AWV18 v Minister for Home Affairs

[2019] FCCA 687

FEDERAL CIRCUIT COURT OF AUSTRALIA

AWV18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 687

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

N/A

First Applicant: AWV18

Second Applicant: AWW18

Third Applicant: AWX18

Fourth Applicant: AWY18

Fifth Applicant: AWZ18

Sixth Applicant: AXA18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 115 of 2018

Judgment of: Judge Vasta

Hearing date: 28 February 2019

Date of Last Submission: 28 February 2019

Delivered at: Perth

Delivered on: 28 February 2019

REPRESENTATION

Solicitors for the Applicants: Aum Legal

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Applications filed 26 February 2018 and 27 June 2018 are dismissed.

2. That the Applicants pay the costs of the First Respondent fixed in the sum of $6,100.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 115 of 2018

AWV18

First Applicant

AWW18

Second Applicant

AWX18

Third Applicant

AWY18

Fourth Applicant

AWZ18

Fifth Applicant

AXA18

Sixth Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY 

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 31 January 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicants AWV18, AWW18, AWX18, AWY18, AWZ18, AXA18 protection visas.  That decision having been made, the Applicants filed an originating application in this Court on 26 February 2018 asking this Court to review the decision of the IAA. 

2. The facts, in short compass, are that AWV and AWW are husband and wife.  They are Tamils who practice the Roman Catholic faith and who are citizens of Sri Lanka.  AWX, AWY, AWZ are their children who were born in Sri Lanka.  AXA is their fourth child.  That child has been born since AWV and AWW have been in Australia. 

3. The first applicant, AWV, came from Walapane in the central province of Sri Lanka.  He moved to Colombo and he married the Second Applicant, AWW. 

4. He said that after that time, he faced lots of problems from the Sri Lankan authorities.  He said that in 2008, his brother-in-law, that is, the brother of AWW (and he will be called MA for these purposes) was abducted.  A year later, he said that security became tight in Colombo and he was required to report all the names of all the people that were living in his house. 

5. He said the Sri Lankan authorities started to come and question him about what happened to his brother-in-law.  He said that whilst he was working at a restaurant, he was threatened by armed gangs who would ask if he was a supporter of the Tamil Tigers and where MA was. 

6. He said that on 2 July 2009, he was returning home from work when was he abducted by unknown people.  He said he was blindfolded, placed in a van and taken to an unknown location. 

7. He said he was kept for 25 days.  Whilst detained, he was questioned about his connection to the LTTE and he was physically assaulted before he was released.  He said that when he was released, he was unable to lead a normal life.  He continued to be questioned and he and his family were branded as an LTTE family by the Sinhalese community in which they lived in Colombo. 

8. He decided that he should return to his birthplace Walapane and whilst he was in Walapane, he said that the Sri Lankan authorities came and questioned him. 

9. He said that his wife AWW contacted him and told him the problems that she was facing, so he returned to his family in Colombo.  He said that in 2010 because of all these problems he decided to leave Sri Lanka. 

10. He said he left legally using his own passport and he travelled to Malaysia.  He said that he registered there with the UNHCR.  In 2012, he returned to Sri Lanka, again legally, using his own passport, and he had to pay a fine for overstaying his visa whilst in Malaysia. 

11. He said on 20 June 2012, he was arrested because he had been away for two years and his being away had not been registered in that he had left the country. 

12. He was also arrested on suspicion that he had connections with the LTTE.  He said he was detained for three months and he was released after bail was paid and that his brother gave him a report from the police in his birthplace, Walapane, verifying that he had no previous problems registered against his name. 

13. After he was released, he said he was required to report each Sunday.  He said that after he was released from jail, he had no peace and he was continuously harassed by the Sri Lankan authorities and his family was called an LTTE family by his neighbours. 

14. In order to save his and his family’s life, he decided that, as a family, they should leave Sri Lanka.  He said that they departed Sri Lanka legally using their own passports.  They travelled by plane to Singapore then on to Malaysia before travelling by boat to Indonesia.  There in Indonesia he got on a boat and arrived at Christmas Island in April of 2013. 

