FEDERAL COURT OF AUSTRALIA

ALJ17 v Minister for Home Affairs [2019] FCA 207

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, as agreed or assessed.

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

REASONS FOR JUDGMENT

KENNY J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 29 August 2018, dismissing an application for judicial review of a decision of the Immigration Assessment Authority (IAA) dated 11 January 2017. The IAA had affirmed a decision of a delegate of the respondent Minister dated 25 November 2016 to refuse the appellant’s application for a Safe Haven Enterprise (Subclass 790) visa. The Federal Circuit Court judgment has the citation ALJ17 v Minister for Immigration & Anor [2018] FCCA 2411.

2    The Court was notified yesterday that a solicitor had filed a notice indicating that he was acting in the appellant’s matter. Written submissions were filed for the appellant previously, indicating that they were prepared by a solicitor. The appellant was represented by his solicitor at the hearing of the appeal. An interpreter was also available to assist.

3    During the course of the morning today, the appellant’s solicitor sent Chambers an email attaching an unfiled new “draft notice of appeal” dated 21 February 2019. The draft notice of appeal is in the following terms:

Ground of Appeal

Authority fell into jurisdictional error by constructively failing to identify Convention requirements in facts as found.

Particulars

Authority, having accepted facts of the case, failed to discern a Convention nexus, based on past LTTE involvement leading to LTTE support, imputed dissent to the government resulting from an incident and TNA support in relation to harm suffered in the past leading to future harm from paramilitary and TMVP working with the government to supress LTTE resurgence.

Alternatively

Authority failed to apply to facts as found by it or failed to take into account relevant considerations.

4    Precisely why the appellant sent this document is unclear, since substantially the same issues are raised by the appellant’s notice of appeal filed on 20 September 2018 and by his written submissions. The appellant did not ultimately seek to file this new document, since I indicated that I would consider all of his submissions in any event.

5    I have considered the issues as outlined in the appellant’s written and oral submissions with reference to the notice of appeal as first filed. I have also referred to the proposed “new” notice of appeal where appropriate.

6    The Minister, who was represented by counsel at the hearing, relied on written submissions dated 14 February 2019.

Background

7    The appellant is a citizen of Sri Lanka. He arrived in Australia on 21 October 2012 as an “unauthorised maritime arrival”, as defined in s 5AA of the Migration Act 1958 (Cth).

8    On 11 May 2016, the appellant applied for the visa. The appellant claimed to fear harm from the Sri Lankan authorities and Tamil paramilitaries because he had been imputed with a profile of association with the Liberation Tigers of Tamil Eelam (LTTE). He said that his older brother was an LTTE fighter from 1985 to 1992. Although he initially said that this brother had been rehabilitated and was living in Mannar, he later told the IAA that the brother had been killed by the army in 2010. The appellant claimed that when he was a teenage student, he was required to join the LTTE student organisation and to promote awareness at his school and recruit people for the LTTE. The appellant said that he lived and worked in Saudi Arabia from 2001 to 2007 and in that time travelled back to Sri Lanka on four occasions for holidays.

9    After his marriage, he returned to Sri Lanka and opened a grocery store. Soldiers visited his shop and helped themselves to items without paying for them. They would threaten and assault him if he asked them to pay. He said that he was beaten by soldiers in one incident in 2010 after a poster of the President outside his shop was torn and damaged.

10    The appellant claimed to be a supporter of the Tamil National Alliance (TNA) during the 2012 provincial elections, as a consequence of which he was threatened by supporters of the Tamil Makkal Viduthalai Pulikal (TMVP), a paramilitary group. He cited particular instances of harassment, in August 2012, early-September 2012 and mid-September 2012. The appellant claimed that, since his departure, the TMVP have visited his shop and house, and stated that his brother-in-law’s efforts to keep the shop running had failed because of TMVP harassment. The appellant also claimed that the Pillayan paramilitary group had approached one of his friends and made enquiries as to the appellant’s whereabouts.

11    On 25 November 2016, a delegate of the Minister refused the appellant’s visa application and his matter was subsequently referred to the IAA for review. The appellant’s representative sent submissions to the IAA dated 14 December 2016 in support of the appellant’s claims. As already noted, the IAA affirmed the delegate’s decision.

