ATD16 v Minister for Immigration
[2018] FCCA 139
•25 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATD16 v MINISTER FOR IMMIGRATION | [2018] FCCA 139 |
| Catchwords: MIGRATION – Application for review of International Treaties Obligation Assessment – whether the assessor failed to ask the “what if I am wrong” question – whether the assessor failed to consider the United Nations Refugee Handbook – whether the assessor failed to put the applicant on notice that they would not give weight to the photographs of the applicant – whether the assessor failed to consider relevant country information – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Federal Circuit Court Rules 2001 (Cth), Part 12 |
| Cases cited: Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29; (2016) 259 CLR 180 Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 |
| Applicant: | ATD16 |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 770 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 4 July 2017 |
| Date of Last Submission: | 4 July 2017 |
| Delivered at: | Sydney |
| Delivered on: | 25 January 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondent: | Ms D Watson of Australian Government Solicitor |
ORDERS
The application made on 1 April 2016 is dismissed.
The applicant pay the respondent’s costs set in the amount of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 770 of 2016
| ATD16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
On 1 April 2016, the applicant made an application to this Court pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of what is said to be a “decision made by the Minister or another person under the Migration Act”. This “decision” was said to have been made on 1 March 2016.
The application to the Court was prepared by a solicitor on the applicant’s behalf. A copy of the relevant decision is annexed to the applicant’s affidavit made on 17 March 2016 which accompanied his application to the Court.
It is clear that the applicant seeks to put forward as the subject of the Court’s review, an assessment made by an officer of the Minister’s department (“the assessor”), otherwise known as an International Treaties Obligations Assessment (“the ITOA”). The conclusion of the ITOA in relation to the applicant was that he was not owed protection obligations by Australia under either the Refugees Convention or its non-refoulement obligations under the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (“ICCPR”) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (“CAT”).
It is clear that the ITOA is not a “decision made by the Minister”. However, before the Court, it was accepted by the Minister that the ITOA was conduct preparatory to some possible future action under the Act, and therefore reviewable by this Court (Minister for Immigration and Border Protection v SZSSJ; Minister for Immigration and Border Protection v SZTZI [2016] HCA 29; (2016) 259 CLR 180).
The application to the Court seeks the following relief (they have been numbered for convenience):
“[1] An order that the decision of the tribunal or Minister be quashed.
[2]A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.
[3] Costs
[4] Such further orders as the Court deems fit.”
In the circumstances, the relief the applicant seeks is not available to the applicant, as the “decision” of which he seeks review is not a decision of the Tribunal or the Minister. However, I took the view that what the applicant seeks from this Court is judicial review of the ITOA, and that he asserts that the assessment is affected by jurisdictional error.
The evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
Before the Court
The Court made orders, by consent, on 19 May 2016 to allow the matter to progress to a final hearing. These orders included, amongst other things, that the matter be set down for final hearing on 4 July 2017, and that the applicant have the opportunity to file any amended application, evidence by way of affidavit and written submissions. The applicant has provided nothing further to the Court in this regard.
As mentioned above, the applicant was previously represented by a solicitor who prepared the application to the Court. That solicitor withdrew his representation by filing a Notice of Withdrawal As Lawyer on 31 May 2017.
At the hearing, the applicant appeared in person with the assistance of an interpreter in the Tamil language. The Minister was represented by a solicitor.
Background
The applicant is a citizen of Sri Lanka (CB 66). He arrived in Australia in 2010 as an “irregular maritime arrival” (CB 66). He claimed to fear harm in Sri Lanka as a result of his, and members of his family’s, actual or perceived connections to the Liberation Tigers of Tamil Eelam (“LTTE”), and various threats to his, and members of his family’s lives, that the applicant says were made by the United National Party (“UNP”), and the Eelam People’s Democratic Party (“EPDP”) (see CB 64 to CB 65).
Since his arrival in Australia, the applicant has been the subject of a Refugee Status Assessment, an Independent Merits Review Process, a previous ITOA in 2012 and a Post Review Protection Check in 2012. The ITOA conducted in 2016, which is the subject of the current proceedings, came about as a consequence of the Full Court’s judgment in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505.
The applicant was advised of the current ITOA by letter dated 15 October 2014 from the assessor to the applicant and sent to his representative authorised to receive correspondence on his behalf at that time (CB 159 to CB 163). The letter also advised the applicant that he had 14 days in which to provide any “further information” (in addition to the information provided for the purpose of previous assessments) that he would like the have considered in the ITOA (CB 162).
