ASM21 v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2024-03-27|Before: Jackson J

The appeal is dismissed.
The appellant must pay the first respondent's costs of the appeal fixed in the sum of $2,500. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JACKSON J: 1 The appellant is a citizen of Sri Lanka from Jaffna, in the Northern Province of Sri Lanka. He is of Tamil ethnicity. He arrived in Australia in 2012 and applied for a Safe Haven Enterprise Visa in 2016. A delegate of the first respondent (Minister) refused to grant the visa. That decision was referred to the Immigration Assessment Authority. In 2018, the Authority affirmed the delegate's decision. 2 The appellant sought judicial review of the Authority's decision in the Federal Circuit Court of Australia (as it then was), where his application was dismissed. The appellant appealed to the Federal Court of Australia, which allowed the appeal and remitted the matter to the Authority. 3 In 2021, the Authority again affirmed the delegate's decision. The appellant again applied for judicial review of that decision, in the Federal Circuit and Family Court of Australia (FCFCOA). In 2021, that application was dismissed. The appellant now appeals from that dismissal. 4 For the following reasons, the appeal will be dismissed.

The 2021 Authority decision 5 The Authority summarised the appellant's claims to protection as follows (AB 497): • He is a Tamil male from the district of Jaffna in the Northern Province; • His family had to relocate between 2000 and 2002 due to the conflict; • In 2011, he faced threats and harassment from the Sri Lankan authorities; • In around 2011 or 2012, his father was assaulted by the Sri Lankan authorities; • Around this time, the Sri Lankan authorities came to his house; • Shortly after, his father took him to Colombo so that he could depart the country; • Prior to his departure, his father was interrogated as to his whereabouts; • After his arrival in Australia, he learned that his father was a high-ranking member of the LTTE [Liberation Tigers of Tamil Elam] and that this was why the Sri Lankan authorities were looking for him; • His brother has since come to the adverse interest to the Sri Lankan authorities in connection the applicant and their father's LTTE activities; • If returned to Sri Lanka, the applicant fears he will be harmed or killed by the Sri Lankan authorities due to: - his Tamil ethnicity - his place of origin - his imputed LTTE links and involvement in post-war separatism - his illegal departure from Sri Lanka - his residence in a western country - his profile as a failed asylum seeker. 6 The Authority interviewed the appellant on 17 February 2021. After considering that interview and the other material before it, the Authority accepted a number of matters: that the appellant and his family had to relocate due to shelling between 2000 and 2002; that the appellant was harassed by the Sri Lankan Army while travelling to and from school in 2011; that the appellant's sister was harassed by the Sri Lankan Army, and was questioned about her father's whereabouts (being the appellant's father); and that the Sri Lankan authorities questioned the appellant about the movements of persons in the area. The Authority found, however, that this was consistent with the general treatment of Tamils at that time, and that this did not indicate that the appellant or his family were of particular interest to the Sri Lankan authorities. 7 The Authority accepted that in 2011 the appellant left school and started working at his father's 'grinding mill' (apparently a rice mill) because of the harassment he faced, and because his father needed help at the mill after falling sick. The Authority also accepted that the appellant's father was beaten by the 'Sri Lankan authorities' at the mill on one occasion and that, on that same occasion, the appellant was pushed to one side and fell onto a barbed wire fence. But the Authority found that this incident was due to the 'authorities' seeking money to buy cigarettes, rather than because the appellant's father was a person of adverse interest to them. 8 The Authority did not accept that the appellant's father was a LTTE member in any capacity, as the appellant's evidence about that was markedly inconsistent. Consequently, the Authority did not accept that the appellant was a person of adverse interest to the Sri Lankan authorities when he travelled to Colombo in 2012. The Authority accepted that the Sri Lankan authorities may have visited the appellant's home in 2011-2012, but it did not accept that this was because the appellant or his father were of adverse interest to the authorities, instead finding that it was because the authorities sought information about the movements of people in the area. The Authority did not accept that the appellant's family have been interrogated by the Sri Lankan authorities regarding his whereabouts since his arrival in Australia. 9 Noting recent country information, the Authority found that the treatment of Tamils in Sri Lanka, including in northern Sri Lanka, has improved greatly; while they do experience discrimination and some surveillance, they no longer experience persecution solely on the basis of their ethnicity. As such, Tamils no longer warrant international protection unless they have an actual or perceived association with the LTTE. 10 The Authority concluded that the appellant did not face a real chance of serious harm or a real risk of significant harm in Sri Lanka at present or in the reasonably foreseeable future, as he does not have an actual or perceived association with the LTTE and the general ill-treatment of Tamils has decreased considerably. The Authority found that concerns that the 2019 change in government could lead to systemic mistreatment of Tamils in the future were speculative. 11 The Authority accepted that the appellant departed Sri Lanka illegally; that if he returned, he would be identified as such by the authorities; and that he would also return as a failed asylum seeker. However, country information indicated that all returnees are treated the same, regardless of ethnicity, and do not experience mistreatment during airport processing. The process may take several hours, but the Authority did not find that such delays in processing would constitute serious or significant harm. 12 Country information indicated that returnees with significant actual or perceived links to the LTTE could be at risk of harm but, as noted above, the Authority found that the appellant did not fit this profile. Most returnees, including failed asylum seekers, are not actively monitored or harassed. Some returnees in the appellant's region report being visited or telephoned by the authorities, but the Authority did not find that this would constitute serious or significant harm. Some returnees may experience some social stigma or societal discrimination, but the Authority similarly found that this would not constitute serious or significant harm. 13 The Authority accepted that, as a returnee who departed Sri Lanka illegally, the appellant would be considered to have committed an offence under the Sri Lankan Immigrants and Emigrants Act. As such, he would be temporarily detained prior to a hearing at the Magistrates Court and would then likely be fined for the offence. (The Authority was not satisfied that there was a real chance the appellant would face imprisonment.) The appellant would potentially also have to make regular court appearances, which could impose additional costs and create significant inconvenience. 14 The Authority found that a brief period of detention, the imposition of a fine, and possibly regular court appearances would not constitute serious or significant harm. The Authority additionally found that the Immigrants and Emigrants Act is not discriminatory on its terms and is not applied in a discriminatory or selective manner, and thus that the appellant does not face a real chance of persecution from the Sri Lankan authorities. 15 On the basis of the above, the Authority found that the appellant did not meet the criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (refugee) or the criterion in s 36(2)(aa) of the Act (complimentary protection).

