Asd17 v Minister for Immigration
[2019] FCCA 295
•13 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASD17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 295 |
| Catchwords: MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the reasons of the Immigration Assessment Authority were adequate – whether the Immigration Assessment Authority considered all claims made by the applicant – whether the findings of the Immigration Assessment Authority were open to it – whether the Immigration Assessment Authority erred in its consideration of the UNHCR Eligibility Guidelines for Assessing International Protection Needs for Asylum Seekers from the Sri Lanka 21 December 2012 – whether Immigration Assessment Authority’s finding that an untranslated letter was not a credible document was a finding open to the Immigration Assessment Authority – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 473BA, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 476 |
| Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | ASD17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 497 of 2017 |
| Judgment of: | Judge Emmett |
| Hearing date: | 7 February 2018 |
| Date of Last Submission: | 7 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 13 March 2019 |
REPRESENTATION
| Applicant: | Appeared in person with the assistance of an interpreter |
| Counsel for the Respondents: | Mr Hamish Bevan |
| Solicitors for the Respondents: | Clayton Utz |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 497 of 2017
| ASD17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 19 January 2017 (“the Authority”), dismissing a review by the Authority of a decision of a delegate of the first respondent (“the Delegate”) made on 31 August 2016 refusing the applicant a Safe Haven Enterprise (Class XE) visa (“SHEV Visa”).
The applicant is a citizen of Sri Lanka and of Hindu faith and Tamil ethnicity, who fears harm from the Sri Lankan authorities, the Tamil Makkal Viduthalai Pulikal (“the TMVP”) and paramilitary groups in Sri Lanka.
The applicant’s protection claims, the statutory scheme and the Authority’s decision are accurately summarised in the first respondent’s written submissions as follows:
“PROTECTION CLAIMS
4. The applicant's protection claims were set out in a statement accompanying his protection visa application and in an interview with the Delegate. In summary, the applicant claimed to fear harm by reason of his:
(a) association with the Tamil National Alliance (TNA) and the resulting risk of harm from the Tamil Makkal Viduthalai Pullikal (TMVP);
(b) prior altercation with the Sri Lankan army which resulted in his alleged assault for 16 - 18 hours;
(c) family's suspected association with the Liberation Tigers of Tamil Eelam (LTTE);
(d) potential status as a failed asylum seeker, which will result in extortion by the Criminal Investigation Department (CID) and other Sri Lankan authorities; and
(e) illegal departure from Sri Lanka, which exposes him to the risk of being charged and detained under the Prevention of Terror Act.
STATUTORY SCHEME - PART 7AA
5. The Fast Track Assessment Process (FTAP) was introduced on 18 April 2015 following the enactment of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (see Schedule 4). The aim of the FTAP is to provide an efficient and cost-effective means of processing protection visa applications of people who arrived in Australia as unauthorised maritime arrivals on or after 13 August 2012 and before 1 January 2014.
6. A person who is subject to the FTAP is a “fast track applicant”: s 5(1). A person is a “fast track review applicant” if he or she is a "fast track applicant who is not an excluded fast track review applicant": s 5(1).
7. There is no dispute that the applicant was a “fast track review applicant”.
8. Division 2 of Part 7AA (ss 473CA-473CC) sets out the procedure for referring reviewable decisions to the IAA. Under s 473CA, the Minister must refer a “fast track reviewable decision” to the IAA as soon as reasonably practicable after the decision is made. A fast track reviewable decision is defined in s 473BB.
9. Once the Minister has referred a fast track reviewable decision to the IAA, s 473CB requires the Secretary of the Department to give to the IAA certain material in respect of each decision at the same time as, or as soon as reasonably practicable after, such referral.
10. Subsection 473CC(1) requires the IAA to review a fast track reviewable decision referred to it.
11. Section 473CC(2) provides that the IAA may either affirm the decision or remit it to the Minister for reconsideration in accordance with such directions or recommendations as are permitted by the Migration Regulations 1994 (Cth): see also BMB16 v Minister for Immigration and Border Protection [2017] FCCA 203 at [97]-[100].
