DDJ16 v Minister for Immigration, Citizenship and Multicultural Affairs

1. The name of the first respondent be changed to "Minister for Immigration, Citizenship and Multicultural Affairs".
2. The appeal be dismissed.
3. The appellant pay the first respondent's costs as assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 This is an appeal from orders made by a judge of the Federal Circuit Court of Australia, now Division 2 of the Federal Circuit and Family Court of Australia. On 9 December 2019, the primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority. On 22 September 2016, the Authority had affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to refuse the grant of a particular type of protection visa known as a Safe Haven Enterprise (subclass 790) visa (SHEV) to the appellant. 2 The appellant is an ethnic Tamil of the Hindu faith, born in the Eastern Province of Sri Lanka. He arrived in Australia as an unauthorised maritime arrival in August 2012 and subsequently was invited to apply for a SHEV. In January 2016, he lodged an application for a SHEV. By a statutory declaration accompanying his application he claimed to fear harm by reason of being a Tamil and his association with the Tamil Makkal Viduthalai Pulikal (TMVP) political party. 3 The appellant was interviewed by a delegate on 19 May 2016, and in a post-interview submission prepared by his migration agent, he maintained his protection claims based on his association with the TMVP and as a Tamil from the Eastern Province in Sri Lanka and also relied upon his status as a failed asylum seeker who had left Sri Lanka illegally. 4 The Minister's written submissions before this Court helpfully provide a succinct summary of the appellant's claims (omitting paragraph numbering and appeal book references): He worked as a driver for the TMVP during their election campaigns in 2010 and 2012. He was not a member of TMVP and had no interest in politics. In June 2012, he received a threatening phone call telling him to stop driving for the TMVP. On 21 July 2012, unknown armed men came to his house and threatened to harm him if he did not cease working for the TMVP, though the appellant was not present at the time. He believed that these men belonged to a rival political faction, the Karuna group. He went to his sister's house where he hid before departing about 6 days later. His brother, who had also worked as a driver for the TMVP, was kidnapped during the 2015 election and had his hands slashed with a knife. The appellant believed that this was retribution for his having failed to have regard to the Karuna group's earlier warnings. He might suffer harm due to a general heightened risk to Tamils, including torture and detention under Sri Lanka's Prevention of Terrorism Act, and because registration of Tamils residing in the Batticaloa District had recommenced. He might be targeted due to his status as a returned failed asylum seeker. 5 The primary judge comprehensively summarised the progress and outcome of the appellant's SHEV application before the delegate and on merits review before the Authority as follows: [4] The applicant claimed that he worked as a van driver between 2008 and 2010 for the Chief Minister of the Eastern Provincial Council. The applicant claimed that he undertook work for the TMVP as a driver during the election campaigns in 2010 and 2012. The applicant claimed he received a threatening phone call in 2012. The applicant also claimed that unknown armed men came to his house looking for him and threatened him in relation to his work with the TMVP in 2012. The applicant claimed that he was targeted by members of the Karuna Group. The applicant also claimed that he feared harm by reason of his brother having been kidnapped during another election campaign in 2015. [5] On 12 July 2016, the Delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa. [6] On 13 July 2016, the Authority wrote to the applicant explaining that his application for a Safe Haven Enterprise visa had been referred to the Authority for review. The letter attached a fact sheet and practice direction which provided the application an opportunity to put on new information and submissions. [7] The Authority in its reasons identified the background to the applicant's application for a Safe Haven Enterprise visa. The Authority had regard to the material referred by the Secretary under s.473CB of the Act. [8] The Authority identified that the United States Department of State Country Report on Human Rights Practices in Sri Lanka for 2015 dated 13 April 2016 was the more recent version of the report that had been relied upon by the Delegate. The Authority was satisfied that there were exceptional circumstances to justify considering this new information. [9] Under s.473DE(3)(a) of the Act, there is no obligation for the Authority to give the applicant an opportunity to respond to the new country information. [10] The Authority summarised the applicant's claims. The Authority set out the relevant law, including in a paginated attachment forming part of its decision. [11] Taking into account country information, the Authority accepted that the applicant was threated on two occasions in 2012 as a result of his work for the TMVP. The Authority also accepted it was plausible that the threats were from people associated with the Karuna Group. [12] The Authority referred to the applicant's claims relating to his brother being kidnapped and that his brother had been working for the TMVP. The Authority identified that there was not enough information before it to satisfy the Authority that the attempted abduction was done by the Karuna Group or was in connection with the brother's alleged work as a driver for the TMVP or was the result of the applicant not heeding to their earlier warnings. [13] The Authority referred to country information in relation to the