Federal Court of Australia

DQT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 917

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.

2.    The appellant be granted leave to rely on grounds 1 and 3 in the amended notice of appeal.

3.    The appellant be refused leave to add a further particular to ground 1 alleging a failure to consider the DFAT report as defined in the reasons for judgment published today.

4.    The appeal be dismissed.

5.    The appellant pay the first respondent’s costs of the appeal as agreed or taxed.

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

REASONS FOR JUDGMENT

JAGOT J:

1    This is an appeal from the Federal Circuit and Family Court of Australia (Division 2) against an order made by the primary judge dismissing the appellant’s application for review of a decision of the second respondent, the Immigration Assessment Authority which was made on 19 July 2017 and which affirmed the decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services And Multicultural Affairs refusing the grant to the appellant of a Safe Haven Enterprise (Subclass 790) Visa: DQT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 303.

2    The appellant was not legally represented before the Court below. The appellant was legally represented in this appeal.

3    In an amended notice of appeal the appellant seeks to raise two new grounds of challenge to the Authority’s decision, neither of which were raised before the primary judge. The appellant requires leave to do so. During the course of the hearing (and by a further amended notice of appeal filed after the hearing) the appellant sought to raise another particular to one of the grounds which also requires leave. The Minister opposed the grant of leave including on the basis that the Minister could have called further evidence relevant to the issues now sought to be raised. As will be explained below, I accept this in respect of the further particular raised during the oral hearing. I do not accept it in relation to the new grounds in the amended notice of appeal. The consequence is that leave should be granted to the appellant to rely on the grounds in the amended notice of appeal, but not the further particular.

4    I appreciate that the effect of the grant of leave is to set the primary judge’s decision at naught. I accept that this means the hearing before the primary judge has been wasted irrespective of the outcome of the appeal. I accept that this is inconsistent with maintaining the distinction between first instance hearings and appeals. I accept that this is burdensome to the Minister and to the judicial system as a whole and that these burdens can be ameliorated only in part by leaving the costs orders against the appellant below undisturbed irrespective of the result on the appeal. This circumstance is all too familiar to appellate judges dealing with appeals in respect of decisions under the Migration Act 1958 (Cth). The difficulty is that against all of these genuine and important systemic and institutional concerns there is an individual, who did not have the benefit of legal representation, who claims to fear serious harm if he is returned to Sri Lanka and who has been refused the visa that will enable him to remain in Australia. In circumstances where the appeal can be resolved on the material that was before the Authority (but not before the Court below), it is difficult to conclude that it is not in the interests of justice to enable the appellant to raise these new grounds of review and to adduce the relevant evidence in support that was before the Authority.

5    The new grounds are related. They are that the Authority failed to consider country information that was before it and failed to exercise its jurisdiction in the circumstances (grounds 1 and 3 of the amended notice of appeal as articulated by the close of the hearing). Ground 2 in the amended notice of appeal, relating to the Authority’s alleged failure to set out the reasons for its decision, is not pressed.

6    As explained below, I am not persuaded that either ground is established.

7    It is apparent from its reasons that the Authority had before it a range of country information including: (a) Department of Foreign Affairs and Trade (DFAT), “Country Information Report – Sri Lanka” dated 18 December 2015 (the DFAT report), (b) UK Home Office, “Country Information and Guidance: Sri Lanka: Tamil Separatism” dated 28 August 2014 (the UK report), and (c) United Nations High Commissioner for Refugees (UNHCR), “Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka” dated 21 December 2012 (the UNHCR report).

8    The UNHCR report is referred to in the UK report at [2.2.39]. At [2.2.39] the UK report says:

UNHCR’s position regarding refused asylum seekers suggest that some sources have reported recent cases of former Sri Lankan (in particular Tamil) asylum-seekers who were allegedly detained and ill-treated or tortured after having been forcibly returned to Sri Lanka upon rejection of their asylum claims or who voluntarily returned to Sri Lanka.

There is no systematic monitoring after arrival in Sri Lanka of the treatment of Sri Lankans who were forcibly returned.

