Federal Court of Australia

DVJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 550

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent fixed in the sum of $2,905.28.

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

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1    By an amended notice of appeal dated 24 April 2022, the appellant appeals from a decision of a judge of the Federal Circuit Court of Australia delivered on 16 October 2019.

2    The appellant is a citizen of Sri Lanka. He arrived in Australia on 21 November 2012 as a so-called “unauthorised maritime arrival”, and applied for a Temporary Protection (Class XD) visa (TPV) in May 2016.

3    On 9 September 2016, a delegate of the first respondent (the Minister) refused to grant a TPV and the application was subsequently referred to the second respondent, the Immigration Assessment Authority (the IAA). The IAA affirmed the delegate’s decision on 16 November 2016.

4    The appellant claimed to have experienced a number of incidents in Sri Lanka before travelling to Australia. In summary, he claimed that:

(a)    he worked for a relative standing for election for the Tamil National Alliance (TNA) in 2012 for two days;

(b)    after the election, he was chased by a white van with unknown occupants;

(c)    a friend of the appellant’s had disappeared after being taken by a white van in 2008 and the appellant was scared the same thing might happen to him;

(d)    the appellant had been arrested in 2009 for having only a temporary ID card;

(e)    in 2010, he was beaten by plain clothed members of the Criminal Investigation Department (CID); and

(f)    he was adopted by a family with lighter skin than him, which has resulted in him being subjected to humiliating comments about his skin colour.

5    The IAA accepted that the following claimed incidents occurred prior to the appellant’s departure from Sri Lanka:

(a)    he was involved in two incidents in September and October 2012 by people opposed to the TNA;

(b)    a friend of his was abducted by a white van in 2008 and the friend’s whereabouts is unknown;

(c)    he was detained in 2009 and 2010 by the Sri Lankan authorities because he was Tamil;

(d)    he may have been subjected to instances of humiliating treatment on the basis of his skin colour; and

(e)    he left Sri Lanka illegally by boat and will be identified as a failed asylum seeker by the Sri Lankan authorities on return.

6    However, the IAA rejected the claim raised for the first time at the TPV interview that political opponents of his distant relative went looking for the appellant in his home village after the incident when he was chased by a white van. It also did not accept that he would now be of any interest to opponents of the TNA.

7    As to the claim that the appellant would face harm on return to Sri Lanka because of his past political involvement, the IAA concluded that the appellant did not have any kind of political profile and found that, in light of country information, he would not experience serious harm from either authorities or paramilitary groups because of his past work for a TNA candidate or if he decided to involve himself in TNA political activities in a similar way in the future. For the same reasons, the IAA found that the appellant would not experience significant harm.

8    The IAA also rejected the appellant’s claim that he would experience serious harm on return to Sri Lanka because of his Tamil ethnicity and an imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE), because country information demonstrated that significant changes had occurred for Tamils in the four years since the appellant departed Sri Lanka. For the same reasons, the IAA found that he would not experience significant harm.

9    In relation to the appellant’s claim that he feared humiliation because of his adoption and skin colour, the IAA found that, as hurtful and distressing such treatment may be, it did not amount to serious harm or significant harm.

10    The IAA also considered whether the appellant would face serious harm as a result of his illegal departure from Sri Lanka and his status as a failed asylum seeker. The IAA found that the appellant would not be subject to a custodial sentence but would be questioned and fined for illegally departing Sri Lanka, which it did not consider amounted to serious harm. It also found that, if the appellant were to be questioned and detained upon his return, he would not experience serious harm during this process (including if he is detained in prison). As to whether the appellant would experience significant harm, the IAA found that any acts or omissions of Sri Lankan officials in processing him would not be intended to cause harm that satisfies paragraphs 36(2A)(c), (d) and (e) of the Migration Act 1958 (Cth), or consist of the harm mentioned in paragraphs 36(2A)(a) and (b). Accordingly, the IAA found that the appellant did not satisfy either the refugee criterion or the complementary protection criterion.

