FTA17 v Minister for Immigration, Citizenship, Migrant Services and... [2019] FCA 2079 | Case summary

Federal Court of Australia|2019-12-11|Before: Burley J

The appeal be dismissed.
The Appellant pay the First Respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 The appellant is a citizen of Sri Lanka of Tamil ethnicity who came to Australia by boat on 6 October 2012. On 28 February 2017, he applied for a Safe Haven Enterprise visa (SHEV), claiming that he was a person to whom Australia owed protection obligations pursuant to s 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth). The application was refused on 23 May 2017 by a delegate of the Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs. The decision was a "fast track reviewable decision" under Part 7AA of the Act, and accordingly was referred to the Independent Assessment Authority (IAA) for review. On 8 December 2017, the IAA affirmed the delegate's decision. 2 The appellant then applied to the Federal Circuit Court of Australia (FCCA) for a review of the IAA's decision. On 21 June 2019, the FCCA dismissed the application for review: FTA17 v Minister for Immigration & Anor [2019] FCCA 1730. The appellant now appeals that decision to this Court. In his Notice of Appeal, he sets out the following grounds: (1) The IAA did not do its task according to the law; (2) The primary judge did not provide sufficient reasons why he did not agree with the grounds raised in the FCCA; and (3) The primary judge failed to identify the legal error that the IAA made. 3 The appellant represented himself at the hearing of the appeal, with the assistance of a Tamil/English interpreter, and filed no written submissions. The Minister filed written submissions in advance of the hearing, and was represented by DLA Piper, solicitors.

