Federal Court of Australia

AML18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 28

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

BACKGROUND

1    The appellant is a Sri Lankan national of Tamil ethnicity who arrived in Australia as an unauthorised maritime arrival on 10 June 2013. On 14 March 2017, the appellant applied for a Safe Haven Enterprise visa, pursuant to an invitation made by the first respondent (the Minister). On 31 May 2017, a delegate of the Minister refused to grant the visa, having found that the appellant did not meet the criteria for protection.

2    Pursuant to s 473CA of the Migration Act 1958 (Cth), the Minister was required to, and did, refer the delegate’s refusal decision to the second respondent (the Authority). Subsequently, on 3 August 2017 the Authority affirmed the delegate’s decision to refuse to grant the visa. The appellant sought judicial review of that decision.

3    On 15 November 2017, the Federal Circuit Court of Australia determined by consent that the Authority’s (purported) decision was affected by jurisdictional error insofar as the Authority misconstrued or misapplied the term ‘exceptional circumstances’ in s 473DD of the Migration Act. Consequently, the Authority’s first decision was quashed, and the matter was remitted to the Authority for redetermination according to law.

4    On 8 January 2018, the Authority again affirmed the delegate’s decision to refuse to grant the visa. The appellant sought judicial review of that decision. On 10 March 2020, the Federal Circuit Court reserved its decision.

5    On 13 March 2020, the Federal Circuit Court published its judgment and relevantly ordered that the application for judicial review be dismissed: AML18 v Minister for Immigration & Anor [2020] FCCA 525

6    The appellant appeals from the decision of the primary judge on a single ground. That ground contends (verbatim):

The Primary Judge didn’t adequately examine the evident that was placed there by didn’t exercise the Court’s proper Jurisdiction.

7    The appellant filed no submissions in support of the appeal.

IN THE AUTHORITY

8    The grounds upon which the appellant contended to fear harm were said by the primary judge to be (at [8]):

… In his statement of claims the applicant summarised his claims for protection as follows:

In summary, I fear harm throughout the whole of Sri Lanka including constant harassment, physical abuse and murder at the hands of the EPDP and CID on the basis of my ethnicity and suspected involvement with the political group LTTE during the Sri lankan civil war. I have personally been subject to physical abuse and received countless death threats by my feared persecutors. I cannot rely on the protection of the Sri lankan state and cannot safely relocate anywhere else in Sri Lanka

9    In addition to that claim, during an interview before the delegate in relation to the visa application, the appellant claimed that he was harassed by the Angeyan group, who had asked him to assist in their criminal activities.

10    In support of his claims to fear harm, the appellant provided the following documents and sources of information to the Minister’s delegate:

(a)    an unsigned statement of the appellant that accompanied the visa application;

(b)    identity information;

(c)    particulars of the appellant’s family and educational history;

(d)    news articles concerning various incidents of harm or violence said to have occurred in Sri Lanka; and

(e)    on 16 May 2017, the appellant attended an interview before the delegate in relation to his visa application.

11    The Authority considered that information and provided an accurate summary of the appellant’s particularised claims at [17] of its reasons.

12    In addition to this information, which was provided to and considered by the Authority, the appellant sought to provide ‘new information’ to the Authority, as that term is defined by s 473DC(1) of the Migration Act.

13    That information comprised:

(a)    undated submissions received by the Authority on 21 June 2017 and 29 December 2017;

(b)    a ‘confirmation of learning’ said to have been provided by an educational institution that confirmed or advised the appellant had been a student in Sri Lanka between 1997 and 2002;

(c)    a statutory declaration made by the appellant on 20 June 2017;

(d)    a photograph of the appellant’s severed finger;

(e)    an untranslated identity card; and

(f)    general country information about the human rights situation in Sri Lanka.

14    The Authority found that parts of the appellant’s submissions addressed the delegate’s decision and findings, and the first Federal Circuit Court decision remitting the matter back to the Authority. The Authority was satisfied that those parts of the submissions did not contain new information, but rather contained argument, so that it was open to have regard to those parts of the submissions.

15    As to the balance of the information, however, the Authority correctly identified that it was ‘new information’. Accordingly, as noted by the primary judge (at [17]-[36]), unless the Authority was satisfied the conditions prescribed by s 473DD of the Migration Act applied to that information, the Authority could not have regard to, or consider, that information for the purposes of undertaking its review.

16    The Authority assessed the new information and determined, with the exception of certain country information which had come into existence after the delegate had made their decision, that the requirements of s 473DD of the Migration Act were not satisfied.

17    Ultimately, the Authority was not satisfied that the appellant was in need of protection and affirmed the delegate’s decision.

