Federal Court of Australia

DWT16 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 889

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

YATES J:

Introduction

1    The appellant appeals from a judgment of the Federal Circuit Court of Australia (the Federal Circuit Court) given on 16 September 2019, by which the Federal Circuit Court dismissed the appellant’s application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (the Authority). The Authority had carried out a review under Pt 7AA of the Migration Act 1958 (Cth) (the Act) of a decision of a delegate of the first respondent, then the Minister for Immigration and Border Protection (the Minister) not to grant the appellant a Safe Haven Enterprise visa. The Authority affirmed the decision under review.

2    The sole ground of appeal, as expressed in the notice of appeal filed on 27 September 2019, is:

I believe the IAA decision a legal error. I am appealing against the entire decision made by the FCC judge.

3    The appellant appeared at the hearing of the appeal without legal representation, although he had been legally represented in the Federal Circuit Court. He was assisted in the appeal by an interpreter.

The appellant’s claims

4    The appellant is a citizen of Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 10 October 2012.

5    The appellant claims to fear harm, if returned to Sri Lanka, because of his ethnicity as a Tamil, in particular as a young male from the Eastern Province of Sri Lanka.

6    He also claims to fear harm from the Sri Lankan authorities, including from the paramilitary Karuna Group, on the basis of an imputed political opinion that he is a member or supporter of the Liberation Tigers of Tamil Eelam (LTTE), in opposition to the state of Sri Lanka, for reasons which include the following:

(a)    his father was a known LTTE member from 1987 to 1991, after which he was held in detention for approximately 1.5 years;

(b)    after being released from detention his father was given a government role as a social worker, and to this day continues to be monitored by the Criminal Investigation Department (CID);

(c)    in around July 2006, the appellant was found carrying explosives through a security checkpoint, and was detained for a period of three days (the 2006 incident);

(d)    between 2009 and 2011, he experienced a total of four attempted abductions (the abduction claims); and

(e)    he has been absent from Sri Lanka, and present in a Western country, since 2012.

7    Further, the appellant claims to fear harm on the basis of his membership of a particular social group, namely failed asylum seekers returning from Australia to Sri Lanka.

8    As to the claims relating to his father, the Authority said:

10.     The applicant claimed in his application that in 2015 his father revealed to him that he had earlier links to the LTTE. He claimed that his father told him he would secretly supply information and coordinate food supplies for the LTTE and did so for several years. His father was captured and jailed for one and a half years. He was later released by public pardon, and he was entered into a system of rehabilitation for ex-LTTE members. A document dated 25 February 1993 has been provided as corroboration of this. I note it refers to a charge under the Sri Lankan Prevention of Terrorism Act and the detention of the applicant’s father for three months. In relation to the discrepancy of the period of detention, the applicant explained that his father was transferred many times and only in the last camp was he given a letter which referred to a detention of three months. No reference to these claims is made in his earlier evidence (which pre-dated 2015 when he claims his father first told him about these events), however the applicant did indicate that his father worked in government during the arrival interview.

11.     The applicant gave evidence at the interview that he did not know many details of his father’s claimed detention and involvement with the LTTE, apart from indicating that he undertook some training and provided food. The applicant did not know whether his father supported the LTTE voluntarily or not.

12.     I have some reservations about these claims given the lateness of this evidence, but I am prepared to accept that his father had some involvement with the LTTE and that he was jailed for a period in or around 1993 and then released. I accept that he may have also gone to rehabilitation. The applicant did not know the depth and extent of his father’s involvement with the LTTE, but the information before me indicates that his role was in the form of sharing information and providing material support in the form of food, and I find it was not combat or otherwise high level.

13.     I am satisfied that apart from some monitoring by the authorities (CID), which was common in conflict areas, his father has not been interfered with in the intervening years, or faced any other ongoing consequences. In fact on the applicant’s evidence his father has had a long career in the public service, spanning around 20 years. This strongly indicates to me that the applicant’s father is no longer seen as a security threat or a person with a profile of an LTTE combatant, member, cadre, supporter or otherwise actively involved or supportive of the LTTE in a way that the country information indicates may put him at risk from the authorities. For the same reasons, I do not accept that the applicant or his other family members are in any way at risk from the Sri Lankan authorities on the basis of his father’s profile or past history.