11    Relevantly, for the purposes of this appeal, and because the challenge to the IAA’s reasons is that they are inadequate, it is necessary to set out the following specific paragraphs of them:

Tamil ethnicity/imputed political opinion

21.    The applicant has referred to two incidents, one in 2009 and one in 2010, where he claims he was arrested, detained and beaten. In his written claims he does not specifically state the incidents were related to his ethnicity. However, in his TPV interview, he stated that they were the types of problems faced by Tamils.

22.    In the 2009 incident, the applicant claimed he was arrested and detained for a day in Colombo because, when asked to produce his national identity card, he was only able to produce a temporary one because he was waiting for his new card. He claimed in his TPV interview that the police were checking everyone in the lodges and asking for their cards and that when he could only produce a temporary one, he was accused of lying and was arrested and released on bail around 6 that evening. In 2010 he claimed there was a further incident with the CID. In his TPV interview, he stated that the CID picked him up in Batticaloa town, took him to their camp and assaulted him because they suspected him of something. When the delegate asked him what they suspected him of, he stated that these are the problems faced by Tamils and that when they started assaulting him they asked whether he was LTTE or knew some of the LTTE’s bosses. The applicant stated that he did not have any problems after that.

23.    Country information confirms that in 2009 Tamils living in Colombo were required to register with the police and that requirement was applied in a discriminatory fashion exclusively to those of Tamil origin. As recently as 2015, there were reports that military intelligence and other security personnel in the east and north were responsible for the documented and undocumented detention of civilians accused of LTTE connections. Freedom from Torture (FFT) also documented cases of torture since the end of the war in 2009; almost all the cases FFT reviewed involved Tamils detained on suspicion of LTTE connections. Based on this country information, I accept that the applicant was detained in 2009 and 2010 by the Sri Lankan authorities for the reason that he was Tamil.

…

Illegal departure/failed asylum seeker

29.    The applicant claimed that if he returns to Sri Lanka, he may be arrested detained, interrogated, tortured and perhaps even killed because the CID believes he is a supporter and sympathiser of terrorist activities due to his involvement with the TNA. In his TPV interview, the applicant stated that on his return, the authorities will be expecting his arrival. I accept that the applicant left Sri Lanka illegally by boat and that, by the manner of his return, he will be identified as a failed asylum seeker by the Sri Lankan authorities.

…

33.    This country information indicates that those with real or perceived links to the LTTE are more at risk of being identified on return to Sri Lanka and singled out for possible mistreatment. As set out above, I am not satisfied that, with the exception of the two incidents in 2009 and 2010 which appear to have been isolated incidents which occurred either during or shortly after the war, the applicant has ever been imputed with LTTE or separatist sympathies. For that reason, I am not satisfied he will face any risk of harm on return to Sri Lanka either at the airport or in his home area of Batticaloa on the basis of any real or imputed link to the LTTE.

…

39.    I accept that the applicant will be considered a failed asylum seeker on his return and that an asylum seeker with actual or perceived links to the LTTE may be at risk of harm when processed at the airport. I have already found the applicant does not have such a profile. For these reasons, I am not satisfied the applicant will face a real chance of serious harm while being questioned and detained on his return in relation to either his illegal departure or that he will be returning as a failed asylum seeker from a western country.

(Footnotes omitted)

12    The appellant sought judicial review of the IAA’s decision in the Federal Circuit Court.

13    The primary judge dismissed the application. He gave ex tempore reasons, which are recorded in a document that, for reasons that are not clear, purports to be a draft of the primary judge’s reasons. See AB211–AB220. The primary judge relevantly found as follows:

26.    The applicant relies upon the further amended application which was the subject of a grant of leave and confirmed that ground 1 was no longer pressed.

27.    In relation to ground 2 the authority – or at least the applicant through his counsel, Mr Foster, submitted that the authority’s adverse findings in paragraph 33 and 39 were legally unreasonable and that inadequate reasons had been provided in support of the adverse finding in paragraph 33. In that regard Mr Foster focused upon the positive submissions that have been made by the authority in relation to the incidents in 2009 and 2010 as well as the country information referred to as to those with a real perceived link to the LTTE being at risk of harm.

