FEDERAL COURT OF AUSTRALIA

DEU17 v Minister for Immigration and Border Protection [2019] FCA 770

Appeal from:

DEU17 v Minister for Immigration and Border Protection [2018] FCCA 3309

File number:

NSD 2069 of 2018

Judge:

MURPHY J

Date of judgment:

29 May 2019

Catchwords:

MIGRATION – appeal from decision of Federal Circuit Court protection visa – whether Immigration Assessment Authority erred in finding that the appellant’s father was not of interest to the Sri Lankan authorities – appeal dismissed

Legislation:

Migration Act 1958 (Cth)

Cases cited:

DEU17 v Minister for Immigration and Border Protection [2018] FCCA 3309

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719

Date of hearing:

14 February 2019

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

33

Counsel for the Appellant:

The Appellant appeared in person

Counsel for the First Respondent:

Mr L Dennis

Solicitor for the First Respondent:

Minter Ellison Lawyers

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice

ORDERS

NSD 2069 of 2018

BETWEEN:

DEU17

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

JUDGE:

MURPHY J

DATE OF ORDER:

29 MAY 2019

THE COURT ORDERS THAT:

1.    The name of the First Respondent be changed to “Minister for Home Affairs”.

2.    The appeal be dismissed.

3.    The Appellant pay the First Respondent’s costs.

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

REASONS FOR JUDGMENT

MURPHY J:

1    In this proceeding the appellant, a citizen of Sri Lanka of Tamil ethnicity, appeals from a decision of the Federal Circuit Court dismissing his application for judicial review of a decision of the Immigration Assessment Authority (the Authority), which had affirmed a decision of the delegate of the First Respondent, the Minister for Immigration and Border Protection (the Minister) to refuse to grant him a Safe Haven Enterprise Visa (Class XE) (protection visa): see DEU17 v Minister for Immigration and Border Protection [2018] FCCA 3309.

2    The appellant filed a notice of appeal on 9 November 2018, which alleged that the Federal Circuit Court erred in finding that there was no jurisdictional error by the Authority. The notice of appeal did not particularise the grounds of appeal but stated that the appellant would file particulars upon receipt of reasons for the decision below. However, the appellant did not at any point set out the grounds of appeal and the hearing was conducted on the basis that the appellant relied on the same grounds as in the proceeding below.

3    For the reasons I explain, it is appropriate to dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

4    The appellant arrived in Australia by boat on 26 August 2012, and applied for a protection visa on 25 September 2015 after the Minister exercised his discretion to lift the bar in s 46A of the Migration Act 1958 (Cth) to allow him to do so.

5    In his visa application and subsequent interview the appellant claimed to fear harm on return to Sri Lanka from the Sri Lankan authorities. His claims may be summarised as follows:

(a)    he is a Tamil from a Liberation Tigers of Tamil Eelam (LTTE) controlled area, a village in Mannar district in the Northern Province of Sri Lanka;

(b)    his father, uncle and another man (H) transported seafood and ice purchased from the LTTE’s seafood business division between Vanni and Colombo. His father used to travel to army controlled areas frequently and many of the army officers and Criminal Investigation Department (CID) officers knew him;

(c)    the conflict continued and the situation deteriorated, and sometime in November 2008 his family was forced to flee his village. They remained displaced until around April 2009;

(d)    the Sri Lankan Army (SLA) suspected his father of transporting weapons for the LTTE, in part because he had a business transporting seafood from the north of Sri Lanka to Colombo;

(e)    in 2009 the SLA was advancing on the area where his family was. There was no place to flee to, and his father moved towards the advancing army. His father and brother were shot and killed;

(f)    the appellant was taken into detention by the Sri Lankan army, interrogated and physically assaulted for five to six hours;

(g)    during this time members of the SLA said to him that his father was involved in transporting weapons for the LTTE and asked him if he knew where certain members of the LTTE were. He denied any knowledge of this and was eventually taken to hospital along with his sister;

(h)    four or five days later, while he, his mother and sister were residing at a relative’s home, police officers came in search of them. The police officers attempted to return them to the army camp but his relatives paid a sum of money to the officers and they were allowed to remain in the village;

(i)    from 2009 to August 2012 he was frequently targeted by the SLA when travelling to and from work, and asked whether he was an LTTE cadre;

(j)    on one occasion in 2011 he was going to work when the army forcibly took his National ID Card and he was made to collect it from the army camp in the evening; and

(k)    during this period several Tamil fish businessmen who were operating in the area of his village were abducted and killed. His father’s business partner was detained and questioned by the CID in 2013.

6    On 19 January 2017, the delegate decided to refuse to grant the appellant a protection visa and the matter was automatically referred to the Authority for review. On 23 June 2017 the Authority affirmed the decision of the delegate.

