Federal Court of Australia

DYP16 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 216

ORDERS

THE COURT ORDERS THAT:

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

2.    The appeal be dismissed.

3.    The appellant pays the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

RAPER J:

1    This is an appeal from a decision of the then-Federal Circuit Court of Australia in which the primary judge dismissed an application for judicial review of a decision of the second respondent (Authority) which affirmed a decision of a delegate of the first respondent (Minister) refusing to grant the appellant a Safe Haven Enterprise visa.

2    The appellant advances three grounds of appeal, which are analogous to several of the grounds of review advanced before the primary judge. In short, the appellant submits that the primary judge erred in failing to find that the Authority: first, did not consider the appellant’s critical claim for protection, secondly, did not consider the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) and thirdly, did not exercise its jurisdiction in the appellant’s case.

3    The appellant was unable to articulate any basis in support of each of these grounds. It was his submission that he had been in Australia for 12 years, he is used to this country and by reason of his medical condition it is better for him to continue to live in Australia. The appellant wants to remain in Australia and seeks this Court’s assistance in this regard. This Court does not have the power to grant a visa nor to consider the reasons (however meritorious they may be) as to why the appellant wants to remain here. This Court’s jurisdiction is limited to determining whether the primary judge erred in dismissing the appellant’s application for judicial review of the decision of the Authority.

4    For the following reasons, the appeal must be dismissed.

Background

5    The appellant is of Tamil ethnicity and Hindu religion and is from Batticaloa, Sri Lanka (at J[1]). He worked as a mechanic in Sri Lanka from 2002 until his departure in 2012. The appellant arrived in Australia as an unauthorised maritime arrival on 13 October 2012. On 7 December 2015, the Minister lifted the s 46A bar to permit him to apply for a visa of a specified class and, on 19 April 2016, he applied for the visa.

6    The Authority summarised the appellant’s claims for protection as follows (at IAA[5]):

•    The applicant is from Batticaloa district and worked as a mechanic from 2002 until his departure from Sri Lanka for Australia, in 2012.

•    In 2003 he was taken by some people who he assumed were part of the Criminal Investigation Department (CID). He was stripped of his clothing and threatened and released after three days.

•    He has previously been questioned by the Sri Lankan authorities on one other occasion, in or around 2005, on the basis of being a suspected Liberation Tigers of Tamil Eelam (LTTE) supporter as a bomb had exploded near his work. His entire workplace was questioned and released after a few hours.

•    While working as a mechanic he serviced vehicles for various groups, including the Tamil National Alliance (TNA), LTTE, the Sri Lankan army and Tamil Makkal Viduthalai Pulikal (TMVP). Each party questioned him about the services he provided to the other parties. The TMVP requested that he work for them at their camp however he refused.

•    He claims to have also been targeted on the basis of his association with the TNA. He supported the TNA during the 2012 election campaign by putting up posters and attending meetings. He had been a TNA supporter since 2002.

•    Three days prior to departing Sri Lanka, some unknown people with guns came towards his house. He feared for his life so ran away from his house and went to his cousin’s house. He stayed there until he made arrangements to depart Sri Lanka. He thinks he was targeted because he was a TNA supporter, a mechanic and a Tamil.

•    Unknown persons continue to ask about the applicant’s whereabouts at his previous place of employment. He believes they are the same people who came to his house with guns.

•    He fears returning to Sri Lanka on the basis of seeking asylum in Australia.

7    The appellant claims to fear harm centred on his ethnicity, imputed political opinion as a supporter of the Tamil National Alliance and as a failed asylum seeker.

The Authority’s decision

8    The Authority first considered whether the appellant satisfied the definition of “refugee” in s 5H(1) of the Act.

9    The Authority accepted that the appellant was a Tamil Hindu who worked as a mechanic, that he serviced vehicles for the groups mentioned above, and that those groups would pressure the appellant to align with them. The Authority also accepted that it was plausible that the appellant had been questioned by Sri Lankan authorities on suspicion of being a supporter of the Liberation Tigers of Tamil Eelam but found that on each occasion he was released after a short period. The Authority also found that the appellant had been a TNA supporter since 2002: at IAA[10].

