FEDERAL COURT OF AUSTRALIA

EAU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2086

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the First Respondent’s costs of the appeal to be assessed in default of agreement.

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

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    This is an appeal from orders made by the Federal Circuit Court of Australia on 5 February 2019. On that day, the Federal Circuit Court made an order that the appellant’s Amended Application for judicial review be dismissed. In his Amended Application for judicial review, the appellant sought constitutional writs directed to the Immigration Assessment Authority (the IAA) in relation to a decision made by the IAA on 18 August 2017.

2    The appellant seeks to rely on two grounds of appeal. As I understand it, neither ground was raised in the Court below.

The Facts

3    The appellant is a national of Sri Lanka. He is a Tamil and a Hindu from a district in the Eastern Province of Sri Lanka. He arrived in Australia by boat on 26 May 2013. He was an unauthorised maritime arrival within s 5AA of the Migration Act 1958 (Cth) (the Act). The appellant was given a notice lifting the s 46A bar on 4 July 2016. On 6 September 2016, the appellant applied for a temporary protection visa. The application included a statement by the appellant of 51 paragraphs. On 1 December 2016, a delegate of the Minister refused the appellant’s application. On 6 December 2016, the appellant was advised that his matter had been referred to the IAA on 5 December 2016. On 18 August 2017, the IAA decided to affirm the decision not to grant the appellant a protection visa. The appellant issued an application for judicial review in the Federal Circuit Court on 9 September 2017. As I have said, that application was subsequently amended. On 5 February 2019, the Federal Circuit Court made an order dismissing the amended application. The Court addressed the seven grounds contained in the application and decided that the IAA’s decision was not affected by jurisdictional error (EAU17 v Minister for Immigration & Anor [2019] FCCA 91).

4    The decision of the Federal Circuit Court contains a summary of the appellant’s claims. The following statement is based on that summary.

5    In early 2004, the appellant and nine others created a radio station. The appellant was the managing director, co-owner and journalist of the station and he supervised 15 staff members.

6    On 25 April 2012, the former President Mahinda Rajapaksa came to the area to open a bridge. The President and Mr Karuna visited the radio station and met with the appellant.

7    In May 2012, there was a protest in Vavuniya about missing persons, land grabs and efforts to demoralise the north and east (Vavuniya protest). The Tamil National Alliance (TNA) asked the appellant to broadcast their announcement at the protest. He announced the event on radio and participated in the protest as an individual.

8    In the lead up to elections in 2012, Mr Karuna telephoned the appellant and asked him to promote Mr Karuna’s sister who was a candidate in the elections and not to promote the TNA. The appellant stated that he would try to give Mr Karuna’s sister more air time, but really supported the TNA in his heart.

9    Two weeks prior to the election, Mr Karuna asked the radio station to provide a live telecast of his sister’s campaign, including her speeches. The appellant refused this request.

10    On 5 August 2012, approximately six men in civil clothing came to the radio station and smashed everything (August attack). The appellant and his staff were injured. The appellant suspected that these men were members of the Sri Lankan Army (SLA).

11    On 14 October 2012, the SLA went to every house and collected information on the population, the appellant contacted MP [Y] and the SLA Kalladi headquarters to ask for details of the purpose of the activity. The SLA denied undertaking the collection of information (Kalladi roundup). The appellant broadcast this news to inform the public that they were able to complain to their nearest police station.

12    On 30 October 2012, the radio station was unable to generate income and the staff were afraid to work. It subsequently closed.

13    In April 2013, the appellant tried to apply for approvals from the Sri Lankan Broadcasting Corporation to reopen the radio station. Subsequently, the appellant received threatening phone calls.

14    By May 2013, the appellant considered that he had no option but to leave Sri Lanka.

15    The appellant claimed that should he be forced to return to Sri Lanka, he will be subjected to arbitrary deprivation of life, or to cruel inhumane or degrading treatment or punishment or be tortured or be killed. He claimed that he would be subjected to this harm because of his media activities and because he had been targeted previously.

The Grounds of Appeal to this Court

16    The grounds which the appellant seeks to advance in this Court are as follows:

1.    The Federal Circuit Court constructively breached s91X of the Migration Act 1958, by publishing information sufficient to identify the Appellant, thus stultifying the migration scheme and causing the jurisdiction to [sic] the Court to be unexercised.