Karuna Group being unable to develop a political base in the post-war period in Batticaloa and no party having taken any interest in giving the Karuna Group a seat on the National list. The Authority did not accept the applicant's claim that the Karuna Group could come to power in another election as this was regarded as speculation and not supported by the country information. [14] The Authority did not accept that the brother's abduction in 2015 was for reasons of the applicant's support given to the TMVP. The Authority, taking into the account the applicant's low profile, was not satisfied that there is a real chance the Karuna Group maintained an interest in harming the applicant because of his work and support for the TMVP as a driver during the elections in 2010 and 2012. [15] The Authority referred to the applicant's submission that the applicant's motivation to seek a government job will probably continue and he will likely seek to drive vehicles again during future elections. The Authority found that this was inconsistent with the applicant's own evidence given during the Safe Haven Enterprise visa interview where he said that he could find another job rather than work as a driver for a political party. The Authority also referred to the applicant not claiming that he will seek government employment on return to Sri Lanka or that he will continue to do so by driving for the TMVP. The Authority was not satisfied that there is a real chance the applicant will continue to seek government employment by working for the TMVP as a driver on return to Sri Lanka. [16] The Authority referred to the applicant's claim that did not have any previous interest in politics. The Authority was not satisfied that the applicant was a TMVP supporter. The Authority was not satisfied that there is a real chance the applicant will support the TMVP on return to Sri Lanka. [17] The Authority was not satisfied that there is a real chance the applicant would face harm from the Karuna Group or any other person or organisation because he previously worked for the TMVP as a driver and he was imputed as being a TMVP supporter. [18] The Authority referred to the applicant being a young Tamil male from the Eastern Province. The Authority accepted that the applicant was never involved with or supported the Liberation Tigers of Tamil Eelam ("LTTE") and nor did his family. The Authority referred to country information. The Authority found that the security situation has greatly improved since the end of the civil conflict and that the monitoring and harassment of Tamils overall has decreased. The Authority referred to the applicant's particular circumstances and that the applicant and those in his family were never associated with or perceived to have an association with the LTTE. In these circumstances, the Authority was not satisfied that young Tamil males from the East, on that basis alone, are imputed to be LTTE members or sympathisers by the Sri Lankan authorities. [19] The Authority was not satisfied that the applicant would face a real chance of discrimination or other harm on the basis of his Tamil ethnicity. Therefore, the Authority was not satisfied that the applicant would face a real chance of serious harm on the basis of being a young Tamil male from the Eastern Province. [20] The Authority referred to the applicant being a failed asylum seeker. The Authority was not satisfied that the applicant fits within the profiles identified in the country information as the applicant had no actual perceived links to the LTTE, nor had his family ever been accused or suspected of being a supporter or a member of the LTTE. In these circumstances, the Authority was not satisfied that the applicant would be arrested on return to Sri Lanka or his home area on this basis. [21] The Authority was not satisfied that the applicant would be deemed to be viewed as a traitor or will undergo further minute checks or be perceived to be an LTTE member or sympathiser for having sought asylum abroad and/or for being a young Tamil from the Eastern Province. [22] The Authority accepted that the applicant may be charged with an offence under the Immigrants and Emigrants Act 1949 (Sri Lanka) for departing Sri Lanka illegally. The Authority was not satisfied that the applicant faced a real chance of serious harm whilst being detained and questioned by the authorities on return to Sri Lanka. The Authority was satisfied that being questioned, fined and detained for a short period does not cumulatively rise to the level of serious harm. [23] The Authority found that the Immigrants and Emigrants Act 1949 (Sri Lanka) applies to all Sri Lankans and does not apply in a discriminatory manner. Therefore, the Authority was not satisfied that the loss of liberty the applicant may endure for a few days on return to Sri Lanka amounts to persecution under the meaning of s.5J(4) of the Act. [24] The Authority considered the applicant's claims cumulatively. The Authority considered the applicant's profile as a young Tamil male from Batticaloa who has previously been threatened by the Karuna Group because of his work for the TMVP and was imputed to be a supporter of the TMVP who left Sri Lanka illegally and will be returning to Sri Lanka as a failed asylum seeker and found that the applicant did not face a real chance of serious harm. [25] The Authority found that the applicant did not meet the definition of "refugee" in s.5H(1) of the Act. Accordingly, the Authority found that the applicant did not satisfy the criteria is s.36(2)(a) of the Act. [26] The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, there is a real risk the applicant will suffer significant harm. Accordingly, the Authority found that the applicant did not meet the criteria in s.36(2)(aa) of the Act. [27] Accordingly, the Authority affirmed the decision under review. 