12    The IAA accepted a number of the appellant’s claims to have suffered harm in the past, including that:

    he lived in LTTE-controlled Jaffna from 1990 to 1992 and joined the LTTE student organisation (at [15]);

    his older brother was an LTTE fighter from 1985 to 1992 and that he died in 2010 (at [16]-[17]);

    army soldiers regularly took items from the appellant’s shop without paying for them, and that he was assaulted and threatened when he asked them to pay (at [18]);

    he was beaten by the army in 2010 because of the damage to a pro-government poster and suffered residual scarring (at [19]);

    he had actively supported the TNA and was involved in the 2012 elections, and that he was harassed and threatened by political opponents in the 2012 elections (at [20]).

13    The IAA also referred to country information that supported aspects of the appellant’s claims (at [20], [33]). The IAA was not satisfied, however, that the TMVP or Pillayan group had harassed the appellant’s brother-in-law at the shop after the appellant’s departure, as country information did not support ongoing harassment of people who had provided low level political support beyond the election period (at [21], [23]). The IAA did not accept that the appellant’s wife had lodged a complaint with the Presidential Commission in 2016 concerning her brother’s death in 1986 and had subsequently been threatened (at [24]-[26]). The IAA found the letter in support of this claim had been written in an attempt to enhance the appellant’s protection claims (at [27]).

14    The IAA found that the appellant did not have a real or imputed LTTE profile and was not satisfied that there was a real chance that he would come to the adverse attention of the Sri Lankan authorities or associated groups on return to Sri Lanka as a result of family links to his brother or brother-in-law, or because of his past activities (at [32]). The IAA also referred to country information that indicated an improvement in the general security situation in Sri Lanka since the commencement of the Sirisena government, as well as greater political cooperation (at [34]).

15    The IAA considered whether the appellant would face relevant harm if he returned to Sri Lanka as a person who had illegally departed the country, and was ultimately not satisfied that he would face harm on this account (at [38]-[46]). The IAA accepted that on arrival in Sri Lanka, involuntary returnees were processed by the Department of Immigration and Emigration, the State Intelligence Service and a unit of the Criminal Investigations Department (CID), and that the process could take several hours to complete. The IAA concluded that “there is no indication that this would result in the appellant experiencing any harm”. The IAA continued (at [40]-[43]):

As a returnee it is likely that [the appellant] will be questioned by police at the airport and charged under the [Immigrants and Emigrants Act 1949]. As part of this process, most returnees will be fingerprinted and photographed. Returnees are transported to the nearest Magistrates Court at the first available opportunity. However, returnees may be required to remain in police custody at the CID Airport Office for up to 24 hours. In circumstances where a Magistrate is not available before this time, such as a weekend or public holiday, returnees may be held at a nearby prison. DFAT advises general prison conditions in Sri Lanka who not meet international standards because of a lack of resources, overcrowding and poor sanitary conditions.

DFAT understands that no returnee who was merely a passenger on a people smuggling boat has been given a study or sentence for departing Sri Lanka illegally, instead fines have been issued as a deterrent. The amount of the fine may vary and can be paid by instalment if the returnee faces difficulty with payment. If a person pleads guilty, they will be fined and released. In most cases, when a returnee pleads not guilty, they are immediately granted bail on personal surety by the Magistrate, or may be required to have a family member act as guarantor. … Bail conditions are imposed on a discretionary basis, although DFAT understand conditions are rarely applied. An accused will only need to return to court when the case against them is being heard. DFAT assesses that ordinary passengers are generally viewed as victims and penalties are more likely to be pursued against those suspected of being facilitators or organisers of the people smuggling.

Once before the Court, and if not dealt with on the spot if the [appellant] were pleading guilty, the returnee would ordinarily be released unconditionally or be bailed to return to Court at a later date. If a Magistrate is not available at that time, for example due to the weekend or a public holiday, the [appellant] could be held in a nearby prison for a short time. Although the maximum penalty includes five years imprisonment, the country information indicates custodial sentences are not imposed on returnees who were merely a passenger on a people smuggling boat but that fines are issued to act as a deterrent.

