to the general rule that the Authority must not consider any new information.

12    The primary judge also rejected the assertion by the appellant that the Authority had misconstrued the facts in relation to the appellant’s new claims concerning his brothers and rejected the argument that there was a misunderstanding of the claim that was advanced before the Authority (Ground 2 below). In respect of the balance of the grounds, the primary judge found the Authority did not err in making findings which the primary judge, in effect, found were in the realm of permissible findings open to the Authority.

13    I now turn to the grounds of appeal advanced in this Court.

14    As noted above, the appellant asserts error by the primary judge in dismissing the appellant’s case by acting in haste and ignoring discrepancies and reaching a finding without any logical or probative basis. This seems to be both a complaint as to a want of procedural fairness and also errors as to unreasonableness in the process of fact finding.

15    This first ground makes a generalised complaint but fails to descend to the specifics of identifying what matters the primary judge ignored or the facts found which are said to constitute findings infected by this erroneous approach. Apart from the fact that there is no basis evident from the judgment that the primary judge denied the appellant procedural fairness, at no time has it been explained how the primary judge found facts that could be said to have lacked a logical or probative basis.

16    After hearing the appellant’s oral submissions and seeking to do my best to understand the particulars of the appellant’s complaint, what all the grounds are really directed to is, I think, what I described above as the overarching complaint.

17    The appellant made reference to four factual matters which he contended were not dealt with by the Authority in a way consistent with its obligations but rather were dismissed by reference to an inappropriate or superficial reliance on generalised country information. Those matters involved the position of his older brother, the circumstances surrounding his hospital escape and his hiding from the authorities in a paddy field or forest. An additional matter (which related to his younger brother that was taken for interrogation in December 2016) was also the subject of complaint, being new information that the Authority did not consider, because the Authority was not satisfied that exceptional circumstances existed or that it was credible personal information which, if known, would have affected the consideration of the applicant’s claims in accordance with s 473DD.

18    On close scrutiny, however, a fair characterisation of the Authority’s reasons is that a somewhat more nuanced approach to fact finding was adopted than simply rejecting the appellant’s claims on the basis of generalised country information.

19    First, in relation to the appellant’s older brother, at [15]-[16] of its reasons, the Authority set out why it had significant doubts that the appellant’s brother continued to be held in detention as claimed:

In his SHEV application, completed in July 2016, the applicant stated that his brother was then held in Welikanda Prison as a former LTTE fighter. This is not consistent with country information from 2015 which advises that Welikanda is no longer used to hold ex-LTTE combatants but is now used to rehabilitate drug addicts.

At his SHEV interview the applicant was asked about the whereabouts of his brothers and in regard to his LTTE fighter brother he initially stated that he was captured and the family do not know if he is dead or alive. The delegate noted that in his written statement the applicant had referred to this brother as being in prison, and the applicant responded that the authorities have said he is in a certain place but they have not shown him to the family and that although they say he is alive the family have not been permitted to see him. Under the provisions of the PTA, suspects can be held without charge for three-month periods, not exceeding a total of 18 months but the US Department of State advises that many detainees were held arbitrarily for substantially longer periods than this without charge. However I note that the US Department of State report for 2015 noted “the government reported it was holding 162 ‘unconvicted’ prisoners under the PTA ... and that all such prisoners had access to family member visits, attorneys, magistrates, medical officers, members of the clergy, and representatives of the Human Rights Commission of Sri Lanka”. The US Department of State acknowledges that, according to human rights groups, police and other agencies “held an unknown number of irregular detainees ... without charge or trial on allegations of involvement in terrorism-related activities” and “security personnel used involuntary disappearance to interrogate persons ‘off the books’ without the need to document the cases”. But the US Department of State reports that “following interrogation, authorities released these involuntary detained persons, instructing them not to disclose details of their detention under threat of physical harm.” The applicant’s claim that his brother has been held continuously since the war and that his parents have not been able to see him and have not been told where he is detained is not consistent with this country information. I accept as plausible that the applicant may not know his brother’s whereabouts, but I do not accept the applicant's claim that his brother remains in detention in Sri Lanka because of his role with the LTTE.