6 The sole ground of review before the primary judge was as follows: The Immigration Authority Assessor relied on information that was not put to the applicant for comment. Particulars a) The decision was made without interviewing the applicant. b) At 14, the Assessor relied on information namely "UNP distraught over ward demarcation" (footnote 9) that was not placed before the applicant in the interview conducted by the Department as part of the decision taken on 12 July 2016 to refuse the applicant's application for a Safe Haven Enterprise Visa. 7 The appellant was correct to assert that the Authority did not interview him as asserted by particular (a) above. The part of the Authority's reasons referred to at particular (b) above is as follows (emphasis added): [14] The applicant claims that he will be seriously harmed by members of the Karuna group due to his previous involvement with Pillayan's party. Karuna has more influence at present than Pillayan as Pillayan is in the custody of the Criminal Investigation Department (CID). Members of the Karuna group carry arms and have the support of the government and continue to engage in violent acts in his area and, through another election, can come into power. Recent reports confirm that Pillayan was detained in 2015 in connection with the murder of a former parliamentarian though there is no information before me to confirm whether he remains in detention.8 Recent country information, however, indicates that Karuna has been unable to develop a political base in the post-war period in Batticaloa and no party has taken any recent interest in given him a him a seat on the National list.9 I have not accepted the applicant's claim that Karuna could come into power through another election as I consider this to be speculation and the above country information does not support it. I have also considered the applicant's profile as a driver for the TMVP and that, as a result of this position, it is plausible that he was also perceived to be a supporter of the TMVP by the Karuna group. However, I have not accepted that the applicant's brother was abducted in 2015 for this reason and, given the applicant's low profile, I am not satisfied that there is a real chance the Karuna group would have maintained an interest in harming the applicant because of his work for, or imputed support for, the TMVP as a driver during elections held in 2010 and 2012. 9 "UNP distraught over ward demarcation, in predicament to foster party unity", Daily Mirror (Sri Lanka), 29 October 2015, CXBD6A0DE15095 8 The primary judge noted that the appellant did not file any further documents, and had said in court that he did not wish to make any oral submissions, none in writing having been furnished. 9 The primary judge addressed both of the particulars raised by the sole ground of review and another issue concerning updated country information by reference to the relevant provisions of the Migration Act 1958 (Cth) as follows: [33] The review under pt.7AA of the Act is identified under s.473BA of the Act as intended to be one where the Authority does not hold hearings and is required to review the decision on the papers that are provided to it subject to the provisions of the part. Section 473DA of the Act identifies that, subject to certain provisions, the division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. Under s.473DB of the Act, subject to the provisions of the part, the Authority is required to conduct the review without accepting or requesting new information and without interviewing the referred applicant. [34] Section 473DC of the Act provides that the Authority may get new information. The requirements of s.473DD of the Act must be met before the Authority considers any new information. The requirements of s.473DE of the Act, in relation to new information obtained by Authority, has no application to country information under sub-s.473DE(3)(a) of the Act. [35] Taking into account the scheme of the Act and the opportunity that was given to the applicant by the Authority by the letter dated 13 July 2016 to put on new information and submissions, the absence of an express consideration by the Authority to exercise the powers under s.473DC of the Act cannot be said to lack an evident and intelligible justification. [36] That evident justification is the opportunity the applicant was given to put on new information and submissions in circumstances where the applicant had been found by the Delegate not to meet the criteria for the grant of a Safe Haven Enterprise visa and the practice direction invited the applicant to put on submissions engaging with the Delegate's decision. [37] There is no new issue of a claim which has been identified that would require the Authority to give express consideration to the powers under s.473DC of the Act where the applicant submits that he was not the subject of an interview. [38] In the circumstances, the statutory scheme under pt.7AA of the Act does not give rise to any legal unreasonableness in the circumstances where the applicant had an opportunity to put on new information and submissions. The applicant's observation that he did not have an interview with the Authority does not identify any jurisdictional error in this case. [39] The only information identified by the applicant as having been information that should have been put to him is country information falling within s.473DE(3)(a) of the Act. That provision means that there is no obligation upon the Authority to comply with the requirements of s.473DE(1) of the Act. Further, it is apparent that the earlier version of the same type of country information report had been relied upon by the Delegate and the Authority was taking into account updated country information. The taking into account of that updated country information did not, in the circumstances of the present case, give rise to any legal unreasonableness in the absence of an express consideration of the powers under s.473DC of the Act given the opportunity that the applicant had been given by the letter dated 12 July 2016 to put on new information and submissions. [40] No jurisdictional error as alleged in ground 1 is made out. [41] The applicant put no other submissions to identify any other alleged jurisdictional error. [42] As the application fails to make out any jurisdictional error, the application is dismissed. 