The [appellant] was only a passenger on the boat; there is no indication that he was involved in a people smuggling venture. Based on country information I find that the [appellant] may be detained and questioned at the airport for up to 24 hours, be fined for breaching the [Immigrants and Emigrants Act 1949] and, may face a period of time held in prison.

16    The IAA did not consider that a brief period in detention would constitute the necessary level of threat to life or liberty, or that it would amount to significant physical harassment or ill treatment under s 5J(5) of the Migration Act or otherwise amount to serious harm to the appellant (at [44]). Similarly, taking into account his psychological condition, the IAA did not consider any likely questioning by the authorities at the airport on arrival, any surety imposed, or the imposition of a fine, would constitute relevant harm (at [45]). The IAA was therefore not satisfied that the appellant was a person in respect of whom Australia had protection obligations under either ss 36(2)(a) or 36(2)(aa) of the Migration Act.

Federal Circuit Court proceeding

17    On 3 February 2017, the appellant applied for judicial review of the IAA’s decision in the Federal Circuit Court. The appellant initially raised 10 grounds of review, but ultimately pressed only grounds 2 and 3.

18    The appellant and the Minister were both represented by counsel at the subsequent hearing on 29 August 2018. The primary judge delivered judgment on the same day, dismissing the application.

19    By ground 2, the appellant alleged that the IAA erred by failing to give consideration to a letter dated 13 December 2016 from an MP who stated that “the [appellant] actively participated in the non-violent struggle launched by the TNA for liberation of Tamil people in Sri Lanka”.

20    The IAA had been satisfied that the appellant provided the MP’s letter to the IAA as “new information” under s 473DC of the Migration Act. Having regard to the contents of the letter and the other materials before it, it had found that exceptional circumstances did not exist to justify considering the letter from the MP any further. The primary judge held that the IAA’s conclusion that there were no exceptional circumstances was a finding “open to it on the evidence and material before it and for the reasons it gave” (at [34]). Her Honour also held that the IAA’s findings were not tainted by a denial of procedural fairness to the appellant or by legal unreasonableness (at [35]).

21    By ground 3, the appellant asserted that the IAA erred in rejecting the appellant’s claim regarding “Mr AG”, the appellant’s wife’s older brother. The appellant contended that the IAA confused the claim as “new information” and, accordingly, did not consider the appellant’s claim that Mr AG was involved in the LTTE and was shot dead by the army.

22    The IAA treated the submission that Mr AG had been involved with the LTTE and shot dead as a new claim, which had not been mentioned by him in his claims to the delegate. The IAA noted that the appellant had mentioned his wife’s brother named “Mr P” in previous claims, but had not referred to a Mr AG. The IAA found there were no exceptional circumstances justifying consideration of the claim. The primary judge held that it was open to the IAA to characterise the information in this way (at [43]). Her Honour found that the IAA considered in detail the nature and effect of the information and that there was no indication the appellant was not aware of the information at the time of submitting his visa application. Her Honour rejected the ground, and found the IAA’s findings were open to it and were not legally unreasonable (at [45]).

Proceeding in this Court

23    By notice of appeal filed on 20 September 2018, the appellant raised a single ground of appeal, that the IAA made a jurisdictional error. The appellant provides the following particulars the ground of appeal:

1.    IAA did not consider paramilitary activity with the connivance of Sri Lankan authorities.

2.    IAA did not find me a refugee, based on the evidence cumulatively.

24    The second of those issues in particular covers much of the same ground as is raised in the proposed new draft notice of appeal, although in the proposed new draft notice the focus is on the question of whether the IAA had addressed the Convention requirements.

25    The appellant’s written submissions acknowledged that his first notice of appeal (in ground 1) sought to advance a new ground that was not before the Federal Circuit Court and, as such, that leave is required to raise it on appeal.

