FEDERAL COURT OF AUSTRALIA

EUG17 v Minister for Home Affairs [2019] FCA 421

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

Introduction

1    The appellant appeals to this Court from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court), delivered on 18 September 2018. In that proceeding, the primary judge dismissed, with costs, the appellant’s application for judicial review of a decision of the second respondent (the IAA) which affirmed a decision of a delegate of the first respondent (the Minister) not to grant the appellant a protection visa.

2    The appellant’s notice of appeal does not identify any appealable error on the part of the primary judge. Further, the primary judge correctly held that the IAA’s decision was not affected by jurisdictional error.

Background

3    On 13 October 2012, the appellant arrived in Australia as a so-called “unauthorised maritime arrival”. On 20 January 2016, the appellant applied for a protection visa, which was refused by a delegate of the Minister on 29 November 2016. On 2 December 2016 the decision was referred to the IAA, and on 22 September 2017 the IAA affirmed the delegate’s decision. The appellant applied for judicial review of the IAA’s decision on 27 October 2017.

4    The IAA’s findings relevant to this appeal are as follows:

20.    I accept that the applicant’s father found his brother, V1, dead and hanging in his room in around March, April or May 2007. Although the applicant and his family believe the SLA was responsible, there is no direct evidence to support the family’s belief that the SLA was involved as no one saw what actually happened. Additionally, if the SLA had entered the house that night and killed Vl because of Kl’s involvement with the LTTE, I do not consider it plausible that the SLA would simply ignore the rest of the family, particularly the applicant who was another young Tamil male in the house. Country information refers to reports of the Sri Lankan authorities claiming suspicious deaths in custody were due to suicide, but Vl was not in custody and the country information does not suggest that the Sri Lankan authorities engaged in faking suicides in peoples’ homes. I am not satisfied on the evidence that Vl’s death is linked to the SLA, whether because of Kl’s involvement with the LTTE or otherwise.

…

39.    I accept that the applicant and members of his family lived and worked in areas controlled at times by the LTTE during the war. I accept that the applicant’s brother Kl joined the LTTE sometime in the 1990’s, was a captain in the Sea Tigers, worked for a time as a tutor at the LTTE school, openly returned to the family home for a time during the ceasefire period from 2003, and was killed during shelling on 15 April 2009. I accept that his sister K2 taught at a LTTE primary school in the Vanni during the war. I accept that the SLA tried to take away one of his brothers in around 2000 but his mother intervened and prevented the SLA from taking his brother. I accept that the applicant had his school ID taken from him at least five or six times by the SLA, he had to go to the SLA camp to retrieve his ID and on one occasion in around 2005 when he went to get his ID he was detained for a day and beaten before his mother negotiated his release. I accept that in 2009 he was arrested, beaten and returned home by the SLA. I accept that in 2010 the SLA came to his house and took the applicant to their camp where he was threatened and told to admit he was in the LTTE, and when he denied it, he was beaten, before he was eventually released. I accept that from 2010 the SLA regularly visited his family’s house to take him to their camp and asked after his whereabouts. I also accept that the SLA visited his family’s house and asked after the applicant’s whereabouts while he was living in Malaysia from February to August 2012.

40.    Having regard to the UNHCR guidelines and the other information before me, I do not consider the applicant to be at risk of harm for reason of any links to the LTTE, or any imputed political opinion, now or in the reasonably foreseeable future, for a number of reasons.