2.    The Federal Circuit Court erred in not finding that the IAA committed jurisdictional error in that:

a.    The IAA acted unreasonably, illogically, irrationally, without active intellectual consideration or considering all relevant evidence in determining that:

i.    The Appellant was not a reporter on government transparency and accountability or otherwise had an imputed political opinion;

ii.    There was relevance to whether the Appellant’s reporting was objectively biased.

b.    The IAA erred in the manner in which it defined “political opinion”.

17    The first of these grounds could not have been raised before the Federal Circuit Court as the alleged breach occurred upon publication of the reasons of that Court.

18    The second of these grounds was not raised in terms before the Federal Circuit Court. The appellant requires leave to raise the second ground. I recently addressed the circumstances in which an appellant will be given leave to raise a new ground of challenge in DUR16 v Minister for Immigration and Border Protection [2019] FCA 2043. In that case, I referred to the decision of the Full Court of this Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]–[48]. I have reached the conclusion that Ground 2 lacks merit and that it should be dismissed on this basis.

Analysis

Ground 1

19    Section 91X of the Act provides as follows:

Names of Appellants for protection visas not to be published by the High Court, Federal Court or Federal Circuit Court

(1)    This section applies to a proceeding before the High Court, the Federal Court or the Federal Circuit Court if the proceeding relates to a person in the person’s capacity as:

(a)    a person who applied for a protection visa; or

(b)    a person who applied for a protection-related bridging visa; or

(c)    a person whose protection visa has been cancelled; or

(d)    a person whose protection-related bridging visa has been cancelled.

(2)    The court must not publish (in electronic form or otherwise), in relation to the proceeding, the person’s name.

20    The prohibition in this section relates to the publication of a person’s name. The appellant’s name does not appear in the reasons for judgment of the Federal Circuit Court.

21    The appellant also referred to s 473EC of the Act which the appellant described as a related provision. That section applies to the IAA and is in the following terms:

(1)    Subject to subsection (2), and to any direction under section 473GD, the Immigration Assessment Authority may publish any statements prepared under subsection 473EA(1) that the President thinks are of particular interest.

(2)    The Immigration Assessment Authority must not publish any statement which may identify a referred Appellant or any relative or other dependent of a referred Appellant.

This section is broader than s 91X of the Act in that it refers to any statement which may identify the person specified.

22    The appellant submitted that, although he is not named in the reasons of the Federal Circuit Court, he is identifiable by reason of a number of characteristics identified by the Federal Circuit Court. This amounted, so the appellant argued, to a constructive breach of s 91X. In support of his argument, the appellant referred to the Explanatory Memorandum in connection with the enactment of s 91X and, in particular, the following passage in the Explanatory Memorandum:

This provision is required to minimise the risk that publication of court proceedings might identify individuals as having applied for protection in Australia. Such publication can create a need for protection for the litigants and also place their family and colleagues overseas at risk. The new section does not prevent the Minister or other litigants from seeking court orders for further confidentiality in particular cases, for example to suppress any information which may identify the litigants.

23    The appellant also referred to the following observations of Perry J in AZAFH v Minister for Immigration and Border Protection [2016] FCA 1363 at [4]:

Moreover, it is important to ensure that the recitation of the appellant’s claims does not disclose details that may enable the appellant to be identified and thereby frustrate the apparent purpose of s 91X: MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [5] (Mortimer J), upheld on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [5] (Tracey, Perry and Charlesworth JJ).

24    The appellant also sought to draw an analogy with those cases in which the fraud of a third party had vitiated a decision of the Refugee Review Tribunal: SZFDE v Minister for Immigration and Citizenship [2006] FCAFC 142; (2006) 154 FCR 365 at [130] per French J (as his Honour then was) and SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 (SZFDE). He submitted that to frustrate the apparent purpose of s 91X is analogous to the frustration or stultification of the Act by reason of the fraud of, for example, the appellant’s representative. The appellant submitted that there was a constructive breach of the section which has frustrated the scheme, “such that it has now created a further need for protection, and also placed his family and work colleagues at risk”. The appellant submitted that the constructive breach is an appellable error or a jurisdictional error because it frustrates the scheme by rendering the IAA decision nugatory or otiose, in that it raises a new claim for protection. In his oral submissions to the Court, the appellant submitted that there should be a declaration in this case that the Federal Circuit Court made a jurisdictional error by constructively breaching s 91X of the Act in that it published information sufficient to identify the appellant.