20    Although the Authority in this extract made reference to the fact that the claims as to his brother’s detention (and the fact that his parents had not been able to see him) were inconsistent with the country information, contrary to the applicant’s submission, the Authority did not unreasonably dismiss his claim on the basis of generalised country information. The approach taken was to weigh the plausibility of the applicant’s account having regard to specific country information relevant to the applicant’s claims. This process does not seem to me to reveal any gap in logic or unreasonableness.

21    Secondly, in relation to the hospital escape, the Tribunal’s reasons for finding that the appellant’s claim as to his planned escape was implausible was set out at [22]-[23] of the Authority’s reasons:

The applicant described himself as being so sick when admitted to hospital that he could not walk and lost track of time and was not sure how long he was in hospital; yet from his account he was able to scale a wall to escape and then run down the street. The applicant stated he was taken to hospital under army escort, but that the army did not remain at the hospital, although they came back every second day to check on patients. I find his claim of escape over a wall to be inconsistent with his account that there was no army security presence to prevent him simply walking out.

Furthermore, I have some difficulty that the army did not remain at the hospital to guard the IDP patients. The Report of the Secretary General’s panel of experts advises that in the immediate aftermath of the war the Sri Lankan government managed a network of 21 IDP sites housing thousands of displaced persons; the camp at Vavuniya alone is estimated to have held 250,000 people. The IDP sites were closed camps, guarded by the military and surrounded by barbed wire and “essentially, the entire Vanni IDP population was detained and not allowed to leave. The government held that the detention of the entire IDP population was necessary until the screening could be completed”. Noting the stringency under which IDPs were detained in the camps I consider the applicant's claim that the army delivered sick patients to the hospital and left them there without further security to be implausible and leads me to doubt the veracity of his claims. Considering the information before me I do not accept that the applicant escaped from Vavuniya Hospital in June 2009, and therefore effectively escaped from detention as an IDP. I find the applicant’s claim to be implausible and I find that he has fabricated this account to enhance his protection claims.

22    This finding, of course, was not based on generalised country information and, again, does not disclose any alleged unreasonableness or arbitrariness. Certainly such a difficulty is not self-evident.

23    Thirdly, as for hiding in either a paddy field or forest from 2010 to 2012, the reasons given by the Authority for rejecting the plausibility of this claim are set out in the Authority’s reasons at [28]:

I note that he claims to have hidden in an area in close proximity to his family home; being either the paddy field which was one kilometre from the home, or the forest which was next to the paddy field. Yet I note that there is an army camp in close proximity, being only 500 metres from the family home. This indicates that the applicant claims he hid for two years within approximately two kilometres of an army camp. I consider it implausible that the applicant managed to hide for this extended period from the army while in such close proximity to an army camp while he claims the army were coming regularly to his home and threatening the family, and that his father risked detection by visiting him daily to provide food. The delegate indicated to the applicant at the SHEV interview that she found his claim of hiding in the forest to be implausible, and I am not satisfied his response that he had a tent for shelter and on a few occasions he came to the family home at night addressed the implausibility.

24    Again, this does not seem to me to be a process of fact finding which reveals unreasonableness or an erroneous process of fact finding. The Authority considered the relevant claims and came to a conclusion that was open.

25    Fourthly, the new information was the appellant’s claim that in December 2016, his younger brother was taken for interrogation. His younger brother, it was said, was told by the Terrorism Investigation Division that the older brother of the appellant was still in custody and had admitted to the authorities that the appellant was a former LTTE fighter. The younger brother was alleged to have been questioned about the appellant. Although the appellant had not been specific about the dates of the claimed events, the Authority was satisfied that the incidents may have occurred after the delegate’s decision and, on that basis, the information could not have been provided to the Minister.

