EVD19 v Minister for Immigration, Citizenship and Multicultural Affairs - [2024] FCA 1084 - FCA 2024 case summary — Zoe

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EVD19 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FCA 1084

Federal Court of Australia|2024-09-19|Before: Smith J

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At a glance

Source facts

Court

Federal Court of Australia

Decision date

2024-09-19

Before

Smith J

Source

Original judgment source is linked above.

Judgment (22 paragraphs)

[1]

The appeal is dismissed.
The appellant is to pay the first respondent's costs on a lump sum basis to be assessed by a Registrar if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[2]

BANKS-SMITH J: 1 This is an appeal from a decision of the (former) Federal Circuit Court of Australia (FCCA). The FCCA dismissed an application for judicial review of a decision of the Immigration Assessment Authority to affirm a decision of a delegate of the responsible Minister to refuse to grant the appellant a protection visa. 2 For the reasons set out below, the appeal should be dismissed.

[3]

Background 3 The appellant is a national of Sri Lanka of Tamil ethnicity. He was born in Mannar, in the Northern Province. He came to Australia by boat in 2012 without a visa. The nature of that arrival means that he is an 'unauthorised maritime arrival' as defined in s 5AA of the Migration Act 1958 (Cth). 4 On 14 January 2016 the appellant was advised that the Minister had lifted the bar under s 46A of the Migration Act, allowing him to apply for a protection visa. He subsequently applied for a protection visa on 4 March 2016. 5 The appellant's claims that formed the basis of his visa application are that he fears harm and persecution from Sri Lankan authorities as a result of being a young male Tamil fisherman from the Northern Province and his imputed support of the Liberation Tigers of Tamil Eelam (LTTE). This claim is prefaced on the claims that the appellant worked as a fisherman with his father and uncle, who supported members of the LTTE and transported members on their fishing boat during and after the war; and that he was assaulted by Sri Lankan authorities whilst working as a fisherman, despite the appellant's family having no known affiliation with the LTTE. The appellant fears harm from Sri Lankan authorities because of his illegal departure from Sri Lanka in contravention of the Immigrants and Emigrants Act 1949 (Sri Lanka). The appellant also claims he was involved in a fight with Muslims from neighbouring villages in Sri Lanka which he fears may happen again if returned. 6 On 20 July 2018 the delegate refused to grant a protection visa on the basis that the appellant was not a person in respect of whom Australia has protection obligations under s 36(2) of the Migration Act. The delegate's decision was then referred to the Authority for 'fast-track' review under Part 7AA of the Migration Act. On 2 November 2018 the Authority affirmed the delegate's decision. 7 The appellant sought review of the Authority's decision from the FCCA. 8 The FCCA remitted the matter to the Authority on the basis that it had fallen into jurisdictional error by failing to consider the appellant's claimed fear of harm arising from a fight he had with Muslims from neighbouring villages. 9 On 30 October 2019 a differently constituted Authority affirmed the decision not to grant the protection visa. The date is relevant in the context of country information that was before the Authority. 10 The appellant applied to the FCCA for judicial review of the Authority's decision of 30 October 2019. 11 The FCCA dismissed the appellant's application: EVD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2409 (PJ). 12 The appellant has sought to appeal the decision of the primary judge in this Court.

[4]

