DUV17 v Minister for Immigration and Border Protection

LEE J: 1 The appellant is a Sri Lankan citizen, who arrived in Australia in September 2012 and made an application for a protection visa in 2016. The appellant claimed to fear harm because he had been suspected of hiding weapons for the Liberation Tigers of Tamil Eelam (LTTE). The contention of the appellant was that he had stumbled across a cache of weapons and he had reported this discovery to the Sri Lankan Army (SLA). Three years later, the matter was discovered by the Criminal Investigation Department, which came to suspect that the appellant was associated with the LTTE. The appellant claimed that he had been questioned and beaten by army officers. 2 One aspect of his claim, to which I will return below, is that the appellant submitted in support of his protection visa application, a letter purporting to be from the Human Rights Commissioner of Sri Lanka (HRC Letter). In a statutory declaration made some time earlier, in September 2013, the appellant indicated that he feared harm or mistreatment upon any return to Sri Lanka based upon: (a) his failure to attend an army camp; (b) his Tamil ethnicity; (c) his imputed political opinion as being supportive of the LTTE; and (d) his membership of a particular social group, being "failed asylum seekers". 3 In November 2016, the delegate of the Minister for Immigration refused the appellant's application. In doing so, the delegate did not accept that the appellant had found a cache of LTTE weapons and reported the finding to the SLA. As a consequence, the delegate was not satisfied that the SLA or the Criminal Investigation Department had any interest in the appellant. The delegate's reasons did not address the authenticity of the HRC letter in the course of considering the substantive claims made on behalf of the appellant. However, the delegate did refer to it in the context of accepting the appellant's claimed identity. 4 This decision was referred for review by the second respondent (Authority) which affirmed the decision of the delegate in July 2017. Importantly, however, the Authority proceeded on the basis that the appellant had located weapons near his home and had alerted the army to his discovery. Additionally, the Authority made specific reference to the HRC letter at [14] of its reasons when it said: I have had regard to the HRC letter submitted by the applicant in support of his claims. The HRC has jurisdiction to inquire into human rights violations and, after an allegation is established, make recommendations for financial compensation to the victim or refer the case for disciplinary action or for prosecution. I have had regard to the content of the letter and noting the language and that it recites the applicant's circumstances and contains no information of any process to verify or investigate the claimed human rights violations, I am not persuaded that this is a genuinely issued document. Furthermore I note that the letter states that the complaint was lodged on 3 May 2013, only four days before the letter was issued, yet the writer is able to "certify that the facts above are true". I do not accept that within four days the HRC has investigated this case and come to a conclusion, noting that the US Department of State advised that in 2015 the HRC "suffered from a lack of staffing, with 15 case officers having approximately 5,000 pending cases at year's end". I do not accept that this document was issued by the HRC and I give it no weight. 5 The appellant then commenced proceedings in the Federal Circuit Court. The appellant was legally represented and advanced three grounds of review, which were set out, including particulars, at [36] of the primary judge's reasons. I will come back to each of these three grounds below. 6 In March 2018, the primary judge dismissed the application for review, and by notice of appeal filed in April 2018, the appellant seeks relief that "the IAA decision and the Federal Circuit Court judgement be quashed". In support of this relief, one ground of appeal is identified: The Federal Circuit court failed to find, in respect of the IAA (Respondent) that the Respondent declined its jurisdiction to me on the basis of grounds including the main grounds stated in my Federal Circuit Court Application filed on 24 August 2017 and in my Amended application filed on 14 March 2018. 7 It follows from the above that in considering the appeal from the primary judge's reasons, what is essentially being sought is a re-agitation of those grounds advanced before (and rejected by) the primary judge. 8 I will deal with the three grounds of review separately below, but before doing so I should make reference to another matter raised by the appellant during the course of oral submissions. The appellant, during the course of his submissions in reply, made reference to the fact that his cousin has now returned to Sri Lanka and, upon his return, he was kept in prison, beaten and mistreated and was also asked, during the course of questioning by the authorities, about the appellant. The appellant contends that this line of questioning was because the appellant and his cousin arrived in Australia at the same time and by the same means. 9 Although I have no reason to disbelieve what the appellant put to me (notwithstanding that it was not supported by any independent verification), as counsel for the Minister explained, the appellate exercise which I am required to undertake does not allow me to engage in a form of further merits review by reference to new material advanced by the appellant. 10 I now turn to the three grounds relied upon by the appellant as identified before the primary judge.

