FEDERAL COURT OF AUSTRALIA

CYM16 v Minister for Immigration and Border Protection [2019] FCA 1230

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

(Revised from transcript)

THAWLEY J:

1    This an appeal from orders of the Federal Circuit Court of Australia made on 19 February 2019, dismissing an application for judicial review of a decision of the Immigration Assessment Authority made on 14 September 2016: CYM16 v Minister for Immigration & Anor [2019] FCCA 369.

2    The Authority had affirmed a decision of the delegate of the Minister for Immigration and Border Protection (now Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs) not to grant the appellant a Safe Haven Enterprise (Class XE Subclass 790) visa.

Background

3    The appellant is a Tamil citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 28 September 2012. He applied for a protection visa on 1 December 2015.

4    The appellant claimed that if he returned to Sri Lanka he would face serious harm from the Sri Lankan Army (SLA), the Criminal Investigation Department (CID) and other Sri Lankan authorities. He was afraid of harm because of his Tamil ethnicity, his imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE) and former member of the LTTE and his imputed political opinion against the Sri Lankan government.

5    The appellant made the following claims in support of his application:

(1)    The appellant returned to Sri Lanka in around 1991 from Saudi Arabia. About four or five months after his return, he was stopped by the SLA. The SLA interrogated the appellant, questioned where he was going, and accused him of being an LTTE member. The appellant was taken to the SLA camp and was beaten, blindfolded and handcuffed. He was subsequently detained for 15 days and was tortured. The appellant was then detained, without charges or convictions, in various SLA camps for about one year before being returned home.

(2)    Between 1994 and around May 2012 the appellant owned a grocery shop that was near an SLA camp. The appellant was regularly approached by SLA and CID members who took items from his store and refused to pay. The appellant was too scared to request payment. The actions of the SLA and CID members started to impact his business and livelihood.

(3)    At around 4.30pm one afternoon in May 2012, two armed CID members came to the appellant’s shop to purchase cigarettes and drinks. The appellant pointed out to the individuals that their account with his store was very high and that they had promised to pay their loans.

(4)    The next day, the two CID members returned to the appellant’s shop. He told them he had run out of cigarettes because he was out of money because they had not been paying for the products. The appellant told the men that he would report them to their superior if they did not settle the amount owing to him. The CID members proceeded to abuse the appellant, verbally and physically, and threatened him with words to the effect: “Come to our camp this evening. We will cut you to pieces”.

(5)    The appellant did not go to the camp and instead left Sri Lanka. He feared harm from the SLA and other Sri Lankan authorities if he returns to Sri Lanka, because he did not obey their orders.

The Delegate’s Decision

6    The delegate accepted the appellant’s claim to having been arrested in 1991, but did not accept his claim to having been detained for the length of time he had claimed.

7    The delegate accepted that the appellant had contributed money and groceries to the LTTE but did not accept that he was at risk of being imputed with an LTTE profile. He was well known to his customers including those who worked at the local SLA camp.

8    The delegate did not believe the appellant’s claims regarding the incident with the two CID officers in May 2012, given that the appellant had been running his business for 20 years and that his wife had run the business, without incident, for another 2 years after his departure.

9    The delegate expressly found the appellant had not been beaten by the CID and had not been asked to report to the army camp in May 2012.

10    The delegate was not satisfied that the appellant met the refugee criterion in s 36(2)(a) of the Migration Act 1958 (Cth). The delegate also concluded that the appellant did not meet the complementary protection criterion in s 36(2)(aa) of the Act.

The Authority’s Decision

11    The Authority affirmed the decision of the delegate not to grant the appellant a protection visa.

12    The Authority accepted that:

(1)    the appellant originated from an area previously controlled by the LTTE;

(2)    as the owner and operator of a grocery store in his particular area of Sri Lanka, the appellant would have encountered the LTTE and, during Sri Lanka’s civil conflict, may have been forced to contribute money and groceries from his store;

(3)    the behaviour reported by the appellant, including CID officers taking goods from the appellant’s grocery store and retaliating with threats if the appellant asked for payment, was behaviour which may have been part of the general harassment of Tamils by Sri Lankan authorities in the aftermath of civil conflict; and

(4)    the incident in May 2012 occurred and the incident caused the appellant to have a subjective fear that such incidents might continue to occur should he return to Sri Lanka.

13    The Authority did not accept that:

(1)    the conduct referred to at (2) above continued to occur in 2010 and 2012 as stated at the PV interview because the LTTE were a “spent force by May 2009”; or

(2)    the appellant had an LTTE profile arising from these low level contributions made under duress.

14    The Authority considered then current country information to the effect that, under the Sirisena government elected in 2015, monitoring and detention of Tamils had decreased, fewer people were detained and day to day life for Tamils had improved. Given the appellant had no LTTE profile, it did not accept that the CID would have any interest in him.

