Abx18 v Minister for Home Affairs

[2019] FCCA 1535

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABX18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1535

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s claims rejected in part and other fears found not to be well-founded – whether the Authority failed to carry out its duty to review, or acted unreasonably or applied the wrong test or overlooked a relevant issue considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.473DC, 473DD

Cases cited:

CQG15 v Minister for Immigration (2016) 253 FCR 496

Applicant: ABX18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 45 of 2018

Judgment of: Judge Driver

Hearing date: 5 June 2019

Date of Last Submission: 11 June 2019

Delivered at: Sydney

Delivered on: 4 July 2019

REPRESENTATION

Solicitors for the Applicant: Mr R Turner of Turner Coulson Immigration Lawyers

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application as amended on 1 November 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 45 of 2018

ABX18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 12 December 2017.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. The following statement of background facts is derived from the submissions of the parties.

3. The applicant is a citizen of Sri Lanka who arrived in Australia at Cocos (Keeling) Islands as an unauthorised maritime arrival on 22 October 2012.[1]  He applied for a Safe Haven Enterprise Visa (SHEV) on 19 April 2016.[2]

   [1] Relevant Documents (RD) 59

   [2] RD 39.  The application was stamped “received” on 24 June 2016

4. The delegate invited the applicant to an interview on three occasions but he did not attend.  The delegate refused the application on 28 September 2017.[3]  In those circumstances the Authority invited the applicant to an interview, which he attended on 6 December 2017.

   [3] RD 123-141

5. The applicant’s claims are summarised by the Authority at [40]. Essentially he claimed to fear harm from the Sri Lankan authorities because of his Tamil ethnicity and suspected Liberation Tigers of Tamil Eelam (LTTE) involvement as a driver and distributor of CDs and videos. The Authority accepted that the applicant was required to provide support for the LTTE by driving tractors and other vehicles, but not that he had any higher role or distributed videos or CDs.[4]

   [4] [50]-[52]

6. The applicant claimed that he and his family surrendered in 2009 and were placed in a camp for internally displaced persons that year.  He claimed that the Criminal Investigation Department (CID) interrogated and beat him in 2009, and that he had to report for six months after his release in December 2009.  The Authority accepted this but found that he was of no further interest to the CID thereafter.[5] 

   [5] [53]

7. The Authority rejected the applicant’s claim that the CID were looking for him in 2012, finding that if he had been of further interest to the CID after 2009 he would have been arrested before 2012, that he did not have a LTTE profile and that the applicant did not face harm from the CID or anyone else.[6] 

   [6] [54]-[61]

8. The Authority also rejected the applicant’s claims to fear harm as a Tamil with LTTE associations,[7] or as a failed asylum seeker and illegal departee.[8]

   [7] [64]-[82]

   [8] [85]-[101]

The current proceedings

1. These proceedings began with a show cause application lodged on 8 January 2018.  The applicant now relies upon an amended application filed on 1 November 2018.  There are four particularised grounds in that amended application:

   1. The Authority failed to carry out its statutory duty to review the application.

   Particulars

   1. The Authority refused to accept that the Applicant was arrested or sent to a rehabilitation camp.

   2.The Authority refused to accept that a file was opened in the Applicant’s name.

   3. The Authority refused to accept that … the Sri Lankan authorities had any interest in the Applicant as a result of him being in the camps.

   4. In doing so, the Authority has simply applied the decision of the delegate rather than conducting a review of the decision.

   2. The Authority acted unreasonably in making its decision and failed to base its findings on evidence.

   Particulars

   1. The Authority accepts that there are reports in Sri Lanka of arrests and torture of known former LTTE members but does not accept that the Applicant has an LTTE profile.  The Applicant is a known former LTTE member as he was a driver for the LTTE transporting goods and personnel, therefore he has a LTTE profile or was perceived as an LTTE follower.

   2. The Authority did not provide any evidence to support the conclusion that the Applicant did not have a LTTE profile.

   3.      The Authority applied the wrong test.

   Particulars

   1.The Authority accepted that the applicant was required to provide support to the LTTE by driving a tractor and other vehicles to transport LTTE goods and persons, as he lived in a LTTE controlled area.

   2.The Applicant claimed that he was ordered to drive vehicles for the LTTE and was a trusted employee of the LTTE.

