Federal Court of Australia

AXU17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 265

ORDERS

THE COURT ORDERS THAT:

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

2.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    The appellant is a citizen of Sri Lanka. He arrived in Australia by boat as an unauthorised maritime arrival in September 2012, aged 21. Although he had applied for a protection visa in 2013 which application was found to be invalid, the appellant applied for a Safe Haven Enterprise visa (SHEV) in April 2016.

2    In support of the application, the appellant said that he is of Tamil ethnicity and Hindu by religion. He was born and grew up in Batticaloa. The area in which he grew up was controlled by the Liberation Tigers of Tamil Eelam (LTTE). In particular, the LTTE commander Karuna was in control of the area, but Karuna subsequently broke away from the LTTE forming what is referred to as the Karuna group. Thereafter, the Karuna group fought alongside the Sri Lankan Army (SLA) to capture LTTE cadres and supporters.

3    The appellant’s statement covered details of abductions and harassment of him by the Karuna group, the SLA and the CID (a division of the police) between 2006 and 2011. The actions against him were apparently on account of him being suspected of being an LTTE sympathiser and also because of his paternal uncle’s involvement in the LTTE. The appellant feared for his freedom and even his life at the hands of these groups.

4    The appellant said that in May 2011, police officers arrested him once again. The implication is that the appellant was then released and returned home. He also said that his father contacted “agents” to send him out of the country but that failed.

5    The appellant then stated the following:

In May 2012 when the CID came in search of me once again in my residence while I was helping my father, my father immediately sent me through the back door before they could capture me.

My father informed me later that I should not stay in [redacted] as the CID officers had asked my father to send me to the police station immediately. They told my father that they suspect that I could have been an LTTE cadre and worked along with my uncle in [redacted].

6    The appellant stated that he left to Udappu in Chillaw to stay with his maternal uncle, being a different uncle to the paternal uncle referred to in the quote in the preceding paragraph. He claimed that while he was there, his father informed him that the Karuna cadres had beaten his father when questioning him about the appellant’s whereabouts.

7    The appellant’s claims for protection included his fear that he would be subjected to serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion if he returned to Sri Lanka. In particular, that was on the basis of his suspected association with the LTTE.

8    By a decision dated 4 January 2016, a delegate of the Minister for Immigration and Border Protection refused the appellant’s SHEV application on the basis that the delegate was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Sri Lanka, there is a real risk that the appellant will suffer significant harm within the meaning of s 36(2)(aa) of the Migration Act 1958 (Cth). On that basis, the delegate found that the appellant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa). The delegate was also not satisfied that the appellant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) because the delegate was not satisfied that the appellant is a refugee as defined in s 5H(1).

9    In the delegate’s reasons for decision, the delegate noted that the appellant had given inconsistent accounts of the incident in May 2012 where, in his statement supporting his SHEV application he had said that the CID had come to his residence and he had fled. The delegate noted that the appellant had not mentioned that incident in his entry interviews and in his protection visa statement he had said that it was the Karuna group that had raided his house, rather than the CID.

10    The decision of the delegate was referred to the Immigration Assessment Authority for review under Pt 7AA of the Act. The appellant made further written submissions to the Authority, but did not address the inconsistency that had been identified by the delegate.

11    By a decision dated 17 February 2017, the Authority affirmed the delegate’s decision not to grant the appellant a SHEV. In respect of the incident in May 2012, the Authority said the following in its reasons for decision:

In his 2013 application the applicant claimed that in May 2012 he escaped through the back door of his home when it was raided by the Karuna group who assaulted his father and called his name. He stated they wanted to take him with them, he believes because he had avoided joining them. However in his SHEV application he stated it was the CID who came to their residence in May 2012. He claims he escaped out the back door and they asked his father to send him to the police station because they suspected he could have been an LTTE cadre working with his uncle in the [redacted]. These claims about the May 2012 incident are internally inconsistent. While I am mindful not to place undue weight on inconsistencies, I find the differences as to whether it was the Karuna group or the authorities who came for him in May 2012, why they sought him and the claimed conversation with his father to be significant. I am similarly mindful not to place undue weight on omissions however I consider it significant that the applicant made no mention of any such event occurring in 2012 in either of his Arrival interviews, despite it being the event which he claims forced him into hiding in Udappu and which prevented his return to his home, and ultimately influenced his decision to leave the country when he did. I have had regard to the applicant’s mental health however I am not satisfied that the applicant has experienced difficulties arising from his mental health which explain or overcome these inconsistencies or omissions.

(Emphasis added.)

12    The appellant sought judicial review of the decision of the Authority in the Federal Circuit Court of Australia (as it was then still named). By judgment on 30 March 2020, the primary judge dismissed the appellant’s application. The primary judge identified that the ground of review was that the Authority had accepted that the appellant, in the three months before he departed Sri Lanka, resided with his uncle and overlooked that that is consistent with the claimed occurrence of the incident in May 2012 causing him to flee Batticaloa. It was said that that amounted to jurisdictional error.

