FEDERAL COURT OF AUSTRALIA

ADN17 v Minister for Home Affairs [2019] FCA 1037

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit Court on 4 December 2018 be set aside.

3.    In lieu thereof order:

(a)    the decision of the second respondent made on 7 December 2016 be set aside;

(b)    the matter be remitted to the second respondent, differently constituted, for determination according to law; and

(c)    the first respondent pay the applicant’s costs of and incidental to the application for judicial review.

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

5.    In the absence of the Court being notified on or before 4pm on 18 July 2019 of any agreement between the parties as to an appropriate lump sum for the appellant’s costs of the appeal, the matter of an appropriate lump sum 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

MORTIMER J:

Introduction and summary

1    This is an appeal from orders made by the Federal Circuit Court on 4 December 2018, dismissing the appellant’s application for judicial review of a decision of the Immigration Assessment Authority and ordering the appellant to pay the first respondent’s costs in the amount of $7,328.00: see ADN17 v Minister for Immigration & Anor [2018] FCCA 3606.

2    For the reasons set out below, the appeal will be allowed.

Relevant background

3    The appellant is a citizen of Sri Lanka and is of Tamil ethnicity. The appellant arrived in Australia by boat on 13 October 2012.

4    There is then a gap of several years in the chronology, which is unexplained by the evidence.

5    The situation changed in late 2015 when it appears the “bar” was lifted and on 10 December 2015 the appellant was permitted to apply for a protection visa. The appellant applied for a Safe Haven Enterprise (Subclass 790) Visa on 7 April 2016, and was interviewed by a delegate of the Minister on 24 August 2016. The appellant’s visa application was rejected in a decision made on 2 November 2016 and was referred to the Authority in accordance with s 473CA of the Migration Act 1958 (Cth). The appellant’s migration agent made submissions to the Authority on behalf of the appellant on 24 November 2016. The appellant has been represented throughout the process before the Authority and the Federal Circuit Court.

6    On 7 December 2016 the Authority affirmed the decision of the delegate of the Minister not to grant a protection visa. The appellant applied for judicial review of the Authority’s decision on 2 January 2017. There was further delay, and orders were not made until 4 December 2018, dismissing the application. The appellant appealed by notice of appeal filed 12 December 2018.

7    There is a single ground of appeal:

The primary Judge erred in not finding that the decision of the Immigration Assessment Authority (‘IAA’) was vitiated by jurisdictional error in that it failed to consider the applicant’s claim that he fears that if he is forced to return to Sri Lanka (SL), he will be detained either at the airport or on return to his village on grounds that he did not come forward to identify himself as a person who had been with LTTE.

8    Where necessary for the resolution of the appeal, I refer to the nature of the appellant’s claims, the Authority decision and the Federal Circuit Court reasons below.

The aspects of the Authority’s reasoning impugned on the appeal

9    As the appellant set out in his written submissions at [6], the Authority accepted some substantive aspects of the appellant’s narrative about what had happened to him in Sri Lanka before he left. It accepted he had involvement with the LTTE between January and March 2009, when he was recruited as a child soldier by them, escaped and was recaptured before surrendering himself to the Sri Lankan army. This aspect of the Authority’s fact-finding is important to the resolution of the appeal, and I return to it below.

10    The Authority also accepted that it was “plausible” the appellant’s family had to provide food to the LTTE during the conflict. It accepted the appellant’s father gave assistance to the LTTE (digging bunkers and providing food), and further found it was, again, “plausible” that, after the conflict, the appellant’s father was physically mistreated by the Sri Lankan authorities due to his association with the LTTE. As I read its reasons, the Authority’s finding was that the appellant’s father was mistreated because he had, in fact, been associated with the LTTE. It also found the appellant, and his father, were questioned following the end of the conflict. There were also some aspects of the appellant’s narrative that the Authority did not accept, but they are not relevant to the ground of appeal.

11    Against that background of factual findings, the appellant contends the Authority should have, but did not, consider and determine the claim as set out in the ground of appeal. There is no dispute the appellant did indeed express such fears both to the delegate and to the Authority. Before the Authority, these fears were reiterated in submissions made on his behalf by his migration agent. Those submission relevantly stated:

We make submissions that the delegate having accepted that the applicant and his father had links with LTTE has made the following errors:

1.    Failed to consider the applicant’s claim that he fears that if he is forced to return to Sri Lanka (SL) he will be detained either at the airport or on return to his village, on grounds that he did not come forward to identify himself as a person who has been with LTTE for a week.