THE DECISION OF THE PRIMARY JUDGE 4 The primary judge accurately summarised the claims advanced before the IAA as follows (at [5]): 5. The applicant's claims were set out in a statement attached to his application. In summary the applicant claimed: a) in 2008 he, his cousin and his cousin's wife and child were detained, when he was visiting them in Colombo. They were detained with another four men in an adjoining apartment who were known LTTE members. The applicant and his cousin's wife and child were released after a month, because he was a minor and the wife had a child. During that time the applicant was interrogated but not beaten; b) the applicant was again detained in April 2010 and held for about a day. He was again interrogated by the Criminal Investigations Department (CID); c) the applicant claimed he was released but under surveillance until 2012, however he was not interrogated again. He claimed he was not allowed to leave his town without approval; d) a few months after the applicant's arrival in Australia, the CID came to his house and asked his mother about his whereabouts. She said he was missing and his father was ordered to attend their office for questioning the next day; e) in 2013 his father was again questioned by the CID about the applicant's whereabouts; and f) the applicant fears returning because he left Sri Lanka because he had violated the CID order not to leave his town without permission. 5 The primary judge recorded that the IAA: (a) had accepted that the appellant was detained for about one month in 2008 in Colombo while visiting his cousin and that he was questioned but not physically mistreated; (b) was not satisfied that the authorities had an ongoing interest in the appellant or considered him to have any real or imputed LTTE connection; (c) accepted that he may have been detained for three hours and questioned in 2010, but not because of any interest that it had in his cousin. Rather, it was a "one off" incident as part of the authorities' monitoring and harassment of Tamils at that time; (d) noted the appellant's evidence that between 2010 and 2012 he finished his schooling and was working; (e) found that he had embellished his claims insofar as they concerned the interest of the authorities in his cousin and that there was no credible reason why the authorities would start interrogating his cousin about the appellant at that time; (f) was not satisfied that the appellant was under surveillance from 2010 to 2012 or of interest to the authorities at the time that he left Sri Lanka; (g) did not accept that the appellant's father was questioned after the appellant's departure and did not accept that two months before his protection visa interview five armed gunmen entered his parents' house looking for him; (h) did not accept that the appellant was subject to an ongoing CID order requiring him to obtain permission to leave his hometown; (i) considered that the appellant's passport, although it included a different spelling of his name, was genuine. The issue by the authorities of a genuine passport to the appellant reinforced its view that he was not of interest to them when it was issued in 2012; (j) based on country information and its findings as to the appellant's profile, was not satisfied that the appellant faces a real chance of harm because of his Tamil ethnicity, although it accepted that as a returning asylum seeker who left Sri Lanka illegally he may be charged under the Immigrants and Emigrants Act 1949, brought before a magistrate, detained briefly, fined and possibly detained until a family member collected him. However, this was a law of general application and not discriminatory in its terms; (k) concluded that there was not a real risk that the appellant would face significant harm by reason of his imputed political opinion or as a Tamil asylum seeker, or that the circumstances of his return to Sri Lanka would expose him to serious harm. 6 The appellant represented himself before the FCCA. He advanced four grounds of review. 7 In the first ground, he contended that the IAA failed to consider the contents of submissions that were put to it when assessing future harm. The particulars appended to that ground contended, in summary, that the IAA was not certain whether the written submission advanced before it contained argument only, or whether it contained new information. The primary judge addressed this at [36]-[38] of his reasons and found that the IAA took the correct approach in separating the contents of the submission into argument about the delegate's decision, and new information provided about the appellant's father's death. At [38] of his reasons the primary judge set out the IAA's consideration of the submission in more detail: 38. Further, in summary the submission to the Authority raised the following points: a) that the delegate failed to consider that the passport was fraudulent and that the delegate thereby failed to consider the applicant's claims about detention and surveillance. The Authority considered the issue of the applicant's passport at [24], and otherwise considered the claims about detention and surveillance; b) the submission takes issue with the fact the delegate found the applicant was not of interest to the authorities, but then afterwards considered "even if he was". It alleges that the finding was "not made in a confident manner". This did not have to be considered by the Authority as there was no requirement for the delegate to make his finding "confidently", nor was there any error in the delegate's reasoning; c) the submission argues that the applicant was not provided with the complete 2017 DFAT report and this was a breach of procedural fairness. However, there was no requirement for the delegate or the Authority to provide the report to the applicant. Section 473DA of the Migration Act relevantly outlines the natural justice hearing rule as it operates in the context of reviews conducted by the Authority. In particular, s.473DA(2) specifically outlines that nothing in Part 7AA requires the Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under s.65 of the Migration Act; d) the submission alleges the applicant may not have a family member to provide bail and that there is sufficient intention in any detention to amount to significant harm. These matters were considered by the Authority at [32] and [41]. In accordance with the decision of SZTAL v Minister for Immigration,[29] although not considered expressly, the Authority made findings consistent with the High Court's decision at [41]; and e) that returnees from Australia are being returned en masse, and therefore would be processed en masse on return and may result in a longer period of detention if someone in the group aroused suspicion. This claim was subsumed by the finding that the applicant himself being of no interest to the authorities, would be detained for a short period at [32]. 8 In the second ground the appellant contended that the reasoning of the IAA insofar as it concluded that the 2010 detention of the appellant was a "one-off incident" that was not connected to the appellant's previous detention was inconsistent, illogical and unreasonable. The primary judge considered that this finding was not unreasonable, in that it did not lack any evident and intelligible justification or was clearly unjust or arbitrary or capricious, citing Minister for Immigration v Li [2013] HCA 18; 249 CLR 332 at [76]; Minister for Immigration v SZMDS [2010] HCA 16; 240 CLR 611 at [130]. The primary judge considered that the IAA provided detailed reasons as to why it found that the appellant's 2010 detention was not connected to the 2008 detention, providing its rationale based on the content of country information. 9 In the third ground, the appellant contended that the IAA failed to consider the future harm that the appellant would face, having regard to his two previous detentions in 2008 and 2010. The learned primary judge noted that the IAA had in fact considered this aspect of the claim, observing that the IAA had reasoned that the two incidents were not connected. The IAA found, based on country information, that the situation had improved for Tamils and that because the appellant did not have a profile, he would not face harm. The primary judge also noted that a claim advanced before the FCCA concerning a risk of harm being compounded due to the different spelling of the appellant's name in his passport was not advanced before the IAA, but in any event, the passport was found to be genuine. 10 In the fourth ground the appellant contended that the IAA's decision was unreasonable insofar as it did not accept that the appellant was under surveillance after his release in 2010 and also that the IAA failed to provide reasons for rejecting the appellant's claims concerning the harassment of his family following his departure from Sri Lanka. The primary judge found that this ground, read with the earlier grounds advanced, amounted to no more than disagreement with the findings of the IAA that the appellant would not be under surveillance following his release in 2010 and that his father was not called in for questioning after the appellant left Sri Lanka. Neither of these findings lacked an evident and intelligible justification. 11 The primary judge found that none of the grounds disclosed jurisdictional error on the part of the IAA. He dismissed the application.