The UNHCR Eligibility guidelines, ‘Assessing the International Protection Needs of Asylum Seekers from Sri Lanka’, dated 21 December 2012, additionally refers to other risk categories.

9    The UNHCR report says at p 8 that:

Some sources have reported recent cases of former Sri Lankan (in particular Tamil) asylum-seekers who were allegedly detained and ill-treated or tortured after having been forcibly returned to Sri Lanka upon rejection of their asylum claims or who voluntarily returned to Sri Lanka. There is no systematic monitoring after arrival in Sri Lanka of the treatment of Sri Lankans who were forcibly returned.

10    A footnote to the first sentence of this paragraph, footnote 18, lists numerous sources. There is no suggestion that those source documents were before the Authority.

11    The appellant’s case involves a number of elements.

12    The first element is that the appellant clearly articulated a claim that he feared persecution if returned to Sri Lanka on the ground he would be a Tamil failed asylum seeker. I accept that the appellant clearly articulated this claim. However, he did so without referring to paragraph [2.2.39] of the UK report or p 8 of the UNHCR report.

13    The second element is that the UK report and UNHCR report were both before the Authority. This is not disputed.

14    The third element is that the Authority, in the circumstances, was bound to but did not weigh up the competing information before it about the risk to a Tamil failed asylum seeker returning to Sri Lanka, as the appellant would be if forced to return to Sri Lanka.

15    I do not accept this element of the appellant’s case. The case is not similar to Minister for Immigration and Border Protection v MZYTS and Another [2013] FCAFC 114; (2013) 230 FCR 431. In MZYTS, the applicant had made a specific post-hearing submission to the Refugee Review Tribunal about the risk of violence increasing in the applicant’s country of Zimbabwe. The Tribunal referred to that further submission having been made but did not engage with it in any way. The submission had provided detailed information about the increasing violence in Zimbabwe for both actual and perceived supporters of certain political groups including that of which the applicant was a member (as accepted by the Tribunal).

16    This is not such a case. The appellant in this case never referred to [2.2.39] of the UK report, p 8 of the UNHCR report, or footnote 18 of the UNHCR report in support of his claim that he was at risk of harm if returned to Sri Lanka as a Tamil failed asylum seeker. The appellant did not identify any actual or potential inconsistency in the country information, especially that in the DFAT report by reference to [2.2.39] of the UK report, p 8 of the UNHCR report, or footnote 18 of the UNHCR report. The appellant did not seek to place the material in footnote 18 to the UNHCR report before the Authority. The appellant did claim that he would face harm if returned to Sri Lanka as a Tamil failed asylum seeker, but did not do so by reference to any of the material on which he relies in this appeal. His was a general claim not linked in any way to [2.2.39] of the UK report, p 8 of the UNHCR report, or footnote 18 of the UNHCR report.

17    Moreover, this is in circumstances where the delegate had referred to the UNHCR report and said that it “does not mention failed asylum seekers, failed Tamil asylum seekers, or Tamils returning after residence abroad as being identified as being at risk of persecution”. The appellant thereafter made a submission to the Authority about up to date information relating to Sri Lanka which again did not mention [2.2.39] of the UK report, p 8 of the UNHCR report, or footnote 18 of the UNHCR report.

18    In these circumstances, the Authority was not bound to identify and then resolve any actual or potential inconsistency between [2.2.39] of the UK report, p 8 of the UNHCR report, or footnote 18 of the UNHCR report and, for example, the DFAT report. The Authority was bound to consider the appellant’s claim that he would face harm if returned to Sri Lanka as a Tamil failed asylum seeker, but the Authority did so.

19    Nothing in the Authority’s reasons indicates a failure of consideration as the appellant alleges.

20    The Authority did say at [7] that it accepted that “police brutality and torture in detention is a common occurrence in Sri Lanka”. This is a general finding that applies to all persons detained in Sri Lanka. It has nothing to do with the appellant being persecuted because he is or is perceived to be a Tamil failed asylum seeker.