…

5.    The delegate failed to consider whether the applicant’s circumstances coupled with his father’s circumstances (working for LTTE digging trenches and bunkers/pits), enhances the risks of detention and risks of suffering significant harm from the Sri Lankan Intelligence (be it police or army intelligence units) on his forceful return.

…

The applicant gave evidence that:

a.    He did not turn himself in despite requested to do so by the SL authorities to all LTTE members and supporters.

b.    Members of paramilitary group and former LTTE members who had become informants assisting the intelligence officers in identifying anyone with past links with the LTTE at the airport and his village will identify him to the Sri Lankan Intelligence.

c.    His friends in a similar situation have been detained.

2.    The delegate accepted that the applicant's father dug trenches and built bunkers for LTTE and he had been constantly taken and beaten, and as a consequence suffered and is still suffering from serious spinal/back injury which has affected his mind functionality as a result of the trauma he had been through. If the applicant returns to SL now, his background will be checked and the fact that his father worked for LTTE will be revealed, coupled with the fact that he is a failed asylum seeker gives rise to reasonable chance of detention for further investigation by the SLA.

…

5.    LTTE suspects were and are still being detained under the SL Prevention of Terrorism Act which allows for detention for an unlimited time and extraction of confession by torture.

…

8.    DFAT 2015 also reports that while the majority of the low profile (low risk) former LTTE members have already been released following their detention, any other low−profile LTTE members who came to the attention of the Sri Lankan authorities would be detained and may be sent to the remaining rehabilitation centres.

The delegate relied heavily on the current country information from UK, Canada, US and Australia in putting to the client that under the current Sirisena Government, the applicant is at no risks of harm. However, we submit that the delegate failed to consider the following country information that came from the same sources that the delegate claims to have noted.

…

F1.11 - Military surveillance are conducting fresh registrations of people living in Batticaloa district

6.3.6 In March 2016 Tamil net reported that intelligence operatives and military surveillance officers are conducting fresh ‘registrations’ of people living across the 14 divisions of Batticaloa district. It further noted that ‘Regardless of their release after prolonged detention and so-called military rehabilitation, they are being again subjected to questions for their presence in Vanni, whether they had received training from the LTTE, did they participate in combat, where they are employed now and how they receive money.’

…

F1.15 Sri Lankan security Forces are actively looking for Tamils returning home from abroad in order to torture them

6.5.2 The Immigration and Refugee Board of Canada reported in February 2015 that: ‘Sources report that individuals returning from abroad are particularly subject to screening. 36 A July 2015 International Truth & Justice Project (JTJP) Sri Lanka report on Sri Lanka’s Survivors of Torture and Sexual Violence 2009-2015 stated that: ‘A security force insider testified since the presidential election in 2015 that military intelligence officials from Joseph Camp were actively looking for any Tamils returning home from abroad in order to interrogate them. The witness stated that the intention was to abduct, detain and torture them

Conclusions

The risk of significant harm of returning Tamils suspected of having connections with LTTE is very high. The applicant is not seeking protection based solely on the fact that he is a Tamil from the North or East of Sri Lanka but for the profile he possess listed above.

He faces a high risk of being detained at the airport for interrogation and even if not detained at the airport, he on return to his home area in [REDACTED], risks arrests and abduction by the SL security forces in the highly militarized area. The above country information states that there is 1 army personnel for every 6 residents in these areas. In such areas it is difficult to go on with your daily life without coming in contact with the security forces. This risk particularly heightens with a failed asylum seeker returning to this place.

12    Thus the claim was as set out in the first part of this extract: namely that the appellant feared that if he was forced to return to Sri Lanka he would “be detained either at the airport or on return to his village, on grounds that he did not come forward to identify himself as a person who has been with LTTE for a week” (emphasis added). I note that in fact the appellant’s evidence was that he had been recaptured by the LTTE after escaping and it is unclear how long he claimed his second detention with the LTTE was for.