The 2021 Federal Circuit and Family Court decision 16 The appellant was self-represented in the Federal Circuit and Family Court. He did not raise any grounds of review in his judicial review application or in his written or oral submissions. 17 The primary judge considered each of the oral submissions made by the appellant at his hearing, and found that none of them identified a jurisdictional error. Those submissions were that he was frustrated by the duration and expense of his legal proceedings; that he was confused by the questions in respect of country information at his interview in February 2021; that he was nervous and panicked at that interview; that members of the Tamil community have been falsely informing the Australian government he does not have any problems in Sri Lanka; and that he has not had the assistance of a lawyer to prepare his case. 18 The primary judge then considered the procedural fairness obligations imposed upon the Authority. The Authority had invited the appellant to the interview in February 2021, invited him to provide further information, and gave him an opportunity to comment on the Authority's concerns regarding his claims. His Honour found that the Authority had provided the appellant with procedural fairness. 19 The primary judge also looked at the Federal Court decision in which the Authority's 2018 decision was found to have been affected by error. It considered whether any of those errors were present in the decision the Authority made in 2021. 20 That earlier Federal Court decision was published as DCU18 v Minister for Home Affairs [2020] FCA 1817. In it, Mortimer J identified four errors constituting grounds for review of the Authority's 2018 decision. 21 The first error was that the Authority had based a factual determination on inconsistencies between the appellant's different interviews where those inconsistencies could not, in the circumstances, have rationally and reasonably affected his credibility. The FCFCOA found that this error was not present in the Authority's 2021 decision, both because the Authority reached different factual findings, and because the Authority put the inconsistencies to the appellant in his February 2021 interview and considered his responses in its 2021 decision. 22 The next error identified in DCU18 involved an adverse credibility finding based on inconsistencies between the appellant's written submissions and other interview evidence. That adverse finding was part of the basis for the Authority not accepting that the Sri Lankan Army regularly interrogated and beat the appellant's father while the appellant was working at the rice mill. The FCFCOA found that this error did not affect the Authority's 2021 decision, as the inconsistencies were put to the appellant in his February 2021 interview and his responses were considered by the Authority in making its finding about the father's involvement with the LTTE. 23 Next, in DCU18, Mortimer J found that the Authority's conclusion that the Sri Lankan Army did not regard the appellant as a threat was unreasonable because it was based on an incomplete and narrow focus on the evidence. Her Honour found that a further conclusion the Authority reached, that only Tamils who were generally suspected or seen as a threat were at risk of serious harm from the Army, was unsupported by probative material. The FCFCOA found that the findings that the Authority made in 2021 were different and were supported by evidence, including additional country information and evidence which the appellant gave at his interview in February 2021. 24 Finally, the primary judge noted that Mortimer J referred to adverse findings the Authority made about the appellant's claim that he only learned of his father's involvement with the LTTE after he came to Australia, and that he had not asked his mother for further details about that involvement. The primary judge referred to Mortimer J's criticism of the Authority's approach as involving a 'presumption that material which is sought and presented during this process, on an ongoing basis, should pre-emptively be characterised as false' (DCU18 at [110]). The primary judge found, once again, that the interview with the appellant which the Authority conducted in 2021, at which it put these matters to him, meant that the Authority had 'cured' the concern identified in DCU18. 25 At [36] the primary judge concluded that he was satisfied that the decision of the Authority in 2021: (a) properly and appropriately considered the evidence before the Authority, and made determinations about, and findings based upon, that evidence according to law; (b) carefully and comprehensively applies the applicable law and relevant principles to ASM21's claims; and (c) is therefore not affected by jurisdictional error.

