FEDERAL COURT OF AUSTRALIA AZI17 v Minister for Immigration and Border Protection [2019] FCA 232 Appeal from: AZI17 v Minister for Immigration and Border Protection [2018] FCCA 2845 File number: NSD 1781 of 2018 Judge: BURLEY J Date of judgment: 4 March 2019 Catchwords: MIGRATION – rejection of Safe Haven Enterprise Visa application on the basis that no protection obligations were owed pursuant to subsection 36(2) of the Migration Act 1958 (Cth) – whether the Independent Assessment Authority failed to consider the appellant's claims cumulatively or whether it erred in failing to find that the appellant had familial links with the LTTE – no jurisdictional error found, appeal dismissed Legislation: Federal Court of Australia Act 1976 (Cth), s 24 Migration Act 1958 (Cth), s 36 Cases cited: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 Date of hearing: 13 February 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 18 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS NSD 1781 of 2018 BETWEEN: AZI17 Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent JUDGE: BURLEY J DATE OF ORDER: 4 March 2019 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondents' costs as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BURLEY J: 1 INTRODUCTION [1] 2 THE DECISION OF THE IAA [6] 3 THE DECISION OF THE FCCA [8] 4 THE APPEAL [11] 5 DISPOSITION [18] 1. INTRODUCTION 1 The appellant is a citizen of Sri Lanka of Tamil ethnicity who came to Australia by boat in September 2012 as an unauthorised maritime arrival. In December 2015, he made an application for an XE-790 Safe Haven Enterprise Visa (SHEV) on the basis of protection obligations owed to him by Australia pursuant to ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth). 2 The application was considered and refused by a delegate of the Minister for Immigration and Border Protection. The decision is a "fast track reviewable decision" as defined in s 473BB of the Act. The Minister referred the delegate's decision to the Independent Assessment Authority (IAA) for review. On 3 February 2017, the IAA affirmed the delegate's decision. 3 The appellant then applied to the Federal Circuit Court of Australia (FCCA) for a review of the decision of the IAA. On 5 September 2018, a judge of that court dismissed the application. 4 The appellant then filed a notice of appeal from the decision of the FCCA. Two grounds are advanced: (1) That the FCCA did not consider the appellant's claims cumulatively to find that the IAA fell into jurisdictional error; and (2) That [the FCCA erred in failing to find that] the appellant had familial links with the LTTE. 5 At the hearing of the appeal, the appellant represented himself with the assistance of an interpreter. He relied on no written submissions. The Minister was represented by its solicitors, DLA Piper Australia, who filed written submissions in advance of the hearing. 2. THE DECISION OF THE IAA 6 The claims that the appellant made in support of his application are summarised in the decision of the IAA as follows: 6. The applicant's claims are contained in the information referred to the IAA. They can be summarised as follows: • He is a Tamil Hindu who was born and lived in [his] district in the east of Sri Lanka. • In January 2002, unknown persons came to his home late at night and knocked on the door. He was fearful and escaped from the house. The persons came in and yelled at his wife in Sinhalese. He heard his name mentioned and ran away. Later, his wife told him that the men demanded he go to a certain address the next day but she did not remember the address. • He started to change addresses in [his district] in order to stay safe. At the end of January 2002, he obtained a work visa and went to Dubai until 2005. • He returned to Sri Lanka in 2005. The very next night people came and knocked at his door. He and his wife fled and stayed with a neighbour. • He moved around at this time but his wife returned to the house. People continued to come to the house searching for him. He suspects they were Criminal Investigation Department (CID) or Sri Lankan Army (SLA). • In about September 2005, his cousin was shot. He believes neighbours had spread rumours that his cousin was associated with the LTTE. The neighbours also suspected the applicant and had always treated him with suspicion. • In 2010, he was staying at his house again. Unknown men came to his house at night, blindfolded him and abducted him in a van. He was taken to a house and interrogated but did not speak Sinhalese, so he does not know what they were asking him. He was beaten and released the next day. He obtained a work visa and went to Saudi Arabia. • He returned to Sri Lanka between January and March 2011 then went to Qatar. He returned to Sri Lanka between January and April 2012 then returned to Qatar. His wife remained in the family home during his periods overseas and continued to be harassed by unknown people searching for the applicant. • He returned to Sri Lanka in July 2012. In September 2012, the applicant fled Sri Lanka. Unknown people continue to question and harass his wife. 7 The learned primary judge at paragraph [5] of his decision summarised the reasoning of the IAA by reference to the submissions advanced by the Minister before him. No criticism is made of that summary in the current appeal and I set it out below: 9 The IAA accepted that the applicant was a Tamil Hindu from the Eastern Province of Sri Lanka. However, on the basis of the country information before it, the IAA found that the applicant did not face a real chance of serious harm on the basis of merely being a Tamil, a Tamil male from the east, or a Hindu. 10 The IAA did not accept the applicant's claim that he has been imputed with support for the LTTE, either personally or due to any association with his cousin. 11 Based on a number of inconsistencies in his statements, the IAA was not satisfied that he had an adverse profile: 11.1 In his statements the applicant claimed his cousin had been shot on his way home from work, but in the interview he claimed his cousin had been detained by the authorities and questioned about the applicant. 11.2 In the interview the applicant made claims about being in hiding in the village and staying with neighbours. However, in his statements he claimed that the neighbours were suspicious of his links to the LTTE and had identified his cousin to the authorities. 