Ako18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 734

FEDERAL CIRCUIT COURT OF AUSTRALIA

AKO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 734

File number(s):	SYG 232 of 2018
Judgment of:	JUDGE STREET
Date of judgment:	24 May 2021
Catchwords:	MIGRATION – Immigration Assessment Authority – whether the authority failed to have a genuine and intellectual engagement with the applicant’s evidence – whether the authority made findings that lacked an evident and intelligible justification – whether the authority erred in failing to obtain a translation of two documents  – no arguable case of error made out – no jurisdictional error found – amended application dismissed.
Legislation:	Migration Act 1958 (Cth) ss 476, 473CB, 5J, 5H(1), 36(2)(a), 36(2)(aa), 473DC , 473CC, 473FA
Cases cited:	X v The Minister for Immigration and Multicultural Affairs [2002] FCA 56
Number of paragraphs:	88
Date of hearing:	14 April 2021
Place:	Sydney
Counsel for the Applicant:	Mr E Olivier
Solicitor for the Applicant:	Michaela Byers
Counsel for the First Respondent:	Mr J Kay Hoyle
Solicitor for the First Respondent:	Mills Oakley

ORDERS

SYG 232 of 2018

BETWEEN:

AKO18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MUTLICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	24 MAY 2021

THE COURT ORDERS THAT:

1.The amended application is dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

3.The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application request for a Constitutional writ within the court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made on 5 January 2018. 

2. The applicant is a citizen of Sri Lanka and his claims were assessed against that country.

3. The applicant provided a statement in paragraph 33 in  which he said:

   I’ll be found in Sri Lanka because of my imputed political opinion of opposition to the Sri Lankan authorities.  I have been imputed with a political opinion of opposition to the Sri Lankan authorities because of my:

   (a) Tamil ethnicity,

   (b) Support for the TNA

   (c) Reporting on bad behaviour of members of the SLA to my supervisor who, in turn, reported the behaviour to their superiors, and

   (d) My application for asylum in Australia.

4. The applicant was also identified as a person who had left Sri Lanka illegally, and the authority made reference to the applicant having been in detention at the time of the data breach.

5. On 8 May 2017, a delegate of the first respondent (“the Delegate”) found the applicant failed to meet the criteria for the grant of a Protection (ClassXA) visa. 

6. On 16 May 2017, the Authority wrote to the applicant giving the applicant an opportunity to put on new information and submissions, having provided an attached fact sheet and practice direction. The applicant did put on submissions that were received by The Authority on 7 June 2017.

7. The Authority, in its reasons, identified the background to the review application and that the applicant arrived in Australia on 3 September 2012 and lodged the application for the visa on 31 January 2017.

8. The Authority had regard to the material referred by the secretary under s 473CB of the Act.  The Authority considered the submissions and identified that there were links that were provided that did not comply with the practice direction and did not have regard for the same.  The Authority identified that there was new information and considered the new information consistent with taking into account both limbs of s 473DB of the Act.

9. The Authority then summarised the applicant’s claims, and in particular, that the applicant was of Tamil ethnicity from a particular district in the eastern province, and that the applicant had provided assistance leading up to the March 2011 campaign of a TNA member, and identified that member’s name, hereafter described as K.

10. The Authority explained that the applicant assisted by putting up posters, canvassing door-to-door and arranging public meetings.  The Authority referred to the applicant attending 10 days before the election.  When the applicant and three other men were putting up posters, they were approached by four unidentified men on unregistered motorbikes. When the men noticed the posters were promoting the TNA, the unidentified persons took up sticks and started to beat the applicant and the other men, and they ripped the remaining posters and destroyed their motorbikes before leaving the scene.

11. The applicant informed K of what had happened, and that the applicant wished to take a less active role in the campaign but agreed to continue to assist K during the day.  On 17 March 2011, K was elected as a TNA representative.

12. The applicant referred to his work as a security guard at a bank located opposite an SLA camp.  The applicant alleges that, on 22 April 2012, SLA members cut the electricity that illuminated the bank’s logo, and that the applicant informed his supervisor who, in turn, approached a senior officer of the SLA about the matter.  The SLA confirmed that they had cut the electricity because the light was annoying them.

13. The applicant alleges, following this incident, the SLA soldiers came to the bank each day at 3 pm and knocked on the door to be let in.  The applicant explained that the bank closed at 3 pm, which made them angry.  The applicant alleges the soldiers continued to do this for two months to intimidate the applicant.  The applicant thought this was retribution for him having reported that the SLA had cut off the electricity.