Summary of Reasons 13 The Authority in its Reasons referred to the nature of the appellant's claims and confirmed it had regard to the material referred to it by the Secretary under s 473CB of the Migration Act, which included approximately 185 pages of news articles and other country information provided by the appellant in support of the visa application. The Authority relied on this information to find that the appellant is of Tamil ethnicity, from Mannar in the Northern Province and adheres to the Catholic faith (paras 4-8 of Reasons). 14 The Authority relied on a Department of Foreign Affairs and Trade (DFAT) report dated 23 May 2018 (2018 DFAT Report) and a United Kingdom Home Office report dated 15 June 2017 (2017 UK Home Office Report) to find that Tamil ethnicity does not independently warrant international protection. The appellant had not claimed that any person he knows suffers from ongoing harm merely for being Tamil or residing in the Northern Province (paras 36, 38 and 40 of Reasons). 15 In relation to the appellant claiming protection on the basis that he was a fisherman, the Authority considered a range of country information about the position of young male Tamil fisherman, including the 2018 DFAT Report, 2017 UK Home Office Report, a United Nations High Commissioner for Refugees report dated 21 December 2012 (UNHCR 2012 Report) and a DFAT report dated 29 November 2012. It accepted that the appellant worked as a fisherman in Sri Lanka, but found the appellant's claims of fear of harm and persecution to be very vague and predicated upon his claims that he had links to the LTTE due to having access to a fishing boat. The Authority found that there was no information before it to conclude that the appellant would be targeted merely because he was a fisherman or that the appellant experienced harm from Sri Lankan authorities whilst working as a fisherman. The Authority was not persuaded that the appellant would face a real chance of harm arising from his status as a young male Tamil fisherman from the Northern Province, and was not satisfied that the appellant has a well-founded fear of persecution based upon this status (paras 5, 10, 20, 33-44 of Reasons). 16 As to the appellant's alleged support of the LTTE, the Authority did not accept that the appellant or his family have any links to the LTTE and are of interest to the Sri Lankan authorities. It found the appellant's evidence to be unconvincing and untruthful in relation to the events concerning the support the appellant's family allegedly provided to the LTTE during the civil war, and stated that the appellant exaggerated these accounts to portray his family as having close links with the LTTE. Further, the Authority noted that the appellant said that he and his family were never members of the LTTE (paras 11-13 of Reasons). 17 The Authority found in relation to the post war LTTE transportation claim that the appellant's evidence highlighted inconsistencies which it addressed at paras 14-21 of its Reasons. It relied on the UNHCR 2012 Report and 2018 DFAT Report to address which personal profiles may become of interest to the Sri Lankan authorities. The Authority doubted that the appellant, his father or his uncle were seriously suspected of having LTTE links as claimed because the appellant's claims shifted over time to strengthen his claims, and the appellant did not advance any further personal involvement with the LTTE or with the wider separatist movement (paras 22-26, 37 of Reasons). 18 The Authority found that religious tensions exist in Sri Lanka, however, no country information indicated that Muslims are targeting Catholics for any harm due to religious reasons and relevantly found: 48. … I accept he and some friends fought with Muslims from neighbouring villages in 2010 or 2011. He has not suggested that any member of his family who remains in Mannar has had any problems with local Muslims. The applicant has not indicated when he was involved in conflict with Muslims, or what led to this altercation beyond a very brief confrontation. He has not indicated that the altercation was ongoing, … 19 The Authority found to the effect that given the passage of time, the lack of consequences for other family members in his area and the isolated nature of the event, it did not accept the appellant's claim that he would face harm from the Muslim population generally or specifically from those in neighbouring villages (para 49 of Reasons). 20 The Authority accepted that the appellant departed Sri Lanka in breach of the Immigrants and Emigrants Act in 2012 and would be exposed to relevant processing at the airport. The Authority concluded the appellant would plead guilty to this offence and may be charged under the Immigrants and Emigrants Act. Despite this finding, it was satisfied that the appellant was not of any interest to Sri Lankan authorities now or at the time of his departure. After referring to a DFAT report dated 24 January 2017 and the 2018 DFAT Report, the Authority found that the appellant would not suffer a custodial sentence because passengers on people smuggling ventures are not held in custody for this reason. The Authority was not persuaded that any fine or short period of detention at the airport would amount to serious harm, and so was not satisfied that the appellant would face a real chance of serious harm arising from his illegal departure if returned (paras 50-56 of Reasons). 21 The Authority relied on the 2018 DFAT Report to state that refugees and failed asylum seekers face practical challenges to successful reintegration in Sri Lanka. However, it concluded that these difficulties, if they were experienced at all by the appellant, do not amount to serious harm (paras 57-59 of Reasons).

