FEDERAL COURT OF AUSTRALIA

COK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2142

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 is dismissed.

3.    The Appellant is to pay the costs of the First Respondent of and incidental to the appeal fixed in the sum of $6,000.

4.    When the transcript of this afternoon’s hearing is prepared, the name of the Appellant, which has been used at least twice, is to be redacted and instead the designation COK18 used in its place.

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

EX TEMPORE REASONS FOR JUDGMENT

WHITE J:

1    The appellant is a national of Sri Lanka who arrived in Australia by boat on 8 June 2013. He was an “unauthorised maritime arrival” as defined in s 5AA of the Migration Act 1958 (Cth) (the Act).

2    A delegate of the Minister refused the appellant’s application for a Safe Haven Enterprise Visa (SHEV) and that decision was affirmed by the Immigration Assessment Authority (IAA) on 9 May 2018. The appellant then sought judicial review in the Federal Circuit Court (the FCC) of the IAA decision but was unsuccessful. He now appeals to this Court against the dismissal of his judicial review application.

3    The appellant is of Tamil ethnicity and is now 24 years old. He represented himself on the appeal, as he did in his application in the FCC.

4    Before coming to Australia the appellant had lived in India from the age of three months. That was because his parents had fled Sri Lanka during the Civil War and gone to Tamil Nadu. However, there was no dispute that the receiving country for the appellant is Sri Lanka.

5    The appellant claimed to have a well-founded fear of persecution by reason of being imputed with his father’s political views in consequence of his father’s past affiliation with the Liberation Tigers of Tamil Eelam (LTTE). He said that, between 1993 and 1995, his father had used his business in Batticaloa to provide support to the LTTE. This support had mostly been in the form of donations of money or goods from his business. The appellant claimed that by reason of these activities, his father had come under investigation by the Sri Lankan Army (SLA). Members of the SLA would often come to the family home and interrogate his father regarding his involvement in the LTTE. At one stage, his father had been arrested and detained for three days. During this period his father had been beaten and interrogated by the SLA. The appellant claimed that his father had been repeatedly taken away by the SLA for questioning, with this occurring on some 10 or 15 occasions. Despite the attention of the SLA, his father had nevertheless continued secretly to provide support to the LTTE.

6    In addition to his fear of harm by reason of being imputed with his father’s political views, the appellant also claimed to fear harm from the Sri Lankan authorities because of his Tamil ethnicity; his status as a failed asylum seeker; his illegal departure from Sri Lanka; his long absence from Sri Lanka and his lack of ties there; and his identity having been revealed in the data breach which occurred in early 2014.

7    In relation to his claim that he would suffer harm by reason of his illegal departure from Sri Lanka, the appellant claimed before the IAA that he would be unable to pay the fine for that departure, said to be 200,000 Rupees. This was a new claim as it had not been made to the Minister’s delegate.

8    The IAA member addressed the appellant’s claims in some detail. She was not “convinced” that he had provided a reliable account of his father’s involvement with the LTTE and the harm which he claimed his father had experienced. Nevertheless, the member accepted that the appellant’s father had been arrested on a number of occasions and interrogated on suspicion of LTTE involvement, with those interrogations including beatings. The IAA member also accepted that the appellant’s mother may have been questioned by the SLA by reason of the suspicions it held concerning his father. She accepted that the appellant’s father had provided some limited support to the LTTE but did not consider that support to be significant or frequent. The IAA member was not satisfied that the appellant’s father had been a member of the LTTE or that he had been subjected to reporting requirements before leaving Sri Lanka.

9    The appellant also claimed to have been involved in political activities in India. In particular, he claimed to have been a member of the All India Anna Dravida Munnetra Kazhagam (AIADMK). The IAA member accepted that the appellant and his brother had provided low level support to the AIADMK during an election period by putting up posters and banners, and by reason of that had come to the attention of an opposition party.

10    The IAA member accepted that the Department of Foreign Affairs and Trade assesses high profile individuals with links to the LTTE as continuing to be of interest to Sri Lankan authorities with the consequence that they may be subjected to monitoring. She also accepted that close relatives of high profile former LTTE members may also be subject to like monitoring. However, the IAA member did not accept that the appellant had such a profile.