The appeal 26 The appellant was self-represented in this Court and appeared at the hearing with the assistance of an interpreter. The sole ground of appeal was: The Primary Judge didn't adequately examine the evidence that was placed and didn't exercise the Courts proper Jurisdiction. 27 That is in general terms, it was not supported by any written submissions, and the appellant's oral submissions did not particularise the ground further. At the hearing, in response to questions from the bench, the appellant said that he did not have anything to add in terms of the primary judge not adequately examining the evidence or not exercising the court's proper jurisdiction. He said he did not have any more evidence to give. He made a general complaint that his lawyers took his money but were not willing to come to court. But that did not, of course, help to identify any appealable error in the decision of the primary judge. 28 This Court cannot meaningfully engage with an appellant's ground of appeal where the ground makes a general and unparticularised complaint of error by the primary judge: EJB17 v Minister for Immigration and Border Protection [2019] FCA 742 at [12] (Farrell J). In the case of an unrepresented appellant it is appropriate to review the reasons under consideration to determine whether there is any self-evident error, but that examination will not extend to parsing and analysing the decision to identify potential arguments: COS16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20] (McKerracher J). 29 I have considered the reasons of the primary judge. Given that the appellant presented his Honour with no grounds of review, his Honour was entitled to dismiss the application summarily. Nevertheless, his Honour carefully considered the Authority's decision that was under review and the background to it, and assessed it against the concerns that had led Mortimer J to overturn the Authority's 2018 decision. No error in the primary judge's analysis is apparent. 30 I also asked counsel for the Minister whether there were any matters which his client, who is subject to a direction to behave as a model litigant, wished to draw to the Court's attention in terms of any concerns or doubts about the primary judge's decision. There were none. 31 For these reasons, the appeal will be dismissed, with costs. 32 The Minister sought a lump sum costs order of $2,500. That is considerably less than the amount provided for in item 15.2 of Schedule 3 to the Federal Court Rules 2011 (Cth) in respect of migration appeals that are dismissed after hearing. Also, in oral submissions, counsel for the Minister appropriately modified the amount sought from $4,500 which had been nominated in the Minister's written submissions. That had been proposed on the assumption that the appellant would present some oral argument, but he did not. The appellant did not make any submission in reply to that proposal. The amount is reasonable and an order for costs in the sum of $2,500 will be made. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson.

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