13    The primary judge rejected that ground of review as being fallacious, in particular because the Authority had no duty to speculate on the reasons why the appellant had moved to live with his uncle when it was unpersuaded that the May 2012 event had occurred. That is to say, although the fact that the appellant went to live with his uncle for three months leading up to his departure for Australia (which was early in September 2012) is consistent with him having fled from his home in May 2012, it does not establish that he fled in May 2012 or the reason why he fled.

The appeal to this Court

14    The appellant has filed a notice of appeal, an amended notice of appeal and a further amended notice of appeal in this Court. The Minister for Immigration, Citizenship and Multicultural Affairs, the first respondent, did not object to the amendments which were allowed on that basis. The Authority, being the second respondent, filed a submitting appearance.

15    Ultimately, the ground of appeal is that the primary judge erred in finding that the appellant had not demonstrated jurisdictional error in the decision of the Authority. The error is put as follows:

(1)    The Authority overlooked the appellant’s departure to Udappu which led to its conclusions being unreasonable, illogical or irrational, and it failed to deal with the material before it or engage in an intellectual process.

(2)    The primary judge failed to consider whether the Authority was correct to not accept the appellant’s evidence; in particular it failed to identify that two of the Authority’s findings were incorrect.

16    In the latter regard, the appellant identifies that in the italicised sentence quoted at [12] above the Authority characterised the following claims by the appellant as inconsistent:

(1)    the difference as to whether it was the Karuna group or the CID who came for him in May 2012;

(2)    why they sought him; and

(3)    the claimed conversation with his father.

17    The appellant accepts that the difference identified as (1) exists, ie, the appellant did give different accounts as to who came looking for him in May 2012. However, he disputes the other two differences and submits that they do not amount to internal inconsistency.

18    The appellant also identifies that the Authority considered it significant that he had not raised the May 2012 incident in his arrival interview. However, it is recorded in his arrival interview that he had said: “My father is a businessman and has received lots of threats, so he asked me to leave the country to protect my life.” The appellant submits that this is consistent with and corroborative of his claims as to the May 2012 incident.

Consideration

19    The appellant was required to establish jurisdictional error on the part of the Authority in the judicial review application before the primary judge in order to succeed: see s 474 of the Act and Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476. Simple errors of fact or in the drawing of inferences would not establish jurisdictional error. It is the legality of the Authority’s decision that is in question. In particular, this form of judicial review is concerned with whether the decision was one which the Authority was authorised to make; it is not an appellate procedure enabling either a general review of the decision or a substitution of the decision which the court thinks should have been made: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 at [23] per French CJ, Bell, Keane and Gordon JJ.

20    With reference to the three inconsistencies identified by the Authority which were instrumental in it rejecting the appellant’s claim with regard to the May 2012 incident, the most obvious is the first. As mentioned, the appellant accepts that that is a difference in the versions that he gave. To that I would add that it is a difference that was highlighted by the delegate, and the appellant’s submissions to the Authority did not seek to explain how he came to state such significantly different versions.

21    The second difference is as to the purpose of the relevant group looking for him. In that regard, two clearly different purposes were stated by the appellant. In his protection visa application, he said that he believed that the Karuna group raided his house because he had been avoiding joining them. In his SHEV application he said that the CID wanted him because he was suspected of being an LTTE cadre and of working alongside his uncle. That difference is not insignificant and does not give rise to any error by the Authority in relying on it in combination with other considerations.

22    The third difference is as to the conversation between the appellant and his father. In his protection visa application no conversation is mentioned – the appellant said that he was at home when the raid occurred and, although he managed to escape out the backdoor, he gives a first-hand account of what occurred and speaks as to his belief with regard to why the Karuna group was looking for him. In his SHEV application he said that his father helped him escape out the back door, and that his father later told him what the CID officers had said which revealed why they were looking for him. In other words, in the first account there is no conversation with his father and in the second account he depends on such a conversation as the source of his knowledge of what occurred. That difference is not so insignificant as to give rise to any error by the Authority in relying on it.

23    With regard to the appellant’s reliance on what he said in his arrival interview in October 2012 as being corroborative of the May 2012 incident as having occurred, what he said on that occasion was: “My father is a businessman and has received lots of threats, so he asked me to leave the country to protect my life.”

24    The appellant said in his SHEV application that following the May 2012 incident he asked his father to send him out of the country as soon as he could, and that his father made all the arrangements. However, as summarised above at [5], the appellant also said that following his arrest by police officers in May 2011 his father “contacted the agents to send me out of the country but failed”. From that it is apparent that although what was said in the arrival interview about the desire to leave the country is consistent with what occurred following the May 2012 incident, it is also consistent with what is said to have occurred following the May 2011 incident. It is corroborative of neither.

25    In the circumstances, I am not satisfied that there was any error by the Authority, let alone any error that might be said to rise to the level of jurisdictional error.

Disposition

26    The appeal must therefore be dismissed. There is no apparent reason why the usual rule that the costs follow the event should not apply. The appellant should therefore pay the Minister’s costs.

Associate:

Dated:    24 March 2023