15. The Second Applicant made these claims: that her two brothers were members of the LTTE; her brother, JA, was forcibly recruited by the LTTE and he died.  She said that she faced many problems as a result of her brother’s involvement with the LTTE.  She said her family would always be checked and questioned about their involvement. 

16. In 2007, she said that her cousin was abducted in Colombo.  Complaint was made to the police and the human rights commission of Sri Lanka by her cousin’s wife.  She said in 2008, her brother MA was abducted. 

17. The family searched for him in many places and made several complaints to the police, but only after they came over to Australia, they learned he had been a member of the intelligence wing of the LTTE. 

18. In 2009/2010, she said that her husband, AWV, went to his birthplace to stay and she was asked where he was by the Sri Lankan authorities. She said between 2010 and 2012, her husband was in Malaysia and the Sri Lankan authorities would come and ask her questions about where her husband had gone and she would be threatened. 

19. She said she would be taken outside the family home, made to sit and answer questions.  She said that as a Tamil family living in a Sinhalese area, she and her family received a lot of harassment because people considered them to be supporters of the LTTE. 

20. Both Applicants say that they fear upon return to Sri Lanka they will be harmed on the basis of their ethnicity, the First Applicant’s failure to report weekly and imputed pro-LTTE or anti-Sri Lankan government political opinion, because of their familial association to members of the LTTE, the payment of money to a friend in order to depart the country and because they will be returning after seeking asylum in Australia. 

21. The other four Applicants are the children and they have not got individual claims; they relied on the claims of their parents. 

22. The IAA went through these claims in what I consider to be a very thorough manner.  The IAA accepted that the Second Applicant’s brother, JA, was forcibly recruited by the LTTE because at that stage the LTTE required one person from each family to join them. The IAA accepted that JA died from a gunshot injury in 1991. 

23. The IAA accepted that as a result of JA’s involvement with the LTTE, that the family were checked and questioned about their level of involvement. 

24. The IAA then looked at the claim that the other brother MA was a member of the intelligence wing of the LTTE.  The IAA noted that between 2001 and 2008, MA resided with the First and Second Applicant along with other extended family members in the family home and that he was working for a communications shop. 

25. The IAA noted that the claim was, that only after the First and Second Applicant arrived in Australia, that they became aware of MA’s involvement with the LTTE and that they had been told that he was dead.  The IAA accepted that MA is now dead. 

26. However, at paragraph 40, the IAA said that they did not accept that MA was associated with, nor was a member of, the LTTE.  This aspect of the Applicants’ evidence, they said, has evolved over time and is unconvincing. 

27. The IAA then went through the fact that there was an enhanced screening interview on 15 April 2013. In that interview, the First Applicant stated that MA was taken from the shop he had been working in 2008 and remained missing. 

28. The IAA then noted that in the arrival interview which occurred two months later on 16 June 2013, that the Second Applicant had said that the brother JA was a member of the LTTE and deceased and mentioned that MA was abducted and remained missing but did not say anything of his involvement with the LTTE; whereas the husband had said that the two brothers of his wife – that is, his two brothers-in-law – were members of the LTTE and that’s why he was suspected of being involved with the LTTE. 

29. The IAA noted the difference in the entry interviews and the SHEV interview and the IAA came to this conclusion at the end of paragraph 44:

    …I have considered the first applicant’s explanation however I am [sic] remain unconvinced that given their significant period of residence with MA that had these claims been true they would have been aware of MA’s involvement with the LTTE prior to their arrival in Australia.

30. The IAA looked at a photo that the Second Applicant had, which she said showed her brother in fatigues, and the IAA said that they were not satisfied that the photograph substantiates the Applicants’ claim that the brother, MA, was associated with, or a member of, the LTTE.