12. Section 473DA(1) provides that Division 3 of Part 7AA, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule “in relation to reviews conducted by the [IAA]”. It is important to note that this provision is couched in broader terms than ss 357A(1) and 422B(1) and operates to exclude the common law natural justice hearing rule from conditioning the conduct of reviews before the IAA.
13. Section 473DA(2) provides that, “[t]o avoid doubt, nothing in … Part [7AA] requires the [IAA] to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”
14. The foregoing makes plain that Parliament has determined to give different procedural powers to the IAA when undertaking a review. In particular, in Div 3 of Pt 7AA, Parliament has determined to “limit” the material to which the IAA may have regard in assessing whether it is satisfied than an applicant meets the criteria for a protection visa. Subject to Part 7AA, the review is to be conducted on the papers (s 473DB(1)). While the IAA may “get new information” (s 473DC), any new information provided by an applicant must not be considered unless the conditions specified in s 473DD(a) and (b) are satisfied. The IAA does not have a duty to get, request or accept, any new information whether requested to do so by a referred applicant or any other person: 473DC(2).
15. While it is clear that the IAA is obliged, by s 473CC, to “review” the delegate's decision under s 65, the powers conferred on the IAA to conduct this review are more limited than those powers conferred on the Administrative Appeals Tribunal by ss 348 and 414. Section 473DB(1) compels the IAA, subject to Part 7AA, to review a fast track reviewable decision referred to it on the papers, that is, by considering the review material provided to the IAA under s 473CB “without accepting or requesting new information” and “without interviewing the referred applicant”.
IAA DECISION
16. After considering the applicant's evidence and country information, the IAA was not satisfied that the applicant faced a real chance of serious or significant harm now or in the reasonably foreseeable future.
Association with the TNA
17. The IAA rejected the applicant's claim that he was a member of the TNA or that he campaigned for the TNA in either the 2010 general election or the 2012 eastern provincial council election. The IAA also rejected the applicant's claim to have been threatened by the TMVP. The IAA accepted that the applicant may have a pro-TNA political opinion, and noted corroborative country information regarding instances of political violence. However, the IAA found the applicant's evidence supporting any further association to be fabricated in support of his application. After weighing the information before it, the IAA was not satisfied that the applicant faced a real chance of serious or significant harm due to having a pro-TNA political opinion.
Altercations with the Sri Lankan army
18. The IAA accepted that the applicant may have had a dispute with members of the Sri Lankan army over items being taken from his mother's store without payment. The IAA also accepted that members of the army took and damaged the applicant's motorcycle. However, the IAA found it was implausible that the applicant had been assaulted for 16 - 18 hours when he sought to reclaim his motorcycle. The IAA found that the applicant's claim that three scars were caused by this beating was fabricated to support an application for a protection visa. It was not satisfied that the applicant faced a real chance of harm by reason of this dispute several years previously.
Imputed association with the LTTE
19. The IAA accepted the applicant's claims that his father had been missing for some decades, and that the applicant was asked whether he had any connection with the LTTE when obtaining an ID card. The IAA also accepted that the applicant was temporarily displaced during the Sri Lankan civil war and after the Boxing Day Tsunami. These claims were consistent with the available country information. However, the IAA rejected the applicant's claims that he was ever suspected of being associated with the LTTE as a result of his father's disappearance. The IAA was not satisfied that the applicant faced a real chance of harm based upon any pro-LTTE or anti-government opinion by reason of his age, ethnicity, scars and/or provenance now or in the reasonably foreseeable future.
Failed asylum seeker and illegal departure from Sri Lanka
20. The IAA rejected the applicant's claim that there was a CID informant at the immigration detention camp who had notified the CID of the applicant's departure from Sri Lanka. The IAA also rejected the claim that the CID had harassed the applicant's mother, or would seek to extort the applicant, because he was a failed asylum seeker. The IAA considered the newspaper article provided by the applicant in support of this claim, but found that there was no credible information that merely being a failed asylum seeker would expose the applicant to extortion attempts.
