Awa18 v Minister for Immigration

[2019] FCCA 1648

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWA18 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1648

Catchwords:
MIGRATION – Immigration Assessment Authority – application for Safe Haven Enterprise visa – whether a mistake in fact led to jurisdictional error – writs issued – application allowed.

Legislation:

Migration Act 1958 (Cth), s.36

Cases cited:

Minister for Immigration and Citizenship v SZNGP [2010] FCAFC 51

Applicant: AWA18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 495 of 2018

Judgment of: Judge Humphreys

Hearing date: 12 June 2019

Date of Last Submission: 12 June 2019

Delivered at: Parramatta

Delivered on: 14 June 2019

REPRESENTATION

Solicitors for the Applicant: Mr Rajadurai, Divine Lawyers

Counsel for the Respondents: Mr Johnson

Solicitors for the Respondents: Ms Hibberd, Mills Oakley

ORDERS

1. The first respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2. Leave is granted to rely on the amended application.

3. A writ in the nature of certiorari be issued to quash the decision of the second respondent dated 16 February 2018.

4. A writ in the nature of mandamus be issued directing the second respondent to reconsider and determine the matter according to law.

5. An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from making the future decision or taking the other action the subject of these proceedings.

6. The first respondent pay the applicant’s costs fixed in the amount of $4000.00.

DATE OF ORDERS: 14 June 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 495 of 2018

AWA18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR EXTEMPORE JUDGMENT

(Revised from Transcript)

1. The applicant is a Tamil Hindu from Kalmunai Town, Ampara district in the Eastern Province of Sri Lanka. The applicant departed Sri Lanka illegally on 16 September 2012, arriving in Australia by boat. On 7 April 2016, he lodged an application for a Safe Haven Enterprise visa. A delegate of the Minister refused that application on 9 June 2017. The applicant then applied for a review of the decision by the Immigration Assessment Authority (“the Authority”). On 16 February 2018, the Authority determined to affirm the decision of the delegate. The applicant now seeks judicial review in this Court of the Authority’s decision.

Background

1. The applicant’s claims for protection are set out at paragraph 7 of the Authority’s decision and are set out below in full.

   ·The applicant is a Sri Lankan Tamil who was born in Kalmunai Town, Ampara district, Eastern Province on 19 September 1986. He resided there with his family until he came to Australia, with the exception of a three and a half year period when he lived and worked in Saudi Arabia.

   ·The applicant’s brother-in-law, K, was a teacher from the Kalmunai area who lived and worked in Iranamadu in the Northern Province where he was required to teach the children of Liberation Tigers of Tamil Eelam (“LTTE”) member families. On weekends the LTTE also made K work for them doing whatever work was required.

   ·In December 2006 the applicant began assisting K work for the LTTE on weekends by doing some administrative work and cutting wood.

   ·In 2007 the Karuna group had split from the LTTE. They had some misinformation that K had knowledge of the LTTE’s financial arrangements, so they called him in three times for questioning. They also came to K’s house two to three times and threatened him. They asked him about the funds and he said he did not know where they were and that he was not involved in financial matters. They did not believe him, and threatened to kill him if he did not tell them where the money was. On 15 February 2007, K was visiting his mother’s house near Kalmunai, he was shot dead. The applicant ceased assisting the LTTE with jobs after this.

   ·In April 2008, the applicant was detained and questioned for two days by Karuna’s men. They suggested he knew all of K’s secrets about the LTTE’s financial arrangements and threatened to shoot him if he did not divulge them.

   ·The applicant managed to escape with the help of an old man and remained in hiding at his mother’s friend’s house from June until December 2008, after which he fled to Saudi Arabia.

   ·The applicant resided legally in Saudi Arabia, working as an assistant carpenter and electrician, from December 2008 until July 2012 when he returned to Sri Lanka. He returned to Sri Lanka because the war was over and he believed he was safe.

   ·The applicant had no problems for one month after he returned. Approximately two weeks before he decided to leave for Australia he was harassed by unknown paramilitary officers and he went back into hiding, moving from place to place.

   ·The applicant fled Sri Lanka on 16 December 2012, departing the country illegally by boat for Australia.

The Authority’s Decision

1. At paragraph 8 of the decision, the Authority accepted the applicant’s identity and his account of life in Kalmunai. At paragraph 9, the Authority accepted that K was a teacher who taught LTTE children at Iranamadu­ in the Northern Province. Paragraph 10 notes some inconsistent information about what happened to K and the precise circumstances as to by whom and why it was that he was murdered.

2. In paragraphs 11 and 12, the Authority accepts that the Karuna group were active in the Eastern Province when K was killed. The Authority accepts K was killed by an unknown person and that police had not determined the reason for his death or the identity of the perpetrator. Paragraph 13 is particularly significant and is set out below in full.

