EPR17 v Minister for Home Affairs

Federal Court of Australia|2019-03-29|Before: O'Callaghan J

The application for leave to appeal be dismissed.
The applicant pay the costs of the first respondent, to be agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 On 8 October 2018, the applicant applied under Rule 35.12 of the Federal Court Rules 2011 (Cth) (the Federal Court Rules) for leave to appeal from the decision of the Federal Circuit Court of Australia (the Federal Circuit Court), delivered on 26 September 2018, in which the primary judge dismissed an application for judicial review of a decision of the second respondent (the IAA) pursuant to Rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) (the Federal Circuit Court Rules). The IAA had affirmed a decision by a delegate of the first respondent (the Minister) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (SHEV).

Background 2 The applicant is a male citizen of Sri Lanka. He entered Australia as a so-called "unauthorised maritime arrival" on 26 September 2012. 3 On 16 February 2017, the applicant applied for a SHEV and made the following claims for protection: (1) He was not a member of the Liberation Tigers of Tamil Eelam (LTTE), but he lived in the area controlled by them and was forced to help them sometimes. (2) In 1997, he started working as a mechanic at a motorbike repair garage in Point Pedro. The garage was opposite the Eelam People's Democratic Party (EPDP) office. The EPDP used to take motorbikes from the garage and threatened employees. To avoid harassment the applicant moved to Trincomalee in 2000. (3) In Trincomalee, he was often taken by the Sri Lankan Army (SLA) because he had an identity card from Jaffna, which was an LTTE controlled area. He was interrogated about his possible links with the LTTE. On one occasion he was imprisoned for three months. After he was bailed out, he was given a temporary permit to stay in Trincomalee. Each time there was an incident caused by the LTTE, he would be captured by the SLA and interrogated. (4) He established his own repair garage, and managed to obtain a resident permit in Trincomalee. He was approached by another Tamil man and asked whether he would be able to assist in repairing LTTE vehicles. Once he was taken to the LTTE base in Samboor to repair their bikes. (5) In 2005, he married. He also worked as a driver for a Tamil man called M, transporting people to and from the airport. On one occasion, the SLA stopped him and questioned him about the people he was transporting. (6) In 2007, he was captured by the SLA and handed over to the "Karuna group". The Karuna group told him that the SLA was suspicious that he had installed explosives on the motorbikes he was repairing. They warned him that the SLA might arrest him and send him to Boosa camp. After being released by the Karuna group he discussed the situation with his wife and went to Dubai with the assistance of his wife's cousin in April 2007. (7) He stayed in Dubai from 26 April 2007 to 15 July 2008. While he was in Dubai he heard that his employer M was killed, and that he had been affiliated with the LTTE. (8) After he returned from Dubai he set up a garage in a new area, which was partly populated by Sinhalese people. On one occasion, he was beaten by the Sinhalese people who accused him of trying to plant a bomb in the bathroom of the local bar. He reported the incident to the police. The police only asked a few of the Sinhalese men for identification. After this incident he continued to run the business from his house. He was often harassed by the Sinhalese home guards who asked for repairs to be done on their motorbikes, without paying him. (9) The SLA questioned him in regards to what he was transporting while he was working as a driver. They would come to his home, but he was not hurt. Due to continual discrimination he decided to come to Australia in 2012. After he left, some men came to his wife's house and asked about his whereabouts. They came five or six times and his wife decided to move in with her mother for safety reasons. 4 On 24 July 2017, the delegate refused the application for a SHEV. The delegate was not satisfied that the applicant faced harm for reason of his imputed political opinion, his Tamil race, or his religion. 5 The matter was referred to the IAA for review on 27 July 2017. On 12 September 2017, the IAA affirmed the decision not to grant the applicant a SHEV.

