FEDERAL COURT OF AUSTRALIA

DTA16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1448

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent's costs of and incidental to the appeal.

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

REASONS FOR JUDGMENT

ANDERSON J:

Introduction

1    The appellant appeals from the decision of the Federal Circuit Court of Australia (Circuit Court) dismissing the appellant’s application for judicial review of a decision of the Immigration Assessment Authority (Authority). The Authority had affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a temporary Safe Haven Enterprise Visa.

Background

Appellant’s claims

2    The appellant is a national of Sri Lanka. The background to the appellant’s claims were summarised by the Authority as follows at [4] of its reasons (IAA Reasons):

•    He is a Tamil Hindu from Nilaveli, Trincomalee District, Eastern Province, Sri Lanka.

•    Around 1986, his brother-in-law was shot by the Sri Lankan Army (SLA), however the applicant does not believe he was involved in the Liberation Tigers of Tamil Eelam (LTTE).

•    From 1983 to 1991 he was displaced several times due to fighting in his area. He resided in different places in Sri Lanka including Colombo, Batticaloa and Jaffna. From 1991 to 1999 he resided in Trincomalee district.

•    From 1999 to 2001 he travelled to Singapore on a work permit due to ongoing violence in his home area. While there he travelled once to Malaysia to visit his sister. He returned to Sri Lanka when his visa expired in 2001 and resided in Trincomalee.

•    From November 2007 to January 2008 he travelled to Saudi Arabia for work and because there was violence in his village. There was a SLA camp in his village and Tamil men were being taken and killed by SLA officers. In January 2008 he returned to Sri Lanka as he was not able to extend his three month visa.

•    From January 2008 to March 2010 he resided in Trincomalee. The local SLA killed some of his friends on suspicion that they were in the LTTE and fearful for his own safety, he went to work in Qatar. He could not afford the fee to extend his visa beyond 10 months so he returned to Sri Lanka in December 2010.

•    He remained in Trincomalee from December 2010 until he departed Sri Lanka in July 2012.

•    On January 2010 he was arrested whilst travelling to work in Trincomalee and taken to a Police station. He was interrogated about the countries he had travelled to and why he had travelled there. He was asked about his connections to the LTTE and if he had been involved in LTTE training. He believes his time abroad had brought him to their attention. He felt threatened by the questioning but he was not physically beaten. He was held for ten days and given little food. He does not know why he was released after the ten days.

•    He was concerned about his safety because there was a navy camp next door. Navy officers passed through his property regularly and were being killed. He was afraid he could be taken for interrogation and harmed at any time. This was impacted by his brother-in-law’s death, his protracted displacement and his experience of being regularly caught-up and questioned in round-ups during the war. Because of the navy presence he was afraid to leave his home.

•    The Navy took his wife’s family’s onion farm and have not compensated the family. His wife now farms onions on someone else’s land.

•    He believes the authorities are suspicious of him because he regularly moved in and out of Trincomalee as a result of his displacement and his overseas work. He fears he will be arrested upon his return because he departed Sri Lanka illegally and sought asylum in Australia. He fears he cannot afford the fine for this crime. He fears he will be treated worse than others in prison because he is Tamil.

•    He has been removed from the household registration card at his wife’s family home, where he had most recently resided in Sri Lanka.

3    In July 2012, the appellant fled Sri Lanka and arrived in Australia by boat.

4    In 2013, the appellant applied for a protection visa, but, as a result of retrospective changes to the law in 2015, the appellant could no longer apply for a permanent protection visa. The appellant accordingly applied for a temporary Safe Have Enterprise Visa on the basis that the was a person in respect of whom Australia owed protection, either as a refugee under the Refugees Convention, or as complementary protection under the Migration Act 1958 (Cth) (Act). However, a delegate of the Minister for Immigration and Border Protection refused the visa application.