14. On 25 June 2012, the applicant noticed the SLA had run a pipeline from outside the bank into the SLA camp, and that the SLA was channelling water directly from the bank to the camp.  The applicant reported this matter to his supervisor who, again, went to the camp to complain to the senior officer.  On 28 June 2012, the SLA officer came to the bank and demanded the applicant’s personal information and took that information back to the camp.

15. On 2 July 2012, the applicant was leaving the bank when he was stopped by SLA soldiers and taken to the camp.  The applicant alleges he was accused of supporting the LTTE, and that the applicant was the subject of an incident where a gun was held to his chest and he was told he would not be killed then because he had signed into work that day, and that people had seen him coming into the camp, but that if they saw the applicant again, they would kill him.  The applicant says that fearing for his life, he went to stay with his brother in Batticaloa, and that the applicant was afraid to return to the bank, so he wrote to his employer requesting release from his employment contract, and did not return to his area again, but stayed with relatives of his wife.

16. The applicant also alleges that, prior to the elections on 8 September 2012, the applicant was approached by K who asked him to help him campaign for re-election, and the applicant agreed, again putting up posters and canvassing door-to-door and arranging public meetings.

17. The applicant alleges, on 10 August 2012, that the applicant was approached by two men of the TMVP who told the applicant he should leave the TNA and campaign and work for the TMVP instead.  The applicant told the men that he knew the TMVP was affiliated with the Sri Lankan authorities and would not support them, and in response, the applicant alleges that the men told the applicant he had to report to the TMVP office by 4 pm the following day, and that if he did not report he would be dead.  The applicant was afraid he would be beaten and tortured if he reported to the TMVP office, and to avoid harm, fled Sri Lanka by boat on 12 August 2012.

18. The applicant also referred to a government worker known to him having been shot dead at his home on 26 May 2015, and that the assassin has not yet been identified.

19. The Authority referred to the assistance the applicant allegedly provided to the LTTE between 2000 and 2001. The applicant also alleged that the person who had been shot in May of 2015 was the applicant’s former manager’s brother, and that he fears he too may be shot in similar circumstances.

20. The Authority identified the relevant law, including in an attachment of applicable law incorporated by pagination.

21. The Authority found the applicant’s claims in relation to the two or three months that he provided assistance to the LTTE to be somewhat vague, and at times incoherent.  The Authority referred to the applicant’s explanation that he lived in an area controlled by the SLA, and that he later said his village was close to, or bordered, an area controlled by the LTTE.

22. The Authority referred to the activities the applicant alleged he had undertaken, and that the applicant advised he had never had any difficulty with the SLA or the Sri Lankan authorities on account of this work, and that that work was last performed in 2001.

23. The Authority referred to country information and accepted the applicant’s evidence that his village was close to a border and an area controlled by the LTTE, and that the Tamil population felt compelled to participate in activities when requested.

24. The Authority was aware that the applicant was recounting events from 17 years earlier and was prepared to accept that the applicant assisted the LTTE as claimed.  The Authority was satisfied the applicant did not come to the adverse attention of Sri Lankan authorities on account of the assistance he provided, given that this claim relates to events that occurred some 17 years ago.

25. The Authority was not satisfied that the applicant would come to the adverse attention of Sri Lankan authorities in the future.  The Authority was mindful that the applicant had had several interactions with the Sri Lankan authorities in subsequent years that indicate that he was not a person of concern in relation to prior LTTE involvement.  The Authority referred to the applicant’s low level of assistance and was not satisfied the applicant faced real chance of harm on this basis now and in the foreseeable future.

26. The Authority then turned to the applicant’s claim of events in 2011 and 2012. The Authority referred to the applicant’s involvement with the TNA leading up to the March 2011 elections, including his claims of physical assault, being unconvincing.  The Authority identified inconsistencies in relation to the applicant’s written and oral evidence as to who assaulted him, the relevant people involved and what had happened. 

27. The Authority found the applicant’s knowledge of the TNA and its policies was vague, lacking detail and did not support his claim that he had been helping the TNA from the beginning.  The Authority made reference to the fact that the applicant had provided, in support of his Safe Haven Enterprise Visa application, letters dated 28 July 2012 and 30 November 2012, which the Authority identified appeared to have been written by K.  The Authority observed that the content of the letters is unknown as they had not been translated into English.

