FEDERAL COURT OF AUSTRALIA

EZC17 v Minister for Immigration and Border Protection [2019] FCA 163

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the appellant to rely on the Amended Notice of Appeal filed on 17 December 2018.

2.    Leave be granted to the appellant to rely on the affidavit of Daniel Robert Taylor affirmed on 8 November 2018.

3.    The appeal be allowed.

4.    Order 1 made by the Federal Circuit Court of Australia on 3 May 2018 be set aside and in lieu thereof it be ordered that:

(a)    the decision of the second respondent made on 23 October 2017 be quashed;

(b)    the application for review be remitted to the second respondent for redetermination according to law.

5.    The first respondent pay the appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

YATES J:

Introduction

1    The appellant appeals from a judgment of the Federal Circuit Court of Australia (the Circuit Court) given on 3 May 2018, which dismissed the appellant’s application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (IAA). The IAA’s decision affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the delegate and the Minister, respectively), to refuse the appellant’s application for a protection visa. Broadly summarised, the appellant’s claim for protection was his asserted fear of harm from Sri Lankan authorities (specifically, the Sri Lankan Army (the SLA)) based on an imputed political opinion of support for the Liberation Tigers of Tamil Eelam (LTTE).

Background

2    The appellant is a Sri Lankan national of Tamil ethnicity. He arrived in Australia on 14 October 2012 as an unauthorised maritime arrival. On 4 January 2013, he underwent an Irregular Maritime Arrival Entry Interview (the Entry Interview). In his Entry Interview, the appellant stated, amongst other things, that he left Sri Lanka in 2009 and went to Qatar in defiance of certain reporting conditions that had been imposed on him by the SLA. He returned to Sri Lanka in July 2011. After his return, he was taken to an army camp and tortured over a period of 2 to 3 hours, before being released. On his release, he was told by the SLA that he must report to them every month.

3    An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who is in Australia and an unlawful non-citizen: s 46A(1) of the Migration Act 1958 (Cth) (the Act). However, this bar can be lifted as a matter of discretion by the Minister: s 46A(2). In the appellant’s case, the bar was lifted. The appellant was informed of this fact on 21 December 2015.

4    On 6 February 2016, the appellant applied for a Safe Haven Enterprise Visa (SHEV). This application was prepared with the assistance of a registered migration agent. In the application, the appellant was required to state his reasons for claiming protection. In response to a number of questions directed to this subject matter, including a question as to whether the appellant had suffered harm in the country to which he said he could not return (here, Sri Lanka), the appellant referred to an attached Statement of Claims.

5    In the Statement of Claims, the appellant recounted two occasions when he had been beaten by SLA personnel. Both occasions were in 2008. The first occasion was after the detonation of a mortar 200 m from the appellant’s house. The explosion killed two SLA personnel. The appellant was rounded up with other suspects and taken to an SLA camp where he was interrogated and beaten before being released in the evening. The second occasion was about eight months later when a special team of SLA personnel riding motorcycles surrounded the appellant on his way home from work. The appellant said that the motorcycle riders “patted [him] down for weapons” and beat him, before letting him go.

6    The important matter to note is that neither in his Statement of Claims nor in the application form for the SHEV did the appellant advance a claim of being beaten or tortured in 2011 or on any occasion other than the two occasions in 2008, even though he had done so in the Entry Interview.

7    On 12 May 2016, the appellant participated in an interview in relation to his SHEV application (the protection interview). He was accompanied by his migration agent. A transcript of the protection interview is before me. The delegate’s Decision Record fairly summarises the claims made in the Statement of Claims. The Decision Record also records other information given by the appellant in the course of the protection interview. This includes what appears to have been an elaboration of the matters stated in the Statement of Claims including in relation to the occasion on which the appellant was beaten after the mortar explosion. The Decision Record also summarises the appellant’s account of his travel to Qatar in 2009 and his return to Sri Lanka in July 2011. I will return to this later:

Travel to Qatar

The applicant stated at his protection interview that:

•    He was living in Jaffna at the time he was making visa arrangements for Qatar so he got all his documents together and provided them to an agent’s office in Vanni in order to obtain his passport. The Qataris only needed a copy of his passport in order to stamp a work permit on it and it was done by email.

•    Within a day of the permit being granted he departed for Qatar (on 01/02/2009). Because of road closures, he flew from Jaffna to Colombo and then on to Qatar. He was questioned by plain-clothed Army officers at the airport in Colombo and denied when asked that he was involved with any military groups. His name was taken but he was able to extricate himself from the questioning after 20 minutes by stating he was risking missing his flight.