11.3 The applicant gave evidence that his two sisters and brother lived in Sri Lanka throughout these events, and did not claim that they faced any harassment, suspicion or other interest due to imputed personal or family links to the LTTE. 12 Nor did the IAA accept the applicant's claims in relation to the alleged harassment and visits. The IAA found that the applicant had fabricated these claims: 12.1 The IAA did not find it plausible that the unknown persons were so interested in him they came to his house on many occasions, but only came to his family home at night time, and not look for him on his land during the day. 12.2 The IAA did not find it plausible that these unknown persons would never have approached any other members of the applicant's family, friends or neighbours to try to find him, as the applicant stated in his evidence. 12.3 The IAA found that the applicant's claim in his interview that his mother-in-law had been questioned once, was the first time the applicant had made this claim, and he did not provide any further details. 13 The IAA also did not accept that the applicant was abducted, on the basis of the applicant's implausible, inconsistent and contradictory claims: 13.1 In his statement, the applicant claimed he was released after his wife went to the police and complained. However at interview the applicant claimed he did not know why he was released, did not mention his wife going to the police, and said he had never reported the abduction to the police. 13.2 The IAA did not find it plausible that the authorities would target him for abduction and interrogation, then release him the next day for no apparent reason. 13.3 There was no evidence or claims by the applicant that he has been targeted by criminal groups or subjected to a ransom or extortion demand. 14 The IAA also considered that if the abduction was undertaken by a criminal or paramilitary group then the applicant being released the next day indicated that he was no longer of any interest to the group. Nor did the IAA find it plausible that the applicant was being actively sought by authorities, because he was able to obtain work visas and travel to and from Sri Lanka four times between 2002 to 2012 and did not face any interest from the authorities on these occasions. 15 The IAA also did not accept that the applicant feared for his safety as he did not apply for refugee status at any time during the period he was overseas. 16 Having concluded that the applicant was not currently of interest to the authorities, the IAA also found that the applicant would not face harm as a returning failed asylum seeker who departed Sri Lanka illegally. The IAA also noted that the Immigrants and Emigrants Act 1949 was a law of general application and was not discriminatory in its terms or application. Complementary Protection Criterion 17 Having not accepted that the applicant would face a real chance of harm under the refugee criteria for reasons relating to any imputed political opinion or any other adverse profile, the IAA was also not satisfied for the same reasons that the applicant faced a real risk of suffering significant harm. 18 Considering the risk of harm to the applicant as a failed asylum seeker and due to his illegal departure, the IAA was satisfied that the applicant did not face a real risk of a custodial sentence. Although accepting the applicant may be required to spend approximately 24 hours in police custody at the airport or a nearby jail, the IAA was not satisfied that this would amount to the arbitrary deprivation of life, the death penalty or torture. The IAA was also not satisfied that there was an intention to inflict pain or suffering, severe pain or suffering, or cause extreme humiliation. 3. THE DECISION OF THE FCCA 8 The appellant raised two grounds for review in his application to the FCCA. The first is that the IAA "made a jurisdictional error in that it did not consider all the claims of the applicant". The second ground is that the Authority "made a jurisdictional error. SZTAL Basis." 9 The learned primary judge addressed the first ground as follows: [7] The solicitors for the Minister addressed this ground on the basis that it was an assertion that the Authority had not properly, actively and mentally engaged with each of the claims made by the applicant. That is what the ground appears to assert on its face. The first respondent submitted, by reference to the various findings made by the Authority summarised above, that the Authority had in fact considered each of the applicant's claims. I agree with that submission. The Authority first assessed each of the applicant's personal claims ([12]-[23]) and dealt with the more general claim based upon the applicant's ethnicity and religion at [24] – [30]. [8] Next the Authority moved to the claim arising from the applicant's illegal departure from Sri Lanka and the fact that if he were to return there he would be returning as a failed asylum seeker. It dealt with all of those claims, both in connection with the criterion under sub-s.36(2)(a) of the Act which concerns the definition of a refugee, and the criterion in sub-s.36(2)(aa), often called the complementary protection criterion. [9] For those reasons, on the understanding of the first ground as I have expressed it, the ground must fail. However, at the hearing I asked the applicant who appeared unrepresented what he understood the ground to mean. He said that he had prepared his application and that what he meant was that the Authority had fallen into error by not accepting his claims. [10] The applicant is clearly correct to say that the Authority had not accepted his claims and it may be that the Authority has fallen into error. However, if there be an error, the only error concerns the merits of the Authority's decision. The Court's power does not extend to examining those merits because the question of whether an applicant satisfies the criteria for the grant of a visa, is a matter to be determined according to the satisfaction of the relevant decision-maker, in this case the Authority. [11] While the Court can examine whether that state of satisfaction was arrived at on a proper understanding of the law, and on the basis of inferences and findings of fact available on the material before the Authority, it cannot interfere simply because the findings of fact and conclusions were wrong. For those reasons, the ground as understood in light of the applicant's clarification at the hearing must also be rejected. 