9    In relation to the 2006 incident, the appellant claims that, when he was nine or ten years old, while on his way to school, an older friend offered him chocolates and asked him to deliver a parcel to a man at a nearby bus stop. The appellant agreed to do so. The appellant was stopped by the Sri Lankan authorities at a checkpoint along the way to the bus stop, where it was found that he was transporting explosives. He claims that he was detained for three days, during which he was harshly interrogated and beaten. He claims that, after he was released, he decided to live with his aunt because of the distress he had caused his family. He claims that he was mocked, and ostracised from his friendship circle because of the incident.

10    After some consideration, the Authority accepted that the 2006 incident had occurred. However, it did not accept that it gave the appellant a security profile with the Sri Lankan authorities. The Authority said:

18.     The applicant was involved in a serious security incident, and punished severely for it, however he was also nine or ten years old, in his school uniform, and was able to provide a plausible account of how he was taken advantage of by an older male. A local teacher and a TNA official (at a time when the TNA had not yet achieved the prominence it has now) were able to secure his release notwithstanding the seriousness of the security incident. I find it implausible that if the applicant was seriously considered by the Sri Lankan authorities to have been a young LTTE member or combatant and that he was willingly involved in the transport of explosives, that they would have been able to secure his release after only three days. Moreover, if he did remain a person of interest, I am satisfied that he would have been subject to formal monitoring by the authorities.

19.     On the applicant’s oral evidence at the interview, he said the authorities warned him to be careful, but beyond that he claimed not to have ongoing issues with the authorities because of this incident. The matter was not reported in the media, he claims due to the successful negotiation of the TNA official and his teacher, who asked the authorities to think about his future. The applicant had issues with his family and friendship circle, but he was able to move to his aunt’s house and continue studying and stay at school until year 11, including being active in a cricket team.

20.     I note, and agree, with the delegate’s observations that he would have been around 11 at the time the LTTE was ousted from his home province, and that he was 13 at the end of the war in 2009. While I accept that children were active in the conflict, and the submissions made by the representative about young child combatants, I am also satisfied that the applicant was not otherwise involved with the LTTE, nor is it likely he would be imputed to have been given his young age, his continued presence at school, and his place of residence (in a government controlled area) during the last years of the conflict.

21.    I accept the 2006 incident occurred, but I do not accept that any further issues with the Sri Lankan authorities flowed to him from that incident. I accept the incident caused him social and familial problems, but I do not accept that he had, or has, any continuing security profile from that incident, nor is there any other basis to impute him with such a profile. Instead, I find that the applicant would be seen as one of many Tamils, including Tamil children, living in former conflict areas and who were forced to provide, or in the applicant’s case unwittingly provide, low level material support to the LTTE.

(Footnotes omitted.)

11    In relation to the abduction claims, the appellant claims that, between 2009 and 2011, unknown masked men in a van attempted to abduct him. The appellant believes that, as a result of his father’s history, a file has been created against him, labelling him as an LTTE member or supporter, and that this is the reason for these incidents.

12    The Authority considered the abduction claims in some considerable detail over a number of paragraphs in its Decision Record: DR [22] – [38]. It accepted that the abduction attempts occurred, but was not satisfied that the appellant was targeted for any political or security reason associated with his or his father’s issues in the past. Further, the Authority was not satisfied that there was a real chance of the appellant being abducted or kidnapped by Sri Lankan authorities, ex-paramilitary or any other person or group, should he return to Sri Lanka.

13    As to all the appellant’s claims based on imputed political opinion, the Authority found:

39.     Other than his unwitting involvement as a ten year old in an incident in 2006, the applicant has not claimed to have been involved with or otherwise supported the LTTE, or acted against the country of Sri Lanka or its government. I am satisfied that he has no actual or political opinion that is pro-LTTE (pro separatist) or against the government or country of Sri Lanka.

