FEDERAL COURT OF AUSTRALIA

AWW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 247

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court made 23 September 2019 be set aside and in lieu thereof the Court orders that the decision of the Immigration Assessment Authority dated 6 February 2017 be quashed and the Appellant’s visa application be remitted to the Authority to be re-determined according to law.

3.    The First Respondent pay the Appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

MURPHY J:

1    The appellant is a citizen of Sri Lanka of Tamil ethnicity. He appeals from the judgment of the Federal Circuit Court made 23 September 2019 which dismissed his application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (Authority), made on 6 February 2017. The Authority affirmed the decision of the delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) to refuse to grant him a Safe Haven Enterprise Visa (visa).

2    The appeal has one ground, of narrow compass. It was not raised before the Federal Circuit Court and accordingly the applicant requires leave to raise it for the first time on appeal. The Minister did not oppose leave to raise the fresh ground of appeal and it is appropriate that leave be granted. For the reasons I explain, the appeal should be allowed.

The Apellant’s claims

3    The appellant arrived in Australia as an unauthorised maritime arrival in October 2012. On 19 December 2015 the Minister lifted the bar under s 46A of the Migration Act 1956 (Cth) (the Act) so as to permit the appellant to apply for a specified visa, and the appellant did so on 26 February 2016.

4    The appellant submitted a statutory declaration dated 25 February 2016 in support of his visa application which made various factual claims in support of the contention that there is a real chance that he will suffer serious or significant harm and he has a well-founded fear of persecution if he returns to Sri Lanka. He later expanded on those claims in an interview with a delegate of the Minister.

5    The appellant’s claim to fear harm if returned to Sri Lanka was made under several heads, but the appeal relates to only one of the claims. Relevantly, the appellant claimed that if returned to Sri Lanka he will face a real chance of persecution because of his political opinion in support of the Tamil National Alliance (TNA) political party and his opposition to the Tamil Makkal Viduthalai Pulikal (TMVP) party.

6    In relation to that claim the appellant asserted that:

(a)    he became politically active in 2012 and supported the TNA which is a political rival to the TMVP;

(b)    on 22 August 2012, together with two friends who were members of the TNA, he went to a nearby village to engage in election campaigning for the TNA by putting up posters, distributing leaflets and going door-to-door;

(c)    a TMVP supporter came up and told them to not engage in those activities, and they had a verbal altercation. The TMVP supporter then went and came back about 15 minutes later with three others. A physical altercation ensued in which the appellant was struck by, and himself struck, one of the TMVP supporters;

(d)    on or about 23 August 2012 the appellant received a threatening phone call from an unknown caller. The caller said that he should join the TMVP and threatened that if he engaged in any further election campaigning in support of the TNA then they would kill him;

(e)    for that reason, the following day the appellant stayed in his own village and campaigned for the TNA there;

(f)    on 25 August 2012 the appellant was out walking when a van approached. He was dragged into the van, held on the floor and blindfolded. The men in the van spoke Sinhalese and Tamil and were from the Pillaiyan faction of the TMVP;

(g)    the appellant was taken to a room and held for five days during which time he was badly beaten and subjected to sexual abuse and torture. He was eventually released when his family paid a ransom of 400,000 rupees. In his statutory declaration the applicant said that his abductors asked him why he was working for the TNA and not the TMVP and said words to the effect of “why did you canvass, we told you not to do that. Why don’t you come and work with us instead?” In his interview with the delegate the appellant said that he was certain the men that abducted him were from the TMVP because they asked him “we have already warned you, so why do you do this again?”; and

(h)    the appellant did not report the abduction to the police because he had been threatened by his abductors against doing so. The appellant complained about the abduction to the TNA candidate he was supporting in the election, but the candidate told him that he could not assist the appellant.

The Authority’s decision

7    The Authority accepted parts of the appellant’s claims, and rejected other parts on the basis that they were not plausible.

8    The Authority accepted that on 22 August 2012 the appellant along with other TNA supporters were canvassing for the TNA and against TMVP in a nearby village. It also accepted that he and his fellow TNA supporters may have been confronted and threatened by TMVP supporters while engaged in canvassing activities at the village, and that it was plausible that the appellant may have been threatened to stop canvassing for the TNA. The Authority rejected the appellant’s claim that he was abducted and threatened by TMVP supporters as not being credible and found that he did not possess a political profile such that members of the TMVP would consider him a person of adverse interest.