21. The IAA accepted that the applicant departed Sri Lanka without a passport when he came to Australia, committing an offence under the Immigrants and Emigrants Act 1949. However, the IAA was not satisfied that the penalties associated with this offence would constitute serious or significant harm. It found that they would be imposed pursuant to a non-discriminatory law of general application. The IAA noted that as part of the process of being charged the applicant may be detained for several days. However, it was not satisfied that a brief period of detention would amount to serious or significant harm.”
The proceeding before this Court
The applicant was formerly represented before this Court by his solicitor Mr Stephen Hodges.
On 10 August 2017, the applicant attended a show cause hearing before this Court. On that occasion the applicant was also given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Authority hearing, as well as submissions in support.
On 9 August 2017, the applicant filed an Amended Application.
The grounds in the Amended Application are as follows:
“1. The IAA committed jurisdictional error by failing to provide adequate reasons for its decision.
PARTICULARS
a. At [5], the applicant claimed that he had become a member of the TNA in early 2010 and that he had attended rallies, meetings and distributed posters and fliers.
b. The applicant claimed that he was threatened by the TMVP and held at gun point due to his involvement with the TNA.
c. At [2], the IAA acknowledges that the delegate of the first respondent accepted the applicant's claim that he was a supporter of the TNA and that he was threatened during the 2010 general election.
d. At [10], the IAA did not accept that the letter provided by the applicant was a credible document and further found that it undermined the applicant's credibility.
e. When considering the document, the IAA referred to it being an 'untranslated letter' which was purportedly written by a TNA politician. The IAA considered that, although the letter stated that the applicant was a supporter of the TNA, it did not expressly state that he was a member of the TNA nor did it state that he campaigned for Mr W.
f. The IAA reasoned that the information in the document was inconsistent with the applicant's claim that he was a member of the TNA but did not outline why it considered the document itself to be non-credible.
2. The IAA committed jurisdictional error by failing to provide a proper consideration top the applicant’s claim that he was threatened by the TMVP on multiple occasions due to his involvement with the TNA.
PARTICULARS
a. At [5], the applicant claimed that, in early 2010, he was confronted by men from the TMVP who asked him about his suppo1t for the TNA and threatened to shoot the applicant if he did not work for them.
i. The applicant continued to support the TNA and claimed that moved to another part of the Eastern Province and resided with his friend, Mr W, due to his fear that the TMVP would harm him.
b. The applicant also claimed that, during the 2012 elections, he was threatened by the TMVP every time he returned to his village to visit his mother and that in one of those instances, he was threatened at gunpoint.
c. At [11], the IAA considered that the applicant provided inconsistent evidence in relation to his claims about being threatened in 2012.
d. Contrary to the findings made by the IAA, the applicant had given consistent evidence in relation to his claim that he the TMVP threatened to shoot him.
i. The IAA notes that, in his SHEV statement, the applicant claimed that he went to stay with and campaign for Mr W and that he was threatened when visiting his mother.
ii. The IAA then notes that, in his SHEV interview, the applicant claimed that the reason he moved to stay with Mr W was because he was threatened at gunpoint.
iii. The IAA did not consider that the applicant has consistently claimed that there were two instances in which the TMVP threatened to shoot him. The first instance occurred in early 2010 and the second instance occurred in 2012 when the applicant was visiting his mother.
e. At [12], the IAA noted that the applicant did not claim he was threatened by the TMVP in his entry interview, which, was conducted shortly after the applicant arrived in Australia and when the applicant was unrepresented.
i. Despite noting the reasons why little or no weight should be given to the applicant's claims during his entry interview, as outlined above, the IAA was satisfied that it was reasonable to put weight on the applicant's claims in his entry interview.
f. The IAA's rejection, at [13], of the totality of the applicant's claims in rejection, at [13], of the totality of the applicant’s claims in relation to his involvement with the TNA and his encounters with the TMVP in which he was threatened, was on the basis of the adverse credibility findings noted above. In this instance, the IAA did not consider corroborative evidence presented by the applicant, namely, the letter written by a TNA politician.