Ground 1 11 Ground 1 contended that the Authority's failure to exercise, or to consider the exercise of, its statutory discretion under ss 473DC(1) and/or (3) of the Migration Act 1958 (Cth) (Act) was legally unreasonable or, alternatively, constituted denial of procedural fairness. This ground of review focused on the fact that the Authority (in contradistinction to the delegate) was not convinced of the authenticity of the HRC letter. 12 As Mr Knowles submitted, in written submissions filed on 3 September 2018: In relation to procedural fairness, s 473DA(1) of the Act provides that Division 3 of Part 7AA "is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the … Authority". This provision operates to exclude the requirements of the common law "hearing rule". Before passing from this point, it is worth noting that even if this was not the case, this is not an example of a new issue arising, considered dispositive by the Authority, which had not been the subject of previous consideration by the delegate. As noted above, the delegate made adverse credibility findings and rejected the factual premises upon which the appellant's claim were based. 13 In the course of the interview of the delegate (set out at some length at [9]-[17] of the primary judge's reasons), an exchange took place concerning the HRC letter which, as the primary judge correctly observed, indicated that the issue of the HRC letter was something that had arisen. Although this did not occasion a finding by the delegate as to a lack of authenticity of the HRC letter, the underlying claim which the HRC letter purported to confirm was the subject of consideration and rejection. 14 The way in which the Authority dealt with the letter is of some importance. I have already set out above at [4] what the Authority found at paragraph [14] of its reasons but it is important to see that finding in the context of the three preceding paragraphs of the Authority's reasons. They are as follows: I have had regard to the variation in the accounts of discovery of the weapons. I note there is some inconsistency in the applicant's account about opening the barrel and who dug up the weapons and whether he saw just rifles or also grenades and bombs. However I note that his basic claim of finding weapons has been consistent across his Arrival interview conducted in January 2013 and his SHEV application and interview and, despite these inconsistencies in the details, I am willing to give the applicant the benefit of the doubt and accept that the applicant located weapons near his home and that he alerted the army to this discovery. I do not accept as plausible that in 2012 his involvement in the discovery of the weapons came to the attention of the CID and led to the adverse attention from the army as claimed. I note his comment that jealous villagers may have informed on him to the authorities, and country information advises that the authorities regularly used informers to identify people involved in activities of interest. However, for the following reasons I do not consider the applicant's account of the interest in him in 2012 from the authorities is plausible: • In his oral submission at the SHEV interview the representative asserted that the close proximity of the applicant's property to the location of the weapons would give rise to the authorities' suspicions of the applicant. Yet the weapons were found on land adjacent to his property and were not found on his land, and there is no indication that the authorities have shown any interest in the owner of the property where the weapons were actually found. • I do not accept as plausible that the authorities would later suspect the applicant of hiding weapons for the LTTE when the applicant volunteered the information regarding the location of the found weapons in 2009. I note his comments that the authorities in Sri Lanka are not like those in Australia, and the country information supports that they acted with impunity in abusing civilians during and after the war, but I consider it to be implausible that they would suspect the applicant of being an LTTE supporter when the applicant came forward with the information about hidden weapons voluntarily and immediately. • I accept that the authorities obtain information from informers, but I am not persuaded the authorities would believe a person who was hiding weapons for the LTTE would have revealed hidden weapons to the authorities in 2009, even if an informer had told the authorities he was hiding weapons. • I also take into account that no suspicion fell on the applicant in 2009 after he revealed the discovery and he was able to continue living and working openly in Jaffna. I do not accept that the applicant came to the adverse attention of the authorities in 2012 because he was imputed with an LTTE profile and suspected of hiding LTTE weapons or that he was required to report to the army in June 2012. (Footnotes omitted) 15 As can be seen from the above extract, the Authority, unlike the delegate, was prepared to give the appellant the benefit of the doubt and to accept that the appellant located weapons near his home and that he alerted the SLA to the discovery. But notwithstanding this conclusion, the Authority found that the appellant had not come to the adverse attention of the authorities in 2012 because he was imputed with an LTTE profile and suspected of hiding weapons, or that he was required to report to the army. In this sense the finding concerning the HRC letter was, as the Minister submitted, confirmatory of the Authority's view that the appellant's claims to have been targeted were implausible. 