15    Although not expressly the subject of any claim by the appellant, the Authority then considered whether the appellant faced a real chance of serious harm by reason of having departed illegally, in breach of Sri Lankan departure law. It found that, on return, the appellant would be processed and charged and that in the course of this the appellant might be held in detention for a short time in poor conditions, but that a short detention did not amount to serious harm. This aspect of the Authority’s decision will be discussed in further detail when considering the grounds of appeal.

Grounds of Appeal

16    The appellant’s grounds of appeal to this Court are as follows:

1.    The Court below erred in finding that the Immigration Assessment Authority (IAA) had failed to properly consider the Applicant’s claims under s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 ...

2.    The Applicant seeks leave to rely on the principles developed in SZSFS v Minister for Immigration and Border Protection [2015] FCA 534.

3.    The Court below erred in not finding that the IAA incorrectly applied s 473DD of the Act in the treatment of the Applicant’s statement dated 26 August 2016 send [sic] by RACS [the Refugee Advice and Casework Service] on behalf of the applicant (CB Page 126-129).

Particulars

A.    At [3] [4] of its reasons for decision, the IAA concluded that the legal argument and country information already available to the Delegate were not new information and would be considered. However, it was considered that the IAA Statement also contained new information but would not be considered as the requirements of s 473DD had not been satisfied.

B.    The IAA failed to adequately distinguish between what aspects of the IAA statement it could consider and those which failed to comply with s 473DD.

17    The appellant’s Notice of Appeal set out the following further text, which appears to be by way of submission (emphasis in original):

It is respectfully submitted that IAA wrongly interpreted the application of IEA, it should be noted that Section 45 of the IEA indicates clearly he would face imprisonment of either description for a term not less than six (6) months and not more than five (5) years and to a fine not less than fifty thousand rupees and not more than two hundred thousand rupees.

The IAA though accepted that he would face a higher penalty but failed to provide reasons why he would not be imprisoned due to his second offence and the IEA provides that if he is imprisoned, he would be imprisoned for not less than six months. In such a situation, six months is a long imprisonment and the IAA failed to consider whether he would suffer significant harm in prison.

Further, the IAA without any evidence concluded that he would be granted bail on personal surety or [sic] a family member. The IAA failed to provide explanation who is the family member who would be provide surety to bail him out from the prison.

It is respectfully noted that the IAA erred in making assumptions as to grant of bail on return to Sri Lanka.

There is nothing in the IAA Decision, or in dealing with relevant country information, which provides a basis or source for the statement that a family member is required to stand as guarantor, eligible to stand as guarantor. No country information to that effect is cited in the IAA Decision, and no relevant law providing who may stand as guarantor, and if a family member may stand as guarantor, what constitutes a “family member” for the purposes of the relevant Sri Lankan legislation, is cited. There is no legal or evidentiary basis who met the requirements for providing a guarantee. A conclusion reached for which there is no evident legal (in the sense of relevant Sri Lankan law cited) or evidentiary (in the sense of any relevant country information cited as to the legal practice in Sri Lanka) means that the IAA Decision, in this respect, lacks an evident and reasonable justification, and thus constitutes jurisdictional error: Li at [105] per Gageler J; Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 at [61(d)] per Wigney J.

It is respectfully submitted that above principles were observed in a recent Federal Circuit Court decision in BVG15 v Minister for Immigration & Anor [2019] FCCA 290 (15 February 2019) which is after my Court decision.

Ground 1

18    The appellant did not identify any claim which was not considered by the Authority. Having reviewed the material before this Court, including in particular the Authority’s decision, I was not able to identify a claim which the Authority did not consider. Accordingly, this ground must be rejected.

Ground 2

19    In SZSFS v Minister for Immigration and Border Protection [2015] FCA 534, Logan J concluded that the Tribunal there concerned dealt with expert evidence relevant to the appellant’s psychological condition in a manner which was irrational. The relevance of the decision to the present case was not explained and is not apparent. This ground also fails.

Ground 3

20    The third ground asserted that the Federal Circuit Court erred in not finding that the Authority incorrectly applied s 473DD. The complaint, as indicated in the particulars, was that the Authority did not clearly distinguish between the information it would consider and that which it would not. This complaint is not made good. It is clear from A[4] that the Authority was not satisfied about the matters in s 473DD(b) in relation to the report dated 7 May 2016 titled “Preliminary Observations of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment”. It otherwise considered the appellant’s submission.

21    It follows that ground 3 must also be rejected.

The written submission

22    The written submission contained in the Notice of Appeal concerns the IAA’s conclusions with respect to the events which might occur on the appellant’s return as a consequence of him having left Sri Lanka illegally. This was not a matter raised before the Federal Circuit Court. The Minister objected to it being raised for the first time on appeal. If the point has no merit then leave to raise the argument would ordinarily be refused. It is, accordingly, convenient to consider first whether the ground has any merit.

