DVB16 v Minister for Immigration and Border Protection

Federal Court of Australia|2018-11-07|Before: Mr J, Lee J

The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

A Introduction 1 This is an appeal from a judgment of the Federal Circuit Court which dismissed an application for judicial review of a decision of the second respondent (IAA). This proceeding has had an unusual procedural history. 2 The appellant is a Sri Lankan who arrived in Australia as an unauthorised maritime arrival in October 2012 who then made an application for a Safe Haven Enterprise Visa (Visa) in 2016. It is common ground that the appellant was a "fast track applicant" to which Part 7AA of the Migration Act 1958 (Cth) (Act) applies. 3 The unusual procedural history to which I refer arises in the following way: after filing a notice of appeal in April 2018 identifying three grounds of appeal (idiosyncratically numbered 1, 2 and 4), prior to the initial hearing, an amended notice of appeal was filed whereby two of the grounds were not pressed and were replaced with a modified version of Ground 4 (which then became Ground 1 in the amended notice of appeal). If this was not sufficiently confusing, an entirely new ground not argued before the primary judge (which became Ground 2 in the amended notice of appeal) was then raised. 4 Following oral development of submissions on behalf of the appellant at the hearing, it became apparent that the appellant wished to further refine his contentions and a revised amended notice of appeal was provided (together with supplementary submissions on behalf of both parties). I will come to the details of each of the grounds pressed below but it suffices for present purposes to note that I have now received full submissions by both parties on the grounds identified in the revised amended notice of appeal. Notwithstanding that Ground 2 (which I detail below) was not advanced before the primary judge, I am disposed to grant leave to raise the argument so that all matters can be considered on the merits. 5 Before coming to the grounds now identified in the revised amended notice of appeal, it is appropriate to say something about the factual background.

B Relevant background 6 In a statement attached to his application for a Visa, the appellant claimed that as a young Tamil living in territory controlled by the Liberation Tigers of Tamil Eelam (LTTE), he was forced to abide by directions of the LTTE and do work for the LTTE, including as a stonemason in a cemetery and working as a driver. In addition to these claims, in broad terms, it was contended that: (a) two of his brothers-in-law were killed by government forces; (b) during the height of the civil war in Sri Lanka, the appellant and members of his family were incarcerated and placed in a displaced persons camp where he was interrogated by the Criminal Investigation Department (CID) about suspected LTTE contacts; (c) after being released, he was later interrogated about his possible links to the LTTE, including his family connexions; (d) a number of his school and village associates had been LTTE combatants and had become informants and were informing on persons like the appellant saying they were LTTE cadres (in order to gain favour with the government); and (e) in August 2012, armed persons in civilian clothes came to the appellant's house (when he was not home) and told his wife that he should report to the CID. It was also said: (f) that the appellant went into hiding and made arrangements to flee the country; and (g) after fleeing the country, after six or seven months, members of his family were contacted with enquiries concerning his whereabouts. 7 In summary, the appellant contended he feared harm, mistreatment, interrogation and possible death because of his perceived LTTE involvement, his work for the LTTE, and his familial links with the LTTE. 8 The details of the appellant's claims, together with what was said to be supporting information, were provided to a delegate of the first respondent (Delegate). Part of the additional material was an excerpt from a report by a member of the International Truth Justice Project dated 10 January 2016 (ITJP Report), which was to the effect that torture in police and military detention continued after the 2015 elections. 9 In the decision of the Delegate of 19 August 2016, the Delegate noted that he considered the ITJP Report. The Delegate summarised the findings, based on interviews with victims held outside the country as follows: (i) Tamils with tenuous links to the LTTE and low level cadres continue to be targeted along with their families. Interrogators falsely accuse them of working to restart the LTTE, and some victims have been detained two or three times. (ii) Abductions were planned and none of the victims were charged with a crime. (iii) Reasons for detention include maintaining control over Tamils through repression, making life so oppressive that Tamils flee the country, and to obtain ransom. 10 Notwithstanding that the Delegate also cited other material supporting the notion that Tamils suspected of links to the LTTE continued to be arrested and detained, the Delegate rejected the Visa application. 11 The IAA affirmed the decision of the Delegate. In doing so, the IAA accepted the appellant's claims summarised in his statement attached to the Visa application and, in assessing whether the appellant has a well-founded fear of persecution, the IAA: (a) Examined the political context, citing the election of President Sirisena in January 2015, and the formation of a "national unity government" which included the Tamil National Alliance, and the general easing of restrictions and monitoring on the Tamil population. (b) Noted DFAT advice that there is a moderate level of societal discrimination between ethnic groups resulting largely from the war, and that the appellant did not claim to have been affected by discrimination. (c) Cited the 2012 UNHCR "Eligibility Guidelines for Sri Lanka". (d) Referred to DFAT's opinion that incidents of extra-judicial killings, disappearances and kidnappings for ransom had fallen considerably since the end of the civil war and that verifying recent reports was difficult and DFAT had no information on the overall instance of torture of people suspected of LTTE links. The IAA also noted that allegations of torture pertain to a relatively small number of cases compared to the Sri Lankan population. (e) Cited the United Kingdom Home Office 2016 report to the effect that there have been positive developments since President Sirisena's election, but that the authorities continue to monitor people, particularly in the north and east and that, "persons perceived to sympathise with the LTTE continue to [sic] intimidated, harassed, arrested, detained and tortured". 2016 US State Department reports were cited to similar effect. 12 The matter then came before the primary judge. The appellant was represented. In dealing with the appellant's contention that the IAA failed to consider the appellant's claim that he faced persecution because of his failure to report to the CID, the primary judge found that the IAA had made an express finding accepting that claim, and the application was dismissed with costs.