5    The application was then referred under part 7AA of the Act to the Authority for review of the delegate’s decision.

Authority’s decision

6    On 9 November 2016, the Authority affirmed the delegate’s decision to refuse the appellant’s visa application. The Authority was satisfied that the appellant was “a credible witness and that he has provided a genuine reflection of his recollections”: IAA Reasons at [7]. However, the Authority was not satisfied that the Sri Lankan authorities had any interest in the appellant, and was not satisfied that the appellant faced a real chance of harm from the authorities in the event that he was to return to Sri Lanka.

7    The Authority was satisfied that the appellant was not of adverse interest to the authorities prior to his arrest in January 2012: IAA Reasons at [12]. In this context, the Authority acknowledged that:

(a)    the appellant was “caught up in regular round-ups and faced questioning during the war” at a time when “the authorities were highly suspicious that many Tamils held links to the LTTE, particularly if they resided in areas under (or formerly under) LTTE control”: ibid at [10]; and

(b)    the appellant’s fear of harm in the past was genuine in circumstances where neighbours and friends of his had been killed, and was part of the reason he went to Saudi Arabia in 2008 and Qatar in 2010. However, the Authority noted that the appellant “does not claim he was ever personally threatened, or had any problems or issues with the authorities as a result of these incidents or his friendships with the victims”: ibid at [11].

8    The Authority accepted that the appellant had been arrested in January 2012 under suspicion of having links to the LTTE: IAA Reasons at [13] and [19]. This claim, the Authority considered, was consistent with evidence as to the conduct of authorities at that time. The Authority explained as follows at [13]:

The applicant’s suggestion that he may have come to the attention of the authorities due to his trips abroad is not implausible. Data about 2011 indicates that 75 per cent of refugee returnees were contacted at their homes by authorities post-return, that 26 per cent of these underwent subsequent interviews and a handful received additional visits by Police. 2013 data indicates that 87 per cent of mostly Tamil IDPs who had returned to their homes in the North and East had been registered by the military and 71 per cent had been visited by the military of the CID for interviews. Although the applicant was returning from working abroad rather than as a refugee or IDP, I am satisfied there are sufficient parallels in that the applicant was returning to the North as part of a broader returning Tamil diaspora who had spent significant periods abroad. I accept that in the post-war environment into 2013 the authorities feared a LTTE resurgence and treated any Tamil from a former LTTE controlled area in the North or East who had lived a considerable period of time overseas with suspicion. I accept he was questioned about his activities and contacts abroad.

(Emphasis added.)

9    The Authority found, however, that the fact that the appellant was released in January 2012 without being charged or subjected to reporting or other conditions, and the fact that he was not subsequently re-arrested or questioned, indicated that the authorities did not retain an interest in the appellant: IAA Reasons at [14]-[15]. The Authority’s view that the appellant was not now of any interest to authorities was reinforced by evidence that, although the authorities had learned from the appellant’s wife that the appellant had left Sri Lanka, they had not “sought to obtain any further information or shown any interest in the appellant’s overseas activities or residence”: ibid at [16].

10    The Authority found that “since the end of the war (particularly in the four years that the appellant has been in Australia) the situation for Tamils in Sri Lanka including in the East, has changed considerably”: IAA Reasons at [20]. The Authority identified at [20]-[24] the ways in which this change has manifested.

11    Accordingly, the Authority was not satisfied that the appellant would be of interest to Sri Lankan authorities on return. The Authority expressed the following at [25]:

I have found that after 2012, the applicant was not of adverse interest to Police, Naval or other authorities on suspicion of LTTE membership or support, nor any other reason and I am not satisfied he would be of interest upon return. I am not satisfied that his profile is such that there is a real chance the applicant will be detained under the operation of the [Prevention of Terrorism Act], or that he otherwise has a well-founded fear of persecution on the basis of any imputed LTTE support or links.