28. The Authority then referred to country information, and accepted as plausible, that persons, such as the applicant, could have been involved in the campaign activities at election time.  It was free to accept it as plausible, and to find that the applicant provided low level assistance to his local TNA candidate during election time in March 2011.

29. The Authority  was not satisfied that the applicant, in connection with his activities at the time,  came to the adverse attention of unidentified persons as claimed in the Safe Haven Enterprise Visa statement, or that he was arrested and assaulted by members of the TMVP, as first claimed in his Safe Haven Enterprise Visa interview.

30. The Authority accepted the applicant worked as a security guard at a bank, and referred to the applicant’s claims in relation to the cutting off electricity, and accepted that that incident occurred, and that the applicant reported the matter to his management.  The Authority referred to it being unclear as to how the applicant knew that the SLA was involved, but accepted that following that incident, management raised the matter directly with the SLA camp, and that officers of the camp admitted responsibility for the damage to the bank’s property.  The Authority accepted that it is plausible that, following these interactions, soldiers from the camp caused trouble for the applicant, such as at closing times as detailed in the applicant’s statement.

31. The tribunal referred to the applicant having speculated the following incidents with the SLA soldiers   were in retribution for him reporting to his manager that the SLA had cut the electricity line, and noted that the applicant had not claimed that the soldiers said anything to him to support that belief.

32. The Authority referred to the applicant’s role requiring him to be stationed at the front of the bank and considered it plausible that the actions of the soldiers may have been directed at the bank itself, rather than at the applicant on a personal level.

33. The Authority then referred to the applicant’s claims in relation to the SLA running a pipeline to channel water from the bank, being consistent with the applicant’s earlier evidence.  However, they identified inconsistencies in the applicant’s evidence as to how the SLA became aware that the applicant was the one who reported the matter.  The Authority identified the different version of events by the applicant in that regard.  The Authority had difficulty accepting that the SLA would take issue with the person who reported the matter in circumstances where it would have been obvious to all bank employees that a pipeline had been built between the bank and the camp.

34. The Authority also noted that the applicant’s claims that he was escorted back to the SLA camp following his confrontation with the SLA officer, and that he was accused of LTTE involvement and  had a gun pointed to his chest, were  not mentioned in the transferee interview.

35. The Authority also identified the different claim by the applicant at the Safe Haven Enterprise Visa interview, that he was struck in the face with a concrete pipe at the front of the bank on the same day he was approached, and that this was not mentioned in his Safe Haven Enterprise Visa statement or during the transferee interview.

36. The Authority then referred to the applicant’s claim that following the incident on 2 July 2012, wherein he returned home, and then went to live with his brother for a period of 10 to 12 days.  The Authority identified that the applicant’s drivers licence, issued on 18 January 2012, identified a particular place of residence, which was not the location that the applicant alleged he had moved to. The Authority referred to the applicant’s claim that he never returned home and that he stayed at houses of his wife’s relatives.  The Authority identified that the address history recorded in the Safe Haven Enterprise Visa application, and in the transferee interview transcript, identifies the applicant residing at the same address between May 2010 and 12 August 2012, which was the day he departed Sri Lanka. The Authority was not satisfied that the applicant spent time in different people’s houses from 2 July 2012 until he departed Sri Lanka.

37. The Authority referred to the applicant’s claim of fear of harm and his choice to get involved in the September 2012 campaign, and his response that he did not work for the TNA in his own area, and had always worked in teams of two or three people. 

38. In light of those inconsistencies, The Authority was not satisfied the applicant came to the adverse attention of the SLA in July 2012, for the reasons claimed. The Authority observed it could not conclude with certainty that the applicant did not come to the adverse attention of the SLA soldiers at the time when they referred to country information.

39. The Authority found it plausible that the applicant was harassed by local soldiers, and ceased his employment at the bank and spent some time with his brother due to the harassment he received.

40. The Authority observed that it obviously could not discount the possibility the applicant was verbally and physically assaulted by the SLA in 2012.  The Authority was not satisfied that, as a result of these interactions, the applicant is a person of ongoing adverse interest to the SLA, or any other arm of the Sri Lankan authorities.

