FEDERAL COURT OF AUSTRALIA

EGA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1298

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

WHITE J:

1    The appellant is a national of Sri Lanka and of Tamil ethnicity. He arrived in Australia by boat as an unauthorised maritime arrival on 5 November 2012.

2    On 21 December 2015, the appellant was invited to apply for a Safe Haven Enterprise Visa (SHEV) and he lodged such an application on 29 February 2016. That application was refused by a delegate of the Minister for Immigration and Border Protection on 21 July 2017.

3    As the appellant was a “fast track review applicant” and the decision of the delegate a “fast track reviewable decision” under Pt 7AA of the Migration Act 1958 (Cth) (the Act), the Minister referred the delegate’s decision to the Immigration Assessment Authority (the IAA). By a decision dated 11 September 2017, the IAA affirmed the delegate’s decision.

4    The appellant then sought judicial review of the IAA’s decision in the Federal Circuit Court (the FCC) under s 476 of the Act but his application for judicial review was dismissed: EGA17 v Minister for Immigration & Anor [2019] FCCA 408. The appellant now appeals against the FCC judgment.

5    The appellant was born in Sri Lanka in 1981. In 1990, when he was 9 years old, he left Sri Lanka with his parents and went to India. He remained in India until 19 October 2012 when he left India illegally in order to travel to Australia. He arrived in Australia on 5 November 2012.

6    The appellant had legal representation in the FCC and at the commencement of his appeal to this Court. However, after the appeal was listed for hearing, the appellant’s solicitor filed a Notice of Ceasing to Act and thereafter the appellant has been unrepresented.

7    The appellant had sought a SHEV on a number of bases. He claimed that, if he returned to Sri Lanka now, he would be persecuted and discriminated against as a Tamil; because he and his parents had departed Sri Lanka illegally in 1990; because he has lived in an Indian refugee camp for extended periods; and because he has claimed asylum. He contended that those matters by themselves meant that he would be subjected to enquiry on return to Sri Lanka and suspected of being a supporter of the Liberation Tigers of Tamil Eelam (LTTE). In addition, the appellant said that before his family had fled Sri Lanka for India in 1990, his father had supported the LTTE, had transported items for them, and had provided them with food. He said that the Sri Lankan Army (SLA) had looked for his father in 1990 and that that had prompted his family’s flight to India. He fears that the Sri Lankan authorities have a record of his father and of his father’s activities and that by reason of his familial association, he is at risk of harm.

The IAA decision

8    The IAA member found that Sri Lanka is the receiving country for the purposes of the assessment of the appellant’s application. The IAA member also accepted the following matters:

    the appellant’s father had supported the LTTE in Sri Lanka and had transported items for them as well as providing LTTE members with food;

    that two people who had worked with the appellant’s father had been arrested in Sri Lanka in 1990 and had not been seen since;

    it is plausible that the SLA had made enquiries about the appellant’s father in 1990 because authorities in Sri Lanka had been suspicious of Tamils living in LTTE controlled areas of which Jaffna, where the appellant’s family lived, was one; and

    the appellant’s father had been fearful for his own safety and the safety of his family and for that reason had left Sri Lanka illegally in 1990 and he and his family had registered as refugees in India.

9    However, the IAA member was satisfied that there has been a significant change and improvement in the security situation in Sri Lanka since the end of the Civil War in 2009. In particular, the IAA accepted that since 2015 the Sri Lankan Government has adopted a more proactive approach to human rights and reconciliation and has been engaging constructively with the Tamil population. It referred in this respect to the report entitled “DFAT Country Information Report – Sri Lanka” issued by the Department of Foreign Affairs and Trade (DFAT) on 24 January 2017 (the 2017 DFAT Report). Nevertheless, the IAA accepted that the Sri Lankan Government continues to seek to identify Tamil activists who are working for Tamil separatism and to destabilise the unitary Sri Lankan state. It referred to a report from the Home Office of the United Kingdom indicating that four categories of persons remain at risk, namely, those with a significant role in post-conflict Tamil separatism, journalists/human rights activists, people who gave evidence to the Reconciliation Commission implicating the Sri Lankan security forces, and those whose name appears on a “stop” list of those against whom there is an extant order or arrest warrant. The IAA member was satisfied that the appellant did not fall into any of those categories.