10 The only part of the appellant's notice of appeal filed on 30 December 2019 that identifies any ground of appeal states at [3] "I still rely on the grounds and particulars being already stated in my FCC Application". A foreshadowed possibility of filing an amended notice of appeal did not eventuate and the appellant did not filed any written submissions. 11 When invited to make oral submissions, the appellant stated that he had already said everything and had no new information to add. He also made reference to the current situation in Sri Lanka. 12 The Minister filed and relied upon written submissions, proceeding upon the basis that the appellant alleges any error in the primary judge's consideration of his sole ground of judicial review below. The burden of those submissions are as follows: (a) Having regard to the legislative scheme in Part 7AA of the Migration Act, the primary judge was correct in finding that the Authority was required to conduct a review of the delegate's decision on the papers and was not required to interview the appellant: primary judge's reasons at [33]. (b) While s 473DC of the Migration Act enables the Authority to get new information, there was no new issue that had not been raised before the delegate and the appellant had not indicated that he had new information to present at an interview, such that the Authority was NOT required to consider exercising the discretion in s 473DC(3)(b) to obtain new information from him at an interview, citing Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 at [82]. (c) The primary judge was therefore correct to hold at [35]-[38] of his Honour's reasons that the Authority was not required to invite the appellant to an interview and that the absence of an express consideration by the Authority of whether it would exercise the powers under s 473DC did not lack an evident and intelligible justification, citing EEE16 v Minister for Immigration, Citizenship, Migrant Services, Multicultural Affairs [2022] FCA 629 at [50] and DFL16 v Minister for Immigration and Border Protection [2021] FCA 936 at [38] and [41]. (d) The second particular in the ground of review before the primary judge, and maintained on appeal, was that the Authority relied on information, cited at footnote 9 to [14] of its decision (reproduced above), which was not placed before him as part of the delegate's interview, being country information. However, the delegate's decision record shows that this information was expressly put to the appellant, and that he responded. For clarity I reproduce that part of the delegate's reasons (emphasis added): [11] Information and issues that may bear negatively upon the claims made were put to the applicant for comment. It was put to the applicant that the situation has changed since the end of the war, that the Sri Lankan government had changed and a new president was elected with the support of the large majority of Tamils, while the parliamentary election held in August 2015 were mostly peaceful.4 The Karuna Group or the TMVP have lost most of their power5 and Karuna himself does not have any seat in parliament.6 Due to these reports it could be found that his claims to fear persecution on account of his involvement with TMVP are not well-founded. The applicant responded that Karuna may seek revenge although he lost his power. He added that Karuna may regain power. 5 CXBD6A0E15095, "UNP distraught over ward demarcation, in predicament to foster party unity", Daily Mirror (Sri Lanka), 29/10/2015 (e) While the Authority did obtain new information in the form of a US State Department Report dated 13 April 2016, it found that the currency and relevance of that report, and the fact that the delegate had relied on the 2014 version of the same report, constituted exceptional circumstances for considering this new information. The primary judge was therefore correct to hold that this updated report fell squarely within the exception provided by s 473DE(3)(a) of the Migration Act, because it related to a class of persons rather than the appellant specifically, citing CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [31]-[32] and [34], in turn citing CMY17 v Minister for Immigration & Border Protection [2018] FCA 1333 at [46] and EKW17 v Minister for Immigration and Border Protection [2018] FCA 1366 at [17]-[20]. (f) The primary judge was also correct to hold that the Authority did not need to put the updated country report to the appellant for comment, despite the terms of s 473DE(1) of the Migration Act. 13 I am satisfied that each of the submissions made by the Minister are correct and are supported by the objective material before me and the authority cited. There is no substance at all to the first particular of the ground of review maintained on appeal because there was no obligation on the part of the Authority to conduct an interview, nor even to consider doing so, in the particular circumstances of this case. There is no substance at all to the second ground of review maintained on appeal because the country information complained about was in fact put to the appellant at the delegate's interview. Also, the primary judge correctly found that the updated US State Department report constituting country information did not have to be put to the appellant. 14 It follows that the appeal must be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.