FEDERAL COURT OF AUSTRALIA

EDU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1428

ORDERS

THE COURT ORDERS THAT:

(1)    The appeal is dismissed.

(2)    The Appellant is to pay the costs of the First Respondent of and incidental to the appeal, fixed in the sum of $3500.

(3)    The designation EDU17 is to be used in each place where the Appellant’s own name has been used and the address of the Appellant is to be redacted.

(4)    That the name of the First Respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

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

REASONS FOR JUDGMENT

WHITE J:

Introduction

1    The appellant is national of Sri Lanka of Tamil ethnicity who arrived in Australia on 8 September 2012 as an unauthorised maritime arrival. The appellant subsequently applied for a Permanent Protection (subclass 866) visa.

2    On 20 November 2015, the Department of Immigration and Border Protection informed the appellant that he did not meet the criteria for the grant of a Permanent Protection (subclass 866) visa as he had arrived in Australia unlawfully. It invited the appellant to apply for a Safe Haven Enterprise (subclass 790) visa (SHEV) and he did so on 12 February 2016. A delegate of the Minister refused that application on 20 February 2017. That decision was affirmed by the Immigration Assessment Authority (the IAA) on 6 September 2017.

3    The appellant then sought judicial review of the IAA’s decision in the Federal Circuit Court (the FCC) but was unsuccessful: EDU17 v Minister for Home Affairs & Anor [2019] FCCA 1023.

4    The appellant now appeals to this Court against that judgment.

5    In support of his application for a SHEV, the appellant claimed to have a well-founded fear of persecution on a number of bases: by reason of his Tamil ethnicity; because his oldest brother had attained a high status within the Liberation Tigers of Tamil Eelam (LTTE) before he was killed in combat in 2002 or 2003; because his other older brother had been forcibly recruited into the LTTE in 2007; because his father had been suspected, prior to his death, of having involvement with the LTTE; because his uncle held a role as a representative within the Eelam People's Democratic Party (EPDP); because his mother has an adverse profile with the Sri Lankan authorities; because he (the appellant) had provided information to human rights officials regarding war crimes he witnessed; because of the scars on his body from a shelling incident; and because, if he is returned to Sri Lanka, he will be regarded as a failed asylum seeker.

Summary of the IAA’s findings

6    The IAA member accepted many aspects of the appellant's claims. In particular, the member accepted that the appellant's older brothers had been associated with the LTTE and that his father's death may have been a result of his suspected involvement with the LTTE.

7    The IAA member was also prepared to accept the appellant’s evidence that his uncle had been an EPDP candidate in the 2011 elections, but did not accept that an officer from the Criminal Investigation Department had coerced the uncle into standing as a candidate by threatening to detain the appellant on LTTE charges. The IAA member described the appellant's evidence on that topic as “vague and unconvincing”. The member also noted that the appellant had not raised his uncle's political affiliations in either of the two arrival interviews conducted in 2012 and 2013. Further, despite the Minister's delegate requesting that the appellant obtain more evidence about his uncle's involvement with the EPDP, he did not provide any such evidence. The member was therefore not satisfied that there was any link between the political activities of the appellant’s uncle and the appellant's own situation.

8    The IAA member accepted that the scars on the appellant’s head and arms were caused by a shelling incident, but was not satisfied that the scars would result in the appellant being given more attention from Sri Lankan authorities than any other person.

9    In relation to the activities of the appellant’s mother, the IAA member said:

44.    The applicant’s evidence is that his mother was equally involved in trying to locate Brother A and that the CID interviewed them together while in Colombo. I have also had regard to the letter the applicant’s mother wrote to the government official in their village and the new information before the IAA that in early 2017 she engaged in a hunger strike and a protest regarding missing persons. I note the applicant’s mother continues to live in [redacted] and I am not satisfied that she has an adverse profile with the authorities, or is being monitored by them, because of her efforts to locate Brother A, or her protest activity. On the evidence before me, including the improved country information, I do not accept the authorities would impute the applicant with anti-government sentiments, assume he has been politically active in Australia, or monitor him upon return because of his mother, or for any other reason.

10    With respect to the circumstances of the appellant in Sri Lanka, the IAA concluded as follows:

45.    I am not satisfied the Sri Lankan authorities will impute the applicant to have a pro-LTTE political opinion because of his status as a young Tamil male, his origins, his brothers’ actual LTTE involvement, his father’s imputed LTTE involvement, his mother’s activities or his scarring. Based on the applicant’s personal circumstances, and the greatly improved country information, I am not satisfied the Sri Lankan authorities have an adverse interest in him because of his or his mother’s previous interactions with them, or with humanitarian organisations (in both Sri Lanka and Australia), regarding Brother A. Nor am I satisfied the applicant’s uncle’s EPDP association or political activities have resulted in a profile of any sort for the applicant. Overall I find the applicant does not face a real chance of harm for any of these reasons, should he return to Sri Lanka.

11    The IAA did not accept that the appellant would face a real chance of harm on account of having sought asylum in Australia.