3. The IAA committed error in making a finding as to the non-credibility of a document that was unreasonable.
PARTICULARS
a. The IAA at [10], the IAA did not accept that the letter provided by the applicant was a credible document but then in giving reasons for that finding relied on the contents of it.
b. The IAA again relied on contents of the 'untranslated letter' in deciding that the applicant's evidence should not be accepted.
4. The IAA erred in that it applied the wrong test.
PARTICULARS
a. At [22] the IAA found that the Sri Lankan authorities do not suspect the applicant has any connection to the LTTE due to his father’s disappearance.
b. The IAA referred to risk categories set out in the UNHCR Eligibility Guidelines for Assessing International Protection Needs of Asylum Seekers from Sri Lanka, 21 December 2012.
c. The category relevant to the applicant did not require that there be a suspicion that the applicant has a connection to the LTTE, simply that he has a family connection with a person who is suspected of connection to the LTTE.
5. The IAA erred in that it applied the wrong test in consideration of the risk to the applicant under the complementary protection provisions of section 36(2A) Migration Act.
PARTICULARS
a. Similarly as in SZATL v Minister for Immigration, currently reserved before the High Court, the IAA at [44] considered the notion of intention in relation to the harm.”
On 3 February 2019, the applicant emailed my chambers and the first respondent stating that he had terminated the retainer of Mr Hodges “as I do not have the large fees demanded by him through his associate Sudharsan Tambimuttu”. By that email, the applicant stated that he relied on “the application, amended application and submissions filed in this Court”. The applicant stated that he would not be represented at the hearing on 7 February 2019 and requested that the Court “scrutinise the decision of the Immigration Assessment Authority and find the jurisdictional error”.
By that email, the applicant also requested an adjournment of the hearing for three weeks so that he could engage another lawyer. He stated that he would be present at the hearing on 7 February 2019 and requested the service of a Tamil interpreter.
On 4 February 2019, the applicant filed a Notice of Withdrawal of Lawyer.
By email dated 4 February 2019, the first respondent’s solicitor informed the applicant and the Court that the applicant’s request for an adjournment is opposed on the following bases:
“• the lateness of the Application;
• the fact that the matter was set down for hearing on 10 August 2017 (approximately 18 months ago).
• the fact that the self-represented status of the Applicant does not, of itself, necessitate the hearing being stood over; and
• the lack of any evidence to suggest that the Applicant is likely to retain further counsel in the period requested, or has taken steps to do so.”
Following receipt of that email, my chambers emailed both parties informing them that unless consent orders were received adjourning the matter, the hearing on 7 February 2019 at 10:15am remained confirmed.
At the outset of the hearing, Mr Hodges appeared for the applicant and made no mention of the correspondence referred to above. Mr Hodges confirmed that the applicant relied on Grounds 1, 2 and 4 of the Amended Application and did not press Ground 3 or Ground 5. Mr Hodges then proceeded to make submissions in support of Ground 1.
At the conclusion of Mr Hodges submissions in Ground 1, one of my associates asks me if the interpreter who was present in Court should be excused. I said that in light of the representation of the applicant by Mr Hodges the interpreter should be excused.
I then sought to explore with Mr Hodges confirmation of his retainer and instructions in light of the correspondence before the Court and the filing by the applicant on 4 February 2019 of the Notice of Withdrawal of Lawyer. Mr Hodges informed the Court that he had never seen any of those documents before. I asked Mr Hodges to seek instructions from the applicant as to how the Notice of Withdrawal of Lawyer came to be filed. Mr Hodges had a discussion with the applicant and informed the Court that the applicant told him that he had filed that document because he could not pay Mr Hodges fees. Mr Hodges then told the Court that the failure by the applicant to pay the fees had been bought to his attention at the end of December and that the applicant had been informed that Mr Hodges would, nevertheless, continue to represent him.