23    At A[27], the Authority stated (footnotes omitted):

Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions informed DFAT in July 2015 that no returnee who was merely a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally. However, fines of varying amounts depending on individual case circumstances had been issued as a deterrent towards joining boat ventures in the future. If a person pleads guilty, they will be fined and are then free to go. In most cases, when a returnee pleads not guilty, they are granted bail on personal surety immediately by the magistrate, or may be required to have a family member act as guarantor.

24    The Authority’s conclusions at A[29] were that:

(1)    if the applicant pleaded guilty, he would be required to pay a fine and would subsequently be released; and

(2)    if he pleaded not guilty, he would be released on his own personal surety;

(3)    being a mere passenger on a people smuggling venture he would not be subject to a custodial sentence;

(4)    the requirement to pay a fine or provide personal surety would not amount to serious harm, nor that the payment of a fine, being held in detention for a short period and questioning cumulatively amounts to serious harm.

25    The appellant’s submission in the Notice of Appeal proceeded on an incorrect basis. The Authority did not conclude that a family member of the appellant would stand or be required to stand as guarantor. Rather, it considered that the appellant would do one of two things: plead guilty or plead not guilty. If the former, he would pay a fine and be released. If the latter, he would be released on his own personal surety. The Authority did not engage in the further speculation that a family member might be required to act as guarantor or identify a family member that would act as guarantor. This was not surprising given that the issue of illegal departure, and the consequences to the appellant of that fact on return, were not expressly raised by the appellant. A fortiori, he did not raise as an issue that he might not have a family member to act as guarantor in the event that were required.

26    The appellant’s position is equivalent to that of the appellant in DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 of which the Full Court stated at [97] and [98] (emphasis in original):

Further, as to a family member acting as a guarantor, contrary to the appellant’s submission the Authority did not make any assumption that a family member would act as guarantor. The country information was that the appellant may be required to have a family member act as guarantor and that is all the Authority said. The question of whether a family member would act as guarantor was not critical to the Authority’s decision (SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404 at [79] per Robertson and Kerr JJ).

On the question of the guarantee, the Authority was dealing with a triply contingent hypothetical. First, the appellant had to plead not guilty. If he pleaded guilty, he would be fined, with the fine able to be paid by instalments; no guarantee question would arise. Second, if he pleaded not guilty, he could be released on his own personal recognizance. In that eventuality, no guarantee would be required. Third, the guarantee question would only arise if he pleaded not guilty and his own personal recognizance was not sufficient. Now in that eventuality, and given that no immediate payment of money would be required from a guarantor, it might be expected that a family member may act as guarantor to secure the appellant’s release. But all of this is in the realm of a hypothetical which the Authority did not need to speculate about or discuss in detail.

See also: ENE17 v Minister for Immigration and Border Protection [2019] FCA 942 (Farrell J).

27    As the Authority in this case found that the appellant would be released on his own personal surety if he pleaded not guilty, BVG15 v Minister for Immigration & Border Protection [2019] FCCA 290 is not relevant. BVG15 turned on a finding that a family member (a paternal uncle) would be required to stand as guarantor. No analogous finding was made in the present case.

Oral submissions

28    The appellant made oral submissions. He made two points. First, the appellant said that he could not go back to Sri Lanka because of the current situation. Second, the appellant indicated that his daughter was disabled. It was said that the consequence of this was that the appellant’s community rejected him and his daughter and that his society neglected him. He described his family’s situation as that of being “outcasts”.

29    The role of this Court is confined to correcting legal error on the part of the Federal Circuit Court. In an appropriate case, error on the part of the Federal Circuit Court might be established by its failure to recognise or provide appropriate relief in respect of jurisdictional error on the part of the Authority.

30    As to the first aspect of the appellant’s oral submission, the current situation in Sri Lanka was not shown to be in any way relevant to demonstrating error on the part of the Federal Circuit Court or jurisdictional error on the part of the Authority.

31    As to the second aspect of the appellant’s oral submissions, none of the matters concerning the appellant’s daughter’s disabilities or the consequences of them to the acceptance of the appellant or his family in the community were put to the delegate, the Authority or the Federal Circuit Court. Nor did those matters form an express or implied basis of the appellant’s claims. These matters raised in oral submissions were not supported by evidence. Having said that, I am prepared to accept what was said at face value. As just mentioned, the role of this Court is confined to the correction of legal error on the part of the Federal Circuit Court. Assuming the matters stated are correct, they cannot demonstrate error on the part of the Federal Circuit Court or jurisdictional error on the part of the Authority in circumstances where those matters were not raised or evident on the material.

CONCLUSION

32    The appeal must be dismissed with costs.

Associate:

Dated:    7 August 2019