•    He developed stomach ulcers in Qatar and because the pay was bad, the weather was hot and non-Muslims were not treated very well, he decided to return to Sri Lanka.

•    He was nervous about returning and waited so he could travel with two friends. He only had to fill out papers on arrival in Colombo and left the airport quickly as he’d pre-arranged for a friend to meet him at the airport in a van and take him straight to Jaffna.

The applicant’s migration representative stated towards the end of the interview:

•    The applicant did not work for 6 months after his return from Qatar (on 26/07/2011) because of his stomach condition. Somebody reported that he had returned to his home and a month after arrival he was taken to the Kulavali camp for questioning over his unapproved departure for Qatar. As there was no suitably senior officer available to question him he was taken to the Manipay camp. He was released after questioning but was left in no doubt that he was very much under the control of the Army and must present and sign whenever necessary.

•    He was also very much conscious that leaving the country without the Army’s permission was against the Army’s wishes.

•    His main reason for coming to Australia was not because of any further adverse interest suffered but because of the constant insecurity in Jaffna, the high level of criminal activity and murders in the area and the lack of state protection.

8    On 9 January 2017, the Minister’s delegate found that the appellant was not a person in respect of whom Australia has protection obligations under either s 36(2)(a) or s 36(2)(aa) of the Act, and refused the visa application.

9    I note that the Minister’s delegate was not the interviewing officer before whom the protection interview was conducted. It would appear, however, that the Entry Interview, and the protection interview, in some form, were before the delegate. In the protection interview, the appellant commenced by drawing attention to his Entry Interview which he described as “very clear and very well presented”.

10    In the IAA’s Decision and Reasons, the appellant’s claims for protection are summarised as follows:

•    He travelled frequently between Jaffna and Vattapalai in the Vanni to visit his family and when he did so he had to register his details with the Sri Lankan army (SLA). The SLA was keeping an eye on him because he was 16 years of age and they would have thought he was receiving LTTE training. He'd also been trained in karate from Year 10 and looked like he was "training in combat". This increased the SLA's suspicion of him.

•    He worked for the HALO Trust (the Trust), a land mine-clearing organisation. In 2004 whilst the Trust was assisting victims of the tsunami, some workers were using Trust vehicles to transport weapons into Jaffna. This was discovered by the SLA in 2006 and the Trust came under suspicion as members or supporters of the LTTE.

•    In 2008 a mortar exploded 200 metres from his house killing two SLA members. He was suspected of being involved because of his work for the Trust and the proximity of the blast to his home. The applicant was taken to the Koolavady SLA camp and repeatedly beaten to extract a confession over the blast but he repeatedly denied involvement. He was released that evening. He spent two days in a hospital recovering from his injuries.

•    The condition of his release was that he register at the camp every day and after that, because he was afraid to travel alone, he took his wife and child with him everywhere.

•    Eight months after his detention he was travelling home from work when he was surrounded by a special team of eight men on motorcycles from the Ooreau Camp. He was searched for weapons and then beaten before being let go.

•    A neighbourhood friend who worked in the same company was killed.

•    After he returned from working in Qatar, he was taken in for questioning by the SLA and released on condition he sign regularly. He was still required to sign when he started making arrangements to leave Sri Lanka to come to Australia.

•    He fears harm from the SLA, the CID (Criminal Investigation Department) and the EPDP (Eelam People's Democratic Party) and the government cannot and will not protect him.

11    In a later section, the IAA recorded the following matters:

13.    The applicant's evidence at his SHEV interview was that his problems really started after he was detained for a day sometime in 2008 after a mortar exploded near his home killing two SLA members. In the written statement submitted with his SHEV application he said he was suspected of being involved because of his work for the Trust. In his SHEV interview his evidence was that whenever there was an explosion or something like it, the SLA surrounded the entire area and carried out a round-up. He said the fact that he'd resigned from the Trust was a reason for their increased suspicion of him together with the fact that the SLA had all his details from the numerous checks they'd carried out as he travelled between Jaffna and Vattapalai. He said his family's persistence was the reason he was released at the end of the day and that he was released only on condition he come and sign. He was also told that whenever they called he had to come.

14.    He said that after that the authorities were looking for opportunities to shoot him, they also had the EPDP to carry out certain actions, and he was frightened even to go to work. One evening he was coming back from work and he was surrounded by motorbikes, stopped and searched and questioned about what he was doing there. He said they were looking particularly for people who had been working for the Trust. Some people who had supported the LTTE had worked for the Trust and used Trust vehicles to transport weapons; some of them were beaten and to avoid further harm gave the names of numerous people, even those not involved, to the SLA. He said he was released after he told them he was already signing with the SLA. He also said that around this time 4 or 5 people were killed including his friend S who had been rounded up and shot. This was just before he left for Qatar.