12    The IAA member accepted the possibility that, if the appellant is returned to Sri Lanka, he will be questioned by the authorities, fined or even held in prison for a short period by reason of his illegal departure from Sri Lanka. However, the member was not satisfied that the appellant would face any greater scrutiny or penalty than other illegal departees and in any event considered that this type of treatment would not amount to serious harm so as to provide the basis for a well-founded fear of persecution – see s 5J(4) of the Migration Act 1958 (Cth) (the Act. For similar reasons, the IAA member found that the appellant did not face a real risk of significant harm for the purposes of s 36(2)(aa) of the Act.

The FCC Decision

13    The appellant represented himself in the FCC, as he did on this appeal. He had the assistance of an interpreter.

14    In the FCC, the appellant raised one ground only, namely:

The applicant was denied procedural fairness by the Immigration Assessment Authority to address part of the applicant’s claim and this failure to take into account for a relevant consideration.

15    The FCC Judge summarised the IAA’s findings and concluded that it had correctly identified the appellant's claims and had made findings which were open to it on the material. The Judge said that an unparticularised assertion of a failure to take into account a relevant consideration was not capable of amounting to jurisdictional error.

Appeal to this Court

16    Although the FCC Judge gave an ex tempore judgment on 21 March 2019, the reasons in written form were not published until 17 April 2019.

17    The appellant's notice of appeal to this Court was filed on 10 April 2019, that is to say, before he had received the reasons in writing. In the section headed “Grounds of Appeal”, the Notice of Appeal states:

1.    His Honour the Federal Circuit Court Judge dismissed the case on 21st March 2019 but the reasons for the judgment is yet to received.

Particulars

The court affirmed the findings of the 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.

18    The appellant has not sought to file an amended notice of appeal, nor has he provided any document stating proposed grounds of appeal, nor any document from which grounds of appeal may be inferred. Counsel for the Minister submitted that, in these circumstances, the appeal should be dismissed by reason that it does not identify any error in the FCC judgment.

19    Having regard to the fact that the appellant has been without legal representation, has limited familiarity with the Australian legal system and that English is not his first language, I indicated that I was willing to treat the ground stated in the application for judicial review in the FCC as containing the matters which the appellant wished to agitate on the appeal. The appellant’s oral submissions did not identify any other potential jurisdictional error.

20    The ground stated in the application to the FCC seemed to involve three elements: first that the appellant had been denied procedural fairness by the IAA; secondly, that the IAA had failed to address part of his claim; and, thirdly, that the IAA failed to take into account relevant information. I pointed out to the appellant that he had not particularised any of those three elements and invited him to do so in his oral submissions in this Court. The appellant did not particularise any error of the three kinds just identified.

21    I have reviewed the IAA’s reasons and the other material before the IAA with a view to determining whether any error of the kind identified by the appellant in his grounds in the FCC may be reasonably arguable.

22    Section 473DA of the Act provides that Division 3 of Pt 7AA is taken to be an exhaustive statement of the requirements of the “natural justice hearing rule” in relation to reviews by the IAA. That meant that the IAA was not obliged to afford the appellant an oral hearing. Section 473DE of the Act imposes obligations on the IAA when it obtains new material. In this case, the IAA did obtain new material, being a report from the Department of Foreign Affairs and Trade entitled “DFAT Country Information Report – Sri Lanka”, dated 24 January 2017. The IAA made some reference to that report in the course of its reasons. However, it was not obliged to comply with s 473DE(1) with respect to that material, because the DFAT report was not specifically about the appellant himself – see s 473DE(3). Instead, it contained country information regarding the circumstances in Sri Lanka more generally.

23    In short, no denial of procedural fairness by the IAA is apparent.

24    The second element of the appellant's claims is that the IAA failed to consider part of his claims. However, a review of the IAA’s reasons indicates that it did identify separately each matter on which the appellant relied and that it addressed each.

25    The third element of the appellant's claim is that the IAA had failed to take into account a relevant consideration. In his oral submissions, the appellant raised some matters which appeared to refer to this element of his application. In particular, he referred to the difficulty he experienced in obtaining supporting documentary evidence from Sri Lanka by reason of the circumstances prevailing there. The appellant supported his submissions by referring to the current circumstances involving one of his brothers and his mother.

26    In addition, the appellant referred to the situation in the northern part of Sri Lanka, his contention being that the IAA had failed to have sufficient regard to this material.

27    There is, however, no indication that the material upon which the appellant now wishes to rely was available to the IAA when it considered the matter in September 2017. Moreover, it was apparent that the appellant wished this Court to revisit the merits of the decision concerning his application for the SHEV by reference to the material just mentioned. As I explained to the appellant, that is not the function of this Court on an appeal of the present kind.

28    On my assessment of the material, the appellant has not shown any basis on which the Court could conclude that the decision of the FCC was in error. Accordingly, the appeal must be dismissed. That will be the order of the Court.

Associate:

Dated:    30 August 2019