12    The Authority accepted that the appellant would be identifiable on return as a failed asylum seeker who left Sri Lankan illegally: IAA Reasons at [26]. It accepted that the appellant would be subject to “checks”, which “may involve interviewing the returnee, contacting their home area’s Police, neighbours and family and checking criminal and court records”: ibid at [27]. However, the Authority had regard to recent information from DFAT that indicated that returnees “are not subject to mistreatment while undergoing these checks”: ibid. The Authority acknowledged at [28] reports of mistreatment, but noted that the subjects of these reports had “had actual or suspected ties to the LTTE”, and noted that the appellant would not be returning with such a profile. Furthermore, the Authority noted that advice from DFAT indicated that “the risk of torture or mistreatment for the majority of returnees is low”.

13    In conclusion, the Authority stated the following at [37] in respect of the appellant’s claim for refugee protection:

I have considered the risk of harm to the applicant, a Tamil male from Nilaveli, Trincomalee in the Eastern Province, whose brother-in-law and friends were killed by the army, whose siblings reside overseas and who himself has lived and worked abroad numerous times, each time returning to his home in former LTTE controlled territory and who was arrested and detained for 10 days in January 2012 on suspicion of LTTE activity. I have not accepted he was of adverse interest to Police, Naval or other authorities on account of suspected LTTE links or otherwise and I am not satisfied that he would be of interest upon return. While the Navy has occupied his family’s land I have not accepted this amounts to serious harm or that he would face a risk of such harm upon return. Even with these previous circumstances and that authorities would be aware that he departed illegally, sought asylum in Australia and spent considerable time here and previously in other countries, I am not satisfied that these circumstances cumulatively give rise to a well-founded fear of persecution.

(Emphasis added.)

14    The Authority considered similar factors as discussed above in relation to the appellant’s claim for complementary protection. The Authority also found that it was not satisfied that there was any reason the applicant would not receive bail upon his return to Sri Lanka: IAA Reasons at [45]. Moreover, the appellant would not receive a custodial sentence, but rather receive a fine which the Authority was not satisfied that the appellant could not pay: ibid at [46]. As such, the Authority held that the appellant was not owed complementary protection. The Authority summarised this conclusion at [47]:

I have considered the applicant’s circumstances in their totality. I have considered the risk of harm to the applicant, a Tamil male from the East, who was arrested and detained for 10 days in January 2012 on suspicion of LTTE activity, whose three siblings are overseas and whose brother-in-law and friends were killed by the Army. I have also had regard to the Naval occupation and trespass and his numerous overseas trips and return residences in former LTTE territory. In addition I note he has departed illegally and would be returning as a failed asylum seeker. Even when considered cumulatively, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.

Federal Circuit Court’s decision

15    The appellant sought judicial review in the Circuit Court of the Authority’s decision. He was represented by solicitors and counsel in that proceeding. The appellant advanced two grounds of review in the Circuit Court, only the first of which is relevant for current purposes. The first ground of review, which closely aligns with the ground of appeal to this Court, provided the following:

1.     The decision of the IAA is affected by jurisdictional error, in that the IAA failed to consider relevant considerations, and/or in the alternative relevant materials.

Particulars

a.     The Authority failed to consider the effect on the risk of harm to the applicant of the combination of:

(1)     the “Checks [which] involve interviewing the returnee, contacting their home area’s police, neighbours and family and checking criminal and court records”, and

(2)     the fact that he would be returning to Sri Lanka with precisely the same (or indeed now extended) history of overseas travel over a period of years which the Authority had found led to him being detained and interrogated in 2012 on suspicion of involvement with the LTTE.

b.     Further, or in the alternative to particular (a), the Authority failed to consider whether, although it may be determined after investigation on his return to Sri Lanka that he is not of interest to the authorities, nevertheless during that investigation he may suffer extended questioning and detention, torture or assault or other serious harm.

16    On 1 March 2019, the Circuit Court dismissed the application: DTA16 v Minister for Immigration & Anor [2019] FCCA 472. The Circuit Court held that the Authority clearly considered the applicant’s claims, and each factual element thereof: ibid at [13]. The Circuit Court rejected the submission by the applicant that the Authority failed to consider whether the applicant might be harmed during the process of “checks” in the future: ibid at [16]-[18]. The applicant, in the view of the Circuit Court, was quarrelling with the merits of the Authority’s findings: ibid at [19].