41. The Authority accepted it was plausible that the applicant provided low level support to the TNA candidate K in the lead up to the September 2012 provincial council election, but found the applicant’s claim that he came to the adverse attention of the TMVP at this time to be unconvincing.  The Authority identified three reasons in support of that adverse finding:  the first in relation to the inconsistencies in the applicant’s evidence in relation to how he was told to report, the second in relation to significant inconsistencies as to the circumstances of how he arranged his departure from Sri Lanka, and the third in relation to the applicant’s inconsistencies as to the events that led to his decision to leave Sri Lanka.

42. Taken cumulatively, the Authority, due to the above inconsistencies, and other evidence, concluded that the applicant was not recalling a genuine personal experience in relation to his circumstances, and the events that led to his decision to leave Sri Lanka.

43. The Authority referred to inconsistencies in the applicant’s evidence as to when he was required to report, when he first made arrangements to leave, his reasons for leaving, his reasons for travelling to Colombo, and his reasons for why he left Sri Lanka.  The Authority preferred the applicant’s evidence in his arrival interview, which claimed that his decision to leave Sri Lanka was due to harassment he faced from the SLA in his former place of work.  The Authority found this consistent with the applicant having paid money the day after the incident.  The Authority concluded that the applicant had fabricated the claim relating to his interaction with the TMVP on 10 August 2012, to enhance his claims for protection.

44. The Authority preferred the applicant’s accounts to the transferee interview.  The Authority was not satisfied that the applicant faces real chance of harm from the TMVP, the Sri Lankan Government, or any other person or group, on account of his activities he carried out for and on behalf of the TNA in 2012, or at any other time.

45. The Authority was not satisfied the applicant faced a real chance of harm in relation to the death of the former manager’s brother, or that he would be shot or killed by a Sinhalese or Muslim person who obtained weapons from the TMVP.

46. The Authority referred to country information in relation to the overall situation regarding Tamils.  The Authority referred to societal discrimination but was not satisfied this would constitute serious harm.

47. The Authority accepted the conflict in respect of Tamils in the east being harassed by Sri Lankan security forces, and that the applicant had suffered mistreatment by soldiers in around July 2012.

48. The Authority referred to country information in relation to a positive shift in the interaction with authorities.  While the Authority accepted the applicant came to the adverse attention of SLA soldiers stationed opposite his work, the Authority was not satisfied the applicant now, some five and a half years later, faced a real chance of harm from the SLA, or any other arm of the Sri Lankan Government on return to Sri Lanka in connection with the localised events about July 2012.

1. The Authority referred to other country information in relation to Tamil ethnicity and concluded that the applicant is not a person who faces a real chance of serious harm by virtue of his Tamil ethnicity, or on account of any actual or imputed LTTE connections.

2. The Authority referred to a letter submitted, dated 12 March 2014. This letter referred to the applicant’s details having been accessed by the data breach.  The Authority found that no asylum claims were published and, accordingly, the Sri Lankan authorities would not, therefore, know the applicant’s reasons for seeking protection.  The Authority was not satisfied that the applicant faced a real chance of serious harm on account of his details being made available for a short period in February 2014, now or in the reasonably foreseeable future.

3. The Authority is not satisfied the applicant faces a real chance of harm due to his Tamil ethnicity, his actual or imputed LTTE profile, his previous interactions with the SLA, his involvement with the TNA, or TNA candidate, the data breach, or for any other reason, upon his return to Sri Lanka now or in the reasonably foreseeable future.

4. The Authority then turned to the applicant’s illegal departure and return as an asylum seeker, and accepted that the applicant would be identified by the Sri Lankan authorities as someone who had departed illegally.  The Authority was not satisfied there is a real chance that the applicant would be harmed by the Sri Lankan authorities by virtue of him being a Tamil asylum seeker.

5. The Authority referred to country information in relation to the processing. The Authority was satisfied the applicant has no identification concerns if the applicant is not a person with a criminal security record that would raise the concern of the authorities.

6. The Authority was not satisfied that any processing delays to which the applicant may be subject would constitute serious harm as defined by the Act.

7. The Authority was not satisfied the applicant faces a real chance of serious harm due to being a failed asylum seeker from Australia, or Nauru, now or in the reasonably foreseeable future, if he returns to Sri Lanka.

8. The Authority referred to other country information in relation to illegal departure. The Authority accepted the applicant would be charged and fined under the Immigration and Emigration Act, and then released. The Authority found the applicant would not face any chance of imprisonment, and that it is highly likely he will be fined. The Authority is not satisfied the applicant will face a real chance of serious harm during the brief time spent in detention.