11    The IAA member concluded that the appellant did not face a real chance of harm by reason of being a Tamil man, by reason of his past experiences in Tamil Nadu, or by reason of his tangential links to the LTTE because of his father’s activities. She considered that the appellant would, if returned to Sri Lanka, be able to establish himself without facing discrimination. The IAA member accepted that the appellant may come under scrutiny on return to Sri Lanka as a failed asylum seeker and, in particular, as an illegal departee from Sri Lanka. However, given that the appellant had left Sri Lanka at the age of 3 months, the member considered that any attention received on this account would not be significant. In any event, the IAA member did not accept that the treatment which the appellant may face on return could give rise to a well-founded fear of persecution.

12    For all these reasons, the appellant’s claim for protection as a refugee failed.

13    For similar reasons, the appellant’s claim for complementary protection under s 36(2)(aa) of the Act failed. The IAA member was not satisfied that the appellant faced a real chance of suffering significant harm if returned to Sri Lanka whether by reason of his Tamil ethnicity, his father’s previous LTTE links, the involvement of the appellant and his father and brother with the AIADMK in India, his long absence from Sri Lanka, the fact that he had spent time and had sought asylum in Australia, the data breach in January 2014 and the absence of family members in Sri Lanka.

The Application to the FCC

14    The appellant’s application to the FCC contained three grounds:

(1)    the IAA’s decision was affected by error of law;

(2)    the IAA had not given sufficient weight to five submissions made by the appellant; and

(3)    the IAA had erred in finding that the appellant’s claims concerning the support which his father had provided to the LTTE were inconsistent.

The decision of the FCC Judge

15    The FCC Judge noted that the appellant had not provided any particularisation of the error of law he asserted in Ground 1 and, on that basis, held that the ground lacked merit.

16    With respect to Ground 2, the FCC Judge reviewed the matters to which the appellant referred but rejected the ground.

17    With respect to Ground 3, the FCC Judge found that the appellant was, in effect, seeking to re-agitate factual findings and thereby to engage in “impermissible merits review”.

18    Accordingly, the application for judicial review was dismissed.

The Notice of Appeal to this Court

19    The appellant’s Notice of Appeal contains two grounds:

a)    The court below failed to recognise that 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 Federal Circuit Court Judge failed to find that the IAA made jurisdiction[al] error.

a.    The IAA made a jurisdictional error in that it failed to deal with all my claims and the Federal Court Judge erred in law by not finding that the IAA [was] wrong.

20    An initial submission of counsel for the Minister was that neither of these grounds had been advanced in the FCC and, accordingly, that the appellant required leave to argue them in this Court.

21    In the view I take of the appeal, it is not necessary to address that submission of the Minister.

Ground 1: Unreasonableness and irrationality

22    Very few of the appellant’s submissions were directed to Ground 1.

23    It is well accepted that the exercise of a statutory power of review such as that granted to the IAA under Pt 7AA of the Act is conditioned by a requirement of reasonableness: Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [29], [63] and [88]. The principles bearing on legal unreasonableness as a ground of judicial review have now been considered in a number of the authorities since Li, including Minister for Immigration and Border Protection v Singh [2014] FCAFC 1, (2014) 231 FCR 437 at [43]; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, (2016) 237 FCR 1 at [4], [61]-[62] and [92]; and Minister for Immigration and Border Protection v Eden [2016] FCAFC 28, (2016) 240 FCR 158 at [54]-[65]. A conclusion that an exercise of power was legally unreasonable may be derived by reference to a step in the decision making process or by consideration of the outcome. In either case, the Court may intervene only if the identified error is jurisdictional.

24    The appellant’s contention is that the FCC judge should have found that the determination of the IAA that he “is not a person of interest to the Sri Lankan authorities” is unreasonable, unintelligible and irrational. The appellant’s submissions seemed to focus on the unfairness he perceived in the outcome rather than on the process of reasoning adopted by the IAA.

25    In order to make out this ground, it would be necessary for the appellant to establish that a rational or reasonable mind could not have reached the decision made by the IAA. That is because a decision cannot be regarded as illogical, irrational or unreasonable simply because another decision may have been open or even more likely: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131].

26    When this is understood, the decision of the IAA to the effect that the appellant would not be a person of interest for the Sri Lankan authorities cannot be held to be legally unreasonable or irrational and the FCC judge did not err in failing to assess the IAA decision in that way. The IAA member gave plausible and rational reasons for her conclusions on this topic, to which I have already referred. The member noted, moreover, that at the time of her decision, some nine years had elapsed since the end of the Civil War in Sri Lanka with the inference being that this had allowed time for some dissipation of the tensions it had caused.