THE APPEAL 12 At the hearing the appellant relied on the grounds advanced in his notice of appeal. He contended that the primary judge did not look at his application properly and incorrectly failed to accept as the truth the version of events that he has set out in the papers provided in support of his visa application. He repeated his claims and submitted that even now people continue to come to his home in Sri Lanka to ask about his whereabouts. He submitted that if he is sent back to Sri Lanka the Government would have the same attitude to him and he would continue to suffer harassment and be placed in gaol. 13 I commence my consideration of this appeal with the observation, which is apt for many such appeals, that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the appellant satisfies the criteria for the grant of the SHEV or to grant the appellant a visa. As such, neither Court has the capacity to consider the factual merits of the IAA's decision to refuse to grant the SHEV to the appellant. The jurisdiction of the FCCA is limited to considering only whether the IAA's decision to refuse to grant the appellant the SHEV is lawful under the Act, that is, whether the decision of the IAA is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA on appeal from the IAA under s 24 of the Federal Court of Australia Act 1976 (Cth). 14 In ground 1 the appellant contends that the IAA did not do its task according to the law. No error is asserted on the part of the primary judge. As the appellant is self-represented, it is appropriate to take a liberal approach to the form of the ground, and I shall assume that the allegation is that the primary judge erred in failing to identify error on the part of the IAA. No particulars are given of the alleged error on the part of the IAA and for present purposes I shall assume, in favour of the appellant, that the alleged errors are those that were advanced before the FCCA. 15 I have reviewed each of the grounds advanced before the FCCA, having regard to the primary judge's reasons. In none is it apparent that the primary judge fell into error. In the first ground the appellant contended that the IAA failed to consider the contents of submissions that were put to it when assessing future harm. I have set out in [7] above the reasoning of the primary judge. Having regard to the claims advanced by the appellant and the reasoning of the IAA, I can see no failure on the part of the IAA to consider the claims advanced. In relation to the second ground, the primary judge considered the reasoning of the IAA provided a rational basis for its conclusions. In that regard he noted that the IAA had made findings that the applicant was released in 2008 because he did not have a profile as a person affiliated with the LTTE or as a person with any real or imputed LTTE connection. The primary judge noted that the IAA reasoned, with reference to country information, that the 2010 incident was in line with the monitoring and harassment of the Tamil population. The IAA further noted that the applicant was not put in a rehabilitation camp, as the country information said many others considered to have LTTE connections were. Having regard to these matters the primary judge was correct to conclude that the reasoning of the IAA did not lack evident or intelligible justification. In relation to the third ground, there was plainly no failure on the part of the IAA to consider the potential of future harm to the appellant having regard to the incidents in 2008 and 2010, and the primary judge was correct to so conclude. In the fourth ground the appellant contended that the decision of the IAA was unreasonable, for a number of reasons, including for failing to conclude that after his detention in 2008 and 2010 he was not under surveillance and for failing to accept that his father was called in for questioning following his departure. The primary judge concluded that this ground was not sustained and amounted to no more than a disagreement with the conclusions of the IAA that did not amount to jurisdictional error. In my view the primary judge was correct in reaching that conclusion. No unreasonableness is demonstrated. 16 In ground 2 the appellant contends that the primary judge did not provide sufficient reasons as to why he did not agree with the grounds raised in the FCCA. This ground has no merit. The requirement to give reasons arises because of the expectation that a sufficient explanation for the decision must be given, and will vary depending on the facts and complexity of the case, see: CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150 (Collier, Markovic and Lee JJ) at [39] and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 (Kenny, Kerr and Perry JJ) at [47] - [48].. The reasons of the learned primary judge are a far cry from the circumstances set out in cases where inadequate reasons are supplied. It is apparent from the primary judge's reasons that the basis for his conclusion that each of the grounds advanced before him was without merit was clearly and sufficiently stated. 17 In ground 3 the appellant contends that the primary judge failed to identify legal error on the part of the IAA. This ground does not rise above the contention advanced in ground 1. For the reasons stated, that ground has no merit. 18 Finally, I note that the oral submissions advanced at the hearing do not substantially add to the matters raised in his notice of appeal. To the extent that they refer to circumstances arising following the delivery of the decision of the IAA and the FCCA, they are not matters that can be taken into account on review. Otherwise, they are matters subsumed within the matters to which I have referred above.

DISPOSITION 19 For the reasons set out above, the appropriate orders are: (1) The appeal be dismissed. (2) The appellant pay the first respondent's costs of the appeal. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley.

Migration Act 1958(Cth)s 36(2), Part

FTA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

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