9. The Authority took into account the absence of any criminal profile by the applicant and found there’s not a real chance the applicant will be facing imprisonment.  The Authority found the applicant does not face a real chance of serious harm from Sri Lankan authorities due to his illegal departure, travel to Australia, or for any other reason.

10. The Authority then referred to having considered the applicant’s claims, individually and cumulatively, and found the applicant does not have a well-founded fear of persecution within the meaning of s 5J of the Act.  The Authority found the applicant did not meet the requirements within the definition of a refugee in s 5H(1) of the Act. The Authority also found the applicant did not meet the criteria in s 36(2)(a) of the Act. The Authority found there were not substantial grounds for believing as a necessary and foreseeable consequence of the applicant being returned there is a real risk the applicant will suffer significant harm. The Authority found the applicant does not meet the criteria in section 36(2)(aa) of the Act and affirmed the decision under review.

    THE GROUNDS

11. The grounds in the amended application are as follows: 

    (1)The Second Respondent (the IAA) erred by failing to assess a claim of the Applicant, namely, that there was a real chance he would be harmed by reason of an imputed political opinion of opposition to the Sri Lankan authorities.

    Particulars

    A.The Applicant, by paragraph 33 of his statement dated 21 March 2013 [Court Book

    (CB) 95-100], claimed that he would be harmed in Sri Lanka because of his because of his "imputed political opinion of opposition to the Sri Lankan authorities" and that he been imputed with this political opinion because of his: Tamil ethnicity; support for the TNA; reporting on bad behaviour of members of the SLA to his supervisor, who in turn reported the behaviour to [the SLA members'] supervisors; and his application for asylum in Australia.

    B.The IAA does not address this claim in its Reasons and the IAA failed to consider this claim.

    C.Further or alternatively to (C), the IAA misunderstood or misconstrued the claim, and in this way, failed to consider the claim of the Applicant.

    (2)The IAA erred in failing to obtain a translation of two documents that it was required to consider.

    Particulars

    A.The Applicant included in his application for a protection visa two letters dated 28

    July 2012 and 30 November 2012 written in a language other than English (the
    Letters) [CB 112, 114].

    B.In all the circumstances, the IAA was under an obligation to obtain translations of the Letters.

    C.The IAA failed to obtain the translations, and this constituted jurisdictional error.

    (3)Further or in alternative to ground 2, the IAA erred  by failing to inform the Applicant that it did not propose to rely on the Letters because they had not been translated.

    Particulars

    A.The Applicant refers to and repeats paragraph A of the particulars subjoined to ground 2 above.

    B.In all the circumstances, the lAA was under an obligation to inform the Applicant that it did not propose to rely on the Letters because they not had been translated.

    C.The failure to inform the Applicant of this matter denied the Applicant an opportunity to explain the contents of the Letters, which constituted a denial of procedural fairness and jurisdictional error.

    (4)The IAA engaged in irrational or illogical reasoning, and/or constructively failed to exercise its jurisdiction or failed to carry out its statutory task by failing to consider relevant information.

    Particulars

    A.The IAA held (Reasons, at [32]) that the Applicant had fabricated the claim that he had come to the adverse attention of the TMVP in September 2012.

    B.The foundation for the IAA's conclusion was that there were "significant inconsistencies" in aspects three aspects of the Applicant's evidence.

    C.The first purported inconsistency was in the evidence the Applicant had given in respect of the time of day that the TMVP members had told the Applicant to attend their camp: Reasons, at [29]. This inconsistency was insignificant and it was unreasonable of the IAA to place weight on it in assessing the credibility of the Applicant.

    D.The second purported inconsistency concerned the Applicants evidence as to who had paid for his passage from Sri Lanka to Australia: Reasons, at [30]. In finding that there was inconsistency between the accounts given by the Applicant, the IAA overlooked or ignored part of the evidence given by the Applicant and in doing so, constructively failed to exercise its jurisdiction or failed to carry out its statutory task by failing to consider relevant information.

    E.The third purported inconsistency concerned the Applicant's evidence of why he fled from Sri Lanka: Reasons, at [31]. There was no inconsistency in this evidence and the IAA's finding in this regard cannot be supported by the evidence.

    F.Finally, the IAA failed to have regard to various statements made by the Applicant explaining differences in his accounts of his claims for protection [CB 95], and in doing so, constructively failed to exercise its jurisdiction or failed to carry out its statutory task by failing to consider relevant information.