41.    First, on the evidence, residing in LTTE controlled areas does not itself give rise to a need for protection and the applicant himself was not involved with the LTTE. Secondly, although his brother Kl was a member of the LTTE, and a captain in the Sea Tigers and a tutor, the applicant was not sent to prison or rehabilitation as an identified or suspected LTTE supporter. Thirdly, although the applicant and his family were harassed, questioned and/or mistreated on various occasions neither he nor his family members were ever charged, including K2 who taught in a LTTE primary school and still lives in Sri Lanka. Whenever the applicant had to attend the SLA camp including on those occasions when he was beaten and/or questioned about LTTE involvement, he was always released. Furthermore, despite the Sri Lankan authorities collecting and maintaining sophisticated intelligence including electronic stop and watch lists, he was able to depart legally, using his own passport, through the airport when he left for Malaysia in February 2012. Although he was arrested in 2009 and the SLA regularly enquired after his whereabouts and asked him to attend their camp from 2010, and continued to enquire after his whereabouts while he was in Malaysia from February to August 2012, country information suggests that such harassment and monitoring of Tamils in the north was routine at the time. Additionally, the Sri Lanka authorities have made no further enquiries about, or shown any interest in, the applicant since August 2012. The applicant does not have a profile that country information suggests he is at risk of harm from the Sri Lanka authorities, now or in the foreseeable future, for any links to the LTTE or for any imputed political views. I do not consider that the Sri Lankan authorities would have had any adverse interest in the applicant other than as part of the former Rajapaksa government’s then general monitoring of Tamils in the north had he remained in Sri Lanka or, given that such harassment and monitoring has significantly decreased under the Sirisena government, that he would be of any adverse interest to the Sri Lankan authorities on return.

…

43.    I am satisfied that the applicant will not face a real chance of persecution from the Sri Lankan authorities due to any real or perceived links to the LTTE, for any imputed political opinion and/or as a Tamil male from the north, if returned to Sri Lanka, now or in the reasonably foreseeable future.

Proceedings before the Federal Circuit Court

5    The appellant was represented at the hearing below by solicitors and counsel. The grounds of the application were as follows (grounds one, seven, eight and nine were not pressed at hearing and have been omitted, as have the particulars):

…

(2) The IAA erred in not considering that the applicant was at risk of harm for reason of any links to the LTTE, or any imputed political opinion, now or in the foreseeable future.

(3) The IAA erred in not being satisfied that the applicant’s profile is not one that places him at risk of harm, or that there is a real chance that the applicant would face harm on his return to Sri Lanka, or that the applicant faces a real chance of persecution now or in the reasonably foreseeable future, or that he does not have a well founded fear of persecution.

(4) The IAA erred in finding the Applicant does not face a real chance of persecution or harm in for reason of any links to the LTTE, or any imputed political opinion, now or in the reasonably foreseeable future.

(5) The IAA erred in finding the Applicant does not face a real chance of persecution from the Sri Lankan authorities due to any real or perceived links to the LTTE, for any imputed political opinion and/or as a Tamil male from the north, if returned to Sri Lanka now or in the reasonably foreseeable future.

(6) The IAA failed to give the applicant the benefit of the doubt where the IAA found evidence otherwise unconvincing.

…

Ground two

6    As advanced before the primary judge, ground two was an allegation of illogicality or unreasonableness. The primary judge found that the IAA’s rejection of the appellant’s claim to be a refugee was not legally unreasonable, having regard to the factual aspects of the appellant’s claim and the combination of reasons it employed to support its conclusion:

The Authority gave a combination of reasons, as summarised above, in support of the adverse finding that the applicant will not face a real chance of persecution from Sri Lankan authorities due to any real or perceived links to the LTTE or any imputed political opinion and/or as a Tamil male from the north. Those reasons included the applicant not having been sent to prison or any rehabilitation as an identified or suspected LTTE supporter; the applicant having not himself being involved with the LTTE; the applicant’s family members not having been charged; the applicant being able to leave Sri Lanka using his own passport in 2012; and the absence of enquiries since August 2012. In those circumstances, the adverse finding by the Authority cannot be said to lack an evident and intelligible justification. The Authority’s reasons in support of the adverse finding were open and logical.

7    Three subsidiary arguments to ground two were advanced.

8    First, that the IAA’s conclusions with respect to the circumstances of the death of the appellant’s brother (referred to as V1) was illogical or unsupported by adequate reasoning.

9    The allegation of illogicality turned upon the IAA’s reference to V1 not being in custody at the time of his death. The primary judge found that the “reference to V1 not being in custody was in the context of the discovery of V1 in the family home and the suspicion that the family believed it was the SLA and the Authority’s reasoning as to why the Authority rejected that belief”, and that it was in relation to a finding that while country information indicated the “authorities claiming suspicious deaths in custody were due to suicide”, it “did not support Sri Lankan authorities engaging in faking suicides in people’s homes”. The primary judge therefore held that the IAA’s reference to V1 not being in custody was “logical, rational and relevant”.

