FEDERAL COURT OF AUSTRALIA

DSF17 v Minister for Home Affairs [2019] FCA 243

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3.    Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement:

(a)    within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    The appellant, a Sri Lankan citizen of Tamil ethnicity, appeals from orders made by the Federal Circuit Court of Australia dismissing his application for judicial review of a decision of the Immigration Assessment Authority (the Authority). The Authority affirmed a decision of a delegate of the first respondent (the Minister) to refuse the appellant’s application for a Safe Haven Enterprise Visa.

2    For the reasons that follow, the appeal is to be dismissed.

Background

3    The following statement of the background facts is based substantially on the reasons of the primary judge (the Reasons).

4    The appellant is a citizen of Sri Lanka. He was born in Nanaddan on 1 June 1986. He is a Hindu man of Tamil ethnicity. He arrived in Australia on 25 April 2013 as an unauthorised maritime arrival as defined by s 5AA of the Migration Act 1958 (Cth). The Minister exercised his power under s 46A(2) of the Migration Act to allow the appellant to make a valid application for the Safe Haven Enterprise Visa.

5    The appellant’s Safe Haven Enterprise Visa application was relevantly accompanied by a statement dated 29 July 2016. The appellant’s claims for protection were as follows:

(a)    he is a Tamil from Sri Lanka;

(b)    he has been imputed with the political opinion of supporting the Liberation Tigers of Tamil Eelam (LTTE);

(c)    he lived in refugee camps in India from 1990 until 1995, and 2006 until 2013;

(d)    whilst studying in 2003, the LTTE approached him and other students to join the LTTE. He refused, but was forced to do work in the propaganda wing. This forced him to leave school and his accommodation as he did not want to be involved in LTTE activities. He returned to his village and started making new friends. He came to know that some of these boys were LTTE members or sympathisers;

(e)    in 2006, a small Sri Lankan army camp in his home area was fired upon by the LTTE and a few soldiers were killed and injured. The Sri Lankan Army (SLA) took revenge, attacked his village and arrested young males. The appellant was arrested. He had his hands tied behind his back and was beaten with sticks. He was badly treated and feared being killed. After a few hours he was released on the condition that he did not leave the village and that he report every day to the SLA camp. A few days later, officers from the Criminal Investigation Department (CID) visited his house and told his uncle that they suspected the appellant was involved with the LTTE. They searched the house and his uncle gave them a photo of the appellant. His uncle told him that he did not want him staying there any more so, with his uncle’s assistance, the appellant fled Sri Lanka to India in October 2006. He found out later that two of his friends were arrested.

6    The appellant’s statement referred to, and was supported by, country information, particularly in support of his claim that, despite the cessation of hostilities in Sri Lanka and the election of a new government, the persecution of Tamils, former LTTE members, and returnees/failed asylum seekers continued.

7    The appellant remained in India until 2013 and did not return to Sri Lanka. He lived as a refugee in India where he married and had two children. The appellant claimed that the authorities in Sri Lanka continued to search for him, once shortly after his departure, and again in 2009.

8    The appellant attended an interview for a Safe Haven Enterprise Visa with the delegate on 18 January 2017 and added the following details:

(a)    In 2006, he was facing compulsory recruitment by the LTTE. He was unable to complete his education and had to move to a nearby village. In that village there was a clash between the LTTE and the SLA and he was arrested by the SLA on suspicion that he was involved. He was beaten and kicked. The local parish priest was able to secure his release on the condition that he report and sign at the SLA camp daily.

(b)    About a week after his release, the CID came to his house looking for him. A number of his friends were arrested too. He was not at home when they came to his house. His uncle gave them both the photograph and details of the appellant. He had signed in five times since his release. His uncle advised him to leave Sri Lanka as it was unsafe.

(c)    He would still have an issue in Sri Lanka as some of the friends that were arrested at the same time as him have disappeared. He believes that the same thing would happen to him.

(d)    He believes that his name is on a wanted list and he will be arrested if he returns.

(e)    In 2009, after the war, the authorities were rounding up people and his uncle informed him that they searched for him again; they have not looked for him since.

(f)    He is aware of a number of other people, like him, who returned to Sri Lanka and were arrested.

