FEDERAL COURT OF AUSTRALIA

DGS17 v Minister for Home Affairs [2019] FCA 962

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant must pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

FARRELL J:

Introduction

1    The appellant (also referred to as DGS17) is a Sri Lankan national of Tamil ethnicity. He arrived at Christmas Island in October 2012 as an unauthorised maritime arrival. On 23 December 2015, he was invited to apply for a Safe Haven Enterprise visa (SHEV) after the bar under s 46A of the Migration Act 1958 (Cth) was lifted. He applied for the SHEV on 15 July 2016.

2    On 12 December 2018, the Federal Circuit Court of Australia dismissed DGS17’s application for judicial review of a decision of the Immigration Assessment Authority (or IAA) made on 29 June 2017 by which it affirmed a decision of a delegate of the first respondent (Minister) not to grant him the SHEV: see DGS17 v Minister for Immigration and Border Protection [2018] FCCA 3928. The primary judge’s reasons for that decision were delivered ex tempore on 12 December 2018 and the reasons were published on 18 January 2019.

The Authority’s decision record

3    The Authority summarised the appellant’s claims in its decision record (or DR) at DR[6] as follows:

•    He lived in [redacted] which was under the control of the LTTE until he was married and moved to [redacted] which was under the control of the Sri Lankan army (SLA). The military would frequently come to his house and ask whether he was involved in the LTTE. He was twice taken to a military camp and questioned about his support for the LTTE. He was abused and threatened with death. As a result of the harassment he went to Qatar to work. After he went to Qatar his wife was harassed as was his mother in law.

•    His brother, S, was killed by the SLA on 19 February 2009. The government would not record the cause of death as being shot by the SLA and instead recorded on his death certificate that he was killed in shelling. Another brother, U, was injured when he was shot in an incident on 17 June 2009.

•    After the end of the war, his parents and siblings were taken to an internally displaced persons (IDP) camp. He returned from Qatar to visit his family in 2009. When he visited his family in the IDP camp, he was detained by the SLA approximately 3 times and interrogated.

•    When he went to his home in [redacted] to see his wife and son, the CID and the SLA visited his family home late at night on two occasions looking for the applicant as a result of which he got into the habit of sleeping at different relative’s houses at night.

•    He went back to Qatar after a month and then returned to Sri Lanka in 2010. He was followed and monitored when visiting his parents at their home. The CID would come to his house and question him approximately once a month. They would also frequently stop him when he was driving or travelling outside of his house.

•    If he wasn’t at home when they visited, the CID would question his wife about his whereabouts. The applicant believed that it was only a matter of time before he was going to be forcibly taken away from his home and killed.

•    Since arriving in Australia, the CID have visited the applicant’s home in Sri Lanka asking for the applicant’s whereabouts. The applicant’s wife disclosed to the CID that the applicant fled Sri Lanka and travelled to Australia. The CID have also approached his mother and siblings and enquired about the applicant’s whereabouts and his involvement with the LTTE after his departure from Sri Lanka.

Words defined in DR[6] bear the same meaning in these reasons.

4    The Authority noted that on 27 April 2017, DGS17 provided a submission to the IAA. The submission included some country information which had not been before the delegate and made a new claim that his brothers were both fighting members of the Liberation Tigers of Tamil Eelam (LTTE). The Authority found that both the country information and the new claim were “new information” for the purposes of the Migration Act: DR[3].

5    The Authority was not satisfied that “exceptional circumstances” existed which would justify it in considering the new claim. In reaching that decision, the Authority noted at DR[4] that:

(1)    In his submission to the IAA, DGS17 explained that he had not raised the new claim earlier because he was concerned that it would result in his application being looked at adversely. Other than that, DGS17 had offered no explanation for why he was only then providing that information.

(2)    The fact that DGS17 had been assisted by a representative when he completed his SHEV application and when he attended the interview with the delegate (SHEV interview).

(3)    DGS17 and his representative were advised at the end of the SHEV interview that any additional information provided before the decision was made would be considered. The delegate made the decision in a “relatively short period”, but DGS17 had been advised by the delegate that it was his responsibility to provide to the Department all the information in support of his claims.

