FEDERAL COURT OF AUSTRALIA

DHP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 330

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The appellant is a Hindu Tamil who claimed to fear persecution or significant harm if returned to Sri Lanka. His appeal is from the decision of the Federal Circuit Court (FCC) in DHP17 v Minister for Immigration (No. 2) [2019] FCCA 2248 (the second FCC decision). That decision was made on remittal following a successful appeal to this Court in DHP17 v Minister for Home Affairs [2019] FCA 15 (DHP17 (FCA)). The remittal was limited to the determination of a ground of the appellant’s application for judicial review in the FCC which the FCC had overlooked in its first decision in DHP17 v Minister for Immigration [2018] FCCA 1677 (the first FCC decision). This ground concerned whether the Immigration Assessment Authority (the IAA) had fallen into jurisdictional error in failing to place reliance on a report prepared by the United Nations Committee Against Torture (UNCAT) entitled “Concluding Observations on the Fifth Periodic Report of Sri Lanka” (UNCAT Report). As Perram J in DHP17 (FCA) explained:

7    As to the third argument concerning the UNCAT Report I agree with the Court below that the reason given by the Authority for placing no weight (or implicitly doing so) was open to it in the sense that a lack of particularity is a rational basis for such a conclusion. However, that is not the end of the matter. The Court below did, with respect, appear to overlook one aspect of the Applicant’s argument. The Authority had placed reliance on a report presented by the Department of Foreign Affairs and Trade dated 24 January 2017 entitled ‘DFAT Country Report: Sri Lanka’ (‘DFAT Report’). The Applicant submitted in his grounds of review in the Court below that, as with the UNCAT Report which it declined to use, the DFAT Report also did not refer with particularity ‘to when certain occurrences occurred’ but the Authority had been content to rely upon it. In practical sense, this ground is one of inconsistency.

8    There are two issues which arise from this argument. The first is whether the approach of the Authority to the two reports is inconsistent when regard is had to their contents. The second is whether, assuming that it can be shown that the Authority did act inconsistently in its treatment of the two reports, this discloses a judicial review ground.

2    The appellant is unrepresented and did not file written submissions in advance of the hearing. The appellant appeared at the hearing and was assisted by a NAATI accredited, professional interpreter in Tamil and English. However, the appellant did not feel able to make oral submissions. The first respondent filed written submissions in advance which were sight translated prior to the start of the hearing for the appellant (T5/3/2020 at p. 3.1-4) and made oral submissions.

3    Having carefully considered the matter, I consider that the primary judge correctly held that it was open to the IAA not to place reliance on the UNCAT Report given that it was cast at a level of generality and did not address the appellant’s personal claims. This explains the different weight given to this report as opposed to the report prepared by the Department of Foreign Affairs and Trade dated 24 January 2017 entitled ‘DFAT Country Report: Sri Lanka’ CISEDB50AD105 (DFAT Report) which, while expressed at a level of generality, did address specific claims made by the appellant. It follows that the appeal must be dismissed with costs.

2.    BACKGROUND

1.1    The criteria for the grant of the safe haven visa

4    The safe haven visa for which the appellant applied is a class of temporary protection visa, as provided for by s 35A of the Act. As such, it was necessary among other things for the appellant to satisfy the criteria for a protection visa in either s 36(2)(a) (the refugee criterion) or subs 36(2)(aa) (the complementary protection criterion): see s 35A(6) of the Act.

5    Turning first to the refugee criterion, at the relevant time s 36(2)(a) provided that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations “because the person is a refugee”. A person is a “refugee” for the purposes of the Act if the person (relevantly) “is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country” (s 5H). In turn, s 5J(1) of the Act provides that:

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

6    In the alternative, s 36(2)(aa) of the Act provides that it is a criterion for a protection visa that the applicant is a non-citizen in Australia “in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”. The phrase “significant harm” is defined in s 36(2A) to mean arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

1.1    The appellant’s claims

7    The appellant is a citizen of Sri Lanka. He arrived in Australia as an illegal maritime arrival. He applied for a Safe Haven Enterprise (subclass 790) visa (protection visa) on 5 January 2016 (AB149) in response to an invitation to do so by a letter dated 20 November 2015 from the Department (AB137). That invitation was made after the (then) Minister for Immigration and Border Protection (the Minister) had exercised the power under s 46A(2) of the Migration Act 1958 (Cth) (the Act) permitting the appellant to apply, as advised in the Department’s letter.

8    The appellant claimed to fear persecution or significant harm if returned to Sri Lanka on the basis of an imputed political opinion as a young Tamil male from the North-Western Province, his occupation as a fisherman and travel in and out of areas controlled by the Liberation Tigers of Tamil Eelam (LTTE), his illegal departure from Sri Lanka, and as a failed asylum seeker returning to Sri Lanka (AB187-190, AB292).

9    A delegate of the Minister refused to grant the visa on 29 November 2016 (AB289).

1.2    The decision of the IAA

10    On 2 December 2016, the IAA wrote to the appellant advising that the delegate’s decision had been referred to the IAA for fast track review earlier on that day (AB303). The IAA is established by Div 8 of Pt 7AA of Act and is part of the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT).