7    The Authority found that the appellant was a credible witness. It accepted most or all of his factual claims, including that his mother had been told the army was looking for his father, and that the appellant had been questioned by the army following his father’s death in the manner claimed. However it did not accept that the appellant faced a real chance of serious harm if returned to Sri Lanka. It made several key findings in this regard, to which I will return, but may be summarised for the time being as:

(a)    the appellant’s father never attracted the adverse attention of authorities because of his business activities;

(b)    his father and brother were casualties of the civil conflict, and were not killed because they had an adverse profile with the SLA; and

(c)    the appellant was subsequently threatened, assaulted and interrogated but the authorities did not consider that he had any links to the LTTE, nor was he a specific target.

8    Having regard to the country information before it, the Authority did not accept that the appellant would face a real risk of serious harm for any actual or imputed LTTE connection, as a Tamil, because of his father, or as a Tamil fisherman.

9    The Federal Circuit Court (FCC) dismissed the appellant’s application for judicial review on 23 October 2018.

THE APPEAL

10    The notice of appeal filed on 9 November 2018 was as follows:

The Federal Circuit Court erred in finding there was no jurisdictional error in the IAA decision and also Judge erred in dismissing my Court Application. I will file the Particulars of the grounds in my Amended Notice of Appeal upon receiving a copy of the Transcript of his Honour’s reasoning.

11    As I have said, the appellant did not file an amended notice of appeal as he had indicated he would do. Nor did he file submissions ahead of the hearing, as had been directed by an order of the Court.

12    In the hearing the appellant requested an adjournment, to allow him more time to retain a lawyer and file an amended notice and submissions. He said that he had been unable to find a lawyer and was running short of money, which he needed to pay a lawyer so that he could understand the primary judge’s reasons. The Minister opposed any adjournment of the hearing on the basis that the appellant had sufficient time to prepare his case and there was no merit to the substantive grounds that would justify adjourning the hearing to the next sitting period.

13    For the reasons I expressed at the hearing, I refused to grant an adjournment. The Federal Circuit Court delivered judgment on 23 October 2018 and the notice of appeal was filed on 9 November 2018. The appellant had three months to retain a lawyer or to seek an adjournment in order to do so, but did not make any such request until the hearing had commenced. The hearing was conducted on the basis that the appellant made the same arguments as before the court below.

Ground 1

14    Ground 1 of the appeal was as follows:

That the second respondent acted without and in excess of jurisdiction in finding at [17] that though the SLA detained the applicant, physically assaulted him and questioned him about allegations that his father had been transporting weapons for the LTTE, the SLA said this to scare the applicant and not because they had an actual belief or basis that the father had transported weapons.

Particulars

(a)     Such a finding was made without evidence; or

(b)     The finding was illogical, irrational and unreasonable in that it is difficult to see how the second respondent arrived at that conclusion having accepted that the applicant was detained, assaulted and interrogated about that exact topic; or

(c)     In the circumstances the second respondent failed to apply the ‘what if I am wrong’ test to question of the state of belief of the SLA as to the father’s involvement in the transport of weapons.

15    The appellant expanded on this ground in hearing, although much of what he submitted cannot be taken into account by a reviewing court.

16    He said that he could not gather evidence to contradict the Authority’s finding and satisfy it that the army truly believed that his father was in the LTTE. He said further he did not know what sort of evidence the Authority required, but that if he did, he could try to arrange to get this evidence from Sri Lanka. He said further that he did not know legal process and his lawyer had handled his case, so he was not aware of this before the hearing. Although the Authority’s decision had been read and explained to him, he said the Federal Circuit Court judgment was not.

17    The appellant then made further submissions about what he said was the true nature of his father’s involvement with the LTTE. He said that his father had been involved in transporting weapons for the LTTE under the guise of transporting fish, and the authorities were targeting him for this reason. He said his father escaped from the area which was under control of the army to an area under the control of the LTTE, and then was shot when there was no way out and he was forced to head back towards an area under the control of government authorities.

18    I will say something later about these further submissions, but I will deal first with the ground of appeal as it is set out in the notice of appeal.

19    It is convenient to set out [17] of the Authority’s reasons, since it is the focus of Ground 1:

I accept that the applicant suffered a degree of harassment and discrimination by Sri Lankan forces during the time of the conflict. I accept that the applicant was interrogated by the SLA and physically assaulted. As the applicant’s father had conducted a seafood business that required him to cross from [village] to Colombo and pass army checkpoints numerous times spanning a number of years, it is plausible that the SLA knew that his father was a seafood businessman. The SLA did not apprehend the applicant’s father or question him on suspicion of transporting weapons for the LTTE during his time conducting his seafood business and I am of the view that the SLA would have said this to the applicant to induce fear into him in an attempt to intimidate him and harass him and not because they had any actual belief or basis that his father had transported weapons. I accept that the applicant was asked whether he knew certain members of the LTTE and was bashed. The applicant denied any knowledge of what the SLA were asking and he was eventually taken to [name redacted] hospital along with his sister which, in my view, indicates that the SLA did not believe that he had any links to the LTTE, that his father had transported weapons or that he had a profile that was of any interest to them or any other Sri Lankan authority.

20    Having regard to the Authority’s course of reasoning, I am not satisfied that jurisdictional error is established. Contrary to the appellant’s contention, the Authority’s finding at [17] was underpinned by several other matters.