On 30 October 2014, a letter was sent by Ravi James Lawyers to the Minister’s department, advising that they had been retained by the applicant and requesting a “reasonable extension of time” to enable them to review the applicant’s file and to seek any new material (CB 164 to CB 167).
On 9 December 2014 the applicant’s representative provided submissions to the Minister’s Department outlining “concerns” over how the applicant’s claims had been approached in “previous assessments” (CB 168 to CB 170).
In a letter dated 16 January 2015 and sent to his representative authorised to receive correspondence on his behalf, the applicant was invited to attend an interview with the Minister’s department. The letter also gave him the opportunity to comment on information relevant to the ITOA (CB 175 to CB 184). Relevant to the current proceedings, this opportunity included, one, a request for further information regarding a document purportedly from the Human Rights Commission of Sri Lanka (CB 180.1), and two, further information regarding the applicant’s attendance at Tamil functions in Australia (CB 178.5). The significance of these requests to the matter currently before the Court is revealed below. The evidence indicates that no response was given by the applicant, or his representative, to the 16 January 2015 letter.
On 12 March 2015, the applicant attended an interview with the assessor where he had the assistance of a Tamil interpreter (CB 269.5 and CB 269.8). At the interview, the applicant provided country information and photographs of himself which he says show him attending Tamil functions, and were allegedly published on a Facebook page (CB 185 to CB 219).
On 26 May 2015, the assessor wrote to the applicant by letter sent to his representative authorised to receive correspondence on his behalf, giving further opportunity to “provide comment on information relevant to [his] [ITOA]” (CB 220 to CB 233). The applicant’s representative responded by letter dated 16 June 2015 (CB 234 to CB 239), and a further letter dated 18 July 2015 (CB 242 to CB 246).
On 14 September 2015, 14 December 2015 and 3 February 2016, the assessor again wrote to the applicant by letter sent to his representative authorised to receive correspondence on his behalf, to give further opportunities to the applicant to “provide comment on information relevant to [his] [ITOA]” (CB 249 to CB 251, CB 253 to CB 255 and CB 258 to CB 261). The applicant’s representative responded by letters on 21 September 2015, 22 January 2016 and 23 February 2016 respectively (CB 252, CB 256 to CB 257 and CB 262 to CB 263).
On 1 March 2016 the Minister’s department finalised the applicant’s assessment and found that non-refoulement obligations were not engaged in his case (CB 267 to CB 304).
As mentioned above, part of the evidence that the applicant provided to the relevant assessor in support of his claims was a document purporting to be from the Human Rights Commission of Sri Lanka (“HRCSL”). The applicant said the document contained an acknowledgement by the HRCSL of a complaint made to it by the applicant’s mother regarding her being “tortured”, but which did not contain any details of that complaint. At the ITOA interview, the assessor requested that the applicant obtain the “detailed complaint”, and provide evidence that he had taken steps to do so within 28 days of the interview (CB 288.5).
Approximately three months later, a copy of a document purporting to be the “detailed complaint” was provided to the Minister’s department (“the HRCSL document”) (CB 236 to CB 238) as an attachment to the applicant’s representative’s letter of 16 June 2015 (CB 234 to CB 239). However, no certified translation of the HRCSL document was provided to the Minister’s department, despite the applicant’s representative’s assurance that this would be provided (see CB 235.2). The way in which the assessor dealt with the HRCSL document is the subject of ground one of the applicant’s application to this Court.
The applicant also claimed to the assessor that he feared harm from the Sri Lankan authorities as a result of photographs of himself appearing on social media attending “Heroes day events” in Australia commemorating the LTTE (CB 222.3). As mentioned above, at the interview with the assessor, the applicant provided two photographs that he claimed were of him attending LTTE functions in Australia (“the photographs”) (see CB 217 to CB 219).
The applicant claimed that one of the photographs was published on a Facebook page (“the purported Facebook page photograph”) (see enlarged version of this photo at CB 239). The assessor identified a number of deficiencies surrounding the purported Facebook page photograph which, he said, “strongly suggest[ed]” it had been
“photo-shopped” (CB 289.7). It is the photographs which are the subject of ground two of the application to this Court.