Appeal to this Court

17    By notice of appeal dated 20 March 2019, the appellant appeals from the decision of the Circuit Court. The appellant relies upon one ground of appeal as follows:

The Federal Circuit Court at first instance erred in not finding that the Second Respondent ("the Authority") fell into jurisdictional error in that it failed to consider relevant considerations including claims, integers of claims or material questions of fact or information before the Tribunal.

Particulars

(a)    The Authority failed to consider the effect on the risk of harm to the Applicant of the combination of:

(1)    the "Checks [which] involve interviewing the returnee, contacting their home area's police, neighbours and family and checking criminal and court records" …, and

(2)    the fact that he would be returning to Sri Lanka with precisely the same (or indeed now extended) history of overseas travel over a period of years which the Authority had found led to him being detained and interrogated in 2012 on suspicion of involvement with the LTTE. …

(b)    Further or in the alternative to particular (a) of this Ground of Appeal, the Authority failed to consider whether, although it may be determined after investigation on his return to Sri Lanka that he is not of interest to the authorities, nevertheless during that investigation he may suffer extended questioning and detention, torture or assault or other serious harm.

Procedural background

18    The notice of appeal was filed with the assistance of the appellant’s solicitors, Ravi James Lawyers. However, according to correspondence between Selvadurai Raveeendran, a Principal Solicitor at Ravi James Lawyers, and the Court, the appellant subsequently approached alternative legal service providers and Ravi James Lawyers withdrew from acting on 28 May 2019.

19    On 31 July 2019, Ravi James Lawyers emailed my chambers. The email explained that the appellant had once again approached their office for assistance as the appellant was unrepresented. Ravi James Lawyers sought an adjournment to the hearing of the appeal—initially listed for 6 August 2019—so that Anthony Krohn of counsel, who had appeared for the appellant in the Circuit Court, could appear in this Court. On this basis, the appeal was listed for 19 August 2019.

20    The appellant filed written submissions prepared by Mr Krohn dated 7 August 2019.

21    On 14 August 2019, the appellant emailed the Minister’s representatives which, according to counsel for the Minister, essentially indicated that the appellant could not afford legal fees and that he wanted alternative legal assistance.

22    On 16 August 2019, Ravi James Lawyers again filed a notice of ceasing to act. The result is that the appellant, with the aid of an interpreter, appeared and represented himself at the hearing.

Request for adjournment

23    During the hearing, the appellant requested a further one month adjournment of the appeal hearing. He told me at the hearing that the reason why he did not have legal representation was because he had limited financial capacity and “language ability”. He said he had previously contacted the Asylum Seekers Resource Centre for assistance but was unable to provide me with any great detail about the outcome of that enquiry.

24    The Minister objected to the further adjournment on the basis that a significant period of time had already elapsed between 28 May 2019, when Ravi James Lawyers first filed a notice of ceasing to act, and 2 August 2019, when the firm filed a notice of acting, for the appellant to seek alternative legal assistance. The Minister did not have confidence that the appellant would be able to obtain pro bono assistance if a further adjournment were granted.

25    Having heard the appellant, I decided not to grant the adjournment. Given the circumstances, and in particular the fact that the hearing had already been adjourned once, I was not satisfied that the appellant had taken all due steps and made all proper inquiries to secure pro bono assistance. And, regardless, the Court had the benefit of the written submissions of Mr Krohn previously filed on behalf of the appellant.

Submissions

26    I asked the appellant at the hearing to identify the error that the Authority had made in considering his application for a protection visa. The appellant said that he fled Sri Lanka because of fear and that, if he were to return, they would torture him. He said there was fearful of the navy camp nearby. He otherwise said that he relied on the submissions prepared by Mr Krohn. Those submissions argued, in essence, that the Authority had failed to consider all the necessary factors cumulatively. In the words of [37] of those submissions:

Had the Authority considered all the factors, including the checks of records, the possible revelation of past suspicion and interrogation, and the now much longer absence abroad, it may have concluded that there was a real chance (even if that was a small chance) of the Appellant again being detained as having, even temporarily, suspected ties with the LTTE, and that this may have led to a real chance of serious harm while the suspicion was investigated.)