21    First, as the primary judge noted, the Authority said at [13] of its reasons that on the appellant’s own evidence, his father was not detained, questioned or arrested on suspicion of being part of the LTTE, and did not attract adverse attention for transporting seafood from his village to Colombo, even though he regularly passed through checkpoints and identified himself by way of a pass. The Authority said that on the evidence before it, the appellant’s father did not attract adverse attention and did not stop, even for a short time, his business operations due to any fear of being captured or harmed in some way.

22    Second, as the primary judge said, the Authority found at [14] that the circumstances of the appellant’s father’s death indicated that he had not been killed because he was targeted for any actual or imputed connection with the LTTE. Based on the appellant’s own evidence, his father had decided to head towards the SLA when he and the appellant’s brother were struck by bullets.

23    Third, as the primary judge noted, the Authority said at [16] that the country information suggested Tamils like the appellant experienced high levels of harassment and discrimination during the conflict. This country information supported the appellant’s claim that he was indeed detained and assaulted, but it also supported an inference that if the authorities had believed the appellant’s father was involved in the LTTE, he would not have been released. This inference was open on the material before the Authority.

24    The Authority’s finding was open on the evidence before it, most of which came from the appellant himself. It is not a finding at which “no rational or logical decision-maker could arrive on the same evidence”: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [130] (Crennan and Bell JJ). Even if a different decision-maker might have reached a different conclusion there was an evident and intelligible justification for the finding: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76] (Hayne, Kiefel and Bell JJ).

25    As regards particular (c) of Ground 1, I do not consider that the Authority erred by failing to ask ‘what if I am wrong?’ As Sackville J said in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220; [1999] FCA 719 at [67]:

…Only if a fair reading of the reasons allows the conclusion that the [decision-maker] had a real doubt that its findings on material questions of fact were correct, might error be revealed by the [Authority’s] failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur).

26    The language used by the Authority in making its findings demonstrates that it did not have any real doubt about the correctness of its findings. In my view it did not fall into error by failing to consider the possibility that its findings were wrong.

27    If what the appellant says about his father’s LTTE involvement is true, I accept that might make a real difference to whether Sri Lankan authorities are likely to have an adverse interest in the appellant. However, his submissions in the appeal do not assist his appeal. Importantly, there is no support in the materials for the appellant’s contention that his father was in fact transporting weapons for the LTTE and that the delegate and Authority had misunderstood this part of the appellant’s story. It appears to be an entirely new account. In his statement in support of his visa application he said that “[a]s far as I know my father was not involved with the LTTE.” The statement includes a declaration from a Tamil interpreter that the contents of the statement were accurately and completely interpreted to the appellant when he signed the document. I do not accept that the appellant was not aware of the contents of his statement. The delegate’s decision records the appellant as stating that his father transported seafood and ice which led to the army becoming suspicious he was transporting arms. At no point did the delegate or the Authority record the appellant as stating that his father actually transported arms for the LTTE, and the appellant did not raise this alleged error at any stage before the hearing of this appeal.

28    In any event, the Court has no power to review the merits of factual findings and cannot, on appeal, conduct a fresh hearing and take into account any new evidence the appellant says he may be able to obtain. Confining myself to the material before the Authority and this court, as I am obliged to do, I can see nothing to support the proposition that the Authority mistook or misunderstood the appellant’s evidence about his father’s LTTE involvement. Rather, his evidence about this was consistent until the appeal hearing. The Authority was entitled to deal with his claim on the basis of his statement in support of his visa application and his interview with the delegate, and I can see no jurisdictional error in the way it did so.

Ground 2

29    Ground 2 in the notice of appeal is as follows:

That the second respondent acted without and in excess of its jurisdiction in failing to accept that the applicant’s father was wanted by, or had otherwise attracted the adverse interest by the SLA Army [sic].

Particulars

(a)     Having accepted at [13] that the applicant was told by his mother that H had told his father that the father was wanted by the army that finding of the second respondent was a finding that was made without evidence; or

(b)     The failure to accept the fact was otherwise illogical, irrational or unreasonable particularly in light of the evidence that the second respondent accepted with regards to the events following the death of the father.

30    Ground 2 covers similar terrain to the first ground, but focuses on the Authority’s acceptance at [13] that the appellant’s mother had told him that she had been told that his father was wanted by the SLA.

31    I do not accept that the Authority’s finding shows that it fell into jurisdictional error. The appellant’s evidence was that his father made deliveries between his village and Colombo, and he did not say that his father was detained or arrested by the authorities at any point. The country information before the Authority, to which it referred at [12], was that army checkpoints were a constant feature of life in Sri Lanka, and were most likely to be found around areas of conflict and borders between SLA and LTTE-controlled areas. The appellant’s father regularly crossed such borders transporting seafood between his village and Colombo. It was open to the Authority to infer from the fact that the appellant’s father apparently regularly passed over the border without issue that he was not of interest to the authorities.

32    I do not consider that the Authority’s finding was made without evidence, or was so illogical, irrational or unreasonable that no decision-maker could make it.

33    The appeal must be dismissed.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.

Associate:

Dated:    29 May 2019