   3.The Authority rejected this claim stating that it did not accept that the Applicant was a 'trusted LTTE' employee or at a high level if he was 'ordered' to drive vehicles and compelled. The Authority failed to consider that the Sri Lankan authorities were not concerned with compulsion and willingness when working for the LTTE, the fact that the Applicant drove vehicles for the LTTE meant that he would be perceived as a member of the LTTE and as such had an LTTE profile that would bring him to the adverse attention of the Sri Lankan authorities.

   4. The Authority failed to take into consideration the mental trauma that the Applicant had faced which resulted in his memory being seriously affected.

   Particulars

   1.The Applicant explained that he had only provided brief claims in his arrival interview and did not give all the details at that time.

   2.The Applicant stated that due to the war and subsequent stress at the hands of the CID, his memory was seriously affected.

   3.The Authority failed to take into consideration the fact that the Applicant's father was killed by army personnel without provocation, the Applicant's sister died in a bomb attack, the Applicant was detained for ten months in a camp and the CID interrogated him for 5 days and the Applicant was beaten and threatened by the CID. These instances have traumatised and seriously affected the Applicant's memory.

   4.The Authority rejected the Applicant's mental trauma on the basis that he had been able to provide details of where he lived, the name of camps, what happened in his life, however, this does not negate the fact that the Applicant's memory is seriously affected by the war and actions of the CID.

2. In addition to the book of relevant documents lodged on 19 February 2018, I have before me as evidence the affidavit of Renee Jane Quinn made on 30 May 2019, to which is annexed a transcript of the interview conducted by the Authority on 6 December 2017. 

Consideration

1. It should be stated at the outset that there was a somewhat awkward transition between the grounds in the amended application, the applicant’s written submissions filed on 21 May 2019 and the oral submissions made by the applicant’s solicitor at the trial on 5 June 2019.  Counsel for the Minister objected several times to the presentation of those oral submissions because of the apparent disconnection.  I permitted those oral submissions to be put, however, because there was some link with the written submissions and, to that extent, the Minister was not taken wholly by surprise.  Counsel for the Minister did not seek the opportunity for post hearing submissions. 

2. I did request a post hearing note from counsel for the Minister in relation to the Authority’s reasons at [21]-[23][9] because I did not understand the apparent distinction being drawn by the Authority between “documents” and “information” and I did not understand why the information referred to at [23] was considered to be new information.  On 11 June 2019 counsel provided the following interpretation of [23]:

   [9] RD 265

   At the hearing on 5 June his Honour asked for a note from me as to whether the IAA  misapplied the distinction between information and documents or erred in applying s 473DD at CB 265 [21-23].

   The new information the IAA refers to at [21] appears to be that at CB 172 and 238 (letters from Grama Niladhari dated  21 November 2012), 179 (JP letter), and 187-188 (Mr S’s[10] Swiss ID card).

   The IAA at [23] appears to find that the information in these documents was previously known to the Minister (as well as to the applicant).  In particular, the applicant’s statement at CB 79 para 27 had claimed that Mr S obtained asylum in Switzerland and the MP’s letter at CB 38 had set out similar background concerning the applicant as the letter at CB 179.  The letter at CB 172, 238 also did not add anything new to the applicant’s claims.

   There is no misapplication of the distinction between information and documents apparent, and no misconstruction of s 473DD.  Having found that the information in these documents was previously known to the Minister (as well as to the applicant), s 473DD(b)(ii) was not satisfied (Plaintiff M174/2016 v MIBP [2018] HCA 16 at [33]).

   [10] The name has been anonymised

   It should be noted that the IAA also found s 473DD(a) not satisfied at [24].

3. I note counsel’s interpretation for the record, noting further that this was not an issue raised by the applicant, who was legally represented.

4. It should be also stated at the outset that this case is highly unusual in that the Authority chose to conduct an interview with the applicant under s.473DC of the Migration Act 1958 (Cth) (Migration Act). The Authority explains the reason it proceeded in that way at [5][11] and no complaint is raised in that regard.  The applicant does, however, take issue with the exploration at the interview about the circumstances of the applicant’s non attendance at an interview with the delegate, which is detailed in the transcript.  The applicant contends that the Authority used the interview to draw adverse credibility conclusions against the applicant in relation to his non attendance before the delegate, which coloured the review.  The applicant also contends that the Authority proceeded on a false factual premise because the delegate’s interview invitation[12] is addressed to the applicant at a residential address, in respect of which there is no evidence that he ever resided.