27    With respect to the manner in which returning asylum seekers who have left Sri Lanka illegally are dealt with under the Immigrants and Emigrants Act 1949 of Sri Lanka, the IAA member noted:

[T]here is no recent independent information before me [which] suggests that Tamil returnees who are not otherwise of adverse interest to the Sri Lankan authorities and who have merely sought asylum abroad and have lived abroad for an extended period of time (such as the [appellant]) are perceived to have an anti-government or pro-LTTE opinion [or that they] are subject to monitoring, arbitrary arrest or detention for that reason.

The IAA member referred to country material which, on my assessment, indicates that that conclusion was reasonably open to her.

28    It is also apparent that the IAA member did address each of the matters on which the appellant relied as giving rise to some interest in him by the Sri Lankan authorities. The appellant has not demonstrated that there was unreasonableness or irrationality in the sense discussed above in the IAA’s assessment of those matters.

29    On my assessment, the conclusions reached by the IAA member were open on rational and reasonable grounds. It cannot be said that a rational and reasonable mind could only have reached a contrary conclusion. This is not a case in which it can be said that either the reasoning or the conclusion of the IAA was unreasonable, unintelligible or irrational so that the IAA member’s decision could be regarded as so unreasonable as giving rise to jurisdictional error.

30    Accordingly, Ground 1 in the notice of appeal fails.

Ground 2: A failure to deal with all claims

31    By Ground 2, the appellant complains that the FCC Judge should have held that the IAA failed to deal with all his claims with the consequence that its decision was affected by jurisdictional error.

32    Ground 2 does not identify the claim or claims which it is said the IAA did not address. The ground is, in effect, an unparticularised claim of jurisdictional error. Although I invited the appellant to identify a claim or claims not addressed by the IAA, he was not able to do so. My review of the IAA member’s reasons indicates that the member did identify and address each of the appellant’s claims.

33    The IAA member did decline to have regard to certain information and to certain aspects of the submissions provided to her by the appellant. She did so having regard to s 473DD of the Act, which prohibits the IAA from considering any new information, that is to say, information which was not before the Minister’s delegate, unless it is satisfied of two matters. First, that there are exceptional circumstances justifying it considering the new information. Secondly, that the appellant has satisfied the IAA that the new information was not, and could not have been, provided to the Minister before the delegate’s decision or that it is credible personal information which was not previously known and, had it been known, may have affected the consideration of the appellant’s claims.

34    The two claims which the IAA member refused to consider in accordance with s 473DD were the appellant’s claim that he would be forced to pay a fine of 200,000 Rupees for his illegal departure from Sri Lanka, an amount which he said was beyond his means, and the claim that the delegate had relied heavily on a biased selection of information from the internet. The appellant has not shown any error in the IAA member’s conclusion that the first of these matters amounted to new information or any error in the manner in which the IAA member considered the application of s 473DD to that information.

35    With respect to the second matter, the IAA member noted that the sources of the country information on which the appellant relied had not been identified and that much of the information was, in any event, well-documented in the material which was before the IAA. The member said that, to the extent that the information was new information, she was not satisfied that it could not have been provided to the delegate or that it was personal information. The appellant did not point to any matter by which it could be concluded that these conclusions were affected by error, let alone jurisdictional error.

36    Accordingly, the appellant, again, has not shown any error by the FCC Judge. Ground 2 fails.

37    The appellant also complained of a passage in the IAA’s reasons recording his response to what the member had put to him concerning a statement by his brother in the brother’s SHEV interview. He disputed that the brother’s statement had been put to him by the IAA member. I do not attach significance to this submission. The appellant did not support the submission with evidence. Nor did he show that the statement attributed to him by the IAA member had been material to her decision.

38    In addition, the appellant referred to an inconsistency between what he described as the recognition of his entitlement to protection which had occurred, as he put it, on the grant to him of a Bridging Visa, and the refusal to recognise his entitlement to protection in the IAA decision. There is no inconsistency. The grant of the Bridging Visa pending the determination of the application for the SHEV did not involve any conclusion at all on the merit of the appellant’s claim to a protection visa. In any event, it is very apparent that the Minister’s delegate, who did consider the application for the Protection Visa, found that the appellant was not a person to whom Australia owes protection obligations.

39    The remaining matters to which the appellant referred involved the merit of his claim for a protection visa, and consideration of them is beyond the scope of the Court’s present function.

40    In all these circumstances, the appellant has not shown any error by the FCC Judge, and the appeal must be dismissed.

Associate:

Dated:    19 December 2019