15.    After that, he went to Qatar to work, disregarding the SLA's warning not to go anywhere. On his return, he wasn't stopped at the airport but somebody told them he'd returned and he was taken into custody for an enquiry and was again told he had to come and sign regularly, a condition he breached by leaving Sri Lanka for Australia. He said he'd never had a peaceful existence and left Sri Lanka out of complete frustration. He also stated that since he had left, no one had visited his home asking about him.

16.    Throughout his SHEV interview, the applicant responded spontaneously to the delegate's questions and appeared able to expand naturally on his written claims. The evidence he gave was overall consistent with the written statement provided with his SHEV application. I consider him a generally credible witness and other than as stated below, I accept his claims.

17.    His claim to have been detained and questioned on return from Qatar was not made in the written statement submitted with his SHEV application, nor that he was again required to sign after that and that he left Sri Lanka while under that reporting condition. The applicant returned from Qatar in July 2011. The Immigration and Refugee Board of Canada reported in 2013 that many Tamil returnees to Sri Lanka who were not detained at the airport were subsequently picked up at their homes or other places and taken for questioning. I also note that the applicant referred to being questioned after his return from Qatar in his entry interview on 4 January 2013. Notwithstanding his failure to make this claim in his written statement, given the country information and my view as to his credibility, I accept that the applicant was briefly detained and questioned on his return from Qatar. His evidence was that on that occasion he was questioned only and not subjected to any mistreatment. I have more difficulty accepting that he was subsequently subject to a reporting condition which he breached by leaving for Australia. This claim was also made, however, in his entry interview in which he stated he was required to report once a month. Given the consistency of this claim, and notwithstanding his failure to refer to it in his written statement I am prepared to accept that following his questioning by the SLA in 2011 on his return from Qatar, he was required to report once a month. However, his evidence at interview was that there had been no visits to his home after he left Sri Lanka. I consider this demonstrates that he was not a person of interest at the time he left Sri Lanka and I find that the requirement to report was part of the routine monitoring of Tamils to which many were subject at the time rather than an indication of any interest in, or suspicion of, the applicant personally.

12    The IAA was not satisfied that the appellant was a person in respect of whom Australia has protection obligations under either s 36(2)(a) or s 36(2)(aa) of the Act, and affirmed the delegate’s decision not to grant the visa.

13    The Minister accepts that Entry Interview, and the protection interview, in some form, were before the IAA.

14    As I have noted, the appellant sought judicial review of the IAA’s decision, but this application was dismissed, with costs. The appellant appeared in person. In his reasons for judgment, the primary judge recorded certain submissions which were not reflected as grounds of review in the appellant’s Application as filed, and made the following findings:

25.    From the bar table the applicant submitted that the Authority had misunderstood his circumstances in relation to his return from Qatar. The applicant alleged that he had been clear in explaining his circumstances and that they had been misunderstood. The Authority’s reference to the applicant’s return from Qatar as referred to above, does not identify any misunderstanding of the applicant’s circumstances. Nothing said by the applicant in relation to the Authority’s findings in relation to his return from Qatar identify any relevant legal or finding error. The Authority’s reasons in relation to the applicant’s return from Qatar as summarised above are logical and reasonable. The adverse finding does not reflect any lack of an evident and intelligible justification.

26.    The applicant alleged that he had lots of problems and suggested that there had been an issue with the interpretation at the time of his interview. When asked what the error was the applicant alleged that the questions had asked him in fact what had happened before he left Qatar and that it had been interpreted as to what was his current issues. The applicant was given an opportunity to put on affidavit evidence. No such evidence was put on. The Authority’s reasons reflect the Safe Haven Enterprise visa interview as being one that was consistent with the applicant’s statement of claims and those statement of claims included historical matters that are not consistent with the alleged error by the applicant. In any event, the Court accepts the first respondent’s submission that the asserted error cannot be said to have been material in the circumstances of the present case. Further, the Court does not accept any such error occurred. The applicant had earlier described the errors as being small errors. The applicant maintained that he had clearly provided the nature of his claims and submitted supporting evidence. The applicant’s reference to his claims including his physical appearance, in substance, invited the Court to engage in merits review. The Tribunal made logical and reasonable adverse findings in relation to the applicant’s claim concerning his application as summarised above. This Court does not have power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

15    Unlike the delegate and the IAA, the primary judge did not have before him a transcript of the protection interview in which the appellant drew attention to the claims made in the Entry Interview.