11    While the appellant was not represented on the fast track review, two submissions were provided to the IAA on behalf of the appellant (AB309 and AB327). These submissions included references to material which was not before the delegate. In this regard, I note that the scope of material which may be considered by the IAA on a fast track review is limited by Subdiv B and C of Division 3 of Part 7AA of the Act. The effect of these provisions is that the IAA conducts the fast track review on the papers on the basis of the material before the delegate save where exceptional circumstances justify consideration of the new information and the new information meets the other criteria in s 473DD of the Act: Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534 (AMA16) at [19] (Griffiths J) (with whom Dowsett J at [1] and Charlesworth J at [97] relevantly agreed); see also the second FCC decision at [10]-[15].

12    In its reasons for affirming the delegate’s decision to refuse the visa application (at AB346-361), the IAA referred to those submissions, noting that they referred to new information, including relevantly the UNCAT Report (IAA reasons at [10]). The IAA found that the criteria in s 473DD for considering the UNCAT report were met for the following reasons:

10. … This information postdates the delegate’s decision. The submission states the new formation was published in December 2016 that would not have been before the Department and should be considered by the IAA. Given the UN CAT report was adopted on 30 November 2016, after the date of the delegate’s decision, I am satisfied that it could not have been provided to the Minister before the decision was made. The UN CAT report is from a reputable, credible source and deals with developments in Sri Lanka over a number of years up to its publication date with a particular focus on human rights, and associated issues and concerns in Sri Lanka. I am satisfied there are exceptional circumstances to justify considering the UN CAT report.

13    At [12] the IAA also noted that it had obtained new country information, being the DFAT Report, and explained that:

13. The report contains information on the situation for Tamils in Sri Lanka and returnees to Sri Lanka. These are classes of persons of which the applicant is a member. It updates the DFAT report on Sri Lanka published on 18 December 2015 which was before, and relied upon by, the delegate. I am satisfied there are exceptional circumstances to justify consideration of this new information.

14    First, with respect to the DFAT Report, the IAA found that:

35. On the whole, I accept that in the pre-and post-civil war period the applicant has experienced some difficulties as a Tamil who had on one previous occasion been stopped and physically harmed on suspicion of his involvement and/or support to the LTTE. However, the country information before me indicates that the overall situation for Tamils in Sri Lanka has improved considerably since the end of the civil conflict in 2009. Tamils have substantial level of political influence and their inclusion in political dialogue has increase[d] since the Sirisena government came to power in 2015 [citing the DFAT Report]. As a consequence of the improving situation, DFAT assessed that Sri Lankans of all backgrounds generally have a low risk of experiencing official discrimination.

36. However, DFAT has also assessed that societal discrimination on the basis of ethnicity can occur, and that in the case of Tamils societal discrimination was a problem for monolingual Tamils who can have difficulty communicating with the police, military and other government authorities. DFAT assessed that these practical difficulties faced by Tamils are the result of a lack of qualified language teachers, the disruption to civilian life caused by the conflict, and the legacy of early discriminatory language policies rather than official discrimination [again citing the DFAT report].

15    Given the country information and the appellant’s evidence in his protection visa application that he could only read, write and speak Tamil, the IAA accepted that the appellant may face some level of societal discrimination on return but was not satisfied that it would constitute serious harm (IAA reasons at [37]; see also the equivalent finding by the IAA with respect to the appellant’s complementary protection claim at [63]).

16    Secondly, the IAA turned to consider country information addressing the risks that persons who may be suspected of links with the LTTE might face in Sri Lanka. It was in this context that the IAA considered the UNCAT report as follows:

38. Country information indicates that the focus of the Sri Lankan government in power at the time of the applicant’s departure and of the current Sri Lankan government is the prevention of the resurgence of the LTTE and any actions towards Tamil separatism. In these circumstances, it is people with links to the LTTE who may have a need for international protection, however being Tamil and coming from the North or the East is not, of itself, sufficient to warrant international protection. The UNHCR and the UK Home Office identify that it is persons suspected of certain links with the LTTE who may [be] in need of international refugee protection, depending on the individual circumstances of their case.

39. I have also considered the UN CAT report submitted to the IAA on behalf of the applicant and while I accept it reports that information has been received that numerous individuals suspected of having a link, even remote, with the LTTE have been abducted and subjected to torture, it does not otherwise specify when such occurrences happened or the circumstances.

17    At [40], the IAA referred to its finding that the appellant was not of adverse interest to the authorities when he departed Sri Lanka and the appellant’s evidence that he had no links or involvement with the LTTE or political organisations. It also referred to the fact that he did not mention family members having any such links or involvement and found that it was satisfied that the appellant would not be imputed with any type of profile arising from his family circumstances on his return to Sri Lanka. The IAA then concluded on this issue with respect to the appellant’s claims to satisfy the refugee criterion in s 36(2)(a) that:

41. I accept there is credible evidence of serious harm being perpetrated against Tamils associated with, or perceived to be associated with, the LTTE by the Sri Lankan authorities in pre-and post war Sri Lanka [citing US and UK country information and the DFAT Report]. However on the evidence before me, I am not satisfied the applicant has such a profile, nor would one be imputed to him on return. I am not satisfied the applicant faces a real chance of serious harm as a… Tamil fisherman from the North Western province, who may be perceived to have links with the LTTE on his return to Sri Lanka now or in the reasonably foreseeable future.