    G.For these reasons, it was illogical, irrational or unreasonable to conclude that the Applicant had fabricated his claim of threats received from members of the TMVP, and this constituted jurisdictional error.

    GROUND 1

12. In relation to Ground 1, Mr Olivier of counsel took the Court to the applicant’s statement and described the applicant’s reference in paragraph 33 that he would be harmed because of his belief or opinion of opposition to the Sri Lankan authorities. He described this as a chapeau and submitted that there had been no finding by The Authority in respect of this expressed claim advanced by the applicant.

13. Notwithstanding the skill in the way in which Mr Olivier advanced, the submission that there had been a failure to make a finding in respect of the applicant’s claims was not made out. The applicant’s statement in paragraph 33 had clearly been identified and understood by the Authority in the last dot point that appears on page 174.  That squarely identifies the Sri Lankan authorities and political opponents.  The Authority’s summary of the applicant’s claims as identified in the last dot point, page 174, on a fair reading accurately identifies the applicant’s claims to fear harm, as formulated in paragraph 33 of the applicant’s statement.

14. Mr Olivier submitted that the Authority had not used the words “imputed political opinion” and that taken together with the actual findings by the Authority, reflected that the Authority had failed to make a finding in respect of the applicant’s claimed fear from an imputed political opinion. 

15. The Authority’s reasons are not to be read with a keen eye for error.  The Authority patently understood the applicant’s claim in terms of fear identified in paragraph 33 of his statement arising from an imputed political opinion. Regarding this claim, the applicant had descended into greater specificity, identifying reasons including his Tamil ethnicity, his support to the TNA, his reporting on the SLA, his alluded departure and his asylum application.

16. The Authority carefully addressed the applicant’s political activities in relation to the TNA and identified the person in respect of whom the applicant assisted in the March of 2011 elections and the 2012 elections prior to his departure.  The Authority identified the low level of activity by the applicant in that regard, but was not satisfied that the applicant came to the adverse attention of persons as claimed in his statement or that he was arrested and assaulted by members of the TMVP in connection with his activities leading up to the March 2011 election.

17. The Authority accepted that the applicant provided low level support to the TNA, both in respect of the candidate K and  leading up to the September 2012 provincial council election, but found that the applicant’s claim that he had come to the adverse attention of the TMVP at this time to be a fabrication to enhance his claims for protection.

18. The Authority made findings dispositive of each of the applicant’s claims of fear of harm as identified above, being the finding in adverse finding in paragraph 17 in respect of the alleged LTTE involvement and in relation to the events in Sri Lanka in 2011 to 2012, the adverse finding in paragraph 27 and in paragraph 32 and paragraph 35, paragraph 37 and paragraph 39, paragraph 43 and paragraph 47.  Each of those adverse findings subsumed the applicant’s claim to fear harm by reason of an imputed political opinion. The Authority then considered the claims cumulatively which again included and was dispositive of the alleged chapeau as to a fear of imputed political opinion in the adverse finding in paragraph 48.  Accordingly, the Court finds no jurisdictional error as alleged in ground 1 is made out.

    GROUNDS 2 AND 3

19. In relation to Grounds 2 and 3, Mr Olivier advanced two different arguments. The first, in substance, was that it was legally unreasonable for the Authority not to exercise its powers under s 473DC of the Act, to have translated the two documents that appeared in the court book at page 112 and 114.  A translation of the two documents was provided to the Court.  The document at page 112, a handwriting description, read:

20. Letter of support from district representative (member of TNA).

21. On the document which had some English as there was a typed date “28 July 2012” with a stamp bearing in English “named chairman”.  The document at 114 again had a covering notation in English “letter of support from district representative”.  It again had some English, such as the reference to telephone and bore a purported dated of 30 November 2012 and had the name stamped with an English description underneath of the person K, allegedly a member of the Eastern Provincial Council, the identified particular area.

22. Mr Olivier’s first argument was that the Authority was in breach of its duty of legal reasonableness, given that this was information provided by the secretary under s 473CB of the Act, by not taking steps either to obtain a translation or to inform the applicant that the Authority would not be taking into account the untranslated content.

23. Mr Olivier in that regard relied upon the observations that had been made in the decision of X v The Minister for Immigration and Multicultural Affairs (2002) FCA 56 and took the Court to the nature of the information that was the subject of that decision in paragraph 8 and relied, in particular, on what was said in paragraph 27 and 30, as well as what was said in paragraph 37 and paragraphs 50 and 51.