(g)    Some of the people who were members of the LTTE and were sent to rehabilitation have been brainwashed and given poisonous injections.

(h)    If he returns to Sri Lanka he will be taken into custody and imprisoned for ten years.

(i)    Because he has lived outside of Sri Lanka for so long, and left the country illegally, the Sri Lankan authorities will consider him a threat to security. The moment he lands at the airport, he will be questioned and his history discovered.

9    At his interview with the delegate on 18 January 2017, the appellant provided further country information and a copy of his Sri Lankan driver’s licence. The country information was again principally directed to the ongoing threats faced by people in the position of the appellant, notwithstanding improvements in Sri Lanka.

10    The delegate accepted that the appellant: was Tamil; may have had an imputed political opinion based on his race, age and area of residency; and would be perceived to be a failed asylum seeker. However, the delegate was not satisfied that there was a real chance or risk that the appellant would be subject to serious or significant harm on his return to Sri Lanka for any of his claimed reasons.

The decision of the Authority

11    The following summary of the decision of the Authority is substantially based on the summary contained in the Reasons.

12    On 6 February 2017, the matter was referred to the Authority.  The appellant’s representative subsequently provided a submission to the Authority dated 16 February 2017. That submission contained legal argument responsive to issues in the delegate’s decision, which the Authority determined could be regarded as argument, rather than “information”. The Authority also noted that the submissions reasserted claims that were made to the delegate and were part of the referred material.

13    The Authority, as noted at [5] of its decision and reasons (the Decision Record), found that the appellant’s representative’s submission of 16 February 2017 contained country information that was not before the delegate and was “new information” for the purposes of s 473DD of the Migration Act. The Authority noted that information pre-dated the delegate’s decision, and no reason was provided as to why the information could not have been provided to the delegate before the decision was made, or why the information should be considered credible personal information. The Authority was not satisfied in respect of that information that s 473DD(b) of the Migration Act was met.

14    The Authority noted at [6] that the delegate had relied on a country report prepared by the Department of Foreign Affairs and Trade (DFAT) dated 18 December 2015 (the December 2015 DFAT Country Report). The Authority noted that it had had regard, however, to some “new information” in making its decision, being:

… new country information regarding Tamils and Sri Lankan returnees (information not specifically about the [appellant] but about a class of persons of which the [appellant] is a member), from the most recent Department of Foreign Affairs and Trade (DFAT) country report for Sri Lanka which was published on 24 January 2017.

15    The Authority was “satisfied that there are exceptional circumstances to justify considering this new information”.

16    As to the appellant’s claims for protection, the Authority accepted that the appellant had been forcibly recruited by the LTTE in 2003 and arrested, detained and assaulted in 2006, and that, a week after his detention, the CID searched his house and left with a recent photograph of him. It did not accept that the authorities had come looking for the appellant as recently as 2009, and noted that even on the appellant’s account there was no evidence of any interest in him since that time.

17    The Authority referred to country information indicating significant improvements for Tamils in Sri Lanka. It stated that recent country information supported the conclusion that a person being of Tamil ethnicity did not itself warrant international protection. It further stated that this conclusion applied to a person who had a past membership or connection to the LTTE, unless they had, or were perceived to have, a significant role in relation to post-conflict Tamil separatism.

18    Accordingly, the Authority concluded that there was no real chance of the appellant being harmed by the authorities or others on the basis of being an imputed LTTE supporter, or a young Tamil male from a former LTTE controlled area.

19    As to the appellant’s claims to fear harm as a returnee failed asylum seeker, the Authority did not accept, as set out at [15] of the Decision Record, that the appellant, with his limited involvement with the LTTE, being that of being forcibly recruited once in 2003, and then held by the SLA in 2006 for a few hours and questioned, would be placed on any ‘watch list’ or ‘stop list’ or be of any interest to the Sri Lankan authorities.

20    The Authority noted the appellant left Sri Lanka in 2006. The Authority was also not satisfied that the appellant’s activities in India would raise any concern on return to Sri Lanka. The Authority noted that the appellant did not engage in any controversial activity whilst he was in India. He married a woman and had two children.