   [11] RD 262

   [12] reproduced at RD 108

5. The relevant part of the Authority’s reasons on this issue is set out at [11] where the Authority stated: [13]

   Secondly, when the applicant failed to appear at the first interview appointment, the delegate spoke to the agent and to the applicant about the failure to appear. While the agent said they no longer acted for the applicant, no authorised withdrawal was provided. According to the delegate's decision record, the delegate spoke with the applicant on 23 June, about his failure to appear at the interview, its rescheduling and obtained the applicant's updated postal address. According to the delegate in that phone call, the applicant requested a rescheduled interview and a copy of the interview request be sent to him at his new address at Rostrevor. The second interview invitation was sent to the migration agent, but unfortunately a copy was not sent to applicant. A third interview invitation was sent to the applicant's residential address at Rostrevor on 22 August 2017 for a scheduled interview on 4 September 2017. The applicant did not attend for any of the three scheduled interviews.

   [13] RD 263

6. It appears that the address to which that invitation was directed was obtained in a telephone call between the Minister’s Department and the applicant.  I reject the contention that the Authority proceeded on a false factual premise in relation to the circumstances of the applicant’s non attendance at the interview before the delegate.

7. Neither do I accept that the Authority drew adverse credibility conclusions from the circumstances of that non attendance.  While significant time was devoted at the Authority’s interview to that issue, it is apparent that the questions were directed to assessing whether exceptional circumstances existed for the receipt of substantial new information being proffered by the applicant.  The Authority concluded relevantly at [24] as follows:[14]

   Further, I do not consider there are exceptional circumstances which justify me having regard to the applicant's documents or information above. The information could have been provided at the time of application or prior to decision. As discussed above, I do not accept that he was not informed about his interview time. He was sent three invitations, two of which were sent to the correct address and also sent to his migration agent. Further, numerous attempts were made to contact him by phone on three different numbers, including SMS and phone messages Further, the information is documentary evidence all of which predates the decision. Further, there is nothing exceptional or compelling in the documentation or the applicant's circumstances. I am not satisfied there are exceptional circumstances which justify me having regard to the information (s473DD(a)).

   [14] RD 265

8. The applicant also asserts that the findings by the Authority recited at [16][15] are unreasonable.  The applicant makes reference to an apparent poor line at one point during the telephone interview.  I consider that issue further below, as it was addressed also in the applicant’s written submissions.

   [15] RD 264

9. In his oral submissions, the solicitor for the applicant also submitted that the Authority was in error in treating the applicant’s evidence recited at page 8 of the transcript as new information.  The relevant passage is at Q32 and the answer provided as follows:

   Q32.All right.  The other thing is that you – from looking at your application, your address history you’ve been living and working in Sri Lanka from 2009 to 2012.  If the authorities had suspected you were LTTE they would’ve found you and detained you.

   A.… Because one of my friend who worked in LTTE he got caught, he was arrested so he has told about my involvement with the LTTE, after that only they were looking for me and then I thought okay, I am in danger, that’s why I left the country.  After coming here they have decided that I am LTTE member, that’s why I left the country because I didn’t want to get caught again, that’s why.

10. The applicant had previously, in his written claims, referred to a work colleague rather than a friend getting caught.

11. The Authority deals with this issue at [20] of its reasons as follows:[16]

    At the IAA interview the applicant also provided new information that his friend was arrested three or 4 months before the applicant left Sri Lanka and he must have disclosed the applicant's LTTE involvement. He has not disclosed this information previously, at the arrival interview, in his 2016 statement or even in his 2017 statements and letter of November 2017 to the IAA. I consider this is a new claim added to enhance his protection claims. Further, I consider the applicant has had plenty of opportunity to provide this information. In addition, I do not accept it is credible personal information, as he did not mention it earlier. I consider given it is a key part of his claim and occurred just prior to his departure, that he would have mentioned if it were true at the outset. I am not satisfied that the new information meets s473DD(b)(ii). Further, the claimed event occurred in 2012 and was known to the applicant, so I am not satisfied that he could not have provided that information earlier, either in his arrival interview or in his application or 2016 statement. I do not accept the applicant's claims he was fearful of being detained if he disclosed LTTE connections, as it is not consistent with the fact he disclosed that he was a driver for the LTTE in his arrival interview. I am not satisfied s473DD(b)(i) is met. Nor am I satisfied there are exceptional circumstances to justify considering the information. I have therefore not considered that new information.

    [16] RD 264-265

12. In my view, there is a material difference between the written claim made by the applicant which is reproduced at RD 160 and the oral claim made at interview.  It was open to the Authority to treat the oral claim as new information. 