   When questioned at the SHEV interview about his role with the LTTE the applicant advised that his association was through K. He stated that on weekends the LTTE also made K work for them, by doing whatever work was assigned to him. At the end of 2006 the applicant began assisting K by doing some administrative work, digging bunkers and cutting wood at K’s behest. The applicant claims that he ceased doing this work after K was shot on 15 January 2007. The applicant did not live in an LTTE controlled area and was not able to explain why he assisted K to work for the LTTE on weekends, approximately 300 kilometres from his home, when travel restrictions were in place. I note that travel restrictions on roads leading to the north were only removed in 2015. The applicant has not explained how, if he was compelled to do this, he was able to cease in January 2007 after only commencing to do the work in 2006. I do not accept that the applicant did any work for the LTTE. I consider he has fabricated this story to suggest a greater connection to his brother-in-law who was killed and to lend weight to his claim that he was wanted by the Karuna Group.

3. It is significant that the Authority found the claim that the applicant assisted his brother-in-law was false on the basis of the location of Iranamadu and that there was some 300 kilometres from where the applicant lived.

4. At paragraphs 15 and 16 of the decision, the Authority noted that the applicant left through Sri Lanka legally to go to Saudi Arabia. The Authority considers it highly unlikely that the applicant would have been able to obtain a passport and legally leave Sri Lanka if he was of interest to the Karuna Group or had any association with the LTTE.

5. In paragraphs 17 and 18, the Authority noted the material provided by the applicant regarding his return to Sri Lanka and his subsequent claim of going into hiding as a result of harassment by unknown people prior to leaving for Australia. That claim was not accepted by the Authority.

6. At paragraph 22, the Authority considered fears that the applicant may have based on his Tamil ethnicity and his return to Sri Lanka. At paragraph 24, the Authority found that the applicant has no imputed association with the LTTE that would give rise to any real chance of harm or that his links with K or his Tamil ethnicity would give rise to any real fears of harm.

7. At paragraphs 25 to 29, the Authority dealt with the issues related to the applicant’s illegal departure from Sri Lanka. While acknowledging the applicant may be questioned, detained and put before a magistrate as an illegal departee, the Authority found none of these result in a real fear of serious harm. The Authority concluded that the applicant does not meet the requirements of s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”).

8. Paragraphs 32 to 36 of the decision, dealt with complementary protection claims. For similar reasons as outlined above, the Authority concluded that the applicant does not meet the requirements of s 36(2)(aa) of the Act.

The Grounds of Appeal

1. An amended grounds of appeal was filed with leave and is set out below in full:

   Ground 1

   IAA decision is based on an erroneous finding resulting from procedural fairness.

   Particulars

   Applicant claimed persecution based on his brother-in-law’s and his work for the LTTE in a particular village in the eastern province, but the IAA made its decision based around a village which phonetically sounded similar to the village claimed by the applicant but was in the north and was 300 kilometres away.  

   Crucial to the applicant’s case was the village in which the applicant and his brother-in-law worked for the LTTE.

   As IAA incorrectly identified the place of the applicant’s and his brother-in-law’s activities for the LTTE, a number of credibility findings flowed as a result.

   It is not clear at this stage why the IAA could not identify the correct location.

   Applicant’s claimed village is Ranamadu, which is in the eastern province of Sri Lanka, while substituted by the location Iranamadu, which is in the north of Sri Lanka, 300 kilometres away from the claimed village.

   Had the IAA got the location correct, applicant would have received a favourable decision.

   Google search of the location of Ranamadu relates to the eastern province of Sri Lanka.

   If the applicant had not clearly articulated/presented his case and location in which the LTTE-related activities were carried out, on behalf of the applicant it is conceded that no costs order can be made.

   Ground 2

   IAA decision is infected with procedural unfairness.

   Particulars

   IAA failed to be inquisitorial in character and make inquiries to discern the correct location of the applicant and his brother-in-law’s activity.

   A simple Google check with the correct spelling reveals there is a village called Ranamadu in the east of Sri Lanka.

   A name search result is attached with the village Ranamadu in the east of Sri Lanka.

Considerations

1. It is common ground that Ranamadu is in fact in the Eastern Province of Sri Lanka. Iranamadu, however, is to the north and indeed is some 300 kilometres away from the Eastern Province.

2. During the course of submissions, it was put that the claim in Ground 1 could be summarised as follows. That the claim that the applicant assisted his brother-in-law had been misconstrued by the Authority based on an incorrect spelling of Iranamadu as compared to Ranamadu. It was put to the Court that the error in the spelling and, hence, location of either Iranamadu or Ranamadu was central to the adverse credit findings regarding the applicant assisting his brother-in-law on weekends. Central to the matter is that the applicant is not fluent in English and was assisted in submitting his applications and/or submissions to both the delegate and the Authority by others.