21    The Authority set out at [18] of the Decision Record the following:

I am satisfied that the [appellant] has no identity concerns, or criminal or security records that would raise the concern of the authorities. Given that I have found that the [appellant] has have [sic] no relevant profile of actual or suspected links to the LTTE, or any record of pro-LTTE political activity, or for any other reason, I am satisfied that he will not be at risk of harm during, or as a consequence of, this routine investigation. Nor would his profile raise suspicion about him, in my view, that would result in his being followed up and subjected to serious harm later.

22    The Authority took into account that according to the DFAT country report dated 24 January 2017 (the January 2017 DFAT Country Report), persons who departed Sri Lanka illegally would be charged under Sri Lanka’s Immigrants and Emigrants Act, fingerprinted and photographed, and then transported to the closest magistrates court, at which point responsibility would shift to court or prison services.

23    The Authority noted at [20] of the Decision Record that based on the January 2017 DFAT Country Report “if the [appellant] were to plead not guilty, he would either be immediately granted bail on personal surety, or he might have to wait to be collected by a family member if required to have a family member act as guarantor”.

24    The Authority considered that the Court would not require a family member to act as guarantor in the circumstances of the appellant and would instead grant bail on the appellant’s own recognisance. The Authority noted DFAT’s advice that if bail was granted there were rarely any conditions.

25    On the basis of the advice contained in the January 2017 DFAT Country Report, the Authority considered that the appellant may be charged, convicted and fined, and briefly detained as an illegal returnee pursuant to the Sri Lankan Immigrants and Emigrants Act, but that this would be a function of the operation of a law of general application and would not, in any event, result in any serious harm to the appellant.

26    The Authority likewise considered, having regard to its foregoing reasons, that the appellant did not face a real risk of significant harm.

The proceeding in the Federal Circuit Court

27    The appellant applied to the Federal Circuit Court for judicial review of the Authority’s decision. The appellant (who did not have legal representation) relied on a single ground as follows:

The decision of the IAA is affected by jurisdictional error.

Particulars

a.    In relation to his illegal departure, he will be a returning asylum seeker and the decision maker has erred when he concludes that there is not a real chance that any element in the process would involve serious harm for the purposes of s 36(2)(a).

b.    In considering whether there is a real risk of the [appellant] experiencing treatment involving “significant harm” for the purposes of s 36(2)(aa), the decision maker should have considered country information which states that a number of cruel and inhumane acts can occur even for a brief period in remand and it also should have considered what if he cannot be brought before a magistrate and what if he was not granted bail or able to get a surety or what if there were concerns about his identity and would that have lead [sic] to cruel treatment, punishment or degrading treatment.

28    The primary judge dismissed the application for judicial review. The primary judge’s core reasoning was as follows:

26.    The single ground of judicial review cannot succeed in either of its particulars. The Applicant is in essence seeking impermissible merits review given the carefully reasoned decision of the Authority, the circumstances of the Applicant, and the factual context.

27.    The Authority carefully considered those claims put before it by the Applicant. It was for the Authority to determine the selection of country information and what weight the Authority would give to that country information. Its selection of the most recent DFAT information on Sri Lanka was unremarkable and appropriate. As to the country information contained in the Applicant’s submission to the Authority dated 16 February 2017, it was open to the Authority to conclude, as it did, that this was new information, and that the threshold for the consideration of new information set by s.473DD of the Act had not been met.

28.    As to the remainder of the information in the Applicant’s submission of 16 February 2017, it can reasonably be inferred that the Authority took this into consideration.

29.    The findings of the Authority in respect of the ground of application were open to the Authority on the evidence before it. There was nothing illogical or unreasonable about those findings. No jurisdictional error attends the decision of the Authority.

The appeal to this Court

29    The appellant appeals to this Court from the orders of the Federal Circuit Court. In his notice of appeal, the appellant relies on the following ground:

The decision of the Federal Circuit Court is affected by jurisdictional error.

