FEDERAL COURT OF AUSTRALIA

EDM17 v Minister for Immigration and Border Protection [2019] FCA 821

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    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

BURLEY J:

1.    INTRODUCTION

1    The appellant is a citizen of Sri Lanka, who arrived in Australia on 28 August 2012 as an unauthorised maritime arrival. The Minister for Immigration and Border Protection exercised his discretion under s 46A(2) of the Migration Act 1958 (Cth) allowing the appellant to make an application for a visa and the appellant subsequently applied for a Safe Haven Enterprise Visa (SHEV), which was received on 14 November 2016.

2    On 21 June 2017 a delegate of the Minister refused the appellant’s visa application. The decision was a fast track reviewable decision and was referred to the Immigration Assessment Authority for review. The Authority considered and then on 23 August 2017 affirmed the decision, whereupon the appellant applied for judicial review of its decision by the Federal Circuit Court of Australia (FCC). The FCC concluded that the appellant was unable to advance an arguable claim of jurisdictional error by the Authority and ordered, pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) that the application be dismissed; EDM17 v Minister for Immigration & Anor [2018] FCCA 1673.

3    On 6 July 2018 the appellant filed an application for leave to appeal from the decision of the FCC. Leave to appeal was required because the decision below is interlocutory in nature; see s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Accompanying the application for leave to appeal was an affidavit affirmed by the appellant in which he indicated that he was self-represented and intended to seek legal advice. Accompanying the affidavit was a draft notice of appeal. On 18 December 2018, two days prior to the scheduled hearing, a solicitor filed a notice of acting for the appellant. On 20 December 2018 the application for leave was heard. On that occasion Mr G Foster of counsel appeared and relied on some written submissions and an amended draft Notice of Appeal. The Minister was represented by his solicitors, who filed written submissions one week prior to the hearing.

4    I granted leave to the appellant to appeal on the basis of two grounds:

(1)    that the FCC erred when it did not find that the Authority committed jurisdictional error when the Authority stated “I do not accept that the applicant was of interest to the supporters of the Bathiudeen and/or Muslims given that he was not a party to the dispute” at [34]; and

(2)    that the FCC did not engage in an active intellectual process directed at the representation or submission contra CQW17 v Minister for Immigration & Anor [2017] FCCA 2378 at [39] in considering the matter set out in ground (1).

5    Directions were then made for the preparation of the appeal. The appellant was represented at the appeal by Mr G Foster of counsel, who relied on the written submissions in support of the leave application. The respondent was represented by Ms R Graycar of counsel, who filed written submissions on the appeal in advance of the hearing.

2.    DECISION OF THE AUTHORITY

6    The grounds of appeal concern alleged errors in the way that the Authority addressed a United States Department of State document and inconsistencies between that document and the appellant’s version of events. The relevant passages of the decision are set out below:

30.    I accept that the applicant’s brother was involved in a land dispute between Tamil fishermen and Muslims in 2012. I accept that fishing huts of local Tamil fishermen were destroyed. While I treat documentation provided by the applicant with caution given my previous findings in relation to fraudulent documentation, I note that the police complaint by the applicant’s brother dated 13 July 2012 supports the applicant’s claims.

31.    However, the applicant’s account differs in a number of respects with the publicly available information relating to this dispute. The US Department of State’s Country Report on Human Rights Practices – Sri Lanka for 2012, contained in the referred material, gives the following account of the dispute:

On July 17, Industry and Commerce Minister Rishad Bathiudeen threatened Mannar District Court Judge and Magistrate Anthony Pillai Judeson after the judge ordered the arrest of a group of supporters of the minister over a July 13 arson attack of fishery houses belonging to local Tamil fishermen. The minister reportedly demanded that the judge change the ruling. The judge did not change the ruling, and on July 18, a group of Bathiudeen’s supporters set fire to a section of the courthouse. The case against Bathiudeen and 42 other suspects continued at year’s end, and Bathiudeen was scheduled to appear in court in June 2013 in connection with charges of threatening the magistrate.

32.    The applicant claimed that the police did nothing, and were looking for and captured the Tamil fishermen who had brought the court action. In contrast, the report indicates that not only were arrests ordered following the destruction of the fishing huts, but that Bathiudeen and 42 of his supporters were also charged for setting fire to the court house. I consider the US Department of State report to be a highly reliable source, and I prefer the account set out therein to that of the applicant.

33.    In these circumstances, I do not accept that the police were looking for the Tamil fishermen who brought the court action, including the applicant’s brother. The report indicates that it was the supporters of Bathiudeen who were arrested, not the local Tamil fishermen. It follows that I also do not accept that was detained for questioning by the police, or that the applicant was threatened by Muslims on his release from detention (which I have not accepted).

34.    For completeness, I do not accept that the applicant was of interest to the supporters of Bathiudeen and/or Muslims given that he was not a party to the dispute.

3.    DECISION OF THE FCC

7    It is not necessary to address the decision of the FCC at any length, because the grounds of appeal raise matters that were not argued before the FCC.

4.    CONSIDERATION OF THE APPEAL

8    I commence my consideration of this appeal with the observation, which is apt for many such appeals, that neither this Court nor the FCC has jurisdiction to decide afresh on the evidence whether the appellant satisfies the criteria for the grant of the SHEV or to grant the appellant a visa. As such, neither Court has the capacity to consider the factual merits of the Authority’s decision to refuse to grant the SHEV to the appellant. The jurisdiction of the FCC is limited to considering only whether the Authority’s decision to refuse to grant the appellant the SHEV is lawful under the Act, that is, whether the decision of the Authority is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCC on appeal from the Authority under s 24 of the FCA Act.