24. At the time of the acknowledgement of the applicant’s application for a Safe Haven Enterprise visa application, the applicant was sent a letter dated 13 February 2017.  That letter had, under an emboldened heading “Translating of Documents” the following:

    If your documents are not in English, also provide certified English translations of the documents completed by a translator accredited by the National Accreditation Authority for Translators and Interpreters (NAATI).  Translations provided by non-accredited translators outside Australia should be endorsed by the translator with their full name, address, telephone number and details of their qualifications and experience in the language being translated.

25. The Court accepts the first respondent’s submission that the letter makes clear that the applicant was to provide translated copies of material that was in a foreign language.  The delegate’s decision did not address the untranslated documents in its reasons.  The letter from the Authority dated 16 May 2017 clearly gave the applicant an opportunity to provide new information and submissions.  In that regard, the practice direction identified in paragraph 27:

    All documents that are not in English should be translated into English by a translator with a “translator level” level of accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI).  Both documents in translation should be provided.

26. Paragraph 30 also relevantly provides:

    It is ….. to give us any information of a document you previously gave to the department.

27. The applicant was earlier on notice of the need to provide translations of the documents as a result of the letter dated 13 February 2017 and the passage in relation to translating documents identified above.  The letter from the Authority dated 16 May clearly gave the applicant an opportunity if the applicant saw fit to do so, to provide translations in respect of the two documents that had been untranslated.  It was also apparent that the delegate had not referred to those documents.  In these circumstances, the absence of any step to obtain a translation or to inform the applicant that it would not obtain a translation cannot be said to lack an evident and intelligible justification.  There is no legal unreasonableness in the Authority not taking steps to obtain a translation of the two documents, notwithstanding their alleged brevity, there is no legal unreasonableness in the Authority not taking steps to inform the applicant that it would not take steps to translate the two documents.

28. The second argument advanced by Mr Olivier was that the failure to obtain translations of the two documents gave rise to the Authority not conducting a review that was required under s 473CC and s 473DB of the Act, because the information had been given by the secretary under s 473CB, and it was submitted that the Authority had not considered the same. It is clear that the Authority did consider the two documents that were provided and comprehended the apparent authorship of the same, the dates and that they related to the TNA candidate K.

29. In these circumstances it cannot be said that the Authority did not consider the two documents.  The observation that the content of the letters is unknown as they have not been translated into English was an observation that was correct and does not reflect any failure by the Authority to consider the two documents. The submission that the documents were ignored is incorrect. The Authority did consider the review material in accordance with s473DB(1). There was no failure by the Authority to discharge the review required under s 473CC of the Act in respect of the two documents.  

30. It was further submitted by Mr Olivier that the language of s 473FA of the Act in respect of the review being one, relevantly, “free of bias” meant that, in light of the reasoning in  X v The Minister for Immigration and Multicultural Affairs, the failure to obtain English translations was, in substance, a reflection of bias.  The Court rejects this submission. The Court does not accept that  X v The Minister for Immigration and Multicultural Affairs  has application to the review under Part 7AA. The applicant was clearly on notice of the need to provide translations as a result of the letter from the department dated 13 February 2017, and, moreover, the Authority gave the applicant an opportunity to provide further information and submissions consistent with the letter dated 16 May 2017. 

31. The absence of any step to translate the documents or to inform the applicant that the Authority was not taking such a step is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Authority might not be of an independent and impartial mind to the determination of the review on its merits.  Nor does the conduct identified indicate that the Authority approached the review under Part 7AA with other than an open mind reasonably capable of persuasion as to the merits. Further there was no discrimination against the applicant.

32. The application of s 473FA of the Act does not, in this case, mean that the absence of steps to translate the two documents by the Authority reflects the conduct of the review not being free of bias. The review under Part 7AA was conducted free of bias by the Authority and there was no contravention of s473FA. The applicant had a real and meaningful opportunity to provide translations if the applicant sought to do so as a result of the letter dated 13 February 2017 from the department and as a result of the letter sent by the Authority on 16 May 2017, The Court finds that there is no failure by the Authority to properly conduct its review functions under Part 7AA of the Act as advanced by the applicant in respect of s 473CC and 473FA by reason of the absence of steps by the Authority to have the documents translated.