C The present notice of appeal 13 The appellant now maintains two grounds of appeal. They are as follows: 1. The Court Below erred in: (a) Finding that the appellant's claim that he feared persecution as a result of his failing to comply with a demand from the Sri Lankan CID that he report to them was addressed by the second respondent (the IAA) at a greater level of generality than the claim actually made, and (b) Failing to find that the IAA had not lawfully considered the appellant's claim that he feared persecution as a result of his failing to comply with a demand from the Sri Lankan CID that he report to them. 2. The IAA erred in failing to complete the exercise of its jurisdiction in that it failed to review the delegate's decision as it was required to do pursuant to s 473CC of the Migration Act, read with s. 473DB(1), and the Court Below failed to so find. 14 It is to these two grounds of appeal that I now turn.

Ground 1 15 Ground 1 does not have merit. In his written submissions the appellant contends: The appellant claimed, and the IAA accepted, that the CID did come to check on him, to find his whereabouts, albeit that that was several months after he had failed to report (AB 188 [33]). That the inquiry was as to his whereabout [sic] indicates that the CID was interested in finding him. That they were interested in finding him suggests that they had a purpose in doing so. That purpose could have been that they was simply monitoring Tamils of interest, or they had a specific interest in the appellant, and that could have derived from a renewed interest in him because of his LTTE connections, or that he had been informed upon given that he had claimed that informers operated (AB 70 [10]), or that he had failed to report, or a combination of any or all of these. The IAA at AB 188-9 commenced [34] of its reasons by stating that it did not consider the appellant to be at relevant risk for a number of reasons. It then set out those reasons, including the seventh reason…. That reason was that the CID had taken six or seven months to make its enquiry and had not made a subsequent enquiry, and that routine monitoring has decreased. But that did not mean that the CID may not still be interested if he were to return, especially if they were to discover his presence in view of checks which are made upon involuntary returnees (see the IAA decision at AB 189 [38]-[39]). 16 In order to understand the above submissions it is appropriate to set out the IAA's reasons at [34] (including the seventh reason to which reference was made in the submissions of the appellant): Having regard to the UNHCR guidelines and the other information before me, I do not consider the applicant to be at risk of harm for a number of reasons. First, many people who resided in LTTE areas interacted with the LTTE on a daily basis, were forced to assist the LTTE, were required to undergo defence training and residing in a LTTE controlled area does not on the evidence indicate a need for protection. Secondly, although his brothers-in-law were members of the LTTE, it is not a close family link and both brothers-in-law were killed by the authorities during the war. Thirdly, the applicant was not a member of the LTTE and none of his immediate family were members of the LTTE. Fourthly, although he was questioned, and not physically harmed, twice at the IDP camp, such questioning was common as the authorities screened all IDPs in search of LTTE members and supporters. Fifthly, country information suggests that monitoring of Tamils in the north and east was routine, together with many former IDP camp residents reporting and visits from the authorities, and the authorities showed no interest in the applicant after his release from the IDP camp until approximately March 2012 and then again a month later in approximately April 2012, when he was further questioned and threatened. Sixthly, despite threatening to shoot the applicant at the second interrogation in around April 2012, the authorities made no effort to question the applicant again until 16 August 2012 when they called at his house and asked him to report to them. Seventhly, despite