10    The IAA member also accepted that there continue to be reports of arbitrary detention and harm perpetrated by the security forces in Sri Lanka, particularly of Tamils. Nevertheless, the IAA member found that “overall the reports of harm relate to people with LTTE connections or who are otherwise Tamil separatist activists” and did not accept that the appellant would be perceived as such, or that his father’s “low level support before 1990” would attract adverse attention.

11    The IAA member found that the appellant was not at risk of suffering significant harm if returned to Sri Lanka.

The application in the FCC

12    The appellant’s Amended Application for judicial review in the FCC contained three grounds:

1.    The determination of the [IAA] that “the applicant is not a person of interest to the Sri Lankan authorities” was unreasonable, unintelligible and irrational.

2.    The determination of the [IAA] that the Applicant does not fall within a category of persons at risk, as set out by the UK Home Office Report 2017, was unreasonable, unintelligible and irrational.

3.    In committing jurisdictional error in its finding that the applicant is not a person of interest to the Sri Lankan authorities, (articulated in Grounds 1 and 2 above), the IAA then erred in its determination that the Applicant did not meet the criteria for complementary protection under s 36(2A) of [the Act].

Each of these grounds was supported by particulars.

13    Although Grounds 1 and 2 alleged that the IAA determination was “unreasonable, unintelligible and irrational”, it seems that the appellant’s counsel did not make submissions to that effect in the FCC. Instead, it seems that the focus of counsel’s submissions was that, because the IAA member had not referred to certain country information, it should be inferred that the member had failed to take that information into account in the assessment of the appellant’s claim and had thereby failed to discharge its statutory obligation of assessing the appellant’s claims for protection. This was jurisdictional error of the kind discussed in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [5] (Gleeson CJ), [37] (Gaudron J), [95] (McHugh, Gummow and Hayne JJ).

14    In particular, counsel for the appellant in the FCC submitted that the IAA member had failed to have regard to “criteria” stated in a report of the United Nations High Commissioner for Refugees (UNHCR) dated 21 December 2012 (the 2012 UNHCR Report) and repeated in the 2017 DFAT Report.

15    The FCC Judge referred in some detail to the material before the IAA. His Honour accepted that the IAA member had not referred expressly to the “criteria” mentioned in the 2012 UNHCR Report and repeated in the 2017 DFAT Report. The Judge concluded that, despite that circumstance, it was evident that the IAA member had considered whether the appellant was at risk by reason of his father’s activities some 28 years previously; that the member had “weighed” all of the country information including the 2012 UNHCR Report and the 2017 DFAT Report, and had discharged its statutory obligation to evaluate, weigh and assess the appellant’s claim.

16    The FCC Judge dismissed Ground 2 for two reasons: first, because it was based on a misreading of a report of the UK Home Office; and secondly, because it assumed that it was necessary for the IAA to negative a possibility which the appellant had not asserted and about which he had not adduced evidence.

17    It is not necessary to recount the basis on which the FCC Judge rejected Ground 3 because the appellant does not make that ground the subject of his appeal.

The appeal to this Court

18    The appellant’s Notice of Appeal which, as noted, was prepared by his former solicitor contains two grounds:

a)    The determination of the IAA that “the applicant is not a person of interest to the Sri Lankan authorities” was unreasonable, unintelligible and irrational.

b)    The determination of the IAA that the Applicant does not fall within a category of persons at risk, as set out by the UK Home Office Report 2017, was unreasonable, unintelligible and irrational.

19    As is apparent, these grounds raise the same substantive contentions (without the particulars) as did the appellant’s Amended Application for judicial review in the FCC. The grounds do not purport to identify any error by the FCC Judge. Nevertheless, I will treat them as a complaint that the FCC Judge erred in his rejection of those grounds.

Consideration

20    By s 473CC of the Act, the IAA was obliged to review the delegate’s decision, referred to it pursuant to s 473CA of the Act. This required it to engage in a de novo consideration of the merits of the appellant’s application for a SHEV, that is to consider the appellant’s application afresh and to determine for itself whether the criteria for the grant of a visa had been met: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600 at [16]-[18], [85], [95].