40.     Both UNHCR and DFAT discuss a range of profile groups that remain at risk of serious harm in Sri Lanka (such as former combatants and members of the LTTE). There are indicators that those profile groups are becoming more discrete. The UK Home Office advised in 2016 that even persons who evidence past membership or connection to the LTTE are unlikely to be owed protection unless they have (or are perceived to have) a significant role in relation to post-conflict Tamil separatism or appear on a ‘stop’ list at the airport. However, the report acknowledges that there is evidence that the security forces continue [to] detain individuals who they suspect of having LTTE connections and each case should be considered on the evidence provided. Reports submitted by the applicant provide some indications that certain groups remain at risk.

41.     While the security situation for those with LTTE or family connections has improved, I accept that there continues to be reports of persons suspected of LTTE involvement being at risk of serious harm in Sri Lanka. On the information before me, I find that the applicant has no actual political opinion against the government (or pro-LTTE). In the assessment above, I have found that the Sri Lankan authorities would not impute the applicant with any political or security profile on return to Sri Lanka, even when having regard to his and his father’s history. For the same reasons, I am also satisfied that the applicant would not be imputed with a political opinion or security profile against the government of Sri Lanka, or be considered to be a member or supporter of the LTTE, or otherwise be imputed to have a pro-LTTE (pro-separatist) opinion.

42.     I find that he has no security or political opinion or profile on this basis, and I am satisfied that he would not face a real risk or chance of harm for these reasons if he returns to Sri Lanka.

(Footnotes omitted.)

14    In relation to the appellant’s claim based on his ethnicity, the Authority accepted that he is a Tamil from a village in the east of Sri Lanka. The Authority also accepted that there were credible risks to Tamils, and Tamil males from conflict areas, during and in the immediate aftermath of the Sri Lankan civil war.

15    While the Authority also accepted that the appellant and his father have suffered harm in the past, and that certain high profile groups remain at some level of risk in Sri Lanka, it concluded that, based on country information, the situation in Sri Lanka for Tamils has improved considerably, including for Tamil males from the east. The Authority found that the appellant would not face a real chance of being seriously harmed for reasons of his ethnicity and/or home area if he were to return to Sri Lanka.

16    In relation to the appellant’s claim to fear harm as a failed asylum seeker, the Authority was satisfied that the appellant departed Sri Lanka illegally and that there was a possibility that he would be assessed by the Sri Lankan authorities as having sought asylum in Australia. The Authority accepted that, should he return to Sri Lanka, the appellant might be questioned as part of an airport screening process, which could involve an interview, and contact with the police in his home area, his family and/or neighbours. There would also be checks on criminal and court records. However, the Authority was satisfied that the appellant had no security or political profile that would put him at risk during such a screening process.

17    The Authority also concluded that, as the appellant had a low profile, he would not be subject to surveillance or monitoring on return, and would not be seen as a threat to the State.

18    The Authority found that there was not a real chance that the appellant would be harmed or mistreated because he was a failed asylum seeker, a returnee, or someone who left Sri Lanka illegally.

19    However, the Authority did accept that, as the appellant had left Sri Lanka illegally, in breach of the Immigrants and Emigrants Act 1949 (Sri Lanka) (the I&E Act), there was a real chance that, if he were to return to Sri Lanka, he would be charged and fined under that law. The Authority found that, if the appellant were to plead guilty, it was likely that he would be bailed on a personal surety. The Authority was satisfied that there was no prospect of the appellant being given a custodial sentence. The Authority concluded that any fine imposed, or the requirement for any bail, surety or guarantee, would not constitute serious harm.