Particulars

a.    In relation to his illegal departure, he will be a returning asylum seeker and the Federal Circuit Court has erred by concurring with the IAA that there is not a real chance that any element in the process would involve serious harm for the purposes of s.36(2)(a).

b.    In considering whether there is a real risk of the [appellant] experiencing treatment involving “significant harm” for the purposes of s.36(2)(aa), the Federal Circuit Court has erred by adopting the conclusion of the IAA and it should have considered country information which states that a number of cruel and inhumane acts can occur even for a brief period in remand and it also should have considered what if he cannot be brought before a magistrate and what if he was not granted bail or able to get a surety or what if there were concerns about his identity and would that lead to cruel treatment, punishment or degrading treatment, instead it readily accepted its conclusions as stated in paragraphs 23, 24 & 25 of the decision of the Federal Circuit Court.

30    The appellant’s ground of appeal broadly corresponds with his ground before the primary judge. Although it is contended that the decision of the Federal Circuit Court is affected by “jurisdictional error”, I would take the appellant to be contending that the decision of the Federal Circuit Court was affected by “error” by reason of the primary judge not accepting that the decision of the Authority was affected by jurisdictional error.

31    At the hearing before me, the appellant made oral submissions that were largely directed to the merits of his claim for protection, rather than demonstrating error in the decision of the primary judge.

32    I will now consider each particular of the appellant’s ground of appeal.

33    By particular (a), the appellant contends, in effect, that the decision of the Authority was affected by jurisdictional error in relation to the Authority’s findings as to whether the appellant faced a real chance of serious harm as a returning asylum seeker, and the primary judge erred in not so finding. The Authority dealt with this issue at [17]-[22] of its decision, in particular, at [21]. On the basis of the information contained in the January 2017 DFAT Country Report, the Authority accepted that, on return, the appellant might be detained for a short period during investigation and while waiting to be taken before a court. However, the Authority was of the view that a brief period of detention, even taking the prison conditions into account, did not rise to the level of a threat to life or liberty, or to significant physical harassment or ill treatment, or otherwise amount to serious harm for the purposes of the Migration Act. There does not appear to be any jurisdictional error in respect of the Authority’s fact-finding or reasoning on this topic. The appellant has not demonstrated error as contended in particular (a) of his ground of appeal.

34    It is convenient to deal with particular (b) in two parts. In the first part of this particular, the appellant contends, in effect, that the decision of the Authority was affected by jurisdictional error because the Authority should have considered country information that stated that a number of cruel and inhumane acts could occur in remand, and the primary judge erred in not so finding. It is not clear what country information is being referred to in this particular. In the course of the hearing, counsel for the Minister identified certain material at pages 103 and 113 to 115 of the Appeal Book as possibly being the country information referred to in this particular. If this is the country information relied on by the appellant in support of the particular, I am satisfied that it was before the Authority and taken into account. These pages of the Appeal Book formed part of the appellant’s submission to the delegate and thus formed part of the materials referred to the Authority. It is to be inferred from the Authority’s decision at [3] that the Authority took this material into account.

35    It may be that particular (b) is referencing the country information referred to in the appellant’s submission to the Authority dated 16 February 2017. At [5] of the Authority’s decision, it stated that this country information was not before the delegate and was “new information” for the purposes of s 473DD of the Migration Act. The Authority stated that the information pre-dated the delegate’s decision and no reason had been provided as to why this information could not have been provided to the delegate before the decision was made or why the information should be considered personal credible information. Accordingly, the Authority was not satisfied that s 473DD(b) of the Migration Act was met. In my view, it was open to the Authority to reason in this way and to so hold. No jurisdictional error has been demonstrated in this regard.

36    The other part of particular (b) contains a contention to the effect that the Authority’s decision was affected by jurisdictional error in that the Authority should have considered what would happen if the appellant could not be brought before a magistrate and if he was not granted bail or able to obtain a guarantor or what would happen if there were concerns about his identity and whether this could lead to cruel treatment, punishment or degrading treatment. I have reviewed the Authority’s decision at [17]-[22]. The Authority appears to have considered the relevant issues including those raised by particular (b) of the appellant’s appeal ground. In particular, the Authority discussed the process of being brought before a magistrate at [19] and the issue of bail at [20]. It has not been demonstrated that the primary judge erred in dealing with the corresponding ground below.

37    For these reasons, the appeal is to be dismissed. In relation to costs, both parties accepted at the hearing that costs should follow the event. Accordingly, I will also order that the appellant pay the Minister’s costs of the appeal, to be fixed by way of a lump sum.

Associate:

Dated:    4 March 2019