failing to report to the CID as requested on 16 August 2012, it was six or seven months before the CID made any enquiries about the applicant's whereabouts, the authorities have not made any further enquiries after that time and country information indicates routine monitoring has decreased under the current Sir [sic] Lankan Government. Eighthly, the applicant has not claimed in his evidence in his SHEV application or at the SHEV interview that the CID looking for his brother is in any way related to the applicant or demonstrated a connection between his brother's position and his own protection claims. Lastly, country information suggests that scarring was a matter of interest to the Sri Lankan authorities during the war and in its immediate aftermath when considering suspected LTTE involvement but that it is no longer the case. I am not satisfied that the authorities would have had any adverse interest in the applicant, beyond routine monitoring in common with many Tamil's in the north and east at the time, if he had remained in Sri Lanka or that he would be of any adverse interest to the current Sri Lankan authorities on return. Given the above factors, and the country information, I consider any risk of harm to the applicant from the authorities based on his profile to be remote. (emphasis added) 17 The primary judge at [20] correctly identified the claim or integer of the claim made by the appellant, namely that he would suffer mistreatment on arrival back in Sri Lanka because his failure to report to the CID in 2012 would elevate his profile and possible link to the LTTE. His Honour also recorded the appellant's submission that the findings of the IAA at [34] extracted above, were not sufficient given the detail and manner in which the claims were made given that the IAA was under an obligation to consider the claim (at [23]). 18 What the primary judge then noted at [24]-[26] was that the absence in a statement of reasons of any express consideration of a particular claim does not necessarily establish that the decision-maker has failed to consider that claim or issue (see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (French, Sackville and Hely JJ) at 604-605 [47]) and that the IAA was not a Court but an "administrative body operating in an environment which requires the expeditious determination of a high volume of applications" and the IAA's reasons were not to be scrutinised "with an eye keenly attuned to error" : WAEE at 604 [46]. Importantly, the primary judge observed (correctly) that the IAA summarised the appellant's claims and made express findings in which it accepted the claim that the appellant was required to report to the CID and yet failed to do so: see the IAA's reasons at [33]. Moreover, the primary judge referred to the fact that that the claim was referred to in the seventh reason (bolded above at [16]) and relied upon for the ultimate conclusion reached. Further, as his Honour noted at [26]: Finally, [the IAA] made a finding that was at a higher level of generality than the precise claim made by the applicant in the second last sentence of [34].... In other words, the [IAA] was well aware of the claim, it made findings about the factual basis for the claim, and, by making a finding at a greater level of generality effectively dealt with it. For that reason, [the relevant ground] is not made out. 19 As can be seen from the submissions extracted at [15], this ground amounts to an invitation to find error in the primary judge's reasons because the appellant invites the Court on appeal to substitute a different view of the factual matters before the decision maker. Indeed this is made explicit by the reference to the speculation about what the "purpose" might have been of the CID. Error is not demonstrated by identifying alternative findings that might have been available. It was open for the primary judge to conclude that the IAA did make the finding that the appellant was not someone who was of interest to the authorities (other than in respect of routine monitoring). Indeed, in my view, the primary judge's reasoning was, with respect, clearly correct and this ground fails.