28.    Mr Foster submitted that the authority’s reasons in paragraph 33 were in these circumstances legally unreasonable or illogical and/or wanting adequate reasons for the adverse finding in paragraph 33 and that the reasoning in paragraph 34 it was also legally unreasonable given the acceptance of the two incidents.

29.    The authority’s reasons must be read as a whole. The authority identified that after the 2009 and 2010 incidents the applicant had acknowledged that he did not have any problems after that. The authority also made an adverse finding referred to in paragraph 33 that the applicant had not, other than the two incidents, been ever imputed with the LTTE or separatists’ sympathies. The authority had also found the applicant’s political activity in 2012 was not one in respect of which the applicant faced a real chance of harm on return to Sri Lanka.

30.    The adverse finding in paragraph 33 that the authority was not satisfied that the applicant will face any risk of harm on return to Sri Lanka either at the airport or in his home area of Batticaloa on the basis of any real or imputed link to the LTTE. It cannot be said to lack an evident and intelligible justification in these circumstances. The evident justification is the absence of problems after the incidents in 2009 and 2010. The adverse finding in that regard was not legal unreasonable, illogical or irrational. Further, there is no inadequacy of reasons or failure to comply with section 473EA(1)(e) in respect of the adverse finding by the authority and it requires a statutory provision.

31.    Insofar as ground 2 also challenged the adverse finding made in paragraph 39 where the authority accepted the applicant will not face a real chance of serious harm while being questioned and detained on his return in relation to either illegal departure or that he will be returning as a failed asylum seeker from a western country. Mr Foster again contended that there was legal unreasonableness, illogicality or irrationality and contended that there were not sufficient reasons within the requirements of section 473EA.

32.    As identified earlier the authority’s reasons must be read as a whole and given no further problems faced by the applicant after 2009 and 2010 other than the limited 2012 political incident and the absence of a profile of a risk of harm of the code [sic] identified by the authority the adverse finding in paragraph 39 cannot be said to lack [an] evident and intelligent justification. The adverse finding was not legally unreasonable, illogical or irrational in these circumstances. Further, the authority provided reasons consistent with its obligation under section 473EA(1)(b) in respect of the adverse findings and there is no breach of that statutory obligation. No jurisdictional error is made out by ground 2.

33.    In relation to ground 3 Mr Foster acknowledged that this ground was, in substance, interdependent upon ground 2 and if ground 2 failed ground 3 could not succeed. Ground 3 was, in substance, a challenge to paragraph 39 and for reasons already given there is no legal unreasonableness in the adverse finding made in paragraph 39 or in the failure to comply with the statutory obligations in respect of reasons in relation to paragraph 39.

14    The judge made, among others, the following orders:

1.    …

2.    …

3.    The further amended application is dismissed.

4.    The applicant pay the first respondent’s costs fixed in the amount of $5,600.00.

5.    The transcript of the published oral reasons are to be released to any party or Court if they so request and the transcript of the published oral reasons will not be settled by the Court.

15    The appellant filed a notice of appeal in October 2019, but the appeal was not allocated to a judge pending the High Court’s decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6; (2021) 388 ALR 257, and the hearing and determination of two other single judge appeals following that decision, dealing with the topic of ex tempore reasons. As a result of each of those decisions, no issue arises on this appeal about the fact that the primary judge did not publish his reasons, but instead ordered that a transcript of his ex tempore reasons be provided to any party.

16    Mr G Foster of counsel, who appeared below, prepared and caused to be filed written submissions in support of the appeal. The grounds are the same grounds contended for below. The appellant was self-represented at the hearing this morning, and he appeared with the assistance of an interpreter.

17    The appellant’s amended notice of appeal, which as I say seeks to re-agitate the same grounds contended for below, was in these terms:

Ground 2:

1.    The Lower Court erred when it failed to find the IAA [at 39], in not being satisfied the applicant will face a real chance of serious harm when being questioned and detained on his return in relation to either his illegal departure or that he will be returning as a failed asylum seeker from a western country,

i.    breached S 473EA (1)(b) of the Migration Act by the IAA failing to give reasons as to why the IAA was not satisfied the applicant will face any risk of harm on return to Sri Lanka either at the airport or in his home area of Batticaloa on the basis of any real harm or imputed link to the LTTE, and / or

ii.    came to an unreasonable illogical or irrational decision in not so being satisfied.

