DXM16 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs of and incidental to the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BEACH J: 1 The appellant appeals from a decision of a judge of the Federal Circuit Court dismissing his application for judicial review of a decision of the Immigration Assessment Authority. The Authority affirmed a decision of a delegate of the first respondent (the Minister) to refuse to grant the appellant a Safe Haven Enterprise visa (the visa). 2 Before getting into the detail of the appeal, there are two preliminary matters that I should make mention of. 3 The first matter is that this morning the appellant provided a letter addressed to me, together with various attachments that seem to have been downloaded from the internet referring to the current political and other circumstances in Sri Lanka. The appellant sought to have this new material taken into account on the hearing of the appeal. I read that material but explained to the appellant that given the limited nature of my role on the appeal, the matters in his letter and the attachments were not directly relevant to the matters that I needed to decide. 4 The second matter is that after I invited the Minister's counsel to go through the various grounds of appeal and after I invited the appellant to speak to his grounds of appeal, the appellant applied for an adjournment on the basis of some prospect that he might be able to obtain legal assistance. I heard submissions from the appellant in support of that application, but declined to grant the adjournment on the basis, first, that the appellant had had sufficient opportunity to get legal representation given that the appeal had been listed for some time, second, I did not consider the prospects of him getting legal representation given his circumstances to be very likely, and third, I did not consider that it was likely that legal representation was going to be of any real assistance in further clarifying the legal issues that I needed to deal with. Accordingly, for those reasons I refused his adjournment application. 5 Let me now turn to the merits of his appeal, and go through them in some detail. By way of background, I note the following matters. 6 The appellant is a citizen of Sri Lanka, who was born in 1990. He first arrived in Australia in August 2012 as an unauthorised maritime arrival. It is not necessary to detail what occurred between 2012 and 2015. On or about 30 November 2015, he applied for the visa, and in support of his application for the visa he asserted the following: (a) The appellant grew up in North Sri Lanka where the Liberation Tigers of Tamil Eelam (LTTE) were pressuring his family to have him join them. As the war affected their village, the appellant and his family moved to camps run by the Sri Lankan army for Tamils. (b) After two weeks in the camp the appellant was taken away by the army for what has been described as "rehabilitation". The appellant was interrogated and physically assaulted. After one year, the appellant returned to the welfare camp with his mother. (c) The appellant and his family were released from the camp, but their village had been destroyed by the war, and the army apparently continued to harass them. (d) The appellant then moved to Africa, and thereby missed his mandatory registration with the army. The Criminal Investigations Department (CID) came searching for him. After the appellant had returned to Sri Lanka, the CID spotted him and took him away to an army camp and tortured him. (e) The appellant fears harm from the army and the CID if he returns to Sri Lanka and also he apprehends a fear based upon the fact that he had left Sri Lanka illegally, which could lead to him being imputed as being involved with the LTTE. 7 On 16 August 2016, a delegate of the Minister refused to grant the appellant the visa. The delegate's decision was then referred to and reviewed by the Authority. The appellant's migration agent provided a submission to the Authority in support of the appellant's case. On 22 November 2016, the Authority affirmed the delegate's decision. 8 The Authority had regard to the material referred to it by the Secretary (s 473CB of the Migration Act 1958 (Cth) (the Act)). The Authority also had regard to the appellant's submission insofar as it contained arguments and material responding to the delegate's decision. But the Authority was not satisfied that it could consider some interviews and speeches for which the appellant had provided YouTube hyperlinks. The Authority was not satisfied that either of the limbs of s 473DD(b) had been satisfied in relation to interviews and speeches for which the appellant had provided YouTube hyperlinks. Further, the Authority observed that the links did not work and that no explanation had been provided as to why the interviews and speeches could not have been provided to the delegate prior to her decision, or how they amounted to credible personal information. Accordingly, as neither of the relevant conditions in s 473DD(b) had been satisfied, the Authority did not take that material into consideration. 