13    The only possible location for the Authority’s consideration of this claim was at [23] of its reasons:

23.    The applicant claimed within the SHEV application (question 94) that in 2016 his father was questioned by the CID regarding the applicant’s whereabouts. It is claimed that this event evidences that the applicant is known to the CID as someone with LTTE links. However, in the PV interview, the applicant stated that he feared returning to his village in the event that somebody who is familiar with his past identifies him and reports his previous LTTE involvement to the CID. I find the applicant’s oral evidence at interview does not support that the Sri Lankan authorities have imputed him as someone with LTTE links. I do not accept that the applicant’s father was questioned by the CID regarding the applicant’s whereabouts in 2016.

14    It was this paragraph, read in the context of the Authority stating it had taken the appellant’s submissions into account, which led the Federal Circuit Court to reject this argument on judicial review.

15    The appellant contends the Federal Circuit Court erred in relying on [23] of the Authority’s reasons and its general statement that it had taken the appellant’s submissions into account to conclude the Authority had considered the claim as articulated.

16    The appellant contends the Authority needed to deal specifically with this claim as it was articulated. The Minister, defending the Federal Circuit Court’s approach, contends the Authority’s reasons should be read as generally having looked at all the appellant’s claims, including this one, and therefore its decision is not affected by jurisdictional error, as the Federal Circuit Court found.

A late submission by the Minister

17    Relying on Minister for Immigration and Border Protection v SZMTA, [2019] HCA 3; 363 ALR 599 at [44]-[45], at the hearing the legal representative for the Minister foreshadowed a new argument: namely that even if the claim had been considered, it would not have deprived the appellant of a possible successful outcome on the review.

18    The appellant objected to the Minister raising this argument, because it sought to uphold the Federal Circuit Court orders on a different basis and there was no notice of contention filed by the Minister. Counsel noted that this argument had not been raised before the Federal Circuit Court, despite Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1 having been handed down in August 2018, with Hossain being the foundation for this materiality argument. The appellant also submitted that the Minister had not contended before the Federal Circuit Court that relief should be refused on a discretionary basis because there was no utility given the terms of the Authority’s reasons, and that this was, in effect, another way to put the point now sought to be raised.

19    Leave was granted to the Minister to file and serve, on or before 4 pm on 3 June 2019, an interlocutory application supported by affidavit, if he sought to rely on a notice of contention in the proceeding. No interlocutory application, and no notice of contention, has been filed in compliance with the leave given to the Minister. I proceed on the basis that argument is not pressed.

Resolution

20    I note the appellant’s application fell to be considered in accordance with the statutory framework for the assessment of claims for protection, enacted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). There is no dispute that the Authority adopted the correct statutory framework.

21    In my opinion there was an insufficient basis in the reasons of the Authority for the Federal Circuit Court to find that it considered and determined this claim made by the appellant, as it was required to do. I accept the appellant’s submission that this was a separate claim, clearly put, and said to be based on the appellant’s narrative of what had happened to him in Sri Lanka in the past and what he feared. It was a claim sought to be supported by country information, some of which is set out in the extract at [11] above in the submissions filed on behalf of the appellant with the Authority.

22    Contrary to some of the oral submissions made on behalf of the Minister, this is not a case where the Authority’s reasons addressed the claim, but simply did not descend into much detail about it. This is a case where the claim was not addressed at all.

23    In his protection visa application, the appellant had made several statements such as the following:

The Applicant fears he will continue to face persecution for his involvement with the LTTE. Whilst the Applicant spent a short period with the army, he was consistently questioned by Sri Lankan Government officials after the war concluded and was detained at a camp for half a day.

The Applicant states his father has continued to be questions by the CID as to his whereabouts, even in 2016 the CID approached his father and questioned him over the Applicant’s whereabouts. It is apparent the Applicant is known to the CID and he was apart of the LTTE.

…

The Applicant is known by the CID and his links to LTTE. Whilst his actual links to the LTTE are limited, the Applicants by virtue of his experiences after the war concluded, that there is a level of involvement with the LTTE perceived by the CID.