[5]

Authority's conclusion 22 The Authority concluded as to the appellant's refugee status that the appellant did not meet the requirements of the definition of a refugee in s 5H(1) of the Migration Act and did not have a well-founded fear of persecution under to s 5J. Consequently, the Authority determined that the appellant was not eligible for protection pursuant s 36(2)(a) of the Migration Act. 23 In relation to the complementary protection provisions in s 36(2)(aa) (real risk of significant harm), the Authority concluded: 63. I have found that that due to his illegal departure, the applicant will probably be identified on arrival at the airport, arrested and charged with breaches of Sri Lanka immigration law if returned to Sri Lanka. He will likely be detained for several hours at the airport and this detention may last for up to two days; he will likely be subject to a fine and associated costs and bail. He may face a period of monitoring upon return to his home in Mannar in the north of Sri Lanka. He may face some social stigma and a number of everyday challenges getting re-established. However, I am not satisfied that any of these issues, either individually or cumulatively would amount to torture, the death penalty, or would result in any of the applicant being arbitrarily deprived of his life. I am not satisfied that these issues amount to cruel or inhuman treatment or punishment, or degrading treatment or punishment as defined under s.36(2A) of the Act. 64. I have otherwise found that the applicant would not face a real chance of harm arising from the protection claims he has put forward, or from any combination of his claims. As 'real chance' and 'real risk' have been found to meet the same standard, it follows that the applicant does not face a real risk of significant harm on any of these bases if returned to Sri Lanka. Complementary protection: conclusion 65. There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa). 24 Accordingly, the Authority affirmed the decision under review.

[6]

FCCA grounds of review and decision 25 The appellant was self-represented in the proceedings before the FCCA, and the grounds of review were expressed in the following general terms: 1. The IAA didn't give enough weight to relevant information about the persecution of young Tamil men. 2. The IAA didn't listen to my story and my fears of what would happen to me when I return. 26 During the hearing, the primary judge provided the appellant with an opportunity to elaborate on his grounds of review and to advise if the Authority 'did anything wrong', citing DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] (Colvin J). The primary judge observed that he undertook a more active role in his review of the Reasons, and did not confine himself to the appellant's grounds, citing EII17 v Minister for Immigration and Border Protection [2018] FCA 1863 at [16] (Flick J). 27 The appellant also sought to tender a document (labelled Exhibit 2 by the primary judge), being a complaint made by an unknown person to the Sri Lankan Human Rights Commission on 23 August 2019. According to the primary judge, the appellant wished to tender the document to illustrate the (then) current circumstances in Sri Lanka and to explain what would happen to him if he were to be returned. 28 Taking into account the manner in which the hearing before the primary judge unfolded, I will address the grounds and discrete matters raised before or addressed by the primary judge as grounds 1 and 2, and as contentions 3-6. The issues to which those grounds and contentions relate are as follows: (a) ground 1 - the weight given to country information about the persecution of young Tamil men; (b) ground 2 - the appellant's story and fears of what would happen to him if he is returned; (c) contention 3 - the absence of a hearing before the Authority; (d) contention 4 - a fight between the appellant and Muslims in neighbouring villages not taken into account; (e) contention 5 - the appellant's support and transportation of LTTE members not taken into account; and (f) contention 6 - Exhibit 2 should be taken into account by the primary judge.

[11]