The Application to the Court
The grounds of application are in the following terms:
“Ground 1
The ITOA Assessor failed to ask itself the ‘what if I am wrong question’ when assessing documentary evidence presented by the Applicant in support of his claims [p 22] and failed to consider the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (Refugee Handbook).
Particulars
(i) The Applicant provided the original document of a receipt issued by the Human Rights Commission (HRC) of Sri Lanka which confirmed that his mother had filed a complaint with the HRC. The Applicant stated that the complaint made was in relation to his mother being ‘tortured’ by an ‘unidentified person’ and that this was in relation to the Applicant’s situation.
(ii) The Applicant provided a copy of the detailed complaint in support of this claim.
(iii) The ITOA Assessor did not consider or give weight to the original HRC receipt nor the copy of the detailed complaint, for reason of not having been provided an English translation of the copy of the detailed complaint.
(iv) The ITOA Assessor stated at [p 22],
…While a copy of a document purporting to be the detailed complaint was provided to the department in June 2015, no translation, certified or otherwise, was provided despite an undertaking from the claimant to do so, and despite having ample opportunity. I am therefore unable to afford any weight to said document.
…
As noted above, I have serious credibility concerns regarding the claimant’s truthfulness as a witness. As such, in light of the above, and in the absence of further supporting evidence, I shall give no further consideration to this claim.
(v) The ITOA Assessor failed to ask the ‘what if I am wrong question’ as the Applicant had provided sufficient documentary evidence one of which was an original document (receipt issued by the HRC). The Applicant having failed to provide an English translation of the detailed complaint written by the Applicant’s mother was insufficient to disregard this document and consequently explore the claim made by the Applicant.
(vi) At the very least it is implied that the ITOA Assessor accepted that a complaint had been made by the Applicant’s mother (in the absence of any negative inference made with regard to this fact) to the HRC. The ITOA Assessor failed to consider the likely harm the Applicant may face due to a complaint being made by the mother to the HRC.
(vii) The tribunal was essentially focussed at ‘giving weight’ to the HRC documents, and in doing so failed to fully consider and acknowledge an important fact that was relevant to the Applicant’s claims that is, a complaint was made to the HRC by the Applicant’s mother. Complaints are made by individuals to the organisations such as the HRC (in more general terms) when there is a real threat to their lives or when such individuals experience serious harm.
(viii) The Refugee Handbook states,
196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.
197. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant.
The ITOA Assessor failed to consider the guidelines referred to above.
Ground 2
The ITOA Assessor failed to inform the Applicant that the photographs he had provided during the interview which were retrieved from Facebook though initially appearing to be consistent with a Facebook post would not be given weight as the ITOA Assessor subsequently formed the view that an image was ‘Photoshopped’ [p 23].
Particulars
(i) When the photographs were presented the ITOA Assessor did not raise concerns with regard to the photos indicating ‘one of whom is possibly the claimant’.
(ii) The ITOA Assessor also found that formatting of the image to be consistent with Facebook posts.
(iii) The ITOA Assessor requested for evidence of the photographs and their link to Facebook.
(iv) The Applicant provided a larger version of the same image he had provided.
(v) The ITOA Assessor failed to put the Applicant on notice that there was evidence that on ‘closer inspection’ the photographs/image was a fabrication.
Ground 3
The ITOA Assessor failed to consider country information relevant to the Applicant’s case [p 9].
Particulars
(i) At [p 23] the Applicant stated
…that whenever they [Tamils] have celebrations, ‘intelligence officers possibly attend in Australia’, and they still follow families of LTTE in foreign countries.
(ii) ITOA Assessor did not consider this claim due to lack in country information [p 24].
(iii) It is submitted that the ITOA Assessor failed to consider relevant DFAT findings and other information published by at least one other reliable source. The relevant country information not considered would be provided in written submissions at a later date.
Ground 4
The Manager who assessed the ITOA Assessor’s detailed findings did not provide reasons for agreeing with the assessment. Failing to provide reasons by a decision maker is arguably a jurisdictional error.”
Consideration
As set out above, the applicant appeared in person before the Court. He was assisted by an interpreter in the Tamil language. The following emerged from his oral submissions.
First, the applicant submitted that he could not go back to his country and wanted the Court to give him “one more opportunity to [be] interviewed”. As I explained to the applicant, the Court could not intervene to give him that opportunity unless some legal error could be found in the ITOA.
Second, in that context, the Court directed the applicant’s attention to the grounds of the application, which had been drafted by his former solicitor.