25    I should say that in the course of oral submissions, the appellant’s counsel raised the prospect of this Court making an order restricting the publication of the reasons for judgment of the Court below. I indicated to the appellant’s counsel that I would need to be satisfied of my power to do that before even considering it and that on the face of it, the appropriate course for the appellant to adopt would be to go back to the judge who published the judgment. It may be noted that no such application has been made even though the reasons for judgment were published on 5 February 2019. The appellant’s counsel did not proceed with any application for me to restrict the publication of the reasons for judgment of the Court below.

26    The Minister submitted that, even accepting that the matters identified in the reasons of the Federal Circuit Court would allow a person in Sri Lanka with knowledge of the relevant circumstances to identify the appellant, there are two fundamental difficulties with this ground of appeal. The first fundamental difficulty is that there has been no breach of s 91X of the Act. The Federal Circuit Court has not published the appellant’s name and it is that which is the subject of the statutory prohibition. The second fundamental difficulty is that, even if there had been a failure to comply with s 91X, such non-compliance would not demonstrate jurisdictional error in the decision of the IAA. It follows, that a breach of s 91X would not lead to a remedy involving the grant of certiorari to quash the decision of the IAA. The decision is SZFDE does not assist the appellant. The fraud in that case bore upon the exercise by the Refugee Review Tribunal of its function. That is not the case here. In this case, the alleged breach was by the Federal Circuit Court.

27    In my opinion, the Minister’s submissions are correct. There has been no breach by the Federal Circuit Court of s 91X because that Court has not published the appellant’s name. Even if it had, that would not be a jurisdictional error by the Federal Circuit Court. A breach of s 91X does not, in my opinion, give rise to a jurisdictional error. Assume the Court pronounced orders after hearing submissions with reasons for judgment to be delivered later. The order would not move from being within jurisdiction to being beyond jurisdiction upon reasons for judgment which involved a breach of s 91X being published later. As far as the appellant’s claim for a declaration made orally is concerned, aside from the other reasons for refusing such a declaration, this appeal is not constituted as an action for a claim for a declaration involving the reasons for judgment of the Federal Circuit Court.

28    Ground 1 must be rejected.

Ground 2

29    The appellant submitted that the IAA found that he was a reporter/presenter, but not a reporter against the Sri Lankan government demanding transparency and accountability, or that his political reports were anti-government pro-separatist or pro-Liberation Tigers of Tamil Eelam (LTTE). The appellant submitted that in deciding that he did not report on transparency and accountability, the IAA relied on a finding that the appellant’s reporting was “objectively” not biased at [29]. The appellant submits that this is not at all to the point and that the question is whether his harassers thought he was biased. The IAA found that his harassment was due to the SLA, Mr Karuna, his sister, or the Karuna political arm. The IAA found that the appellant was accused of giving preferential air time to the TNA.

30    The appellant submitted that the IAA found that the harassment he received was “election related” and that the IAA said that the appellant “has not provided other examples about specific pro-Tamil reporting outside the election period”. The appellant submitted that this finding had to be assessed in the context of the questions asked of him by an officer of the Department at an interview and he submitted that he was asked to give “one example” of a news article. The appellant submitted that he provided an answer which was clearly political in nature, but he was not asked to provide multiple examples. His response was not to be exhaustive, nor was the question not directed to any particular time period. The appellant submitted that the IAA unreasonably failed to have regard to harassment before 2012, possibly going back to 2009.