The Appeal

16    The appellant’s amended notice of appeal filed on 17 December 2018 contains one ground:

His Honour erred in failing to find the decision of the second respondent Immigration Assessment Authority (the Authority) was affected by jurisdictional error in that the Authority constructively failed to exercise its jurisdiction under ss 473CC(1) and 437DB(1) Migration Act 1958 because it misunderstood and so failed to address a component integer of a claim made by the appellant.

Particulars

a.    At the commencement of the SHEV interview the appellant explicitly and generally affirmed the claims for protection he had made in the Entry Interview.

b.    These claims included that after the appellant’s return from Qatar in 2011 the Sri Lankan Army (SLA) had taken him to an army camp and tortured him for 2-3 hours for defying an SLA direction not to leave the local area and to report weekly (the Qatar return torture integer).

c.    The Qatar return torture claim was a component integer of the appellant’s claim that he had a well-founded fear of harm from the SLA for having again left Sri Lanka in breach of another reporting regime the SLA had established for him (the leaving claim).

d.    The Authority’s misunderstanding of and failure to address the Qatar return torture claim caused its assessment of the leaving claim to miscarry and allowed the Authority:

i.     To characterise the second reporting regime as ‘routine monitoring’ at [17];

ii.     To assess the appellant’s profile with the Sri Lankan authorities as not exceeding ‘that general level of suspicion to which many Tamils were subject during the war’: at [22];

iii.     To apply to the appellant’s claims unspecified ‘country information’ as not supporting ‘a finding that the fact that a person who has previously been monitored, or left while being monitored, increases that person’s risk profile, or otherwise results in adverse consequences’: at [32] and [42].

17    The appellant accepts that this ground was not squarely raised before the Circuit Court, although he submits that it was alluded to when he informed the primary judge that the IAA had misunderstood his circumstances in relation to his return from Qatar: see [14] above. However, as I have noted, the primary judge did not have the benefit of a transcript of the protection interview before him. No attempt appears to have been made to introduce the protection interview into evidence. The appellant accepts that leave is required to rely on this ground now, it not having been raised in the Application filed in the Circuit Court. He submits that it would be expedient in the interests of justice to allow him to rely on this ground in the appeal.

18    For his part, the Minister does not claim any prejudice if leave were to be granted. He submits, however, that lack of prejudice is not, by itself, a sufficient reason to allow a new ground to be raised on appeal: SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 at [20].

19    The parties agree that it would be appropriate to hear their substantive arguments on this ground, as if leave had been granted, and to defer ruling on the question of leave until the delivery of these reasons. The same approach was adopted in respect of the reception of new evidence in support of the ground (the transcript of the protection interview).

20    The appellant’s submissions were developed as follows. In the protection interview, the appellant commenced by drawing attention to his Entry Interview which, as I have said, he described as “very clear and very well presented”. The appellant submits that this was an affirmation of his claim that he was tortured after his return from Qatar in 2011. The appellant submits that, despite this, the IAA stated (at [17] of its Decision and Reasons):

Notwithstanding his failure to make this claim in his written statement, given the country information and my view as to his credibility, I accept that the applicant was briefly detained and questioned on his return from Qatar. His evidence was that on that occasion he was questioned only and not subjected to any mistreatment.

(Emphasis added.)

21    The appellant submits that he did not state in the protection interview that, on the occasion when he was detained and questioned on his return from Qatar, he was not subjected to mistreatment. He submits that this passage in the IAA’s Decision and Reasons manifests a misunderstanding of his claims, with a resultant failure by the IAA to consider an essential integer of his claim to have a well-founded fear of harm from the SLA for having left Sri Lanka. The appellant submits that this failure was influential in the IAA’s determination that the appellant had been subjected to no more than routine monitoring to which many Tamils were subjected, rather than any particular interest in, or suspicion of, the appellant personally.

22    For example, at [22] of its Decision and Reasons, the IAA stated:

However, the evidence indicates that the applicant does not have a profile with the authorities beyond the general level of suspicion to which many Tamils were subject during the war.

23    At [32], the IAA said:

However, the country information does not support a finding that the fact that a person who has previously been monitored or left while being monitored, increases that person’s risk profile, or otherwise results in adverse consequences.

24    At [42], the IAA said:

I also accept that he was questioned on return from Qatar and subject to routine monitoring and reporting conditions.