I informed Mr Hodges that in light of correspondence before the Court and the Notice of Withdrawal of Lawyer, I would stand the matter down briefly so that he could obtain instructions as to whether he was instructed to represent the applicant or not. I informed Mr Hodges that if he was indeed retained to continue to represent the applicant, that he would need to file in Court a Notice of Appearance or a Notice of Address for Service that confirmed those instructions.
When he returned to Court, Mr Hodges informed the Court that his retainer was terminated and as such sought leave to withdraw.
In the circumstances, I gave leave to Mr Hodges to withdraw from the proceeding and confirmed with the applicant that he would continue to represent himself.
The interpreter then returned to Court to assist the applicant.
Hearing with the applicant
I then explained to the applicant that the role of this Court is very different to that of the Authority, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Authority was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Authority, unless the Court is satisfied that the decision of the Authority is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Authority rarely, by itself, establishes such a mistake.
Each of the grounds was then interpreted for the applicant and he was invited to say whatever he wish in support of the grounds of his application and in support of his application generally. The applicant then said that at his entry interview he was told that he was not to elaborate on the details of his claims and just to give the gist of his matter, but that he had disclosed his problems with the TMVP at his second interview. Otherwise the applicant’s submissions sought to restate his claims.
The applicant again confirmed his reliance in the grounds of the Amended Application and Mr Hodges submissions but also renewed his application for an adjournment in order to obtain legal advice. The application was opposed by the first respondent. The applicant’s application for adjournment was refused by me on the following grounds:
i)The applicant’s application for adjournment at the close of the hearing followed the earlier adjournment application made by email to my chambers earlier in the week.
ii)The applicant had been informed by email that the hearing was confirmed in the absence of the consent to an adjournment by the first respondent.
iii)The applicant was legally represented, at least up until the 4th February 2019 this year.
iv)Mr Hodges, solicitor, purported to appear for the applicant at the hearing until it became clear that the applicant had terminated his services at least on the 4th February 2019.
v)The matter was stood down to provide the applicant with an opportunity to speak with Mr Hodges to confirm whether Mr Hodges’ retainer was to be renewed.
vi)The applicant chose not to renew Mr Hodges’ retainer.
vii)The applicant did not suggest that he had any other lawyer who was ready, willing and able to appear on his behalf.
viii)The Amended Application and written submissions had been prepared and filed by Mr Hodges.
ix)The applicant’s Amended Application and written submissions in support had been the subject of written submissions by the first respondent.
x)The applicant confirmed that he continued to rely on the grounds comprised in the Amended Application.
xi)The applicant was given an opportunity to say whatever he wished in support of the grounds of his Amended Application, and which were interpreted for him.
xii)The applicant was also invited to say whatever he wished in support of his application generally.
Ground 1 and Ground 3
The complaints in Ground 1 and Ground 3 arise from the Authority’s treatment of an untranslated letter purportedly from a TNA politician dated 25 January 2013 provided by the applicant at the SHEV interview. Ground 1 asserts that the Authority did not outline why it considered the untranslated letter to be “non-credible” and Ground 3 contends that the finding that the untranslated letter was “a non-credible document” was unreasonable.
The complaints in Ground 1 and Ground 3 arise from the following paragraph in the Authority’s decision record:
“10. At the SHEV interview, he provided an untranslated letter purportedly from a TNA politician dated 25 January 2013. The interpreter read the letter and advised the contents stated the applicant was a supporter of the TNA. He was threatened by an unidentified group. The applicant kept a low profile and came to Australia because his mother told him about boats leaving. At the SHEV interview, the applicant claimed he accompanied the author politician at some TNA functions. I consider the politician’s letter is not a credible document. It does not refer to the applicant being a member of the TNA or that he campaigned for Mr W. It is inconsistent too with the applicant’s claim he was threatened by supporters of the TMVP, not unknown persons. I consider the politician’s letter is not a credible document and I consider his providing such a non-credible document to support his claims undermines his credibility generally. It is common ground that the summary provided of the untranslated letter in the paragraph above is both accurate and complete in the translation provided by the interpreter to the Delegate.”