Particulars

i.     [30], [31];

ii.    The Lower Court considered that the IAA’s lack of satisfaction the applicant will face any risk of harm on return to Sri Lanka either at the airport or in his home area of Batticaloa on the basis of real or imputed link to the LTTE ‘cannot be said to lack an evident and intelligible justification in these circumstances’ being a reference to the Lower Court’s summary at [29];

iii.    The IAA’s lack of satisfaction lacked an evident and intelligible justification since the IAA

a.    noted that country information indicated those with real or perceived links to the LTTE are more at risk of being identified on return to Sri Lanka and singled out for possible mistreatment (33]), accepted that the applicant will be considered a failed asylum seeker on his return and

b.    accepted that an asylum seeker with actual or perceived links to the LTTE may be at risk of harm when processed at the airport. ([39])

c.    accepted the applicant was imputed with LTTE or separatist sympathies on two occasions in 2009 and 2010. [33]

iv.    The IAA also failed to explain why the instances in 2009 and 2010, in which it was accepted the applicant was imputed with LTTE or separatist sympathies, did not place the applicant more at risk of being identified on return to Sri Lanka and singled out for possible mistreatment,

FCC Ground 3:

1.    The Lower Court erred when it failed to find the IAA [at 39], in failing to explain why the instances in 2009 and 2010 (in which it was accepted the applicant was imputed with LTTE or separatist sympathies) did not place the applicant more at risk of being identified on return to Sri Lanka and singled out for possible mistreatment, failed to properly consider the claim that he will face a risk of harm on return to Sri Lanka either at the airport or in his home area of Batticaloa on the basis of real or imputed link to the LTTE, such that the IAA thereby constructively failed to exercise its jurisdiction.

Particulars

i.     [33

(Errors in original)

18    In my view, there is no basis for the contention that the IAA failed to give adequate reasons for its conclusion that it was not satisfied that the appellant would face any risk of harm on return to Sri Lanka. Reading the reasons as a whole, as one must, the conclusion at [39] of the IAA’s reasons must be read together with the detailed and reasoned findings at [21]–[23] and [33]. In those paragraphs, and elsewhere, the IAA explains precisely why it concluded that, with the exception of two isolated incidents in 2009 and 2010, the appellant has never been imputed with LTTE or separatist sympathies. Having so found, the conclusion at [39] that because the appellant does not have an LTTE profile, he will not be at risk upon return to Sri Lanka because of actual or perceived links to the LTTE, follows inexorably. Accordingly, ground 2, which is the first ground relied on, must be dismissed.

19    As the primary judge recognised, the other ground, ground 3, does not add anything substantively different. It merely seeks to give a different legal characterisation to the alleged error in [39] of the IAA’s reasons. There was no “constructive failure to exercise jurisdiction”, because, as I have already said, the IAA explained why the appellant, as a failed asylum seeker, would not be at risk of relevant harm upon return to Sri Lanka.

20    The particulars in the amended notice of appeal also contain an allegation that the IAA’s reasons “lacked an evident and intelligible justification”. But as the plurality said in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [26]:

Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [(1986) 162 CLR 24 at 40], “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.

(Footnotes omitted)

21    In any event, there is no substance in the notion that the IAA’s reasons lacked such “justification”. On the contrary, the reasons of the IAA, read as a whole, disclose a clear and lucid path of reasoning. For those reasons, the appeal will be dismissed.

22    The Minister relied on an affidavit, affirmed today, of Ms Kerrie Pieri, a solicitor employed by MinterEllison, solicitors for the Minister (who appeared for the Minister this morning). For reasons explained in that affidavit, Ms Pieri estimated that the Minister is entitled to claim that the appellant is liable to pay, on a party/party basis, costs in the amount of $2,905.28. I accept that evidence and costs will be awarded accordingly.

Associate:

Dated:    12 May 2022