10 The learned primary judge addressed the second ground as follows (footnotes omitted): [12] The second ground is that the Authority "made a jurisdictional error. SZTAL Basis." The reference to "SZTAL" is a reference to a series of decisions made firstly in this court: see SZTAL v Minister for Immigration& Border Protection [2015] FCCA 64; secondly, on appeal in the Full Court of the Federal Court in SZTAL v Minister for Immigration & Border Protection [2016] FCAFC 69; (2016) 243 FCR 556 and, thirdly, on appeal by grant of special leave in the High Court in SZTAL v Minister for Immigration & Border Protection [2017] HCA 34; (2017) 91 ALJR 936. [13] The issue in each of those cases was whether the definition of "significant harm" for the purposes of the criterion in sub-s.36(2)(aa) required an element of subjective intention. The issue potentially arose in this case in light of [48] in the Authority's reasons where the Authority said: ... There is also no indication that authorities or others, through any act or omission intentionally inflict pain or suffering or severe pain or suffering, such as to meet the definition of cruel or inhuman treatment or punishment, nor any intention to cause extreme humiliation. ... [14] At the time at which this application was filed there had been a grant of special leave by the High Court to appeal from the decision of the Full Court in SZTAL. That means that there was a possibility of arguing, as the applicant appears to have in this case, that the Authority was wrong to draw conclusions from the lack of subjective intention. However, the later delivery of the judgment by the High Court put the issue beyond question. By majority, the High Court upheld the decision of the Full Court in SZTAL (FCAFC): see in particular SZTAL (HC) at [26]. The consequence of that is that the ground must fail. 4. THE APPEAL 11 At the hearing, the appellant contended that someone had made further threats to his wife over the past two to three months and that because of this he faces problems if he returns to Sri Lanka. The Minister correctly submitted that this was not a matter before the IAA and could not be raised on appeal. The appellant also asked that the Court grant him a visa. In this regard, it is apt to note 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 applicant 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). 12 In ground 1, the appellant contends that the primary judge did not consider the claims cumulatively. Plainly that is incorrectly stated, because on review from a decision of the IAA the task of the FCCA is limited to that of judicial review. However, as the appellant is self-represented I will take this ground to contend that the learned primary judge failed to find that the IAA did not consider the appellant's claims cumulatively. 13 This ground was not raised before the primary judge and accordingly leave is required before the appellant may rely upon it. The principles for the grant of leave are well established. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. However, the Court may grant leave in respect of a point not taken below if it clearly has merit and there is no real prejudice to the respondent in permitting it to be argued. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46] – [48]. 14 In my view, ground 1 as advanced is not sufficiently arguable to warrant the grant of leave. It is evident from a reading of the decision of the IAA that it comprehensively set out the appellant's claims and considered each one. Its overall conclusions, summarised above at [7], were that the factual elements of the claims were to be rejected on the basis that they were not credible, or were insufficient to warrant the grant of the SHEV. Furthermore, at [49], the IAA in terms referred to the cumulative circumstances and profile of the appellant. 15 In ground 2, the appellant appears to contend that the IAA fell into error because it failed to find that he had familial links with the LTTE. 16 In [12] of its reasons, the IAA records that, in the interview conducted by the delegate, "the appellant stated that neither he nor any member of his family had any involvement with the LTTE, had never undertaken any sort of training, had not been involved in any fighting or hostilities and had never been suspected by the authorities of any security or criminal matters". In his statements, the appellant claimed that his cousin was believed to be a supporter of the LTTE and that he was shot for that reason. He also claimed that his neighbours had always suspected him as well and, for these reasons, he would be imputed with support for the LTTE. The IAA at paragraph [12] of its decision points to inconsistencies in the account offered by the appellant. At paragraph [13], the IAA notes that the appellant gave evidence that he had two sisters and a younger brother living in Sri Lanka, but he did not claim that any of his siblings had suffered any harassment, suspicion or other interest as a result of any imputed links to the LTTE. Based on the materials, the IAA did not accept the appellant's claim that he has been imputed with support for the LTTE. 17 It is apparent from a reading of the decision of the IAA that, contrary to the suggestion made in ground 2, the appellant did not in fact claim before the IAA that he had familial links with the LTTE. Rather, the appellant submitted that his cousin was only suspected of having such links. Furthermore, as noted by the IAA, in his interview with the delegate the appellant made clear that neither he nor any members of his family had any involvement with the LTTE and specifically said that "he did not think his cousin was involved with the LTTE". Accordingly, there can be no substance in the contention that the IAA failed to make a finding in relation to a claim that the appellant did not advance, and which was inconsistent with his own evidence. 5. DISPOSITION 18 For the reasons set out above, I do not grant leave to the appellant to rely on grounds 1 and 2 in the notice of appeal. The appeal must be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate: Dated: 4 March 2019