(Emphasis added)
The Authority noted that the applicant had consistently claimed to be a supporter of the TNA but that the Authority had concerns regarding the credibility of the applicant’s claims to be a member of the TNA, to have conducted campaigning for the TNA or to be threatened by the TMVP in the past.
The Authority appears to have found that the untranslated letter was not a credible document because it did not refer to the applicant’s claim to be a member of the TNA or that the applicant campaigned for a TNA politician. The Authority also made reference to the fact that the untranslated letter was inconsistent with the applicant’s claim to have been threatened by supporters of the TMVP because that letter referred only to an “unidentified group”, rather than referring to supporters of the TMVP. The Authority did note that at the SHEV interview the applicant claimed that he had accompanied the author politician to some TNA functions. The Authority did not appear to take that claim any further. Nor does the Authority express a view that it would have expected the untranslated letter to refer to that assertion.
The applicant contends that the Authority appears to make the bare statement that it considers the untranslated letter “not a credible document” and uses that finding as undermining the applicant’s credibility generally because the applicant provided the untranslated letter, which the Authority had found to be “non-credible”.
Contrary to the applicant’s written submission, the Authority does not appear to have made any adverse finding arising from the fact that the letter was untranslated.
The Authority noted the evidence given by the applicant at the SHEV interview, particularly noting that the applicant had “claimed he accompanied the author politician at some TNA functions.”
Counsel for the first respondent identified three deficiencies in the untranslated letter being:
i)the absence of any mention of the applicant’s claim to be a member of the TNA, as opposed to a supporter only;
ii)the absence of any mention of the applicant’s claim that he worked on the campaign for Mr W in the 2012 provincial elections; and,
iii)the inconsistency between the specificity of the applicant’s claim that he was threatened by supporters of the TMVP, whereas the untranslated letter referred to “unknown persons”.
Counsel for the first respondent submitted that the Authority’s articulation of those deficiencies formed the basis of its rejection of the letter being “not credible”. Counsel for the first respondent contended that the Authority’s reasons “were more than adequate in clearly disclosing the basis upon which the Authority rejected the letter.”
Having rejected the letter as “not credible”, the Authority found that in providing such a “not credible” document the applicant’s credibility was undermined.
Fairly read, the Authority found that because the applicant provided a letter in support that the Authority found not to be a credible document, the applicant’s credibility was therefore adversely affected. In so doing, the Authority identified those aspects of the letter that led it to find that the letter was a non-credible document.
In construing the Tribunal/Authority’s reasons, one must be mindful that the Court should give the Tribunal/Authority’s decision a beneficial construction and not scrutinise its decision with an eye keenly focused on error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272; Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]; SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81 (7 July 2014) per Siopis, Perram and Davies JJ at [13]).
It is also well established that the Migration Act requires the Tribunal/Authority to carry out its functions of review in a manner that is fair, just, economical, informal and quick (see Minister for Immigration and Border Protection v SZVSW (2018) HCA 30 at [13]).
The Authority’s findings were open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility finding in relation to the applicant arising from his provision to the Authority of a letter that the Authority found not to be a credible document. The Authority’s findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue. The Authority’s findings were not tainted by any failure to afford procedural fairness; reaching a finding without a logical or probative basis; or unreasonableness; and, were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ (“ARG15”)).
Accordingly, Ground 1 is not made out.
Ground 2
Ground 2 asserts that the Authority failed to give proper consideration to the applicant’s claim that he was threatened by the TMVP on multiple occasions due to his involvement with the TNA.
