FEDERAL COURT OF AUSTRALIA

DRB16 v Minister for Home Affairs [2018] FCA 1820

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    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 a decision of the Federal Circuit Court dismissing the appellant's application for judicial review of a decision of the Immigration Assessment Authority (Authority). The Authority affirmed the decision of a delegate of the Minister to refuse to grant the appellant a Safe Haven Enterprise protection visa: DRB16 v Minister for Immigration and Border Protection [2018] FCCA 2155.

Background

2    The appellant is a Tamil and a citizen of Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 13 April 2013.

3    The appellant was assisted in bringing his visa application and in the interview process by a migration agent. The appellant provided a statement in support of his application. The representative also provided post-interview submissions.

4    His application for a protection visa was refused by the delegate in September 2016, and referred to the Authority for review under Pt 7AA of the Migration Act 1958 (Cth) (Act).

5    The appellant was also represented before the Authority and filed submissions and copy Facebook posts in support of the review, having been granted an extension of time to do so.

6    In November 2016 the Authority affirmed the delegate's decision, and the appellant sought judicial review from the Federal Circuit Court. The application was dismissed.

Protection claim

7    The appellant claims that he fears harm from the paramilitary Karuna group following an encounter with them in 2007 and that the Sri Lankan authorities have imputed him with an anti-government profile as a supporter of the Liberation Tigers of Tamil Eelam (LTTE).

8    The claim, when both the appellant's arrival and induction interview and his statement for the purpose of his visa application are taken into account, was as follows:

(a)    the appellant worked as a taxi driver from 2005 in Vakarai where there were disputes between the Karuna group and the LTTE. In 2005 he was tasked by the Karuna group finance manager to deliver supplies to the stores manager. He was asked to undertake this work because he was recognised by the army as a local taxi driver, and therefore he would not attract their attention;

(b)    in 2006 the brother of the Karuna group finance manager was shot dead by the LTTE. The Karuna group finance manager believed that the stores manager, who was associated with the LTTE, was responsible for the death of his brother;

(c)    the Karuna group finance manager approached him for details about the stores manager. He was physically assaulted and threatened by the finance manager;

(d)    people came to his home two or three times. He was not home on the first occasion and the people threatened his father. On the last occasion in April 2007, he was at home and was abducted and taken to a camp. He was held at the camp for approximately 15 days and kept under guard, assaulted and tortured and his arm was broken. He escaped with a number of other detainees;

(e)    after his escape he moved to live and work as a volunteer in a leprosy hospital on Mantheevu Island and his wife and children joined him there. The hospital was remote and he remained there until 2013;

(f)    the Karuna group visited his father's house to look for him. His father was abducted and remains missing;

(g)    he obtained a passport and in 2013 departed from Colombo on that passport. He received no special help as he was travelling legally. He travelled alone and flew to Jakarta in Indonesia;

(h)    in exiting Colombo he passed through a security checkpoint and his passport was stamped. A person came and collected him and called out his name and asked for $300, asked him to wait and took his passport and carried out an immigration process for him. He exited the airport through the main doors of the airport. He later left Indonesia by boat to Australia.

Authority's findings

9    The Authority's findings were accurately summarised in the Minister's submissions and I have adopted some of that summary in the following paragraphs.

10    The Authority accepted that the appellant was contracted by the Karuna group to transport goods for them and that having regard to country information, it was plausible that a person associated with the Karuna group (the finance manager's brother) was shot by the LTTE. It accepted that the appellant was present in Batticaloa at a time that the Karuna group was terrorising the local population and that the appellant had a subjective fear of harm from the Karuna group. He accepted that the appellant had moved way from Batticaloa and that there was significant evidence that the Karuna group continued to operate in Sri Lanka and that it was largely engaged in criminal activities. It accepted that the appellant had shared material published by others on Facebook and that such materials could be seen as critical of the government's treatment of Tamils. It also accepted that, taking into account country information, there had been reports of mistreatment of returned asylum seekers who had an actual or imputed profile of LTTE links.

11    I note that the Authority had regard to most of the matters raised by the submissions that were provided on behalf of the appellant, save for certain country information which pre-dated the delegate's decision and was not before the delegate. The Authority was not satisfied that such country information contained credible personal information and did not consider the information in light of the provisions of s 473DD of the Act. No issue arises on this appeal from that decision.