24    Contrary to the Minister’s submissions, the fact that these statements contended the CID knew of the appellant’s links to the LTTE is not inconsistent with the claim which is said to have been overlooked or not dealt with. A point such as that does not really matter on judicial review: either a claim was considered or it was not, and the merits of the claim were for the Authority to consider. But even if this point could be raised, in my opinion, there is no inconsistency between an account which asserts that the Sri Lankan authorities know of a person’s links to the LTTE, and a claim that on return the person might be detained and mistreated for not having previously volunteered the “whole story” about that person’s involvement in the LTTE. However, as the appellant’s counsel submitted and I have noted, this was something of a “merits” point made on behalf of the Minister. The relevant fact for the appellant’s appeal, and for his judicial review application, was that the claim which found expression ultimately in the migration agent’s submissions to the Authority was not new, and was a matter which was grounded in the appellant’s own material from the outset of his application.

25    Once his visa application progressed and the appellant was given his first fuller opportunity to explain his fears, the appellant gave evidence which directly supported what was later submitted to the Authority on his behalf. At his interview with the delegate, the appellant expressed his fears about what might happen because he failed to volunteer his LTTE connections earlier:

DIBP: So now we must consider the future. So what do you think would happen to you if you were to return to SL?

A: If I go back to SL now, I could be apprehended and put in detention. There was a situation earlier where they said even when people have been in the LTTE detention or captivity, even for one day, to come and front up. But I did not front up at that stage so they will definitely catch me and, you know, detain me. The reason is those who were very senior in our village earlier, you know the paramilitary, now, are in the army in high positions. And they tend to identify those of us, you know, in the past saying this is one of them like that.

DIBP: Are you talking about the TMVP? Karuna group?

A: No not them. Referring you to the earlier LTTE some of the senior who are now with the army, in senior positions, and they have the job of identifying us, “this is so and so, he was linked” etc. They identify us.

DIBP: Yes. So I put it to you, if you were to arrive in the airport in Colombo, what do you think would happen to you?

A: Even if I come to the airport, in the CID, there is one of my village people there. They will recognise me and of course identify me. Let’s say the village person is not working in the airport at that time and I get away, and I get away to my village, over there I’ll be identified, and be reported to the officials and I could end up in jail either way.

DIBP: So when you say jail, you mean detention?

A: Yes referring to detentions, but it is the places where the LTTE suspects are currently put in places, maybe for 5 years, 10 years, long term type of lockups, that kind of places.

(Emphasis added.)

26    Most critically to my view of why the ground should succeed, once the appellant’s case was before the Authority, the very first submission which was made to the Authority directly addressed a claim that it was said the appellant had made (and by implication, maintained). This claim described in express terms that if the appellant is forced to return to Sri Lanka he will be detained either at the airport or on return to his village and will be targeted because of his failure to identify himself as a person who has been associated with the LTTE. As the submissions later state, the appellant did not “turn himself in” as an LTTE member, hence his claimed fear that not only his involvement, but his attempt to hide his involvement, will come to the attention of the authorities and will exacerbate the way he will be treated.

27    This was not a claim about imputed association with the LTTE. This was a claim about the consequences of his actual association with the LTTE as a child soldier, on the Authority’s own findings, an association which lasted from January to March 2009, and the appellant’s failure to confess that involvement to Sri Lankan authorities in the past.

28    To address that claim required the Authority to first recognise it had been made, which it did not. It is likely to have then required a different factual assessment to be undertaken to the one which was undertaken: namely about questioning not only at the airport, but back in the appellant’s village, what course any questioning might take (if the Authority accepted the appellant might be questioned), and what on the country information was the attitude of the Sri Lankan authorities to Tamils who had not confessed their prior association with the LTTE.

29    How the Authority went about its assessment of this claim for the purposes of the review would be a matter for it: what I outline in the previous paragraph is simply illustrative of how it was a different inquiry and assessment to the one the Authority had in fact undertaken.

30    There is no debate on the authorities that, in relation to claims for protection under the Migration Act, a decision-maker such as the Authority is required to consider and determine a claim which clearly arises (expressly or impliedly) on the material, relying on established facts: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 214 CLR 496 at [24] (Gummow and Callinan JJ); NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [58].