The Authority noted the applicant’s claims that: a few days prior to the 2010 election, armed men told his mother he must report to the TMVP office; ten days later armed men from the TMVP ask him about his support for the TNA and threatened the applicant at his home; and, during the 2012 Eastern province council elections TMVP supporters threatened the applicant at his home, once at gun point because the applicant was campaigning for a TNA candidate, Mr W.
The Authority noted that at the SHEV interview, the Delegate put to the applicant that the Delegate was unable to find evidence of Mr W’s election. The applicant said he would provide evidence of that but failed to do so.
The Authority found the applicant’s evidence regarding being threatened in 2012 as inconsistent because in his SHEV statement he said he had gone to stay with and campaign for Mr W prior to the elections and was threatened at gun point with his mother; whereas, at the SHEV interview the applicant claimed to have been threatened at gun point as a result of which he went to stay with Mr W.
The Authority found it implausible that if the applicant was campaigning for Mr W in one part of the Eastern province, that TMVP supporters would only harm the applicant when he returned to his village. The Authority also found it implausible that the applicant would continue to return to his home village if every time he did so he was threatened by TMVP supporters.
The Authority also placed weight on the applicant’s failure at the entry interview to make any reference to having been threatened by supporters of the TMVP. The contention relies on the following paragraph in the Authority’s decision record:
“12. I note too at the entry interview, while the applicant claimed to be a supporter of the TNA, he made no claim he was threatened at gun point or threatened at all by supporters of the TMVP. I am mindful the entry interview was conducted shortly after the applicant arrived in Australia, that he was not represented during the entry interview and that the purpose of the entry interview is not to assess his claims. I still consider it reasonable to put weight on the applicant’s claims at the entry interview not including any reference to his being threatened by supporters of the TMVP.”
Counsel for the first respondent referred to MZZJO v Minister for Immigration and Border Protection (2014) 239 FCR 436 at [56] which is as follows:
“56. On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.”
Whilst caution should be had in holding against the applicant what may or may not have been said at his entry interview, a fair reading of the Authority’s decision record makes clear that the Authority was aware of the caution and reasons for it. However, in light of that caution, the Authority found it reasonable to put some weight on the failure of the applicant to include any reference at his entry interview of being threatened by supporters of the TMVP.
Read fairly, the Authority did not rely only on the failure of the applicant to mention at his entry interview being threatened by supporters of the TMVP. To the extent it did so, the Authority clearly expressed its mindfulness that the entry interview was conducted shortly after the applicant arrived in Australia, that he was not represented at the interview and that the purpose of the interview is not to assess his claims.
In the circumstances, it was open to the Authority to put weight on the failure of the applicant to refer at the entry interview to being threatened by supporters of the TMVP.
Based on those reasons, the Authority rejected that the applicant was a member of the TNA or ever campaigned for the TNA. The Authority also rejected that the applicant was ever threatened by TMVP supporters or that TMVP supporters had been looking for the applicant since he left Sri Lanka. The Authority found that the applicant fabricated his claims of membership with the TNA and threats by the TMVP in order to create a profile upon which to apply for protection. However, the Authority did accept that the applicant may have a pro TNA political opinion.
The Authority also had regard to country information which referred to instances of political violence with people connected to the TNA at the Eastern provincial council election, however, the Authority also noted that the TNA is now the official opposition party. The Authority was not satisfied that the applicant will face a real chance of significant harm from the TMVP for his pro TNA political opinion in the reasonable foreseeable future if the applicant was to return to Sri Lanka.
Contrary to the applicant’s submissions, the Authority did consider the letter written by the TNA politician in support of the applicant, however, found that letter not to be a credible document (see Grounds 1 and 3 above).
The Authority noted that the applicant had consistently claimed to be a supporter of the TNA but that it had concerns about the credibility of his claims to be a member of the TNA or that he was threatened by the TMVP in the past.