Ground 2 20 Ground 2 was refined and morphed somewhat during the course of oral submissions and in supplementary submissions filed subsequent to the hearing. The argument seemed to proceed as follows: (a) the IAA would ordinarily conduct its review without interviewing the appellant and without getting "new information" as defined in s 473DC(1); (b) the applicable legislative structure which involves reviews being conducted on the papers, "contrasts with the legislation applicable to the Migration and Refugee Division of the Administrative Appeals Tribunal where there is a duty to invite the appellant to a hearing where the issues on the review are to be exposed" and where the appellant has a right to make some submissions and provide additional information; (c) it follows, that the obligation to "consider" the review material pursuant to s 473DB(1) must require the IAA to : (i) "focus attention on what is in the papers and consider the issues and information therein"; and (ii) engage in an "active intellectual process" in relation to the information to determine its relevance and ascertain whether it raises any new or different issues (see Tickner v Chapman (1995) 57 FCR 451 at 462). 21 It is further submitted that whether the IAA has carried out its duty may be measured against the requirements of s 473EA(1)(b) of the Act which requires: (1) If the Immigration Assessment Authority makes a decision on a review under this Part, the Authority must make a written statement that: … (b) sets out the reasons for the decision … 22 The appellant contends that the duty to provide reasons encompasses the requirements of s 25D of the Acts Interpretation Act 1901 (Cth) which states: Content of statements of reasons for decisions Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression "reasons", "grounds" or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. This point was not considered to be contentious, as the Full Court has previously accepted this to be the case: see BVD17 v MIBP [2018] FCAFC 114 at [48]. The Minister did submit, however, that this did not advance the appellant's case in any material way. 23 It is against this background that the appellant then points to there being no express mention in the IAA's reasons of: (a) a 2015 DFAT Report and a 2014 Human Rights Watch Report, to the effect that there had been credible reports of torture being carried out by the security forces, in the period before and immediately following the January 2015 elections; (Credible Torture Claim) (b) country information regarding the Sri Lankan army's persecution of Tamils "fuelled by extortion" (which post-dates the recent elections); (Persecution Claim) and (c) important aspects of the International Truth Justice Project Sri Lanka Report of January 2016 (which were referred to in the reasons of the Delegate) (ITJP Claim). The failure to make reference to this material is said to be explicable only on the basis that the IAA did not thoroughly and carefully discharge its obligation to engage in an "active and intellectual process".

Inference to be drawn 24 It is, with respect, a little difficult to follow the argument as refined. Doing my best, it seems to amount to a contention that because the legislative scheme involves a review on the papers (and is characterised by the appellant as being "severe") that these circumstances inform or mandate some form of heightened duty on the part of the IAA to consider material before it. 25 As Mr Kay-Hoyle, who appeared on behalf of the Minister pointed out: The first thing to note is that this formulation says little, if anything, beyond the position established by the state of the current authorities. It is not in dispute, at a conceptual level, that the IAA may fall into jurisdictional error if it fails to engage with, or give active consideration to, a material aspect of an applicant's case. However, to state the problem in these terms is to say little about whether there was such an error. As the Full Court of this Court has explained recently in Minister for Home Affairs v Buadromo [2018] FCAFC 151 ("Buadromo") a failure to engage with material in a way that leads to error may be described in a number of different ways with different connotations, of which the description "active intellectual exercise" is merely one: at [42]-[45]. What is required is a proper analysis, within the applicable statutory setting, of what the decision-maker did. 26 The IAA undertakes a de novo merits review (see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600 at 606 [17] (per Gageler, Keane and Nettle J), 620 [85] (per Gordon J) and 621-622 [92] per (Edelman J)). The review material is before it and it is necessary, in order for it to discharge its statutory function, to consider that material. The fact that certain material is not expressly referred to in the decision, does not lead, as the appellant suggests, to an inference of a failure of the IAA to discharge properly its task of review: see WAEE at 604-605 [46]-[47]. Indeed, as Perram J noted in SZMTD v Minister for Immigration and Border Protection [2015] FCA 150 at [17]-[19], the absence of reference may simply mean that the correct inference is that the decision-maker considered the matter to be irrelevant. 27 As was submitted on behalf of the Minister, the logical extension of the appellant's argument is that it would have been necessary for the IAA to provide individualised reasons as to why it accepted or rejected individual pieces of evidence and to make findings about every claim made or issue raised. This is not the law: see WAEE. To this the appellant submitted that the principle drawn from WAEE (namely, that an inference that the Tribunal has failed to consider an issue is not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point), is not readily transferable to the Court's review of IAA decisions. It is said that a reviewing Court needs "to look closely to determine whether the [IAA] has exercised the review function imposed upon the IAA by s 473CC" of the Act. 28 Put another way, what the appellant submits is that given the type of process engaged in by the IAA, an inference should more readily be drawn that there was a failure to consider an issue or provide appropriate scrutiny. 29 I do not accept this argument. As the Minister submitted: The reasons of the Full Court in Applicant WAEE at [46]-[47] are based on the approach to be adopted to administrative decision-makers generally when operating in an environment that requires "expeditious determination of a high volume of applications". It emphasised the Tribunal (in that case, the Refugee Review Tribunal) was not a court. That description is equally true of the IAA. Critically, the Full Court noted that an inference that a tribunal has not considered an issue is not to be drawn lightly "where the reasons are otherwise comprehensive and the issue has at least been identified at some point". There is no reason why that is not applicable equally to all decision-makers, whether they make decisions under Part 5, Part 7 or Part 7AA. Put differently, there is no reason of principle why a decision-maker undertaking a more limited form of review either enlarges or diminishes the obligation to give reasons, the scope of those reasons (by reference to the relevant authorities) and the process by which a Court assesses whether those reasons demonstrate error, in particular whether they demonstrate that there has been a failure to engage meaningfully with a claim, submission or evidence such as to give rise to jurisdictional error. (emphasis in original) 30 The appellant does not point to any reason why the inferences that may be available to a reviewing Court (when a matter is not referred to) should be any different for the IAA than any other tribunal. In my view, the particular nature of the review under Part 7AA does not alter the nature of the inferences that can be drawn (and will be drawn in an appropriate case), either to support a conclusion that the IAA did not consider an issue relevant or that the IAA failed to give an issue proper consideration.