21    The Authority did say at [25] that “there has been a recent crack-down against former LTTE members and former LTTE members have been arrested at the airport when returning to Sri Lanka and have been arrested, interrogated and tortured in Sri Lanka”. This finding, however, is specific to LTTE members, and the Tribunal found at [26] that the appellant “is not and is not imputed to be, an LTTE member or involved in any activity aimed at Tamil separatism”.

22    The Authority also said this:

[54]    On the information before me I am satisfied that on being returned to Sri Lanka the applicant will be held on remand for a number of hours whilst the identity, character and security checks are completed. This could extend to a number of days if he arrives on a weekend or public holiday. DFAT states that if a person who departed unlawfully pleads guilty, they will be fined and discharged. Generally, if a person pleads not guilty, they are granted bail on personal surety and may be required to have a family member act as guarantor and if so may have to wait until a family member comes to collect them. There are rarely any conditions in relation to being released on bail. There is no evidence before me to indicate that the applicant will be unable to pay the fine or bail imposed in relation to his illegal departure. There is no evidence before me to indicate that the applicant has engaged in people smuggling, or any other crime.

[55]    Given the circumstances of the applicant’s illegal departure from Sri Lanka and the duration of his residence in Australia I accept that the Sri Lankan authorities may assume that the applicant sought protection in Australia. However the country information does not support a finding that failed Tamil asylum seekers are imputed with a pro-LTTE opinion, or are suspected to have been involved in supporting the LTTE merely because they are Tamils and have sought asylum. DFAT has reported that “There have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment…Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act.”

23    I accept that these findings do not involve the Authority in weighing up the cogency of the DFAT report (“Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low”) as against [2.2.39] of the UK report, p 8 of the UNHCR report, or footnote 18 of the UNHCR report.

24    I do not accept that as a result the Authority failed to consider the appellant’s claim of fearing harm if returned to Sri Lanka as a Tamil failed asylum seeker. As I have said, this is because the appellant did not: (a) raise any issue of inconsistency of country information before the Authority, or (b) seek to rely on [2.2.39] of the UK report, p 8 of the UNHCR report, or footnote 18 of the UNHCR report. As a result, in evaluating the appellant’s claim of fearing harm if returned to Sri Lanka as a Tamil failed asylum seeker, the Authority was entitled to decide for itself what weight to give any particular report. The Authority did not have to identify for itself potential inconsistencies between reports or reason in more detail about why it chose to quote extracts from and rely on the DFAT report in particular.

25    These conclusions are consistent with the approach identified in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 as follows:

[25]    It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

[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] HCA 40; (1986) 162 CLR 24], “[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.

[27]    None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision‑maker’s reasons discloses that the decision‑maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.

26    As the Minister submitted, after the event, the appellant has identified one sentence in one report (and cited in another) that was never drawn to the Authority’s attention as specifically relevant to the appellant’s claims. The sentence in question is general and vague. It refers to “some” sources reporting mistreatment that “allegedly” occurred. In all of the circumstances, the cogency of the material and its (non-existent) place in the appellant’s claims support the conclusion that the Authority did not fail in its duty of consideration according to law: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [112]. In the present case the Authority did not ignore, overlook or misunderstand relevant facts or materials or a substantial and clearly articulated argument; misunderstand the applicable law; or misunderstand the case being made by the appellant such as to found a sustainable argument of jurisdictional error: Plaintiff M1 at [27].

27    The further particular of his grounds of appeal that the appellant sought to raise during the hearing was that the Authority failed to engage in an active intellectual process with respect to the DFAT report as required by law because the DFAT report itself said that the risk of torture or mistreatment for the majority of returnees is low, not non-existent, and the Authority had already accepted at [7] that “police brutality and torture in detention is a common occurrence in Sri Lanka”. According to the appellant, these circumstances meant that the Authority had to weigh the particular risk to the appellant of being returned to Sri Lanka.