9    In ground 1 the appellant contends that the Authority erred by stating that it did not accept that the appellant was of interest to the supporters of Bathiudeen and/or Muslims given that he was not a party to the dispute, and that the FCC erred in failing to find error on the part of the Authority. In his particulars to this ground, the appellant contends that the Authority made a number of significant errors in its analysis of the US Department of State country report for 2012 (USDOS report) which meant that the finding was erroneous. Alternatively, the appellant submits that by preferring the USDOS report over his version of events, the Authority fell into jurisdictional error because there was in fact no conflict between the two. It was to this alternative that the appellant’s written and oral submissions were directed.

10    In a statutory declaration sworn in support of his visa application, the appellant sets out his claims in relation to the events concerning the disputed land. He states that in June 2012 some Muslims came onto land near his local fishing area and fenced off and claimed certain land as their own. He claims that the police ignored complaints that his brother and some other Tamils had made about this action. He states that a Muslim Minister of State named Bathiudeen had a lot of influence with the police, and his influence was why the police took no action. To protect their interests, the appellant’s brother and other Tamil fishermen filed an action in the court, which was subsequently decided in their favour. The Muslims took issue with the result and rioted in the court house, destroyed the Tamils’ fishing huts and so threatened them that the appellant and his brother considered that they could not go to the area to fish. The Minister threatened the judge who had ruled in favour of the Tamil fishermen. The judge was a Tamil and during one incident was prevented by a group of Muslims from going into the court house. The police were present during this incident but “did nothing”. Subsequently, some Muslims, accompanied by police officers, went looking for the Tamils who had brought the legal action. Two weeks later, the appellant was at his home when three Muslims and a police officer arrived and took him to the police station and questioned him about the whereabouts of his brother. Two hours later he was released and the Muslims, angry at his release, threatened to kill him. He subsequently fled the country.

11    As the extract from the Authority’s reasons set out above at [6] indicates, aspects of the appellant’s version of events were accepted. However, in [31] the Authority quotes from a passage of the USDOS report in which it states that after Minister Bathiudeen and his supporters threatened the judge and set fire to a part of the courthouse, the judge in fact ordered the arrest of a group of supporters of the Minister. A case against the Minister and 42 of his alleged supporters was pursued. The reasoning of the Authority was that this report was inconsistent with the appellant’s claim that the “police did nothing”. The report indicated to the Authority that arrests were ordered and charges laid against the Minister and 42 of his supporters. This led to the finding by the Authority that the claim by the appellant that the police were looking for the Tamil fishermen who brought court action, including the appellant’s brother should be rejected. Furthermore, it rejected the claim by the appellant that he was detained for questioning by the police, or that he was threatened by Muslims upon his release. It also concluded “for completeness” that it rejected his claim that the appellant was of interest to the Muslims concerned, or the Minister of State, given that the appellant was not a party to the legal dispute. It is only this last finding that is the subject of challenge in this appeal.

12    In my view, ground (1) of the appeal must be dismissed.

13    First, insofar as the appellant contends in his appeal that the Authority misconstrued the USDOS report, the appellant has not provided sufficient material to support that contention. The USDOS report was not included within the appeal papers and the appellant did not seek to provide it to the Court on appeal. Without the entire document, it is not possible properly to consider the criticisms made of the way that the Tribunal dealt with it.

14    Secondly, on the basis of a fair reading of the decision of the Authority insofar as it extracts the USDOS report alone, it was open to the Authority to make a finding of fact that there was an apparent inconsistency between the content of the USDOS report and the claims made by the appellant. One aspect of the appellant’s claim was that the police did nothing while the Minister of State and his supporters took violent and threatening action against Tamils involved in the court action and also the appellant. Contrary to that claim, the USDOS report indicates that the supporters had been arrested (one may infer, as the Authority clearly did, by the police) and that court proceedings were being pursued against them. The Authority relied on the report as providing an objective contrast to the contentions advanced by the appellant. In the light of that contrast, the Authority considered that the specific claim advanced by the appellant that the police had detained him, and that he was subsequently threatened by Muslims on his release, should be rejected and that it should also reject his claim that he was of interest to the supporters of the Minister or to Muslims.

15    The task of fact finding is for the Authority. It is well within its domain to make determinations as to the weight to be given to country information. Unless it can be shown that the construction by the Authority of the USDOS report was so manifestly wrong that it amounted to jurisdictional error, the findings of fact based on that report and the findings going to credit that flow from it remain exclusively within its domain. To conclude otherwise would be to enter into an impermissible merits review of the appellant’s application. In the present case, for the reasons given, I see no basis for finding that the Authority’s reasoning was based on illogical or irrational findings of fact or reasoning; see DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] (Kenny, Kerr and Perry JJ).

16    In ground (2), the appellant contends that the FCC did not engage in an active intellectual process directed at the contentions advanced in support of ground (1). However, as counsel for the appellant accepted during argument, this ground is fundamentally flawed because ground (1) was not advanced before the primary judge. Quite correctly, counsel accepted that this ground could not be advanced. Had it been pressed, I would have rejected it as baseless. The passages set out in [6] above from the decision of the Authority indicate that it had actively given consideration to the claims advanced by the appellant, but had rejected them in light of the materials contained in the USDOS report. Had the appellant sought leave to amend his Notice of Appeal to contend that the Authority had failed to engage in an active intellectual process in relation to his contentions, then it would have been refused on the basis that it has insufficient prospects of success to warrant the grant of leave.

17     Accordingly, the appeal must be dismissed. The appellant must pay the first respondent’s costs.

Associate:

Dated: 3 June 2019