20    While satisfied that the appellant would not be given any custodial sentence, the Authority was alive to the possibility that he may be detained, nonetheless, for several days while awaiting an opportunity to appear before a magistrate. However, the Authority found this possibility to be remote. Given that prison conditions in Sri Lanka do not meet international standards, the Authority considered whether, should such detention occur, it would constitute serious harm. It reached the following findings:

59.     I find that the conditions in Sri Lankan prisons are poor, but I am satisfied this is due to economic reasons, and not a result of any systematic or deliberate conduct by the Sri Lankan authorities. The country information before me indicates that any such detention would only continue until the applicant was given an opportunity to appear before a magistrate, and would likely be very brief.

60.     In terms of his personal circumstances, the applicant is a young male. He has some education and while I accept he has had some difficult past experiences in Sri Lanka, I am not satisfied he has any vulnerabilities or health concerns that preclude the possibility of a brief detention. In all the circumstances, I find that any questioning and detention the applicant may experience would be relatively brief and would not constitute serious harm as non-exhaustively defined in the Act.

61.     Considered cumulatively, I am satisfied that any harm the applicant may face on return to Sri Lanka on the basis of his illegal departure, in terms of any questioning, fine or detention, would not constitute serious harm.

21    Further, the Authority was satisfied that the provisions and penalties of the I&E Act were laws of general application, and not discriminatory in their terms. The Authority was also satisfied that these laws were not applied in a discriminatory manner or selectively enforced. Therefore, to the extent that the appellant might be fined, detained, or questioned under the I&E Act, the Authority was satisfied that this would not constitute serious harm, and would be the exercise of laws of general application that apply to all Sri Lankans equally.

22    Overall, the Authority concluded:

64.     In view of the evidence and information before me, I find that there is no real chance of the applicant facing serious harm in the form of kidnapping or abduction from the Sri Lankan authorities, the Karuna group or any other group or person. Whether considered separately or cumulatively, I am also satisfied that the applicant will not face a real chance of serious harm on return to Sri Lanka on the basis of any actual or imputed political opinion or security profile, whether directly or through his father, on the basis of his ethnicity as a Tamil or for being a young Tamil male from the east, or as a result of departing Sri Lanka illegally and seeking asylum in Australia.

23    The Authority found that the appellant did not meet the requirements of the definition of a “refugee” in s 5H(1) of the Act, and therefore did not meet the requirements of s 36(2)(a) for a protection visa. The Authority also found that the appellant did not meet the requirements of s 36(2)(aa) of the Act as there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, there was a real risk that he would suffer significant harm.

The application for judicial review

24    The application for judicial review contained three grounds. However, at the hearing, only the first and third grounds were advanced. The second ground was abandoned.

25    As particularised, the first ground was that the Authority failed to assess the appellant’s father’s profile against the “risk profiles” listed in a report from the Department of Foreign Affairs and Trade dated 18 December 2015.

26    The third ground was that the Authority failed to consider that the appellant may not have been able to effectively present an essential integer of his claim concerning the 2006 incident because he was a “vulnerable person” at the time.

27    The particulars of the third ground are obscure. Paradoxically, they seem to suggest that, contrary to the appellant’s own claims and representations, he did not, in fact, transport explosives, and was not harshly interrogated and beaten, or detained for three days. The particulars allude to the possibility that, in relation to the 2006 incident, the appellant experienced “something other” than being interrogated and beaten, without actually stating what that “something other” might have been.

28    The primary judge was not satisfied that either ground had been established. In his oral reasons, the primary judge summarised the submissions that were advanced on behalf of the appellant in respect of each ground.

29    The oral submissions in respect of the first ground appear to have been wide-ranging, extending well beyond the particular error alleged. The primary judge was taken to material which included a statement made by the appellant on 26 February 2016, and written submissions advanced in a letter dated 2 August 2016 from a migration agent, covering all the appellant’s claims to protection.

30    However, as articulated in the appellant’s written submissions before the primary judge, the particular error relied on was that, by not descending to the detail of the risk profiles outlined in a UNHCR report dated 21 December 2012—which was referenced by the Authority in DR [40] (quoted at [13] above)—the Authority did not properly “consider” the risk profiles within which the appellant fell.