IN THE FEDERAL CIRCUIT COURT

18    On the review application in the Federal Circuit Court, the appellant advanced three grounds. They were literally as follows:

1.    Jurisdictional error

2.    Bias based on conscious or unconscious prejudice by ignoring relevant materials.

3.    Identifying a wrong issue on a wrong question.

19    The appellant filed three affidavits before the Federal Circuit Court. The relevant contents of those affidavits are set out by the primary judge (at [38], [39] and [76]), where his Honour said:

38.    The affidavit of the applicant affirmed 1 February 2018 relevantly states:

…

2.    In an order given by Judge Lucev, dated the 15th of November 2017 a writ of mandamus stated specifically with reference to judgments given that my case was not examined within the term “exceptional circumstances” as stated in the Migration Act 1958 sections 437 DD. The case number was DTI17, and the file number PEG450/2017.

3.    I submit that this direction was not properly examined in the decision handed down by the Immigration Assessment Authority handed down on the 8th of January 2018.

4.    I have a well-founded fear to return to Sri Lanka due to my ethnicity, social grouping as coming from the fishing caste and my perceived connections with the LTTE.

(Without alteration)

39.    The affidavit of the applicant affirmed 13 May 2018 contained as follows:

2.    I present my case without the assistance of a lawyer. .

3.    I am a Tamil whose home is situated within the Northern Province of Sri Lanka where there was a civil war lead by the LTTE for an independent Sri Lankan Tamil State.

4.    As seen in the records my family and I were subject to harassment by the Sri Lankan armed forces on the grounds that we had connections with the LTTE.

5.    The armed forces of Sri Lanka have tremendous power under the Prevention of Terrorism and I am sure that if I return to Sri Lanka I will be arrested, detained by the armed forces without an immediate recourse to the courts of law.

6.    The UNHCR is presently investigating allegations of human rights abuses caused by the Sri Lankan armed forces on Sri Lankan Tamils perceived to have had connections with the LTTE.

7.    I have therefore a well-founded fear of retuning to Sri Lanka and seek protection in Australia under the Migration Act 1958.

(Without alteration)

…

76.    Annexure I states as follows:

2.     There was jurisdictional error when the provisions of the Prevention of Terrorism Act and regulations framed under the Public Security Act of Sri Lanka was not examined in depth as it relates to the protection at present and in the past of Tamils like me living in the North of Sri Lanka.

3.     The LTTE is banned in Sri Lanka as a terrorist group and persons perceived to have and had connections with them are arrested and detained by the arm forces acting under the provisions of the Prevention of Terrorism Act.

4.     As I fall into this category I have a fear that I will be arrested and detained if I return to Sri Lanka.

5.     The current President of Sri Lanka has had a bad record of committing human right abuses against the Tamils of Sri Lanka living in the North and East of the country.

6.     I therefore have a well founded fear of returning to Sri Lanka.

(Without alteration)

20    Having observed that the appellant appeared in person and the unparticularised nature of the appellant’s grounds, the primary judge provided an explanation as to the nature of judicial review and invited the appellant to identify where he thought the relevant error may have occurred. Despite that invitation, the appellant did not identify a relevant error and instead directed his submissions to the merits of the Authority’s decision (at [41]-[46]).

21    As the primary judge correctly found (at [44]-[46]), the appellant’s submissions or contentions as to the merits of the Authority’s decision were not reviewable.

22    A comprehensive overview of the Authority’s decision was set out by the primary judge (at [26]-[36]), where his Honour said:

26.    At [17], the [Authority] summarised the applicant’s claims.

27.    The [Authority] accepted that the applicant was a Tamil Sri Lankan from the Northern Province, that he was displaced between 1995 and 2002 and lived in an area controlled by the Liberation Tigers of Tamil Eelam (“LTTE”) and that he travelled to Qatar in 2007 (at [20]-[22]).

28.    The [Authority] placed significant weight on the applicant’s ability to travel to and from Sri Lanka in 2007/2008 and to depart Colombo in 2013. This indicated to the [Authority] that the applicant did not have a profile that attracted the adverse attention of authorities. The [Authority] accepted that it was plausible that the applicant was questioned about whether he had an LTTE connection and that he was taunted by the Criminal Investigation Department (“CID”) with threats of detention. However, the [Authority] placed significant weight on the applicant’s account that the threats of detention did not eventuate. It noted that the applicant was able to live and work openly in 2002 and that after returning from abroad in 2008 he was able to open a business. For these reasons the [Authority] was not satisfied that the applicant was imputed with an LTTE profile (at [23]).