9    The Authority dealt with the appellant’s claim to have been threatened and later abducted as follows (at [34]-[37]):

34.    In relation to the first assault on 22 August 2012, I note country information relating to election violence in Sri Lanka. At this time in Batticaloa, for example, there were a number of reports of violence and intimidation against TNA candidates. This violence was aimed at candidates and higher profile members rather than low-level supporters. The applicant’s evidence indicates that he was a very low-level supporter of the TNA. He was not a member of the party, nor was he involved in making speeches, organising events, fund raising or any other activities other than distributing leaflets and posters. I am not satisfied that this profile would have brought the applicant personally to the attention of opposition parties but I accept that the applicant and his friends may have been confronted and threatened by opposition party supporters while working in another village. It is also plausible that he may have been threatened to stop canvassing for the TNA and I note that the applicant has not claimed to have conducted any further political activities following this incident.

35.    In relation to the abduction, the applicant has not explained why the TMVP would threaten him to stop his activities but then, two days later and without any further activities, suddenly abduct him and subject him to extreme violence. I note a report from Batticaloa district confirms that paramilitary groups were using intimidation and robberies6 against voters but I have not found any evidence before me to support that abduction and extreme violence such as that reported by the applicant were used by political or paramilitary groups against low-level supporters such as the applicant. As I have found above, there is no evidence that the applicant had any sort of profile that would have identified him or singled him out for such extreme action.

36.    At the interview, the delegate questioned whether the abduction was for a political motive or a financial/criminal motive. The applicant’s post-interview submissions respond that the abductors were acting in a criminal manner with a political motive, such that the two were interconnected. The applicant refers to the Full Court decision in NAEU of 2002 to argue that a nexus for persecution on account of political opinion could be sufficient if it was “at least in part because of the applicant’s political opinion”.

37.    Although I accept that the applicant was previously subject to low-level intimidation by TMVP supporters, I have also found that his low-level support and political opinion would not single him out. I have noted above that following the threatening telephone call, the applicant did not undertake any further activities for the TNA and those activities that he had previously undertaken were of a very low-level and short-term nature. There is nothing in the evidence to explain why the applicant would suddenly be targeted by the TMVP. There is nothing in the evidence to explain why the applicant would be a person of interest to the TMVP at all.

10    At [38]-[40] the Authority did not accept the appellant’s account that he had not complained about the abduction and assault to the Sri Lankan authorities, nor his account that he had complained to the TNA candidate for whom he had been campaigning but the candidate said he could not assist. In these paragraphs the Authority said:

38.    I have also considered the applicant’s evidence that he did not report the abduction to the police but did report it to the TNA candidate he had been supporting. That candidate said that he could not help the applicant. Country information is consistent with the claim that Tamils, particularly in the north and east, did and may continue to fear or mistrust the authorities but I also note the extreme violence that the applicant claims to have suffered, as well as the significant ransom that was demanded. I do not accept that the family would not have tried to seek some assistance from the authorities. In this regard I also note that the later claims of robbery and fire bombings are being investigated by the police (see below), which I find is inconsistent with the applicant’s claim in relation to not reporting a vicious abduction, assault and extortion.

39.    The applicant has also claimed that he went to the TNA candidate and reported what happened but that candidate said he could not help him. I am prepared to accept the medical and psychological evidence that Sri Lankan males subjected to serious sexual abuse may be reluctant to report details but even so, I am not satisfied that the candidate would not have taken further action even if not given the full details of the assault.

40.    The applicant’s own evidence at the interview was that when a TNA member in another area was kidnapped, the TNA Member of Parliament for that area went to the police and registered a complaint. When this apparent inconsistency was put to the applicant, he said that the TNA candidate in his case was not a member of parliament and as the incident was before the 2012 election, the candidate had no power. The delegate asked why the candidate did not take action after the election and the applicant said that he (the applicant) was in hiding then. I do not accept this explanation is credible. The candidate was already aware of the claimed abductions and the applicant has not explained why he would need to go back to the candidate and ask them to deal with the police.

11    The Authority concluded as follows (at [41]):

Considering all of the evidence, I am not satisfied that the applicant was abducted and tortured as he has claimed. I am not satisfied that the applicant had or has any political profile such that members of the TMVP would consider him a person of adverse interest.

12    The Authority set out three reasons for finding the appellant’s claim to have been abducted, assaulted and extorted to be implausible, being that:

(a)    the evidence shows that the appellant was a “very low-level supporter” of the TNA and his election canvassing activities would not have given him an adverse profile with the TMVP. There was no evidence that the appellant had an adverse profile such that it would have identified him or singled him out for such extreme action;

(b)    the appellant had not explained why the TMVP would threaten him to stop his canvassing activities “but then, two days later and without any further activities, suddenly abduct him and subject him to extreme violence.” That is, that following the claimed telephone call threatening him to stop canvassing against the TMVP, the appellant did not undertake any further canvassing and it was not plausible that TMVP supporters would have then abducted assaulted and extorted him; and

(c)    the appellant’s claims that he did not report the abduction to the police and that the TNA candidate told him he could not assist in regards to the threats were not credible.