3. Translation from the Tamil script to English involves a phonetic translation of a script, which is not using the English alphabet. It involves the phonetic translation from the script and then a translation of that into the English language. This should be compared to a translation which might occur in the case of a translation from either the German or French languages, which uses the English alphabet, as compared to having to first of all transcribe from a script-based language and then turning that into an English-based language translation.

4. Thus, it is asserted that the applicant’s claimed village for his brother-in-law was, and in fact at all times was, Ranamadu, as compared to the phonetically similar Iranamadu, which is in the north of Sri Lanka. As the Authority found, Iranamadu is 300 kilometres away from the village that the applicant says he went to and assisted his brother-in-law, K, on the weekends.

5. Counsel for the respondent conceded very properly that if the Court found that the claimed error amounted to jurisdictional error, then the application would have to be resolved in the applicant’s favour. An error of fact by an authority will not necessarily involve jurisdictional error.

6. In the case of Minister for Immigration and Citizenship v SZNGP [2010] FCAFC 51, the Court held that even if the applicant’s complaints about mistakes of fact made by the Tribunal were accepted, none would be dispositive of the applicant’s claims and none is capable of suggesting the Tribunal has not considered the applicant’s claims. I interpret that to mean that a mistake of fact which is not central to the outcome will not ground jurisdictional error.

7. The issue that I have to consider here is whether the misspelling and the mistaken location of either Iranamadu or Ranamadu was, in fact, central to the disposition of the applicant’s claims. When I look at how it occurred, I’ve gone back to some of the source documents that were provided in the Court book. At page 75, there is an extraction from what appears to be his original application where it says:

   I left Sri Lanka because I have no safety due to terrorist problems. My brother-in-law –was a teach (Iranimadu) school in an area under the control of Liberation Tigers of Tamil Eelam in eastern Sri Lanka.

8. So clearly it was initially put eastern Sri Lanka, not northern Sri Lanka, was the location of where the brother-in-law was. When I look at page 85 of the Court book, there is a statement recounted on 21 July 2015 by a Tamil interpreter where the following is said:

   The brother-in-law K was a teacher teaching in an area under the control of the Liberation Tigers of Tamil Eelam in eastern Sri Lanka –

9. It does not say northern Sri Lanka. When I look at the translation by a Mr Matikumar of what appears to be a newspaper cutting on page 87 of the Court book, it says Iranamadu teacher shot death, Iranamadu not Ranamadu.

10. I finally looked at page 156 of the case book, which appears to be an extract from various documents that were put to the Authority. It said:

    At the PV interview the applicant stated he had no connection with the LTTE, however his brother-in-law resided in the controlled northern area of Iranamadu and handled matters relating to finance and education for the LTTE.

11. So again it’s quite clear there was confusion there as to whether it was in Iranamadu or Ranamadu.

12. It was suggested to the Court during the course of the hearing of the matter, that it had never really put to either the delegate or the Authority that the correct location was in fact Ranamadu, not Iranamadu. The difficulty that I have with that is that it is clear from the source documents that the claim of Ranamadu or Iranamadu, whilst it appeared to be Iranamadu, there was also a claim it was in the east. The fact is Iranamadu is not in the east, it is in the north.

13. I am of the view that there was clearly a mistake of fact. There was clearly material before the delegate which indicated that there was at least a confusion. The Authority took it upon itself to actually make a finding as to what the village was and where it was. What followed was a serious adverse credit finding against the applicant. In my view, the factual finding of Iranamadu as compared to Ranamadu was a significant matter. The adverse credit conclusion that followed was central to the Authority’s disposition of the matter.

14. The first respondent, in written submissions, conceded that the Authority was only able to proceed by reference to the materials before it and was entitled to make the findings it did. It also conceded that the applicant’s written claim referred to Iranamadu, but as I said, when I look at the materials that form part of the Court book, it is clear there were references to the location of the brother-in-law in fact being in the east of Sri Lanka. This needs to be compared with page 55 of the Court book, which reproduces the delegate’s findings which I have indicated above where it talks about Iranamadu and it being in the north.

15. Taken as a whole, I am of the view that the confusion started with the initial translations which were not capable of being picked up by the applicant because of course he was not fluent in the English language and the fact is that Iranamadu and Ranamadu are in fact phonetically very similar.

16. As a result, the actual error itself was not picked up until after the Authority’s decision. In making this finding, I do not necessarily criticise the Authority. I simply say that this was an error which flowed from the initial material that was put forward and then flowed on through to the delegate and then finally through to the Authority. I am satisfied, as a result, that the applicant’s claim was misconstrued. I find as a result of this, the misconstruing of the claim, that there has been jurisdictional error. I therefore allow the appeal on that basis.

17. It is not necessary for me to deal with Ground 2 as I have found in favour of the applicant in relation to Ground 1.

Conclusion

1. The application is allowed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:  

Date:  16 July 2019