9 Now the Authority accepted that the appellant was of Tamil ethnicity and of Hindu faith. It also accepted the appellant's claims as to the events he experienced during the civil war and its aftermath, including his avoidance of LTTE recruitment, his family's detention in the Kodikamam army camp and the appellant's own detention in the Tellipalai rehabilitation centre. The Authority further accepted that the appellant was in that centre between April 2009 and January 2010, because he was a young Tamil who had arrived at the army camp from an LTTE controlled area and also accepted that the appellant was interrogated and physically harmed at this time. It was also accepted by the Authority that the appellant had a passport issued to him whilst he was in the rehabilitation centre with the assistance of an army commander, but the Authority considered that the fact that the authorities helped the appellant apply for, and receive, a passport, indicated to the Authority that their suspicions about the appellant being a possible LTTE threat had decreased. 10 The Authority accepted that the appellant was released from rehabilitation in January 2010, but was concerned by inconsistencies in his claims as to how often he had to report to the authorities. The Authority considered that the authorities' interest in the appellant decreased whilst he was in rehabilitation, but did accept that he was subject to some post-release reporting requirements. The Authority did not accept that the appellant was subject to a strict reporting regime when he departed Sri Lanka for Africa or that he was of adverse interest to the authorities at this time. Further, the Authority accepted the appellant's claim that he had been questioned at the airport on his return from Africa, but did not accept that he had been hit or detained overnight. The Authority also did not accept the appellant's claim that he had been required to sign in by the CID after his return from Africa. The Authority concluded that although the appellant had been detained in a rehabilitation camp in 2009 to 2010, he was not of adverse interest when he departed for Africa, was not detained on his return and was not otherwise of adverse interest to the authorities after his January 2010 release. The Authority also did not accept that the authorities had looked for the appellant after his departure from Sri Lanka, for any reason. 11 The Authority was not satisfied that the appellant faced a real chance of harm now or in the reasonably foreseeable future on account of his race and/or origin. The Authority was not satisfied that the appellant was of adverse interest to the authorities on his departure from Sri Lanka and found that there was not a real chance that he would face persecution on the basis of any imputed LTTE support or link. The Authority acknowledged that Tamils faced a "moderate level" of societal discrimination, but observed that there had been "significant positive developments" and that country information before the Authority did not indicate that there was discrimination or harassment at a level amounting to serious harm. 12 Now the Authority accepted that the appellant would, on return to Sri Lanka, be identified as a failed asylum seeker who had departed illegally. But it observed that the country information did not suggest that failed asylum seekers were imputed as having committed a crime (other than illegal departure), and found that the appellant would not be imputed as an LTTE member or supporter for this reason. The Authority accepted that the appellant may be charged under the Immigrants and Emigrants Act (Sri Lanka). But country information before the Authority did not indicate that returnees were processed in any discriminatory manner, and the Authority found that any brief period of detention faced by the appellant upon his return would not amount to serious harm. The Authority further found that the process leading to charge, conviction and punishment (including fines) for breach of the I&E Act was the result of a law of general application, and did not amount to persecution. 13 In summary, the Authority was not satisfied that the appellant's circumstances, considered individually or cumulatively, gave rise to a well-founded fear of persecution. Accordingly, the appellant did not satisfy section 36(2)(a) of the Act. 14 Further, in relation to the complementary protection criterion, the Authority did not accept that discrimination or harassment against Tamils amounted to significant harm and was also not satisfied that the appellant faced a real risk of significant harm on account of his race, gender or origins. The Authority was also not satisfied that the appellant would suffer significant harm on account of being a failed asylum seeker or as a result of being processed under the said Sri Lankan legislation. Accordingly, the Authority did not accept that the appellant satisfied s 36(2)(aa) of the Act. 15 Accordingly, the Authority affirmed the decision of the delegate. 16 The appellant sought judicial review of the Authority's decision before the primary judge who on 12 December 2018 dismissed that application. It is unnecessary at this point to detail his reasons. 17 The appellant has now appealed this dismissal. His notice of appeal raises four grounds, which grounds had also been raised before the primary judge. Putting to one side drafting infelicities, they appear to assert that his Honour erred by not finding jurisdictional error in the Authority's decision for the reasons stated in each ground. 18 It is appropriate to consider each ground in turn.