26    In forming a view as to whether the Authority could consider this new information, s 473DD specifies that it could only do so in the event that the Authority was satisfied that there were exceptional circumstances which justified considering it, or the information was credible personal information which was not previously known, and had it been known, may have affected the consideration of the appellant’s claims.

27    The relevant process of reasoning was set out in the Authority’s reasons at [11] as follows:

The applicant has not been specific about the dates of the claimed events, but I am satisfied that the claimed incidents may have occurred after the delegate’s decision, which was made in early December, and on that basis this information could not have been provided to the Minister. However, I have considered the plausibility of the claimed events and I am not satisfied that this is credible personal information which if known may have affected the consideration of the applicant’s claims. At the time of the claimed attention from the TID in December 2016 the applicant’s younger brother was 14 years of age, having turned 14 in October, just two months prior to the claimed events. The applicant claims that his brother was detained by the TID to be questioned about events surrounding the applicant’s involvement in the LTTE, although his brother was only six years of age when the war ended in 2009, and surrounding his illegal departure in 2012, at which time his brother was nine years of age. I do not consider it plausible that the TID would seek information from the applicant’s younger brother noting his very young age at the time of the relevant events. I find the claimed events to be implausible and I am not satisfied that this is credible personal information which if known have affected the consideration of the applicant’s claims. Nor am I satisfied that any exceptional circumstances exist that justify considering the new information. I have not had regard to this information.

28    Again, this does not seem to me to reveal any jurisdictional error as alleged.

29    As I said before, the first ground focused on the approach taken by the primary judge and, apart from the complaint as to procedural fairness with which I have dealt above, asserted that the primary judge erred by not finding errors in the Authority’s fact finding. The comments made above, as to the four facts which are argued to have been inappropriately discounted by the Authority due to an erroneous process of fact finding, are also relevant to why the appellant’s second ground, which complains that the Authority fell into jurisdictional error in rejecting the claims by giving unreasonable reasons, is not made out.

30    The third ground, that the Authority misconstrued and misinterpreted the appellant’s claims and rejected them without any legitimate reasons or explanations, is closely related to the second ground. I have said enough to explain why I reject the notion that the Authority’s reasons were “unreasonable, unethical and arbitrary”. The submissions made by the appellant do not rise higher than the expression of disagreement with the Authority’s findings, which the primary judge correctly found were reasons open to it and were not the product of an inappropriate process of fact finding as alleged.

31    As to the fourth ground and the complaint that the Authority used “excessive authority” in rejecting “fundamental claims”, in the particulars the appellant challenges the Authority’s reasons regarding his older brother and the hospital escape as having been made without evidence or proof. I have already set out the relevant reasoning adopted by the Authority above. There was clearly a basis for the Authority’s reliance on country information relating to the holding of detainees without charge, as is evident from the Authority’s reasoning extracted above. Similarly, the Authority’s finding relating to the appellant’s claim as to his escape from the hospital was, as I have explained, open and reflected an orthodox approach to fact finding.

32    The appellant articulated during the course of his oral submissions his subjective concerns for his personal safety and, indeed, the Authority accepted that the appellant may have subjective fears as to his safety upon any return to Sri Lanka. There is no reason to doubt the genuineness of these subjective concerns. The difficulty for the appellant is that the Authority reasoned, on the basis of a process that I do not believe reveals jurisdictional error, that the objective evidence did not support his fears as being well-founded. Nor was the Authority satisfied that there were substantial grounds for believing that there was a real risk that the appellant would suffer significant harm. The result was that the refugee claim and the complementary protection claim were not made out.

33    Appreciating the significance of this matter from the perspective of the appellant, I would ordinarily reserve my decision to consider the matter further if there was arguable merit in the appellant’s claims, but it seems to me quite plain that the process of the Authority in affirming the decision of the delegate did not reveal any jurisdictional error and the primary judge did not fall into error in also reaching this conclusion. In these circumstances, the appeal must be dismissed with the costs.

Associate:

Dated:    13 September 2018