It became apparent that the applicant had no idea of what had been drafted for him in the grounds of the application to the Court. He was therefore unable to assist in this regard.
Third, the applicant stated that he had come to Court to ask for a
“pro bono lawyer”. It appeared from what the applicant volunteered, that his lack of funds led to the withdrawal of his previous lawyers and his inability to obtain alternative legal representation.
There is no right to legal representation in cases of this type (Nguyen v Minister for Immigration and Citizenship [2000] FCA 1265; (2000) 101 FCR 20, Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 and SZQRU v Minister for Immigration v Minister for Immigration and Citizenship [2012] FCA 1234). In any event, for the reasons set out below, I could not see that the circumstances of this case, even in light of the grounds drafted by the applicant’s former solicitors, call for a referral pursuant to Part 12 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”).
Ground one of the application raises two apparently interrelated assertions. One, the assessor failed to ask the “what if I am wrong question”. Two, the assessor failed to have regard to the United Nations (“UN”) High Commissioner for Refugees Handbook [and Guidelines] on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (UNHCR 1979, Reissued December 2011) (“the UN Handbook”).
Particular “i” refers to the applicant having provided to the assessor the original of a “receipt” issued by the HRCSL, which confirmed that the applicant’s mother had filed a complaint with that organisation (“the receipt document”).
The applicant also alleges that the assessor “did not consider or give weight” to the receipt document or the “detailed complaint”, because the applicant did not provide an English translation of the detailed complaint his mother made to the HRCSL.
The references to the two assertions at [32] above, appear to relate to particular “i”, and as further explained at particulars “ii” to “viii” of ground one.
As a preliminary issue, I note the following. One, the “what if I am wrong question” is only relevant where the relevant decision-maker (and in this case, the assessor), is unable to make findings of fact absent doubt. If there is any doubt, then the assessor is required to consider the following (Minister for Immigration & Multicultural & Indigenous Affairs v Rajalingham [1999] FCA 719; (1999) 93 FCR 220 at [60] – [62] (“Rajalingham”)):
“[60] It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur. This result, perhaps surprising at first glance, comes about because the ultimate question before the RRT is whether it is satisfied that the applicant has a well-founded fear of future persecution, in the sense of having a ‘real substantial basis’ for the fear. The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring.
[61] The RRT performs its fact-finding task as an administrative decision-maker. Although the civil standard of proof is not irrelevant to the process, the RRT cannot simply apply that standard to all fact-finding. Moreover, the RRT must frequently make its assessment on the basis of fragmented, incomplete and confused information. It has to assess the plausibility of accounts given by people who may be understandably bewildered, frightened and, perhaps, desperate and who often do not understand either the process or the language spoken by the decision-maker/investigator. As Gummow and Hayne JJ remarked in Ex parte Abebe (at par 191):
‘[i]t is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.’
Even applicants with a genuine fear of prosecution may not present as models of consistency or transparent veracity.
[62] In this context, it is not always possible for the
decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a ‘real substantial basis’ for the applicant’s claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant’s case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.”
Two, any failure to have regard to the UN Handbook does not, in the circumstances of this case, reveal legal error. The assessor is not required to have such regard. The UN Handbook may be a useful guide, but it does not have the force of domestic law (Semunigus v The Minister for Immigration & Multicultural Affairs[1999] FCA 422 and Shah v Minister for Immigration & Multicultural Affairs[2000] FCA 489).
The background to the matter of the applicant’s mother’s complaint to the HRCSL is as follows. On 9 December 2014 the applicant’s representative (Ravi James Lawyers) made written submissions to the relevant assessor (CB 168 to CB 170).
Part of the submissions were that the Sri Lankan authorities continued to be interested in the applicant after he left Sri Lanka, and targeted his mother because she had made a complaint to the HRCSL seeking “redress” (it was not clear as to the subject of any such “redress”) (CB 169.6).
In support of this submission, or claim, the applicant’s representative attached the receipt document relating to the complaint said to have been issued by the HRCSL (CB 173).
The assessor responded by letter sent on 16 January 2015 to the applicant’s representative authorised to receive correspondence on his behalf (CB 176 to CB 184). The letter stated that the assessor was seeking to give the applicant an opportunity to comment on information relevant to the ITOA. The letter, in particular, raised inconsistencies in the applicant’s account of past events, and concerns about the credibility of his claims.