29.    The [Authority] accepted that the applicant was the subject of extortion demands that commenced in mid-2012. However, the [Authority] was not convinced that the applicant was being visited every day at his shop and threatened. The applicant continued to live at home and open his shop for several months until he left in May 2013. The [Authority] accepted that it was plausible that the CID and Eelam People’s Democratic Party (“EPDP”) passed the shop regularly (on a daily basis) and made demands. However, the [Authority] was not satisfied that this harassment was due to any suspicion of the applicant’s connection to the LTTE (at [24]).

30.    The [Authority] had concerns about the applicant’s claim that he was harassed by the Angeyan Group. However, the [Authority] found that, even if the claim was accepted, the applicant did not come to harm as a result of refusing to assist the group (at [25]).

31.    The [Authority] accepted that the applicant’s experiences in 2012 would have been disturbing. However, the [Authority] took into consideration a wide range of country information that demonstrated that the security situation has improved significantly since the applicant’s departure and the change in government in 2015 (at [26]-[31]).

32.    The [Authority] referred to country information regarding human rights abuses in 2015 against LTTE sympathisers and the continued use of the Prevention of Terrorism Act. The [Authority] was not satisfied that the applicant had a profile of a LTTE sympathiser or a profile that would attract adverse attention (at [29]).

33.    The country information demonstrated that there had been a demise in the EPDP. It also indicated that the Angeyan Group was aligned with the former government which is no longer in power. The [Authority], having accepted that the applicant may have been visited by the CID and EPDP, found that this was not because the applicant was of adverse interest. Rather, this evidenced routine monitoring at the time. The [Authority] was thus not satisfied that the applicant would face harm in the foreseeable future from these groups (at [32]–[34]).

34.    The [Authority] found that, even if the applicant’s shop had closed, he could choose to reopen his shop (at [35]). The [Authority] also considered whether there was any risk of harm as a result of the applicant having to return on temporary travel documents (as he no longer had a passport). The [Authority] found that any processing that the applicant was required to undertake would not cause him any harm (at [36]).

35.    Referring to country information, the [Authority] found that there was no evidence that the applicant would attract adverse attention in Sri Lanka for being a failed asylum seeker (at [37]). The risk of mistreatment for returnees was seen as low. Hence, it was concluded that the applicant did not face a real risk of being subjected to mistreatment as a returnee (at [43]).

36.    Taking into account its various findings, the [Authority] was not satisfied that the applicant engaged Australia’s protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act (at [39] and [44]).

23    Dealing with each of the three grounds pressed by the appellant in turn, (at [47]-[69]), the primary judge did not identify any reviewable errors and accordingly dismissed the application.

CONSIDERATION

24    As set out above, in this Court the appellant presses a single ground of appeal literally as follows:

The Primary Judge didn’t adequately examine the evident that was placed there by didn’t exercise the Court’s proper Jurisdiction.

25    In a lengthy and careful decision, the primary judge undertook a review of the Authority’s decision as against the three stated grounds. That review was comprehensive and detailed. It correctly stated the applicable law and did not fail to consider the available evidence.

26    In particular, the primary judge considered whether the Authority had, on this occasion, correctly applied s 473DD of the Migration Act in assessing whether new information could be considered. His Honour undertook a detailed review of the Authority’s rulings on each piece of new information (at [49]-[59]) and noted specifically at [52] that ‘the [Authority] did not fall into the same error as it did in relation to its previous decision’. I am satisfied that the Authority correctly applied s 473DD; its approach on this occasion accords with the approach recently confirmed by the High Court in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 (at [10]-[13]).

27    In addition to considering the appellant’s grounds of review, the primary judge also had regard to various affidavits that the appellant put before the Federal Circuit Court and, where appropriate, considered whether the matters raised had been considered by the Authority (at [70]-[83]). In other instances, however, the primary judge found that the affidavit material was directed to the merits of the Authority’s decision, or contained information which post-dated the Authority’s decision, and was therefore not a matter that could be considered as part of a judicial review application.

28    At the hearing before me, the appellant, who was assisted by an interpreter, stressed his fears of the dangers he would face if returned to Sri Lanka and complained that he had been disbelieved. Despite explaining to him that it was necessary for him to demonstrate an error of law, he simply pointed to the error on the part of the primary judge in not concluding that the Authority was incorrect.

29    The task for the Federal Circuit Court was to consider whether the decision of the Authority was tainted by reviewable jurisdictional error. It is doubtful whether the materials provided to it by the appellant focussed in any respects on that task. Essentially, the appellant sought merits review as he did on this appeal. The materials provided by the appellant to the Federal Circuit Court were nonetheless closely examined and considered, whether or not they were relevant to jurisdictional error.

CONCLUSION

30    The primary judge did not fail to consider any of the material before him. The appellant’s ground is not established. The appeal must be dismissed with costs.

Associate:

Dated:    29 January 2021