As stated above, in relation to the applicant’s claim to have been threatened at gun point, the Authority referred to the fact that the applicant provided no evidence despite that issue having been raised by the Delegate; the applicant did not know the outcome of the 2012 election; the applicant provided inconsistent evidence regarding being threatened in 2012; and, the Authority considered it implausible that the applicant would continue to return to his home village if every time he did so he was being threatened by supporters of the TMVP.
In the circumstances, the Authority gave proper, genuine and realistic consideration to the applicant’s claims. As stated above, its findings were open on the evidence and material before and for the reasons it gave, including its adverse credibility findings. Those findings were not without an intelligible foundation. Nor were they unreasonable. The Authority identified the totality of the claims and gave reasons as to why it did not believe the applicant (see ARG15 at [83]).
Accordingly, Ground 2 is not made out.
Ground 4
Ground 4 asserts that the Authority applied the wrong test in that the risk category referred to by the Authority set out in UNHCR Eligibility Guidelines for Assessing International Protection Needs for Asylum Seekers from the Sri Lanka 21 December 2012 (“the Guidelines”), did not require that there be a suspicion that the applicant has a connection to the LTTE. Rather, it is sufficient that he has a family connection with a person who is suspected of connection with the LTTE.
The complaint in Ground 4 is found to be reflected in the following paragraph in the Authority’s decision record:
“22. I am willing to accept the applicant’s father has been missing since 1991. I am willing to accept too at the time he obtained an ID card, he was asked whether he had any connection to the LTTE. I am willing to accept as well that the applicant was temporarily displaced during the Sri Lankan civil war and after the Boxing Day Tsunami. These claims are generally consistent with the information in the DFAT reports regarding the circumstances for Tamils from Eastern province during the Sri Lankan civil war. The evidence before me does not indicate the applicant was ever otherwise suspected of connection to the LTTE, albeit his father was missing since 1991. That leads me to conclude the Sri Lankan authorities do not suspect the applicant has any connection to the LTTE due to his father’s disappearance.”
(Emphasis added)
I accept the first respondent’s submission that to the extent that a claim was advanced by the applicant based on the sixth of the profiles outlined in the Guidelines (broadly, people with familial links or connections to people with actual or imputed ties to the LTTE), the Authority concluded that the Sri Lankan authorities did not suspect the applicant had any connection to the LTTE due to his father’s disappearance. Fairly read, this was a rejection of the applicant’s claim that his father was connected or supported the LTTE. The Authority was prepared to accept that the applicant’s father had been missing since 1991 and that the applicant had been asked whether he had any connection to the LTTE. However, those findings do not amount to a finding that the applicant has familial links with actual or imputed ties to the LTTE. That suggestion was rejected by the Authority.
The Authority’s finding that on the evidence before it the applicant was not suspected of connection to the LTTE, despite his father having been missing since 1991, does not carry the importation that his father was connected to the LTTE. At its highest, the Authority refers to the applicant’s claim that there was a suspicion that his father and his family were involved with the LTTE because his father disappeared in 1991.
As stated above, the applicant’s claim that his father disappeared in 1991 because of the father’s connection to the LTTE was rejected by the Authority. That finding was open to the Authority on the evidence material before it and for the reasons it gave.
The Guidelines are specifically referred to by the Authority in consideration of the applicant’s claims.
In circumstances were the Authority specifically rejected that the applicant was a person with such family links, I do not accept the applicant’s contention that the two profiles in the Guidelines referred to by the applicant, namely “(2) Former LTTE combatants or “cadres”” and “(6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles”, arose. Having made that finding, the Authority was not required to consider the Guidelines further.
Accordingly, Ground 4 is not made out.
Ground 5
Ground 5 was not pressed in the applicant’s solicitor’s written submissions.
In any event, Ground 5 is based on an allegation that the Authority erred in applying the wrong test in considering the complementary protection provisions of s.36(2A) of the Act. The substance of that allegation has been resolved in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34.
Conclusion
A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant; and, had regard to all material provided in support. The Authority identified independent country information to which it had regard.
The Authority then made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 13 March 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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