13. In relation to the applicant’s grounds of review as developed in his written submissions, I accept the Minister’s submissions made in response. 

Ground 1

1. The first ground claims that the Authority did not carry out its statutory duty to review the delegate’s decision. 

2. The particulars refer to the Authority’s findings at [47]-[48].[17]  The applicant’s submissions assert that the Authority did not engage in an active intellectual process but merely applied the delegate’s decision in so finding.  There is no basis for this assertion.  The Authority’s reasons at [50]-[61][18] explain in detail why it found that the applicant was not of interest to the Sri Lankan authorities after December 2009.  There is no reason to infer that the Authority was merely applying the delegate’s decision. 

   [17] RD 270

   [18] RD 270-272

Ground 2

1. The second ground claims that the Authority acted unreasonably and failed to base its findings on evidence. 

2. The particulars refer to the Authority’s findings that the applicant did not have an LTTE profile despite having driven vehicles for them in 2008-2009.  The Authority gave reasons for this conclusion at [50]-[53][19] and [64]-[73].[20] 

   [19] RD 270-271

   [20] RD 272-273

3. The applicant has not identified any “extreme” illogicality with the Authority’s reasoning as required to make out legal unreasonableness.[21]  The Authority did not need rebutting evidence as the particulars suggest.[22]

   [21] CQG15 v Minister for Immigration (2016) 253 FCR 496 at [59]-[61]

   [22] CQG15 at [65]

4. The applicant’s submissions ostensibly in support of this ground actually relate to the Authority’s findings at [16][23] and [20][24] concerning the applicant’s claim made to the Authority that he had a friend who was arrested three or four months before the applicant left Sri Lanka.  The applicant’s submissions suggest that, contrary to the Authority’s findings at [16] and [20], the applicant had mentioned this arrest previously in his statements to the delegate[25] and to the Authority.[26]  However, neither of these statements refer to a friend of the applicant being arrested shortly before the applicant left Sri Lanka, but rather to “employees” of an LTTE officer and “key drivers” for the LTTE being arrested at unspecified times. Indeed, the Authority records at [16], that when it noted he had not mentioned this arrest previously, the applicant said it was his mistake and he was fearful.

   [23] RD 264

   [24] RD 264-265

   [25] at RD 79

   [26] at RD 160 and 170

5. The applicant’s submissions assert that the interpreter at the Authority interview misinterpreted the applicant’s evidence, but the transcript of the hearing does not support this assertion. 

6. Finally, to the extent that the applicant’s submissions assert that the claims at RD 79, 160 and 170 were not addressed by the Authority, the Authority rejects the first at [56][27] and found it could not consider the second at [30]-[34][28] as s.473DD of the Migration Act was not satisfied.

   [27] RD 271

   [28] RD 266-267

Ground 3

1. The third ground claims that the Authority applied the wrong test.  The particulars and the applicant’s submissions assert that because the applicant drove vehicles for the LTTE he had an LTTE profile that would bring him to adverse attention of the Sri Lankan authorities.  This does not rise above a dispute about the Authority’s conclusions. 

2. As the Authority states at [50]-[51],[29] being ordered to assist the LTTE was not uncommon for those living in an LTTE-controlled area in the context of the civil war, and the applicant did not claim to have been involved in military activities.  On the applicant’s claims, the CID knew that he had done so as he told them in 2009.[30]  The applicant was nevertheless released in 2009.  As the Authority found, if he was subsequently wanted for questioning, the CID could have arrested him.[31]  The Authority’s conclusion that the applicant did not have an LTTE profile based on this reasoning,[32] was open and again the applicant has not demonstrated that it is legally illogical within the principles in CQG15.

   [29] RD 270

   [30] [54]

   [31] [55]

   [32] [68]-[71]

Ground 4

1. The fourth ground claims the Authority failed to take into account the applicant’s mental trauma which, the ground claims, resulted in his memory being seriously affected.  The Authority did not accept that the applicant’s memory was seriously affected by the events this ground relies upon, noting that he had given a detailed statement and there was no medical evidence about his memory.[33]  The Authority’s conclusion was open and does not demonstrate any failure to apply an active mental process as suggested by the applicant’s submission.  Again this ground does not rise above a dispute over the Authority’s factual conclusions and seeks merits review.

   [33] [41]-[42]

Conclusion

1. The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.

2. I will hear the parties as to costs.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:         4 July 2019