The letter also specifically invited the applicant to “provide information” about the “purported document from the [HRCSL]” (“the HRCSL document”) (CB 180):
“Invitation to provide information
Purported document from the Human Rights Commission of Sri Lanka
The department notes that you provided a document purportedly issued by the Human Rights Commission of Sri Lanka. Given that the original of this document has not been provided, the department is unable to verify its authenticity. The department requests that you provide the original document at interview, along with an accredited translation, within the time frame as provided below.
Further, no details of the nature of the alleged complaint are present on the document, and as such, there is currently no evidence before the department that this document has any material bearing on your situation. You are invited to comment on this at the interview...”
There is no transcript of the interview with the assessor in evidence before the Court. The applicant was given the opportunity to file such evidence at a time when he was legally represented before the Court. The only references to what occurred at the interview with the assessor in evidence before the Court, are those set out in the ITOA (CB 267 to CB 304).
The applicant was interviewed by the assessor on 12 March 2015. The applicant was assisted by an interpreter in the Tamil language. At the time of the interview with the assessor he was represented by a migration agent who was employed by a firm of solicitors.
The assessor reports that he put to the applicant his concerns as follows (CB 288.4):
“In his submission of 10 December 2014, the claimant provided what was purported to be a copy of a receipt indicating that his mother had filed a complaint with the Human Rights Commission of Sri Lanka. Prior to the ITOA interview, I put to the claimant that no details of the alleged complaint were present on the document, and that there was no evidence that the document had any material bearing on his situation. I also requested that the claimant provide the original document, along with an accredited translation.
While what was purported to be the original document was presented at interview, I maintained my concern that there was no indication of the nature of the complaint, and that I could not see how the document supported the claimant’s case in any way. The claimant stated that the complaint was in relation to his mother being ‘tortured’ by an ‘unidentified person’, and that this was in relation to the claimant’s situation. I put to the claimant that the only evidence before me to support this was his own verbal testimony. As such, I requested the claimant to obtain the detailed complaint, and provided 28 days for the claimant to provide evidence that the request had been initiated.”
On 26 May 2015 (that is approximately 10 weeks after the interview), the assessor wrote to the applicant, through his representative, reminding him of the opportunity given to him to provide comments on information and concerns relevant to his ITOA (CB 220 to CB 233).
The applicant’s representative wrote to the assessor by letter dated 16 June 2015. Relevantly, that applicant’s representative stated as follows (CB 235.2):
“Please find attached:
1. A copy of the complaint made by the mother to the Human Rights Commission at the Regional Centre in Vavuniya, in Tamil. The Applicant has provided this for translation and will provide the translated copy soon.”
The applicant’s representative made further written submissions to the assessor on 18 July 2015 (CB 242 to CB 248), and on 21 September 2015 (CB 252) in response to yet another “reminder” letter from the assessor, dated 14 September 2015 (CB 249 to CB 251).
No translated copy of the HRCSL document was ever provided to the assessor, as had been advised by the applicant through his representative (see above at [47]).
The assessor relevantly found (CB 288.6):
“While a copy of a document purporting to be the detailed complaint was provided to the department in June 2015, no translation, certified or otherwise, was provided, despite an undertaking from the claimant to do so, and despite having ample opportunity. I am therefore unable to afford any weight to said document.
As noted above, I have serious credibility concerns regarding the claimant’s truthfulness as a witness. As such, in light of the above, and in the absence of further supporting evidence, I shall give no further consideration to this claim.”
As set out above, the ground alleges that the assessor erred in not asking the “what if I am wrong” question, and not considering the UN Handbook. That is dealt with above.
When regard is had to the particulars however, it appears the real complaint is either that the applicant was denied procedural fairness, or that it was not open to the assessor not to assign “any weight” to the receipt document, and the untranslated HRCSL document, and to therefore not further consider the applicant’s claims in this regard.
The following disposes of the applicant’s complaint in ground one. First, I cannot see that the applicant was denied procedural fairness. He was put on notice, initially at the interview in March 2015, that the assessor considered his claims relating to his mother making a complaint to the HRCSL to be at issue.
Second, the assessor gave the applicant the opportunity to address his concerns. Those concerns, relevantly, were that the receipt document contained no details of the alleged complaint to the HRCSL, and that there was a need for him to provide evidence concerning his “mother’s claim”.