31    The appellant submitted that he gave evidence that he was “working for the Tamil Community Programs and all” and broadcast protest information three days in advance. He broadcast the Vavuniya protest live. It was because of the appellant that people attended the protest. He broadcast a political program which included “political problems” involving electricity and water. He was asked by Mr Karuna to “reduce whatever you are talking about the Tamil people’s matter” and requested TNA publicity. He was “announcing these things and we are educating people what is happening”. Mr Karuna blamed his sister’s failure on the radio station. The appellant’s evidence regarding the Vavuniya protests was said to be internally consistent, detailed and convincing. The appellant submitted that the failure of the IAA to refer to the above evidence in the decision indicated that it did not find it material. The appellant submitted, however, that in the context of this matter, the failure to do so was indicative of a failure to give active intellectual consideration to the issue and was unreasonable.

32    The Minister interpreted the appellant’s complaints in this ground to be, in effect, a complaint that the IAA failed to consider whether the appellant would be imputed with a particular political opinion by reason of his political reporting. The Minister submitted that the IAA addressed these claims and found that: (1) journalists and broadcasters in Sri Lanka do not now face the same risk as they did under the previous Rajapakse government; (2) whilst the appellant reported on political matters, apart from one report involving the Vavuniya protest, his reporting did not involve demands for government “transparency and accountability”; (3) the appellant’s reporting was not “against the Sri Lankan government”, nor was it in favour of the LTTE or other separatist groups; (4) the adverse attention the appellant had previously attracted was related to reporting of a specific event, the Vavuniya protest, and occurred in the specific context of the politically tense election campaign in 2012; and (5) the appellant would not be returning to Sri Lanka as “a high-profile or identifiable anti-government journalist/broadcaster”. The Minister submitted that there was no obvious error in the IAA’s reasoning.

33    The Minister referred to two further complaints made by the appellant. The first was that it was unreasonable for the IAA to rely on the appellant’s failure to give examples of specific pro-Tamil reporting outside the election announcements in 2012. The Minister submitted that whilst it was true that at one point in his interview with the delegate he was asked to provide “one example” of his journalism, that question could not be viewed in isolation. The appellant had the opportunity to put forward as many specific examples as he wished to support the claims. The questioning by the officer of the Department should not be categorised as confining his opportunity to advance his claims. Secondly, the appellant complained that the IAA did not give proper consideration to specific aspects of the appellant’s evidence regarding his reporting of the Vavyniya protests and the subsequent pressure exerted by Karuna supporters. The Minister submitted that this complaint failed on the facts. The IAA largely accepted the appellant’s claims in respect of this particular incident. However, it found that it occurred in a specific factual context, namely, the 2012 election campaign which would not likely be repeated if the appellant were to return to Sri Lanka now. The Minister submitted that, in any event, the IAA was not required to engage in a “line by line” refutation of every single matter raised by the appellant: Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 362 ALR 48 at [48].

34    I understand the appellant’s submission to raise, in effect, three complaints that it submits give rise to unreasonableness in the IAA’s decision.

35    First, the IAA erred in its reasons in placing any weight on the fact that the appellant’s reporting or broadcasting was not objectively politically biased towards the TNA. Furthermore, the IAA erred in finding that the appellant had not reported against the Sri Lankan government demanding transparency and accountability and in not accepting that his political reports were anti-government, pro-separatist or pro-LTTE. The focus was, according to the appellant, wrong in that it was what people thought, not the objective facts which are critical. I reject this complaint. It may be accepted that it is how a person is perceived by others which is the critical fact, but that does not mean that an objective assessment is not relevant in determining the probabilities. Furthermore, it is relevant to consider where the findings ultimately leads and it is to whether the appellant would be returning to Sri Lanka as a high-profile or identifiable anti-government journalist/broadcaster. The objective position is not irrelevant to that issue.

36    Secondly, the appellant claimed that the IAA erred in finding that the appellant gave only one example of specific pro-Tamil reporting outside the election period. I note the evidence to which I was taken about the appellant conducting political programs and being asked to provide an example. In my opinion, none of this amounted to specific pro-Tamil reporting outside the election announcements and furthermore, I think the appellant had the opportunity to give evidence of other incidents.

37    Finally, I do not think that failing to find that there were problems going back to 2009 was an error in view of the appellant’s evidence that when he started he had “little, little problem but I didn’t take much notice”.

38    Ground 2 must be rejected.

Conclusion

39    The appeal must be dismissed with costs.

Associate:    

Dated:    12 December 2019