10    The primary judge held that the allegation of inadequate reasons was unfounded because the IAA identified the relevant evidence and made a finding open to it.

11    Secondly, it was argued that the IAA should have given the appellant the “benefit of the doubt”. The primary judge noted that there was no such legal principle which could so require the IAA to do so, and that s 5AAA of the Migration Act 1958 (Cth) made it clear that it was for the applicant to provide sufficient evidence to establish the claims.

12    Thirdly, the primary judge rejected an argument that the IAA had adopted an “overly stringent approach”, holding that the IAA’s reasons “do not reflect the [IAA] doing other than approaching the review with an open mind, reasonably capable as to persuasion as to the merits”, and noted that the “[IAA] accepted many of the [appellant’s] claims”.

Grounds three to six

13    To the extent that grounds three to six of the amended application were maintained, the primary judge identified that these were an “expansion of ground 2 in relation to the adverse findings in respect [of] the [appellant’s] … claims albeit expressed in slightly different language”. For the reasons the primary judge had already given, he concluded that the IAA’s adverse findings were open to it and were not illogical, irrational or legally unreasonable.

14    As no jurisdictional error was made out, the primary judge dismissed the application.

The appeal

15    The ground of appeal in this court is as follows:

“[t]he Federal Circuit court failed to find, in respect of the IAA’s reasoning that the IAA declined its jurisdiction to me on the basis of grounds including the main grounds stated in my Federal Circuit Court Amended Application and Applicant’s Submissions filed at the Federal Circuit Court. Further Grounds with particulars of the grounds will be filed at the Federal Circuit Court. Further Grounds with particulars of the grounds will be filed and served in my Amended Notice of Appeal when Court orders of it.” [errors in original]

16    No relevant particulars are provided, and the foreshadowed amended notice of appeal with particulars was not provided. At the hearing, the appellant, who was not legally represented but had the assistance of an interpreter, submitted that he wished to rely on the same grounds as were advanced below. Counsel for the Minister, Mr Bevan, consented to proceed accordingly.

17    As to ground two and the primary allegation of legal unreasonableness, the IAA identified the factual aspects of the appellant’s claims which it accepted and then explained the bases upon which it found that the appellant did not have a profile that placed him at risk of harm from the Sri Lankan authorities. The various reasons identified by the IAA provided a rational factual basis from which it could logically draw the conclusion as to the appellant not having a susceptible profile. As Mr Bevan stated in his submissions, the IAA accepted a large amount of the factual aspects of the appellant’s claims, before concluding that the appellant was not at risk of harm for reason of his links to the LTTE or any imputed political opinion now or in the reasonably foreseeable future. It came to this conclusion on the basis of six reasons, which were accurately summarised by Mr Bevan in his oral submissions, as follows:

(1)    simply coming from an LTTE-controlled area did not of itself give rise to a need for protection;

(2)    the appellant himself was not sent to prison or rehabilitation as an identified or suspected LTTE supporter, notwithstanding some family connections to the LTTE;

(3)    while the appellant had experienced beatings and harm at the hands of the Sri Lankan authorities in the past, he was always released from custody;

(4)    despite the sophistication of the Sri Lankan authorities, the appellant was able to depart legally using his own passport;

(5)    the harassment and monitoring of Tamils in that particular period in the north east was routine; and

(6)    the Sri Lankan authorities had made no further inquiries or shown any interest in the applicant since August 2012, and the applicant did not have a profile that would suggest risk of harm from the Sri Lankan authorities by reason of his claim to links to the LTTE.

18    The primary judge was right to hold that the IAA’s reasoning was not legally unreasonable. There is nothing in the IAA’s reasons to suggest that the decision to affirm the decision not to grant the appellant a protection visa is one at which no rational or logical decision maker could arrive on the same evidence: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] per Crennan and Bell JJ, see also at [78] per Heydon J.

19    As to the subsidiary arguments (including the alternative means of formulating the challenge in grounds three to six), the primary judge’s conclusions were correct for the reasons he gave. They do not disclose appealable error.

CONCLUSION

20    Accordingly, the appeal must be dismissed, with costs to be agreed or assessed.

Associate:

Dated:    29 March 2019