21    The IAA was to affirm the decision or to remit it for reconsideration in accordance with such directions or recommendations as are permitted by regulation (s 473CC(2)).

22    Section 473DB of the Act required the IAA to “review” the decision by considering the “review material” provided to it by the Secretary under s 473CB of the Act, although ss 473DC-473DF provide for limited circumstances in which the IAA may obtain and consider additional information and submissions. In the present case, the IAA had regard to the material provided by the Secretary, and did not obtain any new material.

23    Section 473CB identifies the review material to be provided by the Secretary as (relevantly):

(1)    The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

(a)    a statement that:

(i)    sets out the findings of fact made by the person who made the decision; and

(ii)    refers to the evidence on which those findings were based; and

(iii)    gives the reasons for the decision;

(b)    material provided by the referred applicant to the person making the decision before the decision was made;

(c)    any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

…

…

24    The appeal book does not indicate whether the material which the Secretary provided to the IAA included the 2012 UNHCR Report or the 2017 DFAT Report. It seems probable that both were provided to the IAA as the IAA member refers to both, and recorded at the commencement of the reasons that the member had not obtained or received any further information.

25    The obligation of the IAA to make its own independent de novo assessment of the application meant that it could decide for itself the particular features of the evidence which it regarded as significant or pertinent to its decision. It was not bound by the delegate’s selection of material in that respect. It could choose to regard other aspects of the evidence as important, and, within the bounds of reason, to attach the same, more, or less significance to particular evidence than did the delegate.

26    The particulars to Ground 1 of the Amended Application in the FCC asserted that the IAA member had failed to take into consideration three pieces of information (characterised by the appellant as “critical”) contained in the 2012 UNHCR Report and in the 2017 DFAT Report.

27    First, the following passage at page 27 of the 2012 UNHCR Report:

[P]revious (real or perceived) links that go beyond prior residency within an area controlled by the LTTE continue to expose individuals to treatment which may give rise to a need for international refugee protection, depending on the specifics of the individual case. The nature of these more elaborate links to the LTTE can vary, but may include people with the following profiles:

1)    Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;

2)    Former LTTE combatants or “cadres”;

3)    Former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, “computer branch” or media (newspaper and radio);

4)    Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;

5)    LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;

6)    Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.

(Footnote omitted)

28    The appellant’s submissions emphasised the fourth and sixth of these examples. The appellant also noted that this portion of the 2012 UNHCR Report was incorporated in the 2017 DFAT Report (at 16).

29    Secondly, the appellant referred to [3.41] of the 2017 DFAT Report which, under the heading “Low-profile former LTTE members”, provides:

[3.41]    Since the end of the conflict, thousands of LTTE members have been arrested and detained in rehabilitation centres. Generally, this includes former combatants, those employed in administrative or other roles and those who may have provided a high level of non-military support to the LTTE during the conflict.

30    Thirdly, the appellant referred to [3.47] of the 2017 DFAT Report which, under the heading “Family members”, provides:

[3.47]    DFAT is aware of but cannot verify reports where close relatives claim to have been arrested and detained because of their family connections with former LTTE members. DFAT assesses that close relatives of high-profile former LTTE members who remain wanted by Sri Lankan authorities may be subject to monitoring.

31    The FCC Judge accepted that the IAA member had not referred explicitly to these passages. Nevertheless, the FCC Judge considered that the IAA member had understood the gravamen of the appellant’s claims to be that the nature and extent of his father’s involvement with LTTE some 28 years previously and his filial relationship with his father meant that he would now be at risk of harm in Sri Lanka.

32    The FCC Judge considered that the IAA member had addressed in some detail that claim, in particular in [11]-[13] of the IAA’s reasons. I referred earlier to some of the IAA’s findings on this topic. In particular, the IAA had found that the appellant’s father was not a member of the LTTE, had not fought for the LTTE and that the support which he had given to the LTTE was similar to that given by many civilian Tamils living in Jaffna at the time. The IAA member also considered it improbable that the appellant, having been 9 years old when his family left Sri Lanka, will be subject to attention by the Sri Lankan authorities having regard to the relatively low level nature of his father’s activities. It is implicit that the IAA member rejected the suggestion that the appellant’s father had a high profile of the kind to which the 2017 DFAT Report refers. In those circumstances, the omissions of the IAA to refer to the particular passages in the 2012 UNHCR Report and the 2017 DFAT Report is not suggestive of jurisdictional error. It is true that the Minister’s delegate had referred to those passages but, for the reasons given earlier, it was not necessary for the IAA member to do likewise. In any event, I agree with the assessment of the FCC Judge that the IAA member had considered, as a matter of substance, the matters which the appellant had sought to draw from those reports.