(4)    DGS17 was also specifically asked at the SHEV interview whether there was anything in his written statement that he wished to add to or change, and he responded “no”.

6    The Authority turned to consider (at DR[5]) two items of country information which had been provided with DGS17’s 27 April 2017 submission. It was not satisfied that “exceptional circumstances” existed which justified considering the first item, which was a report from Human Rights Watch dated 1 February 2010 calling for an end to indefinite detention of LTTE suspects. The IAA noted that the report was publically available material, it predated DGS17’s SHEV application by a number of years and there was other more recent information from credible sources dealing with the treatment of suspected members of the LTTE which was before the delegate.

7    Relevantly to the appeal, the Authority considered the other item, which I will refer to as the Al Jazeera article, at DR[5] as follows:

The other new country information provided by the applicant is an extract from what appears to be a news article from Aljazeera dated sometime in 2017 and referring to the UN’s statement about the tardiness of Sri Lankan authorities in prosecuting war crimes. The relevance of this extract to the applicant’s application is not apparent and I am not satisfied that there are exceptional circumstances to justify this new information.

8    The Authority noted DGS17’s evidence that he had no issues on the occasions that he exited Sri Lanka for Qatar in 2007, returned and exited for Qatar in 2009 and returned from Qatar in 2010. It found that if he had been seriously suspected of involvement or connection with the LTTE and had therefore been a person of interest, he would not have been allowed to exit and re-enter Sri Lanka twice without attracting the attention of security forces as the airport: DR[10]. It did not accept the SLA harassed his wife and her mother about his whereabouts during the period he worked overseas: DR[11]. It did not accept that his brother S had died as a result of being shot rather than as a result of shelling because of the evidence of his death certificate and letters from an MP and priest provided by DGS17 which stated that he died of shelling. It did accept that his brother U had been seriously injured in the later stages of the war: DR[12]

9    The Authority accepted that, as a young Tamil male from an area controlled by the LTTE, DGS17 would have experienced instances of monitoring and harassment by Sri Lankan authorities. It was prepared to accept that, in the period following his return from Qatar and before he departed for Australia, the security forces came on three or four occasions to question him, that he was called to answer questions at the SLA camp on two or three occasions, that he was questioned about his brother and visitors to his home and that on occasion he stayed away from his home at night due to his fear of being abducted: DR[17].

10    However, the Authority formed the view that the DGS17 had exaggerated the Sri Lankan authorities’ level of interest in him at the time he left Sri Lanka: DR[18].

11    On the basis of country information which showed a significant improvement in the situation for Tamils in Sri Lanka following the Sirisena government coming to power, the Authority rejected DGS17’s submission that the persecution of Tamils continues in Sri Lanka and that even though some Tamils are being released from detention, a number of people are being re-captured and taken back to the camps where they are detained without trial or killed. In assessing DGS17’s claims, the Authority took into consideration the he had been questioned by authorities a number of times, likely due to his ethnicity. It noted that he had never been arrested or charged or detained for any length of time under the Prevention of Terrorism Act, which country information indicates was used against those who were suspected by security forces of anti-government activity. He was able to lawfully leave and return to Sri Lanka on his own passport without difficulty during a time of heightened security awareness. He had been able to live and work in the same area since 2010. It found that, overall, it was not satisfied that he was at risk of serious harm if he is returned to Sri Lanka on the basis of being a young Tamil male from the East with past interactions with Sri Lankan authorities: DR[20]-[26].

12    Based on country information, the Authority formed the view that DGS17 was not at risk of serious harm as a returning asylum seeker who had left Sri Lanka illegally: DR[27]-[37].

13    Taking into consideration DGS17’s claims and his profile as a whole, the Authority was not satisfied that there was a real chance of serious or significant harm if he was returned to Sri Lanka now or in the reasonably foreseeable future and accordingly he did not meet either the definition of refugee in s 5H(1) or the complementary protection criterion in s 36(2)(aa) of the Migration Act: DR[38]-[39] and DR[44]-[45].