10    The Authority did not, however, accept that unknown persons came to the appellant’s house with guns and threatened to kill him, nor did it accept that unknown persons had been asking about the appellant’s whereabouts since his departure from Sri Lanka: at IAA[11].

11    The Authority also found that the appellant was no longer of interest to Sri Lankan authorities: at IAA[12]. In support of this finding, the Authority noted that the last time that the appellant had been questioned in Sri Lanka was in 2005 and that, since then, he had been able to obtain a Sri Lankan travel document and to depart via Colombo Airport, and that he had been able to continue his employment up until immediately before his departure: at IAA[12]. This conclusion was also supported by country information that was before the Authority which states that following presidential elections in 2015, the new Sri Lankan Government had a “more proactive approach to human rights”. The Authority also noted that DFAT assessed that there were currently no official laws or policies in place that discriminated on the basis of ethnicity or language: at IAA[13]–[14]. Country information also suggested that the appellant would not face harm on the basis of his support of the TNA, and as such the Authority rejected this aspect of the appellant’s claim: at IAA[18]–[19].

12    The Authority was also not satisfied that the appellant would suffer harm upon return to Sri Lanka on the basis of being a failed asylum seeker: at IAA[20]–[25].

13    Given the above, the Authority concluded that the appellant did not meet the definition of “refugee” in s 5H(1) of the Act and, as such, did not satisfy s 36(2)(a) of the Act: IAA[26]

14    The Authority then considered whether the appellant satisfied the complementary protection criterion within s 36(2)(aa) of the Act. Given the Authority’s consideration of the complementary protection criterion forms the basis of one of the appellant’s grounds of appeal, it is worth extracting the Authority’s consideration of the criterion in its entirety:

Complementary protection assessment

27     A criterion for a protection visa is that the applicant is a non citizen in Australia (other than a person who is a refugee) in respect of whom the Minister (or Reviewer) is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.

Real risk of significant harm

28     Under s.36(2A), a person will suffer ‘significant harm’ if:

•    the person will be arbitrarily deprived of his or her life

•    the death penalty will be carried out on the person

•    the person will be subjected to torture

•    the person will be subjected to cruel or inhuman treatment or punishment, or

•    the person will be subjected to degrading treatment or punishment.

29    I am not satisfied the applicant will face a real chance of serious harm on the basis of being a Tamil, his previous employment as a mechanic, a TNA supporter and/or because he will be returning to Sri Lanka as a failed asylum seeker. Given real chance equates to real risk, I am not satisfied there is a real risk the applicant will face significant harm.

Complementary protection: conclusion

30    There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa).

The primary judgment

15    Before the primary judge, the appellant advanced four grounds of judicial review, which were as follows (numbering not in original):

1.    The Authority (IAA) erred in law, with error being a jurisdictional error, in that it failed to consider my crucial claim for protection.

2.    When the IAA affirmed the decision not to grant protection visa for me it erred in law. The IAA did not invite me including for a hearing/invitation to comment on or respond to the adverse information in which it relied to refuse my protection visa application. The IAA must have invited me to provide my comments in writing and/or to appear before the IAA to give evidence and present arguments related to the issue raised and relied to refuse my protection visa in relation to my referred application with the Authority.

3.    The Authority declined to exercise its jurisdiction in my case.

4.    The Authority has not considered at all the complementary protection available to me in Australia

16    Relevant to this appeal are the primary judge’s consideration of grounds one, three and four.

17    With respect to ground one, the primary judge held that this ground was a “bland assertion without any particulars” and, in the absence of particulars, “a bland assertion does not constitute jurisdictional error”, citing WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]: at J[29]. His Honour then went on to find that:

…[i]n any event, the Court has perused the Authority’s decision record and is satisfied that each of the applicant’s claims were identified, discussed and dismissed. Ground one reveals no jurisdictional error.

18    With respect to ground three, the primary judge at J[31] held that this ground was:

…again, a bland assertion without any particulars. Without particulars it is impossible to respond to. No jurisdictional error is made out: (see WZAVW).