33    It followed that the FCC Judge was correct in dismissing Ground 1 on the basis on which it was presented. Accordingly Ground 1 in the Notice of Appeal also fails.

34    By Ground 2 in the FCC, the appellant alleged that, while the IAA member had referred to a report of the UK Home Office in 2017, the member had not applied properly “the guidance” contained in particular passages in that report. The appellant referred to a passage in the 2017 UK Home Office Report which had, by reference to other material which it is not necessary to cite presently, identified a category of persons who were at risk of harm in Sri Lanka as being:

Individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single state because they are (sic), or are perceived to have a significant role in relation to post-conflict Tamil separatism within the Diaspora and/or a renewal of hostility within Sri Lanka.

(Emphasis added)

35    This reference was repeated in [2.4.12] of the 2017 UK Home Office Report. That paragraph identified those having, or perceived as having, a “significant role in relation to post-conflict Tamil separatism” as being “those in the LTTE’s former leadership (combat or civilian) and/or former members who [are] suspected to have committed terrorist or serious criminal acts during the conflict, or to have provided weapons or explosives to the LTTE”.

36    The FCC Judge rejected the appellant’s claim based on these passages. As the Judge noted, these passages relate to those with a role in post-conflict Tamil separatism. The appellant had not claimed that either he or his father had such a role and, on the evidence, there is no reasonable basis upon which either could, or might, be perceived to have had such a role.

37    The second aspect of the appellant’s Ground 2 was that, without specific evidence as to the “items” which the appellant’s father had transported for the LTTE, it had been “equally open” to the IAA to find that those items did include “weapons or explosives”, thereby supporting a perception that the appellant’s father had played a “significant role” in the conflict.

38    The FCC Judge rejected that contention. He noted first that the appellant had not claimed that the items transported by his father were weapons or explosives. Secondly, he noted that it was not incumbent on the IAA to negative the possibility that the appellant’s father had carried items of that kind. He was correct do so: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70.

39    Accordingly, the FCC Judge was correct to dismiss Ground 2.

40    As noted, the appellant did not make Ground 3 in the FCC the subject of his appeal. In any event, Ground 3 depended for its success on either or both of Grounds 1 and 2 succeeding and, that is not the case.

Legal unreasonableness

41    So far, I have dealt with the appeal by reference to the way in which the appellant’s application for judicial review was advanced in the FCC.

42    The appellant’s grounds of appeal, as expressed, invoke the concept of legal unreasonableness. Expressed broadly, the established principle is that a discretionary power vested by statute must be exercised reasonably: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [88] (Gageler J). This requires that decisions in the exercise of the statutory power be reached by reasoning which is intelligible and reasonable and directed towards and related intelligibly to the purposes of the power: Li at [25] (French CJ), at [76] (Hayne, Kiefel and Bell JJ). The presence or absence of unreasonableness in the legal sense is to be determined having regard to the subject matter, scope and purpose of the enabling statute: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [9] (Allsop CJ), at [62] (Griffiths J). When the reasonableness is said to lie in some error in the decision-making process (as distinct from the outcome of the decision), the focus of the enquiry is on the reasons (if any) given by the decision-maker: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135]. If those reasons demonstrate an intelligible justification for the decision, legal unreasonableness (at least on that basis) will rarely be found: Stretton at [92]; Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, (2014) 231 FCR 437 at [47].

43    In the present case, it cannot be said that the IAA’s reasons lack an intelligible and reasonable justification. It could not properly be held that the way in which the IAA dealt with the appellant’s claims was legally unreasonable in the sense discussed in the authorities. It is pertinent that the appellant’s former counsel chose not to pursue the claim to that effect in the FCC.

Conclusion

44    For the reasons given above, the appeal must be dismissed. I will hear from the parties with respect to costs.

Associate:

Dated:    19 August 2019