16 As noted above at [11], the submission is also made by the appellant that the Authority's failure to exercise its statutory discretion evinced legal unreasonableness in that it did not seek information or invite any person (including the appellant) to give new information in relation to the finding that the HRC letter was not genuine. At this point it is worth setting out the terms of the HRC letter as they appear at page 58 of the appeal book: 07.05.2013 [The appellant] underwent life threats during his living here. He had informed CID when he found a hatch of weapons being hidden in his garden. CID came there and took the weapons immediately. The CID came there again, and questioned him; some more weapons have been hidden here. Where they? So asked him and launched life threat to him. He was thoroughly frightened and was in a state of frustration because of the life threat. Following this incident, [the appellant] in trepidation, left out of this country, on 24.08.2012, to save his soul. Subsequently, in the evil hours, CID visiting his house more frequently, questioning for him from his wife in of inquiry and the veil under threat. It recurring at intervals. So, she is in fear. His wife … had made a complaint to us on 03.05.2013 to this effect. I certify that the facts above are true and a complaint had been made to us. [signature] Regional Coordinator, HRCSL, Jaffna. (Header omitted) 17 As I indicated to Mr Knowles, it is not entirely clear to me, from my review of the letter, whether the certification of the above facts as being true and that a complaint had been made to the HRC, is a certification as to the underlying truth of the complaint or that the fact that a complaint had been made in the terms identified. Needless to say, if it was the former the somewhat singular use of expression in the complaint may have been regarded as a strong pointer to its lack of authenticity. It is clear that this is the way the Authority proceeded, as can be seen from paragraph [14] of the Authority's reasons extracted above at [4]. Having said this, for reasons I have explained, the implausibility of the appellant's claims, as perceived by the Authority, was not conditional upon the finding that the HRC letter was bogus. 18 The unreasonable exercise or non-exercise of power in s 473DC(3) has been the subject of a number of recent decisions of the Full Court see: Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475; DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 and Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526. 19 As the Minister submits: In DGZ16, the Full Court considered a factual scenario broadly analogous to the instant case. In that case, the delegate of the Minister made findings of fact that wholly undermined the referred applicant's claims. The Authority made different factual findings, including accepting a key factual matter rejected by the delegate. The Full Court held that it was open to the Authority to evaluate for itself the material considered by the delegate and arrive at different factual findings without giving notice to the referred applicant: at [71]-[72]. Their Honours rejected the proposition that the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the referred applicant once it formed specific reservation about the referred applicant's claims: [74]-[76], [78]. 20 It is said that in this case, unlike in CRY16 and DZU16, there were no new factual issues that arose for the first time during the course of the Authority's review. This is not a case where the Authority did not have before it all the information relevant to its review. Here it is submitted that the Authority had before it sufficient material, in the form of the appellant's own claims and evidence, to assess the appellant's claims. It is further submitted that there was documentary evidence in support of these claims and no new information was required in order for the Authority to conduct its review. 21 This must be seen in the context in which the Authority is not under a statutory duty to get, request or accept any new information (see s 473DC(2) of the Act). Even if one was able to identify how the Authority could have made further inquiries as to the genuineness of the HRC letter, given the way the Authority dealt with the appellant's claims, it does not seem to me that the Authority engaged in an unreasonable failure to exercise power. It follows that Ground 1 is not established.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (5 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (14)