Contention 5 38 The primary judge also addressed the Authority's treatment of the appellant's claims in relation to supporting members of the LTTE both during and after the war. 39 As to the appellant's claims about support for the LTTE during the war, the Authority set out the claim but found it to be vague. The claim of providing logistical support had not been mentioned in the SHEV application, and the Authority found it to be unconvincing. The Authority was not satisfied that the appellant was telling the truth, and considered that the appellant had exaggerated his accounts to portray his family as having close links with the LTTE, and provided reasons for coming to this conclusion, including the absence of knowledge of any specific details. For example, the Authority referred to the appellant's claim that his family were said to have been supporting the LTTE during the period, but observed that the appellant made only vague assertions about the nature of the support and that he would have been a school boy or studying in Colombo at the time, so would have had no involvement in the events. 40 The primary judge expressly referred to this part of the Reasons (PJ [26]). The primary judge also found that the Authority had identified all of the claims advanced by the appellant, had included significant detail about them, and had made logical and rational findings on each, providing reasons when they were not accepted (PJ [75]-[77]). 41 In regard to the post-war assistance claim, the primary judge again referred to the relevant paragraphs of the Authority's decision where it set out in detail the appellant's claims. Relevantly, the primary judge referred (PJ [27]) to paras 14-17 of the Reasons which expressly dealt with and rejected claims that he transported LTTE members to India. The Authority found a number of problems with the appellant's account including inconsistencies between the appellant's evidence provided in his protection visa application and the evidence before the delegate. 42 The primary judge observed at (PJ [28]-[30]) that the Authority determined that there were difficulties in accepting the appellant's account. For example, the Authority referred to documents provided by the appellant that were apparently unrelated to his claim. It also observed the inconsistency between the appellant claiming that the Sri Lankan authorities employed oppressive coastal surveillance throughout his time as a fisherman, and his unconvincing evidence that Sri Lankan authorities 'did not notice' when asked how he, his father and uncle managed to transport so many LTTE members unnoticed (addressed by the Authority at paras 20-22 of its Reasons). 43 These matters were set out by the primary judge before he concluded that the Authority had identified all of the claims advanced by the appellant, had included significant detail about them, and had made logical and rational findings on each, providing reasons when they were not accepted (PJ [75]-[76]).

[21]

MFI-1 is not admissible 60 The appellant sought to tender on the appeal eight news articles dated between 28 September 2023 to 10 December 2023. 61 Given the dates of those documents, they were not before the Authority in the making of its decision dated 30 October 2019 and they were not before the primary judge. Leave to adduce this evidence is refused. The evidence is irrelevant to the question whether the primary judge erred and it is irrelevant to the question whether the decision of the Authority is attended by jurisdictional error. 62 So much was explained in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 [2022] FCAFC 12; (2022) 289 FCR 164 at [28] (Beach, Thawley and Cheeseman JJ), where the Full Court of the Federal Court observed as follows: The question whether the IAA's decision was made in accordance with the authority conferred by the statute, or whether it exceeded the limits of the decision-making authority, or whether it failed to comply with an express or implied condition of conferral of statutory decision-making authority, is answered by reference to the circumstances as they existed at the time the decision-making authority was exercised. The question is not answered by reference to circumstances which did not exist at the time of the decision. This point was made by Steward J in Plaintiff B65/2020 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] HCA Trans 118: In judicial review proceedings, the issue before the Court concerns the legality of an exercise of power or the performance of a duty. The question to be posed is whether the decision maker has stayed within the limits of the decision-making authority conferred by an Act of Parliament. Events which take place after an exercise of power can play no part in assessing whether that decision contained an error (or errors) when it was made and by Mortimer J in Parker v Minister for Immigration & Border Protection [2016] FCAFC 185; (2016) 247 FCR 500 at [77] (see also at [60] per Griffiths and Perry JJ): The appellant's submission that the 'outcome' of the Minister's cancellation decision is, after the annulment, legally unreasonable misunderstands the Court's function on judicial review. The question for the Court is whether the exercise of power, at the time of its exercise, exceeded jurisdiction, or was an actual or constructive failure to exercise jurisdiction. Those matters may be proven by evidence that is adduced after the making of the impugned decision (for example, expert evidence, in some particular cases), but the relevant question is whether the exercise of power miscarried at the time of its exercise. In the current circumstances, with the 2014 conviction in effect at the time of the Minister's decision, that could not be the case. This aspect of the decision in Parker was, unlike other aspects of the decision, not doubted by the High Court in Minister for Immigration & Border Protection v Makasa [2021] HCA 1; 95 ALJR 117; 386 ALR 200, see in particular at [59]. 63 See also EGZ17 at [38]; BTQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 382 at [31] (Kenny J); Qin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 490 at [71]-[73] (Katzmann J); and more generally MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 at [29]-[30].