31. At 46 the IAA said:

    46. Having regard to all the evidence, including the evolution and plausibility, I am not satisfied the applicants have been truthful witnesses in relation to the claims of MA’s association with or membership with the LTTE and that they have been provided to enhance the applicants’ claims for protection.

32. The IAA then went through the claim from the First Applicant, that he was abducted in 2009 and came to this conclusion at paragraph 54:

    54. Having regard to all the evidence, including the plausibility and evolution of this aspect of the applicants’ claims, I am not satisfied the applicants have been truthful witnesses regarding the first applicant’s abduction and subsequent stay in his birthplace to avoid the Sri Lankan authorities and that they have been provided to enhance the applicants’ claims for protection.

33. The IAA then went through the claim about the armed gangs, coming to this conclusion at paragraph 57:

    …I also find these claims are not credible given they are devoid of any meaningful detail as to who the armed gangs were and why they would be interested in the first applicant.

34. The IAA then went through the First Applicant’s departure to Malaysia and return to Sri Lanka and, noting a letter from the United Nations High Commission for Refugees, the IAA came to a positive finding that they were satisfied, when looking at all of that material, that the First Applicant was not of interest to the Sri Lankan authorities for any reason at the time of his return to Sri Lanka in 2012.

35. The IAA then looked at the claim about the arrest of the First Applicant in 2012 and looked at all of that material, including cash receipts said to be from the Applicant’s brother and so on, and also took into account a letter signed by a former deputy minister and leader of the Democratic People’s Congress. 

36. At paragraph 78, the IAA said:

    78. Having regard to all the circumstances, including the evolution and implausibility of the first applicant’s claims regarding his arrest and the inconsistencies in the documents provided, I am not satisfied the applicants have been truthful witnesses in relation to these claims.  I do not accept the first applicant was arrested, detained and jailed by the Sri Lankan authorities for any reason in 2012.  As such I also do not accept he was subject to weekly reporting requirements.

37. The IAA then looked at how the family left Sri Lanka, because there was a claim that a friend of the First Applicant’s was paid some money and that, as it were, eased the way in which the First Applicant’s family was able to leave Sri Lanka.  The IAA looked at country information and did not accept what the Applicants were saying was a truthful account of how they left Sri Lanka.

38. The IAA looked at what had happened in Sri Lanka after the Applicants left and came to the conclusion that they did not accept there was credible evidence to substantiate the claims that the Sri Lankan authorities have also asked their family in Sri Lanka about the First Applicant’s brother, who was resident in Australia; nor did the IAA accept that there was any plausible connection between the First Applicant’s brother’s residence in Australia and the Applicant’s claim for protection.  The IAA was satisfied that this would not have any repercussions for the Applicants on return.

39. The IAA looked at what would happen to the Applicants if they were returned to Sri Lanka and was not satisfied that the Applicants would be imputed with any type of profile arising from their past or the family’s past circumstances on return to Sri Lanka. The IAA was not satisfied that, as returning Tamils, they would be perceived to have a pro-LTTE or pro-Tamil or anti-Sri Lankan Government political opinion.

40. The IAA then looked at what would happen to the Applicants coming back to Sri Lanka, having departed and sought asylum in Australia.  The IAA looked at all of the country information and came to the conclusion that they were not satisfied that the Applicants face a real chance of serious harm as Tamil asylum seekers who departed and are returning from Australia. 

41. The IAA came to a positive finding that they were satisfied that there was not a real chance of the Applicants facing serious harm from the Sri Lankan authorities or any other group or person on return to Sri Lanka.

42. Having made those findings, it was inevitable that the IAA found that the Applicants did not meet the definition of refugee. 

43. The IAA then considered complementary protection assessment criteria and came to the conclusion that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka that there was a real risk that they would suffer significant harm, and therefore affirmed the decision not to grant the protection visas.

44. The application now has two grounds.  The first ground is that:

    1. The IAA committed jurisdictional error because there was no logical pathway between the evidence relied upon and its finding that the Second Applicant’s brother, … (MA), was not associated with or a member of the LTTE.