19    With respect to ground four, the primary judge found that the Authority had correctly instructed itself as to the complementary protection criterion in s 36(2)(aa) of the Act at IAA[27]–[28]. His Honour further held (at J[32]):

…Based on the findings that the Authority had made previously in relation to the refugee criteria, it found that the applicant would not face a real chance of serious harm on the basis of being a Tamil, his previous employment as a mechanic, being a TNA supporter or because he would be returning to Sri Lanka as a failed asylum seeker. The Court is satisfied that the Authority correctly considered the relevant test and simply found that the complimentary protection requirements were not met. There is nothing irrational, illogical or legally unreasonable in this finding. No jurisdictional error is made out.

The appeal

20    The appellant advances three grounds of appeal in this Court, which are as follows:

1.    His Honour erred in not finding that the IAA erred in law, with error being a jurisdictional error, in that it failed to consider my crucial claim for protection.

2.    His Honour erred in not finding that the IAA has not considered at all the complementary protection available to me in Australia.

3.    His Honour erred in not finding that the Authority declined to exercise its jurisdiction in my case.

21    Grounds one and three are analogous to grounds one and three respectively below. Ground two is analogous to ground four below.

22    Given that the appellant’s grounds mirror grounds advanced below, the Minister submitted that the essence of the appellant’s appeal is that the primary judge erred by not upholding those grounds.

Ground one

23    By ground one, the appellant contends that the primary judge erred in not finding that the Authority failed to consider his “crucial” claim for protection. The appellant did not provide any particulars identifying what aspect of his claim he was referring to by this ground. When asked directly during the appeal as to what the “crucial claim” was that had not been considered, the appellant submitted the IAA did not come to review his claim until many years had passed since the events that were the subject of his claim. As a consequence, the appellant stated he had forgotten what had happened to him. It appeared to be his claim that the Authority should have taken into account the effect of the passage of time on his ability to recall the events giving rise to his claims. It is not apparent that this submission was made to the primary judge nor raised, as part of a submission, to the IAA. Accordingly, there is no basis to assert an apparent failure to take into account a submission that was not made before it.

24    I note that when considering this ground, despite the appellant’s lack of particularisation of the claim, the primary judge considered each of the appellant’s claims for protection and how the Authority dealt with them. The primary judge concluded that the Authority had “identified, discussed and dismissed” each of the appellant’s claims (at J[29]). It is apparent from a review of the Authority’s reasons that it was open for the primary judge to reach such a conclusion. I can discern no error in the primary judge’s conclusion and therefore this ground of appeal must fail.

Ground two

25    By ground two, the appellant contends that the primary judge erred by failing to find that the Authority had not considered the availability of a protection visa to him on complementary protection grounds “at all”.

26    As extracted above, the Authority expressly considered and made findings in relation to Australia’s complementary protection obligations under the heading “Complementary protection assessment”: at IAA[27]–[30]. The Authority had set out the correct statutory test for complementary protection in s 36(2)(aa), and identified what would constitute “significant harm” under s 36(2A) of the Act (at IAA[28]). In finding that the complementary protection criteria were not met, it may be inferred that the Authority relied on its earlier findings that the appellant would not face harm on his return to Sri Lanka given the overlap between the assessments under each criteria. Such an approach has been accepted so long as the Authority’s reasons do not reveal any illogical or irrational basis: SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; 138 ALD 26 at [32]–[35]; SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56]; SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [32].

27    When the appellant was asked at hearing about the basis for this ground, he referred to his interviewer, as part of his protection visa interview, smiling at the interpreter. This submission does not support this ground.

28    Therefore, this ground must fail because there was no apparent error in the primary judge’s conclusion that the Authority correctly considered the s 36(2)(aa) criteria: at J[32].

Ground three

29    By ground three, the appellant made a broad claim that the primary judge erred in not finding that the Authority declined to exercise its jurisdiction. The appellant was unable at hearing to articulate any basis in support of this claim.

30    I can discern no error in the primary judge’s dismissal of the corresponding ground of review before him and therefore dismiss this ground.

Conclusion

31    It follows that the appeal must be dismissed and the appellant ordered to pay the Minister’s costs.

Associate:

Dated:    8 March 2024