28    The problem with this proposed further particular is that the DFAT report is not in evidence before me, and the appellant made no application to adduce that document into evidence in the appeal. The Authority referred to different parts of the DFAT report on numerous occasions throughout its reasons (for example, at [17], [21], [24], [39], [42], [50], [52], [53], [54], [55], and [57]). Without having the DFAT report in evidence, it is not possible to resolve the appellant’s claim on a fully informed basis.

29    To the extent it is possible to assess the appellant’s claim, it appears that the alleged failure to weigh the risk to the appellant of returning to Sri Lanka is untenable. The Authority correctly identified at [9]–[10] the statutory context of the required assessment of the appellant’s claims, including that the ultimate issue was whether there was a real chance the appellant would suffer persecution involving serious harm if returned to Sri Lanka. The Authority understood that the appellant’s claim was that he feared such harm by reason of his status as a failed Tamil asylum seeker with perceived LTTE links: [8], [12]–[26]. The Authority rejected the appellant’s claimed LTTE links, both real and potentially imputed: [26]. As a result the Authority concluded that the risk of harm to the appellant in Sri Lanka was remote: [26]. The Authority then considered the appellant’s specific claim that he faced a risk of serious harm if returned to Sri Lanka as a failed asylum seeker who is Tamil: [52]–[58]. The Authority found that the appellant would not be subject to serious harm if returned to Sri Lanka as a failed asylum seeker who is Tamil: [56]–[57]. In referring at [55] to the DFAT report that “the risk of torture or mistreatment for the majority of returnees is low”, the Authority plainly weighed that evidence along with other evidence including that:

(1)    “[a]ccording to DFAT no returnee who was a passenger on a people smuggling boat has ever been sentenced to a term of imprisonment for illegal departure and the fines imposed range between 5 and 50 thousand Sri Lankan Rupees”: [53];

(2)    “[t]here is no evidence before me to indicate that the applicant will be unable to pay the fine or bail imposed in relation to his illegal departure. There is no evidence before me to indicate that the applicant has engaged in people smuggling, or any other crime”: [54];

(3)    “…the country information does not support a finding that failed Tamil asylum seekers are imputed with a pro-LTTE opinion, or are suspected to have been involved in supporting the LTTE merely because they are Tamils and have sought asylum”: [55];

(4)    “the applicant does not have the profile of an LTTE supporter, or an anti-government activist or a Tamil separatist. The applicant does not claim to be facing outstanding criminal charges or to have been involved in any aspect of people smuggling”: [56]; and

(5)    “[a]ccording to DFAT returnees are treated according to the standard procedures outlined above, regardless of their ethnicity and religion”: [57].

30    The issue for the Authority was whether there was a real risk of the appellant suffering serious harm. The Authority did not have to assume that because DFAT said the risk of torture or mistreatment was low the appellant might be one of the few returnees who would be subjected to torture or mistreatment. The Authority was entitled to use the DFAT report as part of its evaluation in the manner in which it did.

31    For these reasons the appellant’s claims must be rejected. Paragraph [2.2.39] of the UK report or p 8 of the UNHCR report were not centrally relevant to the appellant’s claims. The appellant’s claims were made without reference to that material. Accordingly, the Authority was not bound to identify potentially inconsistent material in the country information which might be relevant to its evaluation. Nor, as a result, was it bound to decide if it preferred paragraph [2.2.39] of the UK report and p 8 of the UNHCR report compared to the DFAT report and to explain its preference. In the circumstances of this case, none of this was required for the Authority lawfully to discharge its duty of consideration of the appellant’s claims and the material before it. It might be that, had the appellant’s claims focused on paragraph [2.2.39] of the UK report and p 8 of the UNHCR report as supporting his claims to fear serious harm in Sri Lanka as a failed asylum seeker who is Tamil, that the Authority had to do more or something different from what it did to discharge its duty. But that is not the present case and further speculation is unwarranted.

32    It also follows that no consideration of the issue of materiality of the alleged errors of law is required. The alleged errors are not made out.

Associate:

Dated:    11 August 2022