The appeal

14    The appellant filed a notice of appeal on 2 January 2019.

15    At the hearing of the appeal, the Court was assisted by an interpreter. The appellant appeared in person, as he had in the proceedings in the Federal Circuit Court. He did not file written submissions. The Minister was represented by counsel and filed written submissions.

Ground 1

16    The first ground of appeal was (as written):

1.    His Honour the Federal Circuit Court Judge dismissed the case on 12th December 2018 but the reasons for the judgement is yet to be received.

Particulars

The court affirmed the findings of IAA (Immigration Assessment Authority) however I am yet to provided the reasons for the judgment, hence I am unable to write a detailed grounds of appeal at this stage.

17    The appellant has not sought to amend his notice of appeal, has not filed written submissions or provided particulars of ground 1 in any other way. At the hearing, the appellant submitted that the Authority had “not looked properly” into his case but was unable to give better particulars. The appellant noted that he did not have the funds to hire a lawyer.

18    As pointed out by Bromwich J in FLW17 v Minister for Immigration & Border Protection [2019] FCA 352 at [17], it is well-established and beyond doubt that an appeal, even by way of a rehearing, requires the identification of error, and is not merely a second trial hearing. It is also not for the Court to perform the function of identification of error where the appellant has not. Accordingly, this ground must be rejected.

Ground 2

19    The second grounds was as follows (as written):

1.    His Honour the Federal Circuit Court Judge erred in not holding that the IAA (Immigration Assessment Authority) made jurisdictional error while applying the criteria specified in s 473DD of the Migration Act.

Particulars

In paragraph 5 of the IAA order it is observed that “The other new country information provided by the applicant is an extract from what appears to be a news article from Aijazeera dated sometime in 2017 and referring to the UN's statement about the tardiness of Sri Lankan authorities in prosecuting war crimes. The relevance of this extract to the applicant's application is not apparent and I am not satisfied there are exceptional circumstances to justify considering this new information”.

The Aljazeera article was published on 4th March 20I7, much after the Delegate decision and is about the fact that UN raises concerns over continued widespread serious abuses including torture, arbitrary arrests, sexual violence and the worrying slow of Sri Lankan Authorities in addressing wartime crimes on LTTE suspects of Tamil ethnicity. The IAA has admitted that it is new information but it relevancy is “not apparent”. The article is about UN report which affirms the continued abuse of LTTE suspects of Tamil ethnicity and confirms that it remains widespread. The observation of IAA stating that the relevance of the article is “not apparent” without giving any further reasons amounts to non application of mind. The case of the applicant is that he is an LTTE suspect and upon his return he will be tortured and this claim is buttressed by the matters considered in the article. The statement of the IAA in discarding the new information as not relevant amounts to violation of principles laid down in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at 41 as all circumstances for relevancy was not considered.

Generally, consideration of whether exceptional circumstances exist will require consideration of all the relevant circumstances. That is because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.

20    The appellant made oral submissions in support of this ground. Those submissions related to his concern that the Authority had not properly considered his claims, that it had rejected his claims on the basis that there were no problems in Sri Lanka, when that was not true. As such, his submissions went to the merit of the Authority’s decision and did not engage with the primary judge’s reasons. DGS17 was also concerned that the Authority had referred to him as having come from the east of Sri Lanka, when he comes from the Northern Province.

21    I will address the Minister’s oral and written submissions so far as necessary in the consideration which follows.

22    This ground appears to reflect the first of two grounds of review raised by DGS17 in the Federal Circuit Court, albeit that some of the particulars might more properly be characterised as submissions. The primary judge’s decision to dismiss the second ground of review is not the subject of this appeal. The first ground of judicial review in the Federal Circuit Court was as follows (as written):

The Immigration Assessment Authority (IAA) made jurisdictional error in that it did not correctly interpret the term “exceptional circumstances” as required under section 473DD of the Migration Act in relation to additional information furnished by the applicant.