The decision of the IAA 6 The applicant did not provide the IAA with any new information that had not been provided to the delegate. The IAA did however obtain further information relating to the provision of mental health services in Sri Lanka, and was satisfied that there were exceptional circumstances to justify considering this new information. 7 The IAA considered the applicant's risk of harm arising from the authorities' imputing him with a pro-LTTE or anti-Sri Lankan government political opinion. In so doing it did not accept: (1) that the applicant had ever been arrested or detained by the Sri Lankan authorities; (2) that people had come to the applicant's house looking for him since his departure from Sri Lanka; or (3) that the applicant's younger brother was taken and detained for three months by the police. 8 The IAA was prepared to accept some aspects of the applicant's claims but was not satisfied that they would be sufficient to cause the applicant to be a person of concern to the Sri Lankan authorities. The IAA arrived at this conclusion having regard to relevant country information that the Sri Lankan authorities do not impute every Tamil with a pro-LTTE political opinion and that the Sri Lankan authorities have sophisticated intelligence gathering techniques. 9 The IAA considered the applicant's risk of harm in Sri Lanka on the basis of discrimination against him as a Tamil. Based on the applicant's past history and the country information, the IAA was not satisfied that the applicant would be subjected to discrimination or economic hardship which would threaten his capacity to subsist or other treatment that may be regarded as serious harm. 10 The IAA accepted that the applicant was forced by the EPDP to repair motorcycles and let them take motorbikes that did not belong to them, and that he was handed over to the Karuna group and threatened with imprisonment if he remained in Trincomalee. However, the IAA did not consider that this meant that the applicant faced serious harm from paramilitary groups. 11 The IAA considered the applicant's claims to fear harm because he departed Sri Lanka illegally, but found only that he would likely be fined, which would not of itself constitute serious harm. 12 The IAA considered the applicant's claims to fear harm as a failed asylum seeker. The IAA accepted that if he returned to Sri Lanka, the applicant would do so as a failed asylum seeker. However, the IAA was not satisfied there was a real chance the applicant would be harmed by the Sri Lankan authorities for this reason. 13 The IAA accepted that the applicant had experienced symptoms of anxiety, depression and post-traumatic stress disorder, and that the applicant may have difficulty accessing the kind of specialist mental health services his condition required. However, the IAA was not satisfied that the applicant's inability to access some medical services was for reasons of his race, religion, nationality, membership of a particular social group, or political opinion. 14 The IAA was not satisfied that the applicant had a well-founded fear of persecution for reason of his race, religion, nationality, membership of a particular social group and/or political opinion if he returned to Sri Lanka. 15 When considering complementary protection, the IAA considered whether the applicant would suffer significant harm for committing an offence under the Immigrants and Emigrants Act 1949 (Sri Lanka) (the IAEA). Having regard to country information, the IAA considered that any brief detention, questioning, fine, or other penalty did not amount to significant harm. Although the applicant may be detained in poor conditions while awaiting to be brought before a magistrate, the IAA found there was no intention to inflict pain or suffering or extreme humiliation. The IAA was not satisfied that, individually or cumulatively, any processes or penalties the applicant may encounter under the IAEA would constitute significant harm. 16 The IAA was not satisfied that there was a level of societal discrimination against Tamils in Sri Lanka such that it would constitute significant harm. The IAA did not consider that the applicant's mental health condition amounted to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

Proceedings before the Federal Circuit Court 17 By application filed on 16 October 2017, the applicant sought judicial review of the IAA's decision. That application pleaded two grounds of review: 1. That the decision of the second respondent, the Immigration Assessment Authority member, was affected by legal error. 2. More details will be provided by the legal representative. 18 The Federal Circuit Court convened a show cause hearing pursuant to Rule 44.12 of the Federal Circuit Court Rules on 26 September 2018. Following that hearing, the primary judge delivered an ex tempore judgment ordering that the application be dismissed pursuant to Rule 44.12(1)(a) of the Federal Circuit Court Rules. 19 In respect of ground one, his Honour found this ground was broad and unparticularised and, without further particulars, was incapable of establishing any jurisdictional error. 20 His Honour found that ground two did not identify any jurisdictional error and noted that no additional details had been provided. 21 His Honour further found that the IAA's statutory obligations under Division 3 of the Migration Act 1958 (Cth) had been complied with.

The application for leave to appeal 22 The application for leave to appeal and notice of appeal pleaded nine particularised grounds which are considered further below. As none of the grounds of the application was raised before the primary judge, the applicant requires leave to rely on them here. 23 The applicant did not file any written submissions in support of his application. 24 The nine grounds may be summarised as follows: (1) the primary judge should have found that the Immigration Assessment Authority made a jurisdictional error in failing to give the applicant to invite to comment on the new information relating to the provision of mental health services in Sri Lanka; (2) the primary judge ought to have found that the IAA acted "on the ground of legal unreasonableness in the circumstances of the applicant's matter"; (3) the primary judge should have found that the IAA committed jurisdictional error as it failed "to consider the integers of the claims to complementary protection of the applicant"; (4) the IAA failed to consider a DFAT report of 23 May 2018 in assessing the applicant's claims, and the primary judge should have found this to be a jurisdictional error; (5) the primary judge should have found that the IAA erred in relation to its findings on credibility and that this amounted to jurisdictional error; (6) the primary judge "failed to review the component parts of the process by the IAA that lead up to the finding from the perspective of legal reasonableness and would have held it was a jurisdictional error"; (7) the primary judge should have held that the IAA denied the applicant procedural fairness; (8) the IAA failed to consider the applicant's claim that he would be considered a supporter of the LTTE; and (9) the primary judge failed to ensure that the show cause hearing was fair, and that his duty requires that a litigant does not suffer a disadvantage from exercising his or her right to be self-represented.

Consideration 25 In Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 - 399, the Full Court held that the leave to appeal from an interlocutory judgment requires the applicant to show that the decision is attended with sufficient doubt to warrant review and, further, that, if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused. 26 The Minister submitted that the applicant has failed to show any doubt about the correctness of the judgment below, and failed to show that substantial injustice would be suffered if leave to appeal were refused. For the reasons set out below, I agree. 27 I now take each of the grounds of appeal in turn.