26    It is well-established that the Court may grant leave to raise a new ground on appeal where it considers this to be expedient and in the interests of justice. The Minister did not identify any particular injustice that might ensue if the leave were granted. Rather, as the Minister observed in written submissions, the appellant, who was represented by counsel in the Federal Circuit Court, has not sought to explain why the matter was not raised earlier in that Court. I would not, however, refuse leave for this reason but because there is insufficient merit in the proposed new ground to justify a grant of leave.

27    The IAA’s reasons for decision were detailed and clearly addressed the appellant’s claims that he feared harm due to paramilitary activity, particularly from the TMVP and Pillayan group. There is no discernible basis for the proposition that the IAA failed to consider any integer of the appellant’s claims or any aspect of his evidence in this regard.

28    In his written submissions, the appellant emphasised that his “central claim” concerned his TNA support, but that he also made other claims, including that he was at some stage involved with the LTTE. The appellant submitted in writing that “[t]aken together, his LTTE involvement in the [past] and the TNA support will place him in danger”. These submissions were substantially repeated in his oral submissions today. The appellant’s new document headed “draft notice of appeal” seeks to raise substantially this argument. The difficulty with the submission is that it would have the Court second-guess the findings that have now been made by the IAA. It is not open to this Court to make its own independent assessment of the appellant’s claims and evidence before the IAA. The IAA made clear findings in relation to the appellant’s involvement with both the LTTE and the TNA, and it was ultimately not satisfied that there was a real chance that the appellant would face harm if returned to Sri Lanka on either basis. The appellant has been unable to identify any error in the way in which these findings were made that might amount to jurisdictional error.

29    As already indicated, the IAA found that the appellant does not have a real or imputed LTTE profile and that it was not satisfied that there was a real chance that he would come to the adverse attention of the Sri Lankan authorities or associated groups on return to Sri Lanka as a result of family links to his brother or brother-in-law, or because of his activities as a teenager in Jaffna (at [32]). Further, although the IAA accepted that the appellant had given low-level support to the TNA in the 2012 elections and that TNA supporters had been harassed by opposition parties, the IAA did not accept the appellant’s claims “that the TMVP and Pillayan group have continued to have an interest in the [appellant] and make enquires about him after the election and his subsequent departure from Sri Lanka” (at [36]). There is nothing shown to indicate that these findings were not reasonably open to the IAA on the evidence before it.

30    The appellant also submitted in writing that his ability to travel to Saudi Arabia and back without harm was irrelevant to the consideration of his claims, because his “TNA problems postdate[d] his travel”. He stated that the last time he went through the airport was in 2007. The only part of the IAA’s reasons that mentions the appellant’s ability to travel without incident is at [31], where the IAA considered the appellant’s risk of harm due to his activities in Jaffna as a teenager. In rejecting the appellant’s “fears that he has been imputed with an LTTE profile that will attract adverse attention on return to Sri Lanka”, the IAA there stated (amongst other things):

I place significant weight on the ability of the [appellant] to obtain a passport and travel to Saudi Arabia regularly from 2001 to 2007. The [appellant’s] ability to leave and re-enter Sri Lanka after these events occurred indicates that he was not of concern to the authorities because of his own activities or those of his brother.

31    There is nothing to indicate that the IAA’s reasoning regarding the appellant’s ability to travel without incident was not open to it on the materials before it. When [31] is read as a whole, it is also apparent that the IAA regarded the appellant’s ability to travel as one of a number of factors supporting its finding that he was not of ongoing concern to Sri Lankan authorities because of his much earlier teenage involvement with the LTTE. As already indicated, the IAA made separate findings in relation to the appellant’s support of the TNA, which were not based on the appellant’s ability to travel to Saudi Arabia without incident.

32    The appellant referred to certain country information that was before the IAA in both oral and written submissions. The appellant did not, however, identify any error in the IAA’s reliance on any of the country information to which it referred. At most, the appellant, through his counsel, disagreed with the views expressed in that country information. It was a matter for the IAA to determine the country information that it considered most cogent and the weight to give it.

Disposition

33    For the reasons stated, I would dismiss the appeal, with costs. Because the proposed new notice of appeal has not been formally filed, there is no need to make any order with respect to it.

Associate:

Dated:    21 February 2019