31    Failure to mention an argument or claim in reasons may well be able to be treated as evidence of a failure to consider that claim or argument: Singh v Minister for Home Affairs [2019] FCAFC 3 at [36] (Reeves, O’Callaghan and Thawley JJ). In Singh at [37], the Full Court emphasised the need to carefully consider the place of the claim in the whole of the matter before the decision-maker, and to consider any alleged failure in the context of the reasons as a whole, noting that the centrality of the claim or argument will be an important factor. See also Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [52] and [62].

32    In AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18] the Full Court summarised these principles again, by reference to a large number of authorities, and confirmed the principles applied to the Authority’s task under Pt 7AA.

33    For the reasons I have set out above, on the evidence it is clear that this claim expressly arose before the Authority and that it relied on the “established facts” contained in the appellant’s own evidence to the delegate. However, it also arose on the facts as found by the Authority, in terms of its findings about the appellant’s actual association with the LTTE between January and March 2009.

34    Although at [23] the Authority referred to the appellant’s fear that on “returning to his village in the event that somebody who is familiar with his past identifies him and reports his previous LTTE involvement to the CID”, this was only part of the factual substratum for the overlooked claim. His overlooked claim was that on being questioned (whether at the airport or in his village) it would be discovered that he had failed to confess the extent of his actual involvement with the LTTE and that he would be mistreated once that failure was discovered, as he maintained it inevitably would.

35    Paragraph [23] of the Authority’s reasons only makes findings about whether the appellant would be imputed with any association with the LTTE. On the findings as made by the Authority, this commenced from a different premise. This appellant had, on the Authority’s findings, actual involvement with the LTTE. In my opinion, if the Authority had appreciated the content of that claim, one would expect to have seen in this part of its reasons a different approach to the question whether the appellant might be questioned after return to his village.

36    The Minister submits:

The IAA’s reasons, when read as a whole, demonstrate that the IAA actively engaged with and considered the appellant’s claims as a whole, and the lack of specific reference to that part of the claim referred to in the ground of appeal does not indicate that the appellant’s evidence in this regard has been overlooked.

37    I reject that submission. The whole point of the obligation to consider and determine each claim which is made, or fairly arises on the material, is to ensure a person is not denied the opportunity to be given protection on the basis of matters which are said to be material to the circumstances of that individual should she or he be forced to return to her or his country of nationality. A “general consideration” of what a protection visa applicant says is insufficient, because the task of determining if an expressed fear is objectively well-founded is not undertaken at a level of generality, but at an appropriate level of particularity. As the Full Court said in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46] (French, Sackville and Hely JJ):

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason.

(Emphasis added.)

38    I accept the appellant’s submission that the failure of the Authority fell into this category. Albeit that it was drawn together in a submission to the Authority rather than in the appellant’s own words (a matter which is of no consequence for the legal analysis). What was said by the appellant’s migration agent was not about isolated fact-finding. It was about a different basis for the appellant’s fear of harm at the hands of the Sri Lankan authorities. The Minister also submits that this claim was not “central” to the appellant’s case for protection. It need not be “central” (whatever gloss that is said to add): the claim was material to the outcome of the Authority’s review, and that is sufficient.

39    The point being made in the submissions on behalf of the appellant, and by the appellant himself, was that the answers given to the questioning the Authority accepted occurred in 2010 were likely to be discovered to be false, as the appellant had in fact been an LTTE recruit, albeit for a short period of time, in circumstances where his father was known to have been associated with the LTTE (as the Authority also accepted). He was claiming that as a failed asylum seeker returned to his village, he would be more conspicuous and likely to be questioned again about his LTTE involvement in circumstances where it was known in his village that he was taken as a child soldier, but had failed (in his words) to “front up” when previously questioned by the CID in 2010, as the Authority found he had been. He was also claiming he would be treated differently by the authorities because of his failure to confess his LTTE involvement at an earlier stage.

40    There is nothing in the Authority’s reasons to suggest it considered this claim. Contrary to the Federal Circuit Court’s finding at [27], it was more than a “piece of evidence”, and it was erroneous for the Federal Circuit Court to identify, as it did at [27] of its reasons, paragraph [23] of the Authority’s reasons as the location where the Authority dealt with this claim, in its reasons.

41    The appeal will be allowed, with costs, and the orders of the Federal Circuit Court will be set aside. The matter will be remitted to the Authority, differently constituted, for determination according to law.

Associate:

Dated:    4 July 2019