The Federal Circuit Court decision

13    The appellant subsequently sought judicial review of the Authority’s decision to affirm the decision to not grant him a protection visa by way of application to the Federal Circuit Court.

14    That application contained a single ground of appeal, being that “[t]he IAA committed jurisdictional error by failing to have regard to the criteria in s 473DD(b) when considering the new information relating to the applicant’s arrest warrant”. The primary judge dismissed the application on 23 September 2019.

The appeal to this court

15    The appeal contains one ground, as follows:

The Federal Circuit Court Judge erred in not finding that the IAA failed to complete the exercise of its jurisdiction as it had overlooked the applicant's claim that he had continued to canvass for the TNA in his own village after he had been warned not to do so by TMVP supporters on 22 and 23 August 2012.

16    This ground was not raised below and the appellant therefore requires leave to argue a fresh ground of appeal. The relevant principles for the grant of such leave are well established and are summarised in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48] and NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [166]. The serious consequences that may attend a wrongful refusal of a protection visa may be taken into account when determining whether it is expedient in the interests of justice that leave be granted: Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 at [22] (Heerey, Moore and Goldberg JJ); CGA15 v Minister for Home Affairs [2019] FCAFC 46 (CGA15) at [36] (Murphy, Mortimer and O’Callaghan JJ).

17    The appellant’s solicitor filed an affidavit in which he states that he had not previously identified the ground relied upon in the present appeal and the failure to raise the ground in the application before the Federal Circuit Court was not the result of any forensic decision.

18    In circumstances where leave to raise a new ground of appeal is not opposed by the Minister, where it arises because of a mistake by his legal advisor, and where I consider the ground to be reasonably arguable, indeed where it is appropriate to uphold the appeal on that ground, I am persuaded that it is expedient in the interest of justice to grant leave.

Consideration

19    The evidence shows that the appellant said in his statutory declaration in support of the visa application that:

(a)    after he received a telephone call on 22 August 2012 threatening that if he attended any further election campaigning in support of the TNA he would be killed, he “stayed in [his] village and canvassed there”. That is, he said that notwithstanding the threat he continued to campaign;

(b)    when he was abducted, his abductees said words to him to the effect of “why did you canvass, we told you not to do that. Why don’t you come and work with us instead?”

The evidence also shows that when interviewed by the delegate the appellant said that he was certain the men who abducted him were from the TMVP because when they abducted him they asked him “we have already warned you, so why do you do this again?”

20    As set out at [9]-[12] above, one basis for the Authority’s rejection of the appellant’s claim to have been abducted and assaulted as implausible was that the appellant had not explained why the TMVP would threaten him to stop his activities but then, two days later and without him engaging in any further political activities, suddenly abduct him and subject him to extreme violence.

21    The Minister concedes that the Authority there mischaracterised the appellant’s evidence. The appellant did not claim to have stopped election campaigning after the threatening phone call. He in fact claimed to have continued to campaign, but only in his own village. Further, he claimed that his abductees provided the reason for his abduction; being that he had continued to campaign for the TNA when he had been threatened and told to stop.

22    The Minister accepts that an administrative decision-maker may fall into error where he or she fails to consider, overlooks or otherwise fails to engage with a material or significant integer of a claim: see for example, BBE17 v Minister for Immigration and Border Protection [2019] FCA 573; (2019) 164 ALD 410 at [45]. He accepts too that adverse credibility findings by an administrative decision-maker are not shielded from scrutiny in an application for judicial review: see CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [41] (McKerracher, Griffiths and Rangiah JJ) citing with approval the decision in SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] (Flick J).

23    The Minister however contends that the appellant seeks to overstate the significance of the Authority’s (admitted) error. The Minister submits that the appellant’s claimed that his canvassing activities were such that they led to the TMVP abducting and assaulting him despite his low-profile and the low-level nature of the activities, which the Authority did not accept based on the available country information. On the Minister’s case it was not a material component of that claim that the appellant had undertaken some further low-level activity in his own village; the significance of the threat made to the appellant was that he had gone outside his village and thereby drawn attention to his activities.

24    The Minister further submits that, on a fair reading of the Authority’s reasons, it rejected the appellant’s claim concerning the abduction principally because he did not have the requisite profile and the nature of his claims was implausible. That is, the Authority did not accept that the appellant would be at risk even if he carried out the election campaigning activities, because it found they were of a very low-level and short-term nature.