Ground 2 claims 31 While the IAA's decision did not explicitly reference the three aspects of the relevant reports in explicit terms, the reasons of the IAA are comprehensive in dealing with the claims made and issues raised by the appellant. Most significantly, the IAA decision appears to have discussed and dealt with the substance of each of the three issues raised by Ground 2, albeit by reference to alternative reports. 32 The Credible Torture Claim is dealt with at [14] and again at [30] of the IAA reasons. There, the IAA explicitly cites the section of the DFAT report referred to in the appellant's submissions, noting that "there are credible reports of torture carried out by Sri Lankan security forces during the war and in its aftermath". While the term 'aftermath' does not perhaps reflect the time period dealt with by the DFAT report as accurately as possible, the citation to the report demonstrates that the decision-maker took the issue into account. The way in which the Human Rights Watch report (HRW Report) has been dealt with, is similar to the second and third claim. Although the IAA reasons do not explicitly reference the section of the HRW Report highlighted by the appellant, the relevant section does not offer any information that is materially different from that considered in relation to the DFAT report. 33 The substance of the Persecution Claim is discussed at [32] of the IAA reasons, where it is acknowledged that 'credible reports' exist of the occurrence of military personnel abducting, torturing and mistreating persons with links to the LTTE after the 2015 elections. Although the reasons do not cite the country information itself as the source for this information, the IAA dealt with the substance of the claim. 34 The ITJP Claim is addressed at [31] of the IAA reasons where the United Kingdom Home Office report (UKHO Report) is discussed in the context of its findings that people who either have links to the LTTE or are perceived to be sympathetic to its cause, continue to be intimidated, detained and tortured. The appellant claims that the further information regarding "abductions for ransom being planned", and that the "reasons for detaining Tamils included maintaining control and to obtain a ransom" was not considered. Although not dealt with in such terms, these claims are addressed at [31], where the reasons mention that according to the UKHO Report, white van abductions "are now seldom reported … although new cases of Tamil victims continue to emerge". Further, at [30] the reasons note that according to the 2015 DFAT report, "the number of … kidnappings for ransom… [have] considerably fallen". Again, despite the failure to mention the ITJP report, the reasons demonstrate that the claims have been considered and dealt with by the Authority. Although the reasons emphasise the diminishment of these events, the recognition that they still occur demonstrates a consideration of the same issues raised by the ITJP Claim. 35 In the circumstances, the substance of the Ground 2 claims have been discussed and considered in the IAA's reasons. In the context of such otherwise comprehensive reasons and where the issues have been at least mentioned in the reasons, I am not prepared to draw the inference that the decision-maker did not have regard to the relevant reports outlined in Ground 2. The more appropriate inference to be drawn, is that the Authority turned its mind to the reports but considered that those reports did not supplement the information already considered in any meaningful way, and therefore were not relevant to the decision. If, however, the decision-maker did fail to consider the Ground 2 claims, I am satisfied that this could not lead to jurisdictional error given that the issues raised by Ground 2 were subsumed within the IAA's reasons. 36 Further to this point, it is also worth noting the commonality that exists between the three Ground 2 issues. The common claim made, is that following the 2015 election, Tamils with tenuous links to the LTTE continue to be subjected to discrimination and persecution. These specific claims raised have been subsumed in a more general discussion of the evidence which demonstrates that some level of discrimination and persecution has continued following the 2015 elections. In the context that the IAA makes its decisions "in an environment which requires the expeditious determination of a high volume of applications", the claims should be understood as having been dealt with sufficiently.

D Conclusion and orders 37 Given the lack of merit in the two grounds that are persisted in by the appellant, the result must be that the appeal is dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

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