33. On the issue of materiality the Court finds that the contents of untranslated parts of the two letters could not realistically have given rise to a different decision. The Authority’s reasons identify a consideration of the two documents and the two documents if fully translated could not realistically have affected the adverse findings. The inherent lack of credibility or plausibility of the applicant’s claims identified by the Authority as summarised above could not rationally be explained away by the untranslated parts of the two documents.

1. The first document identified as from the TNA District representative dated 28 July 2012 in the first paragraph referred to working in the last local council elections. This letter did not concern the September elections of 2012 in which the Authority accepted the applicant played a low profile role. The reference to murder threats issued to the applicant by unknown armed groups in this letter does not reflect the applicant’s claims and could not rationally affect the adverse findings made by the Authority in this regard. The translated heading and other translated content could not possibly have affected the adverse outcome. The second letter of support from district representative dated 30 November 2012 is of a generality as to political support and generality as to likelihood of danger to his life because of his active campaigning that could not possibly have affected the adverse outcome. The untranslated parts of the two documents, contrary to the applicant’s submissions, could not realistically have affected the adverse findings by the Authority in paragraphs 27 or 32 of the Authority. The Court accepts the first respondent’s submission that the untranslated parts of the two documents could not realistically have resulted in a different outcome and for this further reason no jurisdictional error is made out by grounds 2 and 3.

2. For the reasons already given, there was an evident and intelligible justification for the Authority to not take steps to obtain the translation or to inform the applicant that it would not take untranslated documents into account, given the content of the letter of 16 May 2017 and attached practice direction to which the Court has referred. There was no legal unreasonableness by the Authority in the conduct of the review by not taking steps to obtain translations or to inform the applicant that it would not take the untranslated documents into account. There was no failure by the Authority to conduct the review required under Part 7AA including s 473CC and s 473DB. The Court finds the review by the Authority was free of bias. The Court finds the untranslated parts of the two documents were not material and could not realistically have resulted in a different outcome. Accordingly, no jurisdictional error as alleged in Grounds 2 and 3 is made out.

   GROUND 4

3. In relation to ground 4, Mr Olivier submitted that the finding made by the Authority that the applicant had fabricated his claim that he came to the adverse attention of the TMVP by campaigning for K in the forthcoming September 2012 elections was irrational, illogical, legally unreasonable or a failure to complete the Authority’s task.  Mr Olivier contended that the reasons identified by the Authority were matters of triviality or insignificance and did not support the adverse finding made. 

4. The Court does not accept the characterisation that the inconsistencies were insignificant.  The Authority was clearly awake to the time lag that had taken place and indeed took that into account in the applicant’s favour and in respect of the adverse findings as referred to above.  The Authority, in its adverse finding in respect of the alleged TMVP incident in 2012, provided logical and rational reasons in support of the adverse finding.  Those reasons as summarised above reflect inconsistencies that were not trivial or insignificant. It cannot be said that the adverse finding by the Authority in the circumstances of the present case makes an evident and intelligible justification that there is no failure by the Authority to complete its statutory task in relation to the adverse finding, rejecting the applicant’s claim in relation to adverse attention from the TMVP while campaigning for the September 2012 election as being a fabricated claim.  No jurisdictional error as alleged in ground 4 is made out.

5. The Court did permit the first respondent an opportunity to provide further written submissions in relation to the second limb of the applicant’s argument in relation to grounds 2 and 3 and for the applicant to respond. The Court accepts the applicant’s submission that this argument was within the scope of grounds 2 and 3 given the broader argument raised under Part 7AA of the Act in respect of the two documents. The omission in these two grounds of express reference to the legal argument developed by the applicant referring also to the terms of s473CC and s473FA of the Act did not require a further amended application. The first respondent’s submissions dated 28 April 2021 correctly identify that no jurisdictional error is made out by the second limb of the applicant’s argument in relation to grounds 2 and 3 for the reasons identified above. The Court has also taken into account the applicant’s written and oral submissions including the applicant’s further submissions dated 12 May 2021 and for the reasons identified above finds no jurisdictional error is made out.  The Court notes that no application has been made under the leave granted in order 4 made on 14 April 2021 for any further oral hearing.

6. As no jurisdictional error has been made out, the amended application is dismissed.

7. The Court accepts the respondent’s submission that no additional costs beyond the ordinary scale costs should be ordered.

I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       24 May 2021