12    The Authority found there were significant inconsistencies in the appellant's evidence and did not accept his claims that he had been abducted, questioned for information by the finance manager and targeted by the Karuna group following the shooting of the finance manager's brother. It set out those inconsistencies in its reasons.

13    The Authority did not accept that the appellant and his family had moved from Batticaloa because the appellant was in hiding from the Karuna group or that the disappearance of the appellant's father was linked to the appellant and his transportation of goods for the Karuna group.

14    The Authority was not satisfied that the appellant would be imputed with an LTTE profile or as having taken a position of resistance against the dominant ethnic group because of his involvement in transporting goods for the Karuna group. The Authority found that the appellant had not been targeted in the past and did not accept he would be targeted on his return, and therefore was not satisfied that the appellant faced a real chance of harm on return to Sri Lanka.

15    The Authority took into account the Facebook activity but was not satisfied that it would result in any real chance of harm on return to Sri Lanka or attract adverse attention to the appellant. The Authority did not consider the appellant would be imputed with LTTE links on the basis that he was a returned asylum seeker, taking into account that he had departed Sri Lanka legally on his own passport and was therefore unlikely to be subject to scrutiny on his return. It considered any questioning the appellant may face at the airport about his extended absence would be routine and the country information did not support the claimed fear that this would lead to mistreatment.

16    Accordingly, the Authority was not satisfied that the appellant met s 36(2)(a) of the Act, nor was it satisfied that the appellant met s 36(2)(aa) of the Act.

Before the Federal Circuit Court

17    The first ground of review alleged jurisdictional error. The appellant clarified that ground in a statement as follows:

The Immigration Assessment Authority committed jurisdictional error by failure to exercise its proper jurisdiction by:

(a)    Failure to examine in a proper manner the provisions of the Prevention of Terrorism Act of Sri Lanka under which I am perceived to be a supporter of the Tamil cause.

(b)    The Immigration Assessment Authority failed to examine the real situation faced by Tamils like me within a social group perceived to have had links with the LTTE, in the context of the army control of the traditional homelands of the Tamils situated in the North and East of Sri Lanka.

(c)    The Sri Lankan government and the armed forces have committed and are continuing to commit human rights abuses against young Tamils like me which is being investigated by the UNHCR and have been commented upon by organisations like the Amnesty International and Asia Watch.

(d)    The Second Respondent did not exercise its proper jurisdiction as a prudent body in my case and thereby fell into jurisdictional error.

18    The primary judge construed the statement on the basis it was potentially referring to a failure to take into account relevant country information. His Honour noted the detailed assessment of country information provided in the Authority's reasons, including that it gave careful consideration to the claims of the appellant and to the possible risk of harm to the appellant as a Tamil man with imputed links to the LTTE. His Honour determined that the appellant was in effect seeking impermissible merits review as to the factual findings made by the Authority based on country information.

19    The primary judge also went to considerable effort to identify whether there was anything to suggest that the Authority had otherwise failed to consider relevant material, focused on irrelevant material or that there was otherwise jurisdictional error. The primary judge took into account the specific statutory context of a fast-track review and considered that the Authority's findings were open to it, including its credibility findings.

20    Ground 2 alleged bias on the part of the Authority, but the appellant failed to identify any evidence he considered amounted to bias. The primary judge could not discern any evidence that the Authority had acted in a way that was biased or might be deemed to have been biased.

21    By ground 3 the appellant alleged that the Authority identified a wrong issue or a wrong question. Again, the primary judge went to considerable effort in his reasons to consider whether there was any such incorrectly identified issue or whether the Authority asked itself the wrong question, but found that the Authority clearly identified the appellant's claims, the relevant law and the evidence before it.

Notice of appeal, particulars and submissions

22    The notice of appeal contained one ground, being 'jurisdictional error due to [not] following or facts presented'. The appellant appeared in person but also provided a written submission which purported to better enunciate the ground of his appeal. The particulars provided by the submission were as follows:

My submission is that the primary judge had not examined the following in coming to his decision:

(a)    not examining in detail the provisions of the Prevention of Terrorism Act in regard to the ethnic Tamils living in the north and east of Sri Lanka;

(b)    not examining with due diligence the provisions of the Prevention of Terrorism Act in regard to me on the basis of the evidence provided;

(c)    failed to examine in a proper manner the country situation of the reports on Sri Lanka especially those like the UNHCR that examined extreme human rights violations;

(d)    did not examine the court's obligation to review jurisdictional error of not examining the manner the second respondent examine my application for a protection visa and thereby fell into jurisdictional error; and

(e)    the issue prejudice in relation to the second respondent was not examined in the context of statements issued by the first respondent as regards asylum seekers in Australia.