27    The Minister was represented by Mr Wood of counsel. Mr Wood submitted that the Authority’s reasons did not disclose any jurisdictional error.

Consideration

28    It is convenient to determine the appellant’s appeal by reference to the two particulars supporting his sole ground of appeal, as extracted above at [19].

Particular (a) of the ground of appeal

29    Contrary to the submission of the appellant, the Authority did consider the appellant’s claims and each factual element which underpinned those claims. This includes the appellant having been detained in 2012 on suspicion arising from, inter alia, his overseas travels. The Authority’s consideration of these matters is evident in particular from [13], [14], [19], [25], [29], [37], [43] and [47] of its reasons. As evident from these passages, the Authority specifically and expressly stated that, despite the appellant’s experiences in the past, it was not satisfied that the appellant faced a real chance of suffering serious or significant harm from Sri Lankan authorities in the future.

30    The appellant’s complaint about the Authority’s decision seems to largely stem from a flawed premise. The false premise is that, because the Authority accepted that the Sri Lankan authorities had detained the appellant in the past on suspicions arising from his overseas travels, the Authority erred by not accepting that there was a real chance of the Sri Lankan authorities perpetrating serious or significant harm on the appellant in the future. After all, so the appellant appears to contend, on his return to Sri Lanka he would necessarily have engaged in more overseas travel (i.e., to Australia).

31    This contention is misconceived. As the High Court explained in Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 at 574, “[p]ast events are not a certain guide to the future”. Here, the Authority identified multiple reasons for not being satisfied that the appellant would be of adverse interest to Sri Lankan authorities in the future, notwithstanding that it was satisfied that the appellant had been detained by Sri Lankan authorities during the war. Those reasons included that:

(a)    first, at the time of the war, the Sri Lankan authorities feared a LTTE resurgence, and hence took an interest in Tamils from LTTE areas who had lived a considerable period of times overseas. By implication, the Authority was not satisfied that the authorities were still so concerned many years after the war;

(b)    secondly, despite detaining the appellant in 2012 on suspicion of possible involvement with the LTTE, the Sri Lankan authorities had then released him. This suggested to the Authority that the Sri Lankan authorities did not, following investigation, have any concern that the appellant was in fact involved with the LTTE;

(c)    thirdly, the Sri Lankan authorities had subsequently shown no interest in the appellant, including recently after learning from his wife that he was overseas; and

(d)    fourthly, the situation for Tamils had improved considerably since the end of the war.

32    This reasoning was open to the Authority and does not exhibit any “extreme illogicality” which must be shown to justify the Court finding jurisdictional error with the Authority’s assessment of the merits of the appellant’s claim: see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 at [47] per Griffiths, Perry and Bromwich JJ. In any event, it cannot be concluded that the Authority failed to consider the effect on the risk of harm to the appellant of the matters specified in particular (a) of the ground of appeal.

Particular (b) of the ground of appeal

33    In particular (b) of the ground of appeal, the appellant contends that the Authority failed to consider whether the appellant might be harmed during the process of any future “investigation” in the future, even if the Sri Lankan authorities ultimately concluded that he was not of interest.

34    This is untenable. The Authority specifically and expressly considered what might happen to the appellant during “checks” on his return to Sri Lanka: IAA Reasons at [27]-[35] and [44]-[46]). The Authority was persuaded at [27] by country information that returnees “are not subject mistreatment while undergoing these checks”.

Conclusion and orders

35    For these reasons, I am satisfied that the reasons of the Authority disclose no jurisdictional error. Neither do the reasons of the Circuit Court otherwise disclose any appealable error. The appeal will be dismissed with costs.

36    I also order that the name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

Associate:

Dated:        6 September 2019