Third, the assessor sent a number of further letters to the applicant giving him the opportunity to comment on information relevant to the ITOA. The applicant’s response was to provide an untranslated copy of the HRCSL document, said to be the “detailed complaint”. He advised that he would provide a translated copy. In the nine months between the applicant’s advice that he would provide a translated copy and the assessment, no such copy was provided.
The applicant was not unrepresented in the assessment process. His representative was a migration agent who was employed by a firm of solicitors.
In short, the applicant was clearly on notice that the assessor required further information in order to be able to assess the relevance of the complaint he said his mother had made to the HRCSL to the applicant’s circumstances. The applicant and his representative not only understood that a translated copy of the HRCSL document should be provided, told the Minister’s department that one would be provided “soon”.
While the applicant’s representative made further submissions to the assessor, there was nothing to indicate any difficulty in obtaining the translation that they previously said they would provide.
In the circumstances, there is no failure of procedural fairness on the part of the assessor (see SZLSW v Minister for Immigration and Citizenship [2008] FCA 1321 at [11] - [12] and [17] and the cases referred to therein).
I note that, for reasons not related to the applicant’s mother’s “complaint” to the HRCSL, the assessor had serious concerns about the applicant’s credibility. In the circumstances, it was open to the assessor to ask for further evidence from the applicant, in support of his own oral evidence in relation to his mother’s complaint to the HRCSL.
It was also reasonably open to the assessor, on what was before him, to find that the receipt document gave no indication of the purported complaint, and therefore did not support the applicant’s claim to fear harm. Further, it was also reasonably open to the assessor not to assign “any weight” to the untranslated HRCSL document, given that the applicant had been given ample opportunity to do what he had promised to do, and without explanation, failed to do so.
Finally, the assessor had no doubt about his findings concerning the receipt document and the untranslated HRCSL document. As such, the “what if I am wrong” question did not arise (Rajalingham).
In all, ground one is not made out.
Ground two asserts that the assessor failed to put the applicant on notice that certain photographs that the applicant provided to the assessor could not be “given weight”. The complaint appears to be that the assessor found that one of the photographs that the applicant said had been posted on the social network website, Facebook, initially appeared to be consistent with Facebook “posts”, but ultimately found it was a “fabrication.”
The applicant’s ground directs attention to part of the assessor’s document as follows (CB 289.4):
“With regard to the purported photographs, at interview the claimant provided what he claimed to be pictures of the claimant that were retrieved from Facebook. One of the photographs showed two young men, one of whom is possibly the claimant, who appeared to be of Tamil ethnicity in front of what appeared to be pictorial and floral tributes to deceased LTTE cadres. There is no evidence before me that this particular image was on Facebook, or any other social media site. Further, there is no evidence before me that establishes where and when the photograph was taken. As such, I will give this photograph no further consideration.
The second image provided by the claimant shows a young Tamil male, again possibly the claimant, in front of a stage with a lectern draped in a flag commonly used by the LTTE. Again, no indication was present as to where or when the photograph was taken, though the date of the purported posting reads ‘13 Sep at 10:07 AM’. No year was indicated, nor was the claimant ‘tagged’ or identified in the purported post. While the formatting of the image provided initially appeared to be consistent with a Facebook post, a closer inspection of the image reveals flaws that strongly suggest that the image has been fabricated. The format and colour scheme on the image provided is not consistent when compared against Facebook, and the image extends over what would naturally be the border of the post. In addition, a ‘shadow’ is present under the photograph, which strongly suggests that the image has been ‘Photoshopped’. As such, I give no weight to these submissions.”
The assessor found as follows (CB 289.8):
“At interview (sic) I requested further evidence of the purported photographs, and their link to Facebook. To date, no such evidence has been provided, apart from a larger version of the same image. When asked why he believed that Sri Lankan authorities would be in possession of these images, and how they would obtain them, the claimant’s (sic) was unable to provide a plausible or coherent response, initially stating that military intelligence had published the images. The claimant further stated that whenever they [Tamils] have celebrations, ‘intelligence officers possibly attend in Australia’, and that they still follow families of LTTE in foreign countries. Even if I were to accept that the images were published on Facebook, I find the claim that military intelligence officers would post them on a
pro-Tamil page to be far-fetched at best. When further questioned as to who took the photographs, the claimant again struggled to respond, stating that he did not know who took them or how they got there, and that everyone there took pictures.”
In essence, the applicant’s ground can be understood as an assertion that the assessor denied him procedural fairness in relation to the photographs.