23    It is apparent that the particulars resemble the grounds raised before the primary judge.

24    During the hearing I invited the appellant to expand on or explain those particulars by oral submissions. His oral submissions were to the following effect:

(a)    there is new information which I should take into account to the effect that since a change of government in Sri Lanka the situation for people such as the appellant has declined. For example, he was one of 30 in a group who fled Sri Lanka with only five let into Australia. The other 25 returned to Sri Lanka and two of those persons have been captured by members of the Karuna group in the last three weeks;

(b)    there is nothing that the appellant wished to add or say about the arguments that were made before the primary judge, and nothing that he wished to say about the decision of the primary judge apart from as to the circumstances of his departure;

(c)    the primary judge said that the appellant's departure from Sri Lanka at the airport was legal and on that basis he should not have any problems. However, in actual fact during the departure process the appellant bribed officers before he was cleared and that is how he was able to leave the country and otherwise he would not have been cleared through immigration and would have been detained; and

(d)    he would be happy to return to Sri Lanka except that he faces harm.

Determination

25    The matters that the appellant seeks to address by paragraphs (a), (b) and (c) of his written particulars can be considered together as an allegation that the Authority failed to take into account country information relevant to the treatment he may face upon return to Sri Lanka. The primary judge dealt with information that was before the Authority and properly noted that it was not open to him to consider new information for the purpose of rejecting the Authority's factual findings.

26    The Authority had before it the submissions that were filed for the purpose of the consideration of the visa application by the delegate and also the appellant's statement, as well as the submission made to the Authority, in addition to country information to which it referred. There is nothing to suggest that it did not properly take into account those materials or otherwise failed to undertake its statutory task.

27    As to the circumstances of his departure, there is no reference in the appellant's materials or otherwise to the appellant having claimed to bribe officers. Although there is a reference to a payment having been made, it is not described as a bribe and the appellant expressly claimed at the relevant time to have left Sri Lanka legally. The Authority accepted such claim, noting that the appellant departed Sri Lanka legally on his own passport. The appellant's evidence supported that finding. There was no basis upon which the primary judge should have rejected such a finding.

28    The complaint addressed orally before me with respect to country information was self-evidently a request to rely on country information that relates to events since the change of government in Sri Lanka and so was not before the Authority or the primary judge.

29    Neither this Court nor the Federal Circuit Court has jurisdiction to correct mistaken findings of fact by the Authority but rather only to consider whether the decision is invalid by reason of a jurisdictional error: see MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8] (Nicholson J); Gupta v Minister for Immigration and Border Protection [2016] FCA 1004 at [27] (Perry J); Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93; (2017) 251 FCR 23 at [52], [55] (Reeves, Robertson and Rangiah JJ).

30    Therefore, the primary judge did not err in failing to take into account such material when it was referred to by the appellant before him. Equally, it is not open to me to take into account the allegations about the alleged bribery and the claim of new country information raised before this Court. Even if I were to give weight to the appellant's statements made in court, it is not open to me to accept such new evidence to refute a finding of fact made by the Authority about the appellant's claims as to his circumstances should he be returned to Sri Lanka.

31    The other particulars raised by the appellant in his submissions referred to at [22] above were not developed. If the particular at (d) is a reference to the role of the primary judge, it is clear that his Honour did in fact look carefully at the decision of the Authority and its reasoning process in order to assess whether there may have been jurisdictional error. It is also unclear what is meant by the particular at (e), but if it is a reference to the question of bias, then again that matter was addressed in detail by the primary judge, who noted that the appellant had not identified any grounds upon which he pursued an allegation of bias on the part of the Authority. Nor is any complaint about statements made by the delegate relevant to this appeal. The decision which was subject to review by the primary judge was that of the Authority.

32    In the circumstances, the appellant's claims received detailed consideration and reasons from both the Authority and the primary judge, and I concur with the view of the primary judge that there is no jurisdictional error disclosed on the part of the Authority. I do not consider error on the part of the primary judge is established.

33    In the circumstances, the appeal must be dismissed and costs should follow the event.

Associate:    

Dated:    22 November 2018