Particulars

The IAA around the middle of para 5 observes that “the other new country information provided by the applicant is an extract from what appears to be a news article from Aljazeera dated sometime in 2017 and referring to the UN Statement about the tardiness of Sri Lankan authorities in prosecuting war crimes. The relevance of this extract to the applicant’s application is not apparent and I am not satisfied there are exceptional circumstances to justify considering this new information”. The term “exceptional” means “unusual” or “out of ordinary” as interpreted in An v Minister for Immigration and Citizenship [2007] FCAFC 97; (2007) 160 FCR 480. Further even according to the IAA the Aljazeera article was published in 2017. The applicant came into possession much after the date of delegate’s decision in March 2017. The article is about the war crimes and the callousness exhibited by the Sri Lankan Authorities which is a matter relevant to the decision-making. Hence it is a new information that should have been considered pursuant to Sec 473 DD(b)(1) of the Migration Act. The IAA’s failure to consider this additional information resulted in miscarriage of justice.

23    In considering this ground, the primary judge (at J[6]) first noted that it alleged that the Authority had incorrectly interpreted the term “exceptional circumstances” under s 473DD of the Migration Act and set out its terms. It is useful to note that s 473DD occurs in the context of s 473DC. Those provisions are as follows:

473DC Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

473DD Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

24    The primary judge (at J[7]) noted that this ground appeared to be based on the decision of White J in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221 (BVZ16), and that DGS17 relied on an earlier decision of the Full Court in An v Minister for Immigration and Citizenship [2007] FCAFC 97; 160 FCR 480, which was not a decision which concerns s 473DD. His Honour stated that the principles concerning s 473DD are relevantly summarised in AQU17 v Minister for Immigration & Border Protection [2018] FCAFC 111 (AQU17) at [13]-[14] and CMY17 v Minister Immigration & Border Protection [2018] FCA 1333 at [26] per Thawley J.

25    The primary judge noted the finding in Plaintiff M174/2016 v Minister for Immigration & Border Protection [2018] HCA 16; 92 ALJR 481 at [30] per Gageler, Keane and Nettle JJ.

26    The primary judge then found that this ground suggested that the new information in question was such that it should have been considered under s 473DD(b)(i), that is, it was new information which was not, and could not, have been provided to the Minister before the decision was made under s 65. His Honour said that, in other words, it was a submission that the circumstances of the new information were, or came within, the description of new information. The primary judge found the difficulty with that proposition to be that the legislation had left the determination of what are exceptional circumstances to the Authority, and the breadth of the term is such that it is difficult for the Court on judicial review to determine whether those circumstances are met. However, his Honour said that he also considered whether, “like was found by White J in BVZ16”, the Authority took an overly narrow view of what was meant by “exceptional circumstances”: J[9].

27    The primary judge then set out DR[4] (which considered the new claim) and DR[5] (which considered the two items of country information): J[10].

28    At J[11]-[12], the primary judge considered the approach taken by the Authority in DR[4]. That consideration is not the subject of the appeal, having regard to the particulars of the ground.

29    The primary judge dealt with the Authority’s reasons at DR[5] in relation to country information at J[13] and found no error in the Authority’s finding that one item predated much of the information before it and that the other item (which I take to be the Al Jazeera article) was not relevant to the DGS17’s claims. On that basis, his Honour found that the ground was rejected.

30    It is not evident that the Al Jazeera article was provided to the primary judge. A copy of the Al Jazeera article was provided to the Court on the appeal.

31    The Al Jazeera article urges that war time atrocities (including the killing of thousands of civilians, mainly Tamils, towards the end of the war) be the subject of prosecution. While the article notes that the latest UN report expressed alarm that Sri Lankan security and police forces still reportedly committed rape and torture, and that cases of excessive use of force, torture, arbitrary arrests and failure to respect due process during arrests by police continue to be reported and that the lack of accountability risks derailing momentum towards peace, it does not, as asserted in the ground of appeal, “affirm the continued abuse of LTTE suspects of Tamil ethnicity”. This article does not address risk to Tamils with, or suspected to have, links to the LTTE at all. The Authority’s conclusion that the Al Jazeera article has no apparent relevance to DGS17’s claims therefore appears to be correct leading to the conclusion that s 473DC was not satisfied. In that circumstance, the question of whether or not “extraordinary circumstances” existed should be moot and the ground should fail for that reason alone.