25    The IAA continued:

He was permitted to lawfully depart Sri Lanka for Qatar in 2009 and while he was subjected to questioning on his return and required to regularly report, the country information does not support that he is at risk of harm because he left while being monitored.

26    The appellant took me to certain passages of the transcript of the protection interview in an endeavour to explain where and how the IAA’s misunderstanding might have occurred.

27    For his part, the Minister also took me to various passages in the transcript in an endeavour to show that the appellant’s claim of torture after his return from Qatar was not a claim that had been advanced before the delegate. For example, in his protection interview the appellant simply related that, when he returned from Qatar, he was taken into custody and that there had been an inquiry. He did not state that he had been tortured. Later in the protection interview, the appellant’s agent informed the interviewer that, after his return from Qatar, the appellant had been taken to an army camp and questioned. Once again, no claim of torture was advanced. At the end of the protection interview, the appellant was asked whether he had anything further to say. The interviewer said:

Just make sure you put forward all your claims for protection.

28    In response, the appellant made no explicit reference to torture on his return from Qatar.

29    Even though the Minister accepts that the Entry Interview was before the IAA, he submits that the IAA was entitled to proceed on the basis that the appellant was not making any claim that he was tortured after his return from Qatar in 2011. The Minister contends that a claim of torture is a significant matter. One would expect such a matter to be specifically raised if it were true and if continuing reliance was being placed on it. The Minister submits that the appellant’s failure to raise the matter in his protection interview was inconsistent with such a claim continuing to be asserted, and that the IAA was entitled to regard the claim made in the Entry Interview as having been abandoned: SZEIV v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1798 at [34].

Analysis

30    It is certainly true that the appellant did not address his claim of torture after his return from Qatar in 2011 in his Statement of Claims or make explicit reference to it in the protection interview, when he could have done so. It is, perhaps, curious that he did not. I do not accept, however, that his failure to make explicit reference to this claim signifies an abandonment of it when it was clearly raised in his Entry Interview. At the commencement of the protection interview, the appellant commenced by directing the interviewer’s attention to the Entry Interview. I accept the appellant’s submission that the terms in which he did so affirmed that he maintained his claim that he had been tortured after his return from Qatar. While his failure to specifically refer to this incident of claimed torture in later parts of the protection interview (or, indeed, in the Statement of Claims) might reflect on the veracity of that claim (I say no more than that), I do not accept that the appellant abandoned it. It is important to note that, in [17] of its Decision and Reasons, the IAA was prepared to go behind the appellant’s Statement of Claims and, given its view of his credibility, to accept the appellant’s evidence that he had been detained and questioned after his return from Qatar. But, in that connection, the appellant certainly did not give evidence in the protection interview that he was only questioned and was “not subjected to any mistreatment” (emphasis added), as the IAA stated. There was no such disavowal by the appellant of the explicit claim made in the Entry Interview that torture had taken place at that time. The IAA failed to engage with that claim. It was not relieved from the task of engaging with it because explicit reference was not made to it by the appellant or his agent in the course of the protection interview, despite the interviewer’s urgings to “put forward all your claims for protection”. The truth is, the appellant’s claim of torture after his return from Qatar in 2011 had been put forward at the outset of this interview. That being so, it was then necessary for the IAA, on review, to consider and determine it.

31    In the circumstances, I am satisfied that the IAA failed to address the appellant’s claim that the SLA tortured him on his return from Qatar, having left Sri Lanka in defiance of an SLA reporting regime and warnings not to leave. I accept that this was a component integer of his overall claim and that, as a consequence, the IAA constructively failed to exercise its jurisdiction to conduct the review required of it by s 473CC(1) and s 473DB(1) of the Act: see the principles conveniently discussed in BOZ16 v Minister for Immigration and Border Protection [2018] FCA 418 at [9] - [13]. The IAA’s failure was more than mere errant fact-finding.

Disposition

32    I will grant leave to the appellant to rely on the ground stated in his amended notice of appeal filed on 17 December 2018, and allow the appeal. I will set aside Order 1 of the Circuit Court made on 3 May 2018. I will not, however, interfere with the Circuit Court’s order for costs given the grounds of review that were properly before the Circuit Court and the Circuit Court’s determination of those grounds on the material before it. The appellant does not seek to appeal from the Circuit Court’s determination of those grounds. The decision of the IAA will be quashed and the matter will be remitted to the IAA for redetermination, according to law. Costs of the appeal will follow the event.

Associate:    

Dated:    20 February 2019