Ground one 28 Ground one alleges that the primary judge erred by not finding the IAA made a jurisdictional error by failing to invite the applicant to comment on new information, and relies on s 473DE(3)(a) of the Migration Act. That provision is as follows: (1) The Immigration Assessment Authority must, in relation to a fast track reviewable decision: (a) give to the referred applicant particulars of any new information, but only if the new information: (i) has been, or is to be, considered by the Authority under section 473DD; and (ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and (b) explain to the referred applicant why the new information is relevant to the review; and (c) invite the referred applicant, orally or in writing, to give comments on the new information: (i) in writing; or (ii) at an interview, whether conducted in person, by telephone or in any other way. … (3) Subsection (1) does not apply to new information that: (a) is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or (b) is non-disclosable information; or (c) is prescribed by regulation for the purposes of this paragraph. 29 In the present case, the IAA was correct to find that in respect of the new information it had obtained, namely country information relevant to the applicant's mental health, it was not required to invite the applicant to comment, given the exception in s 473DE(3)(a). 30 The applicant seeks to rely on DBE16 v Minister for Immigration and Border Protection [2017] FCA 942. While that decision considered s 473DE(1), it did so only in considering whether the IAA was obliged to invite the applicant to comment prior to the making of an adverse finding. 31 Ground one therefore cannot succeed.

Ground two 32 Ground two alleges that the primary judge erred by failing to find that the IAA acted unreasonably in arriving at its decision. The particulars make clear that the applicant alleges that it was the IAA's decision relating to the acceptance of new information that was unreasonable. The Minister submits, and I accept, that in circumstances where the applicant did not provide any new information to the IAA, this ground must fail.

Ground three 33 Ground three alleges that the primary judge failed to find that the IAA had failed to consider integers of the applicant's claims for complementary protection. The particulars allege that the IAA failed to consider DFAT reports or any other country information in considering the complementary protection criteria. In circumstances where the IAA clearly did indicate that it had considered the DFAT reports and country information before it in its consideration of complementary protection, this ground must fail.

Ground four 34 Ground four alleges that the IAA failed to consider "new information", being a DFAT report dated 23 May 2018. Given the IAA decision was made on 12 September 2017, this DFAT report could not have been before the IAA. As such, this ground must fail.

Ground five 35 Ground five alleges that the primary judge failed to hold that the IAA erred in its credibility findings. However, the particulars of this ground do not point to any error by the IAA and rather cite broad principles in relation to credibility findings by decision makers. The ground must therefore fail.

Ground six 36 Ground six, which is not particularised, alleges that the primary judge failed to "consider the component parts of the process by the IAA that lead up to the finding from the perspective of legal unreasonableness". The Minister submits that this ground is devoid of any meaning and as such fails to reveal any error by the primary judge or the IAA. It appears to be a submission that the decision of the IAA was legally unreasonable, however without further particularisation, it too must fail.

Ground seven 37 Ground seven alleges that the primary judge failed to find that the IAA denied the applicant procedural fairness by its failing to give reasons as to why the applicant's evidence was rejected, and failing to disclose to the applicant the material on which its adverse findings were based. 38 The IAA gave clear reasons for why it rejected parts of the applicant claims. In particular, it found that the applicant's credibility was affected by various inconsistent answers to authorities, and that the evidence he gave was implausible.

Ground eight 39 Ground eight, in which allegations are articulated in the particulars, variously refers to the decision of the IAA as well as the decision of the delegate of the Minister. 40 To the extent this ground alleges that the IAA failed to consider the applicant's claim that he would be considered a supporter of the LTTE, this claim was in fact clearly considered by the IAA: I am not satisfied that the applicant's Tamil ethnicity, the incidents relating to the LTTE which occurred prior to 2009, the questioning by the army since 2009, the attack by Singhalese people and/or his residence in a former LTTE controlled area would be sufficient to cause the applicant to be a person of concern to the Sri Lankan authorities. I reach that conclusion having regard to the information in the DFAT reports and UNHCR Guidelines in the referred material regarding the Sri Lankan authorities not imputing every Tamil with a pro-LTTE political opinion and that the Sri Lankan authorities have sophisticated intelligence gathering techniques. 41 Consequently, this ground does not reveal any error.

Ground nine 42 Ground nine alleges that the primary judge failed to ensure that the show cause hearing was fair as he failed to take appropriate steps to ensure that the applicant had sufficient information about the practice and procedure of the Court, citing the case of Hamad v New South Wales [2011] NSWCA 375. In the absence of any meaningful particulars ground nine cannot succeed.

CONCLUSION 43 The applicant's grounds fail to establish any error on the part of the primary judge or the decision of the IAA. A substantive appeal would have no prospects of success, and leave to appeal is therefore refused, with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.

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