The photographs were produced by the applicant to the assessor at the interview (the photographs are reproduced at CB 217 to CB 219 and see also CB 239). They were part of a larger bundle of information and documents provided by the applicant to the assessor.
On the evidence before the Court, the applicant’s ground is not made out.
First, the photographs were the subject of discussion at the interview (see above). The assessor reports that he requested that the applicant provide “further evidence of the purported photographs, and their link to Facebook” (CB 289.8). Therefore, the applicant would have been on notice that the assessor had concerns about the relevance of the photographs to the ITOA. In particular, whether they were “link[ed]” to Facebook.
It is to be remembered that the applicant’s claims in relation to the photographs was that his “image” would have come to the attention of the Sri Lankan authorities by way of Facebook, and that he had attended certain “Heroes Day events” (pro LTTE events) in Australia and Sri Lanka.
The assessor gave the applicant the opportunity to provide evidence of the link between the photographs and Facebook. The fact that the applicant did not provide any such evidence does not mean he was denied procedural fairness.
Second, the photographs were given to the assessor by the applicant in the context of supporting his claim to have participated in certain events after he left Sri Lanka, which would have brought him to the adverse attention of the Sri Lankan authorities. This was first raised in the applicant’s written submissions to the assessor of 9 December 2014 (“the new claim”) (CB 168 to CB 169 and see CB 169.8).
The assessor reports that the applicant was questioned about this issue at the interview. The assessor’s account of the questioning reveals that the applicant would have been on notice that the truth of the new claim was at issue (see for example “[w]hen pressed on this” at CB 289.2).
Third, the assessor’s analysis of the photographs, which informed the finding to assign “no weight” to them, was based on the assessor’s observations of the photographs (see as emphasised above at
[65] – [66]).
I agree with the Minister that the assessor’s concerns about the photographs, which alerted the assessor to the possibility that they were “fabrications”, arose from the assessor’s assessment of the documents themselves. That is, the assessor did not assign “no weight” because of his concerns about the applicant’s credibility. Concerns arose from the face of the documents themselves. That was the basis for this particular finding (see WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 at [54]). The finding did not turn on the credibility of the applicant. Rather, there was something on the face of the photographs to alert the assessor to their possible fabrication.
Further, and in any event, the assessor also considered, in the alternative, the applicant’s claims on the basis of accepting that the photographs had been published on Facebook (CB 289.9). The assessor’s ultimate finding here was reasonably open to him on what was before him.
In all, ground two is not made out.
Ground three asserts that the assessor failed to consider country information “relevant” to the applicant’s case.
The particulars however do not state what country information the assessor failed to consider. Rather, the complaint appears to be that the assessor failed to consider the applicant’s own evidence as to the claimed activities of Sri Lankan “intelligence officers” at certain Tamil “celebrations” in Australia (see particular “i” and “ii”). Further, that the applicant would provide the relevant country information to the Court in written submissions at a “later date” (see particular “iii”).
In the absence of some particularity as to the country information which the ground says the assessor should have taken into account, what remains is the complaint that the assessor did not accept the applicant’s evidence and claims.
The answer to this complaint is that there is no obligation on the assessor to do so. On the evidence, the assessor considered the applicant’s claims. It was reasonably open in the circumstances for the assessor to find that “no information was located to indicate that these events [outside of Sri Lanka] are of interest to, or attended by, Sri Lankan intelligence officers or informants in these countries as was claimed by the claimant” (CB 290.3).
As to the assertion in the ground that country information would be provided to the Court, this has not occurred. In any event, even if it had, this Court cannot intervene to change findings of fact reasonably open to the assessor, based on material that was not before the assessor. That would be impermissible merits review. In all, ground three is not made out.
Ground four asserts that the assessor’s manager, who agreed with the assessment, “did not provide reasons for agreeing with the assessment”. This was said to constitute jurisdictional error by “a decision-maker”.
The applicant has not provided any authority for this proposition. As the Minister submits, there is no statutory or other provision, requiring the assessor’s manager to provide reasons in the current circumstances. In any event, in my view, the relevant “decision” is that of the assessor. Any “failure” by the assessor’s manager does not reveal jurisdictional error on the part of the assessor. Ground four is not made out.
Conclusion
None of the grounds of the application are made out. It is therefore appropriate to dismiss the application. I will make that order.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 25 January 2018
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