31    It should be noted immediately that the report referred to in the written submissions is not the report particularised in the first ground of review. Further, the written submissions were directed to the appellant’s risk profiles as opposed to the appellant’s father’s risk profiles. It would seem, therefore, that the case presented to the primary judge in respect of the first ground of review was not the case that was originally pleaded.

32    The primary judge found that it was apparent from its reasons that the Authority had taken into account the risk profiles to which it had referred and that the Authority had not failed to deal with any substantially and clearly articulated argument that had been made to it. Thus, the primary judge was satisfied that no jurisdictional error had been established by reference to the first ground of review.

33    As to the third ground of review, the primary judge noted that the appellant relied, once again, on his written submissions. The written submissions contended that the Authority erred in failing to provide the appellant with the time, support, and opportunity to fully disclose information in relation to the 2006 incident, which the written submissions described as a “jarring event”.

34    The primary judge considered this submission to be no more than an attempt at merits review. His Honour noted the nature of a review under Pt 7AA of the Act and the “primary rule” that the Authority must consider the review material provided to it under s 473CB of the Act, without accepting or requesting new information: see s 473DB(1). The primary judge referred to s 5AAA of the Act which stipulates that, in relation to protection claims, it is the responsibility of the non-citizen to specify all the particulars of his or her claim, and to provide sufficient evidence to establish that claim. His Honour noted that there was nothing to suggest that an integer of the appellant’s claim in relation to the 2006 incident had not been considered by the Authority, and that no new issue was raised before the Authority that warranted the Authority considering the exercise of its power under s 473DC to get new information. The primary judge was satisfied that no jurisdictional error had been established by reference to the third ground of review.

The appeal

35    As I have noted, the notice of appeal contains one ground. Apart from asserting error on the part of the Authority, this ground does not identify any appealable error on the part of the primary judge in reaching his findings and conclusion that no jurisdictional error was established in relation to the Authority’s decision. I record that the appellant has not filed a written outline of submissions, as directed. Therefore, at the commencement of the appeal, the Court was none the wiser as to the alleged error in the judgment below.

36    At the hearing of the appeal, I explained to the appellant that it was necessary for him to establish error in the judgment under appeal and that it was not the function of this Court to undertake its own review of the merits of his claims to protection. Nevertheless, when invited to address the Court on why there was error in the judgment under appeal, the appellant stated that he could not accept that there would be no problems for him in Sri Lanka, and repeated a number of the facts (all of which had been dealt with by the Authority) which he said entitled him to Australia’s protection. He submitted that the Authority failed to understand these facts. The evident intent of this submission was to invite this Court to embark upon the task of fact-finding in relation to his claims. I explained to the appellant that the Court would not do this.

37    In the course of his submissions, the appellant contended that he had not been given proper reasons as to why his claim had been rejected. This was not a ground of judicial review before the primary judge. Leaving aside that difficulty, this contention is without merit because the Authority gave comprehensive and detailed reasons for the findings and conclusions to which it came.

38    The appellant said that he had been affected mentally in dealing with his claims for protection and said that he was unable to place all the facts before the Court. It is possible that, by this submission, the appellant was seeking to contend that he had been unable to place all the facts before the Authority or, perhaps, the Federal Circuit Court. So far as I can see, the appellant has not made this claim before. In any event, it does not establish error in the judgment under appeal, remembering that the appellant was legally represented in that proceeding.

39    I have considered a transcript of the primary judge’s reasons, and the material that was placed before the primary judge, including the written submissions that were advanced on the appellant’s behalf. I have been assisted in my consideration of these materials by the Minister’s written outline of submissions. I see no error in the primary judge’s ultimate conclusion that the case presented by the appellant under the first and third grounds of review did not establish jurisdictional error in the Authority’s decision.

Disposition

40    For these reasons, the appeal will be dismissed. The appellant must pay the Minister’s costs.

Associate:

Dated:    1 August 2022