32    There was nothing in the appellant’s 27 April 2017 submissions to the Authority which sought to establish that “exceptional circumstances” existed which would justify consideration of the Al Jazeera article. The Authority’s finding that “exceptional circumstances” did not exist is unsurprising in light of its finding that the Al Jazeera article had no apparent relevance to DGS17’s claim that he was at risk as a young Tamil with actual or suspected links to the LTTE.

33    While there are cases where a failure by the Authority to turn its mind to whether the “new information” was not and could not have been provided to the Minister before the decision was made under s 65 (s 473DD(b)(i)) or whether it is “credible personal information” which was not previously known that may have affected the consideration of the referred applicants claims (s 473DD(b)(ii)) in determining whether the Authority is satisfied that “exceptional circumstances” exist (s 473DD(a)), it is a misconception that they must always be considered. Nor is there a requirement to make an express finding under paragraphs (b)(i) and (b)(ii) for the purposes of considering whether “exceptional circumstances” exist under s 473DD(a): see AQU17 at [14] and [16]. As the Al Jazeera article neither addressed the issue of risk to Tamils who are, or might be suspected of being, linked to the LTTE, and the article did not relate to DGS17’s personal circumstances, this is not a case where the assessment of whether “exceptional circumstances” existed would have been assisted by reference to the matters in s 473DD(b).

34    DGS17 has not established any failure by the Authority to consider all relevant circumstances (the need for which was recognised by White J in BVZ16 at [41]) in making its assessment of whether exceptional circumstances existed which would justify its consideration of the Al Jazeera article in assessing DGS17’s claims.

35    I find no appellable error in his Honour’s conclusion that the first ground of the judicial review application should be rejected nor do I observe jurisdictional error in the Authority’s finding concerning the Al Jazeera article at DR[5].

One other matter

36    In his oral submissions, DGS17 referred to the Authority’s error in referring to him as having come from the Eastern Province, when he came from the Northern Province. This was an issue which gave rise to DGS17’s concern that the Authority had not properly assessed his claims.

37    At DR[10], the Authority referred to country information which indicated that counterterrorism laws were routinely used by authorities to search and question Tamils, in particular Tamils originating from the North and East, who were under suspicion and often subjected to cordon and search operations, roundups and arrests. Country information also indicated that “all persons living in areas that were under the control of the LTTE (including the Eastern Province where the applicant was born and lived until his marriage) necessarily came in contact with the LTTE in their daily lives”. At DR[26], the Authority stated that “Overall, I am not satisfied that the applicant is at risk of serious harm if his return to Sri Lanka on the basis of being a young Tamil male from the East with past interactions with the Sri Lankan authorities”. (Emphasis added.)

38    At DR[9], the Authority noted that DGS17 claimed to be of the Hindu faith and Tamil ethnicity from a named town in the Northern Province of Sri Lanka and stated that it was satisfied that he had the claimed identity. At DR[21], the Authority referred to a Department of Foreign Affairs and Trade report dated 24 January 2017 which acknowledged that while the security situation in the north and east had improved dramatically since the end of the conflict, military and security forces maintain a significant presence in the Northern Province, including the district where DGS17 had made his home.

39    It is clear that the Authority understood that the appellant claimed to be from the Northern Province and that claim was accepted. It is also clear that the Authority misspoke when it referred to DGS17 as being from the Eastern Province at DR[10] and DR[26]. I am not satisfied that those errors affected the required analysis of the risk to which DGS17 would be exposed upon return to Sri Lanka. This is because the Authority plainly understood DGS17 to have grown up and lived after his marriage in an LTTE-controlled area and the country analysis which is peppered throughout the Authority’s decision record assesses risk to Tamil males from the Northern and Eastern Provinces on the same basis. I note that this issue was not raised in the appellant’s grounds of appeal, but in any event I do not accept that the Authority fell into jurisdictional error by its misstatements at DR[10] and DR[26].

Conclusion

40    The appeal should be dismissed with costs.

Associate:

Dated:    20 June 2019