25    The Minister argues that it follows that the Authority’s misunderstanding of the evidence was not critical to its reasons for rejecting the appellant’s visa application, and if the Authority is found to have fallen into error it was not jurisdictional as it could not realistically have made a difference to the outcome.

26    I do not accept the Minister’s submissions.

27    The Authority was required to consider the appellant’s claims and their components or integers, and to make a decision without having done so is to fail to complete the exercise of jurisdiction embarked on: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 at [42] (Allsop J as his Honour then was, with whom Spender and Merkel JJ agreed).

28    An error in fact finding on the way to an ultimate conclusion may establish jurisdictional error: ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 250 FCR 109 (ARG15) at [47] (Griffiths, Perry and Bromwich JJ). Whether such an error does so will depend upon the significance or criticality of the error to the ultimate conclusion. The overarching question is whether the decision was affected by jurisdictional error: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [151] (Robertson J). Before the Court may be satisfied that an error goes to the jurisdiction of the decision-maker it is necessary for the Court to be satisfied that it was material to the ultimate decision, in the sense that it deprived the appellant of the realistic possibility of a successful outcome: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [30]-[31] (Hossain) (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA) at [49] (Bell, Gageler and Keane JJ). The appellant has the onus to show that the error is material: SZMTA at [4].

29    On a fair reading of the Authority’s reasons at [34]-[40] it relied upon three grounds for its rejection on credibility grounds of the appellant’s claim to have been abducted and assaulted. That is confirmed at [41] when the Authority concluded by stating “[c]onsidering all of the evidence, I am not satisfied that the [appellant] was abducted and tortured as he has claimed” (emphasis added).

30    One of the main reasons the Authority disbelieved the appellant’s account was that it considered that there was no explanation as to why the TMVP supporters would have escalated from threats of harm to abduction and assault when he had not engaged in any further campaigning after receiving those threats. It found that there was no reason for the TMVP to so target him. That finding mistook the appellant’s evidence which did provide a reason for the TMVP having targeted him, being his failure or refusal to cease campaigning despite being warned that he must stop or he would be killed. If the Authority had taken into account that part of the appellant’s evidence, it is difficult to see how it could maintain the position that “[t]here is nothing in the evidence to explain why the applicant would suddenly be targeted by the TMVP”. The appellant’s claim is that he was suddenly targeted because he continued to campaign after the warning to stop that political activity. That is the explanation which the Authority said was missing.

31    The Minister nonetheless seeks to rely on the fact that the Authority found the appellant’s election campaigning was low-level and short-term in nature, such that it was unlikely to mean that the appellant had developed an adverse profile with TMVP supporters and would be targeted by them. But the appellant’s evidence that he had not complied with the TMVP’s warning and had continued to campaign provided an alternative reason for him to have developed such a profile, and the Authority mistook that evidence.

32    The Authority’s mistaking of the evidence in relation to the appellant having stopped campaigning after he was threatened cannot easily be severed from its other reasons for disbelieving the appellant’s account that he was abducted and assaulted. The Authority stated and reiterated its mistake over three paragraphs of its reasons and on a fair reading it was significant, perhaps critical, to its disbelief of the appellant’s account. The Minister’s contention that the Authority would have rejected the abduction claim anyway stands in contradiction to the reliance the Authority placed on the mistaken evidence. Where a decision-maker relies on intermingled findings or matters in coming to a conclusion and there is no proper basis for one of the findings or matters, jurisdictional error may result: ARG15 at [74]; CGA15 at [61].

33    In my view the appellant’s claim to have been abducted, assaulted and extorted was important to his claim that there is a real chance he faces a real chance of persecution because of his political opinion in favour of the TNA and against the TMVP. I consider the Authority’s conclusion that the appellant was not abducted and assaulted by TMVP supporters was significant to its conclusion (at [41]) that the appellant did not have a political profile such that members of the TMVP would consider him a person of adverse interest. In my opinion, by mistaking the appellant’s evidence the Authority deprived him of the realistic possibility of a different outcome in his visa application, such that the error was material in the sense described in Hossain at [30]-[31].

34    The appeal must be allowed, and it is appropriate to set aside the decision of the Federal Circuit Court and remit the matter to the Authority for re-determination.

Costs

35    The appellant seeks and the Minister does not oppose an award of costs for the appeal. I can see no reason why costs should not follow the event and such an order is appropriate. The appellant does not seek an order for the costs of the application to the Federal Circuit Court, and seeks only that the costs order in favour of the Minister be set aside. I have made orders accordingly.

Associate:

Dated:    4 March 2020