(See also the equivalent finding by the IAA at [64] of its reasons with respect to the appellant’s complementary protection claim under s 36(2)(aa) of the Act.)

1.3    The FCC’s decision

18    As I have earlier mentioned, the sole issue which arises on the appeal concerns the correctness of the second FCC decision in dismissing the ground 3 of the appellant’s application for judicial review, given the limited terms of the remittal by this Court. Ground 3 read:

The IAA’s failure to consider the relevant excerpt of the UNCAT report [39] as the UNCAT report “does not otherwise specify when such occurrences happened or the circumstances”.

Particulars

(a)    The IAA was of the view that the UNCAT report dated December 2016 was from a “reputable, credible source” [10].

(b)    Though the IAA did consider the UNCAT report essential findings made by the reputable, credible source regarding “numerous individuals suspected of having a link, even remote, with the LTTE have been abducted and subjected to torture” [39] was disregarded (impliedly at least) because the UNCAT report does not otherwise specify when such occurrences happened or the circumstances.

(c)    The Publication (UNCAT report) was dated December 2016.

(d)    The more recent DFAT report that the IAA had considered was dated 24 January 2017.

(e)    The DFAT report too relied upon by the delegate not refer to when certain occurrences occurred.

(f)    Having accepted that the UNCAT report was reputable and credible essential contents referred there in ought to have been considered by the IAA as the report was published in December 2016. The UNCAT report failing to mention specific dates when certain incidents occurred ought not to have been a valid reason for not considering contents of this report.

(errors in original)

19    For reasons I explain below, the primary judge did not accept that the IAA fell into jurisdictional error by treating the DFAT and the UNCAT reports differently.

3.    CONSIDERATION

20    Shortly stated, the issue on remittal is whether (as suggested by particulars (e) and (f) of the application for judicial review) the IAA fell into jurisdictional error by failing to place reliance on the UNCAT report despite relying on a DFAT Report in circumstances where neither report referred with particularity to the timing of certain (albeit different) events (FCC reasons at [26]).

21    I accept that a decision-maker may fall into jurisdictional error if it approaches the treatment of particular kinds of evidence in an inconsistent manner where that inconsistent treatment is irrational or illogical and therefore legally unreasonable. However, to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [60] (the Court) (citing with approval the statement by Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [148]).

22    There is no doubt, as the primary judge found at [28], that the IAA in fact considered the UNCAT report. It did so expressly in the passages earlier quoted (at [16] above). The primary judge therefore correctly rejected particular (e) of the application for judicial review alleging that the IAA failed to consider the contents of the report (FCC reasons at [28]).

23    Nor, as the primary judge also held at [28], did the IAA apparently doubt the factual accuracy of the information contained in the UNCAT report. To the contrary, the IAA had earlier accepted at [10] that the report was from “a reputable, credible source”.

24    However, the IAA found in effect that the UNCAT report did not assist it with determining whether the appellant was at risk of persecution or significant harm if returned because it did not explain when the cases of abduction and torture referred to in the report had occurred or the circumstances in which they had occurred. The IAA therefore found that the UNCAT report was expressed at too high a degree of generality to assist it in resolving the appellant’s particular claims to fear harm if returned on the ground of imputed political opinion. As the primary judge held:

29. The UNCAT Report did not address the applicant’s personalised claims. At its highest, it contained information capable of supporting findings that detention and torture of suspected LTTE supporters had occurred in Sri Lanka. The lack of particularity or context in the UNCAT Report meant that there was nothing in it to link it to the applicant’s circumstances or history. …

25    On the other hand, the DFAT Report directly addressed the appellant’s claims that he faced societal discrimination and harm by virtue of his Tamil ethnicity, being an immutable characteristic possessed by him in common with others. In other words, as the primary judge held, the DFAT Report “spoke directly to the applicant’s circumstances as a Tamil person who had left Sri Lanka unlawfully and the generalised claims that were said to arise from these matters” (FCC reasons at [30(a)]; emphasis added).

26    As such, the two reports were treated differently by the IAA because they were largely directed towards addressing different aspects of the appellant’s claims. It follows that the different weight given to the two reports by the IAA does not suggest that the IAA has approached the reports inconsistently, let alone that the IAA’s decision was irrational, illogical or otherwise affected by jurisdictional error. Ultimately, while it is understandable that the appellant may disagree with the IAA’s decision, his disagreement relates to the weight given by the IAA to the two reports which is a matter for the IAA, and not for a court, to decide: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41 (Mason J); Federal Commissioner of Taxation v Primary Health Care Ltd [2017] FCAFC 131; (2017) 252 FCR 496 at [21] (the Court).

4.    CONCLUSION

27    For these reasons, the appeal must be dismissed and the appellant having been unsuccessful in his appeal, must pay the first respondent’s costs as agreed or assessed.

Associate:

Dated:    13 March 2020