45. It has been submitted that the finding of the brother not being a member of the LTTE is a key finding, because that finding then undercuts what it is that the Applicants say about their perceived view as to LTTE and also how they would be treated when they return to Sri Lanka.

46. The submissions were that the findings about MA were done on a number of bases.  That is, that it was, to use the words of the IAA, a claim that had evolved and, in a general sense, was not plausible.  What the IAA had said, as I have foreshadowed, really comes from paragraphs 40 to 46 of the reasons.  What is said is that the IAA has looked at this matter without a logical or rational pathway to get to the conclusion that it had.

47. There was argument back and forth between Bench and Bar as to whether there had been a positive finding.  It seems to me, when one analyses what has been said in paragraphs 40 to 46, there was no positive finding.  There was a finding that the Tribunal was not satisfied.  That is a totally different state of affairs to making a positive finding.

48. Nevertheless, the Applicants say that there was no rational foundation or pathway that would lead to a finding of non-satisfaction.  The matter with regard to evolution stems from what the Applicants had said at the interviews.  The submission is that the supposed inconsistency between both Applicants during the interview can be put down, when one looks at it, to the type of questions that were being asked.

49. The IAA noted that the First Applicant had said in the entry interview, that is, the one in June 2013, two months after he had arrived, that he had lots of trouble in Sri Lanka and that was because he said “my wife two brothers were with the Tamil Tigers..” and a number of other things.

50. There was a definite acknowledgement by the First Applicant that both brothers, that being, one would assume, JA and MA, were both with the Tamil Tigers.  Later in that interview he was asked about being arrested and taken to Court and asked why he was charged.  He answered that:

    The [sic] suspicious [sic] I was also involved in Tamil Tigers because of my wife’s brothers and that is the main reason they took me to court that I am also part of Tamil Tigers.

    He was asked:

    Is this the reason why you left Sri Lanka?

    He said:

    When they gaoled me and more questions about my wife’s brothers who were Tamil Tigers - they start harassing me all the time and that is what caused me to get out I was fear for my life.

51. There was a clear acknowledgement that the Applicant knew about the status of both JA and MA at the time that he was in Sri Lanka.  The Second Applicant in her interview was asked about siblings.  She talked about MA not being deceased but missing and then was asked:

    Briefly, why did you leave Sri Lanka?

    Answer:

    My husband has a lot of problems in 2009.  He was kidnapped and detained for nearly 25 days. 

    Question:

    Why?

    She said:

    I do not know the whole details - they kidnapped him. 

    Question:

    Has anything happened to you?

    She said she was threatened by the authorities when they came and asked for the husband.  Asked:

    What did they do to you?

    She answered that:

    the people who came – they had a white van they took my husband away – tied his eyes as well and told me to be careful in 2009.

    Question:

    Has anything recently happened to you? 

    She said:

    Last time when they put my husband in gaol we were scared and worried what will happen to us and we lived in fear.

    When she answered the question, “have you or any members of your family been associated or involved with any political group or organisation”, she ticked “No”.

    When she answered the question, “were you or any members of your family involved in any activities or protests against the government”, she ticked “No”.

    She was asked about her sibling JA.  And she said that he is deceased and that he was with the LTTE. 

52. The Applicants were interviewed by the delegate in 2017.  In that interview they claimed then that they did not know that MA was with the LTTE until after they had come to Australia and that they had been told that he is dead. 

53. The submission is made that the reliance upon what was said at the entry interviews is illogical, because the Applicants were not asked the same questions.  However, going through those interviews as I have, it illustrates that what the IAA said at paragraph 42 about the contrast between the two interviews of the husband and wife in June 2013 is not only open;  it is well and truly justified. 

54. The IAA said at paragraph 43:

    43. The applicants’ evidence is that they were unaware of MA’s involvement in the LTTE until after their arrival in Australia, however the inherent differences in the evidence provided about MA involvement in the LTTE by the first and second applicants at their entry interviews raises concerns about the credibility of this aspect of their claims. I find it difficult to accept that had the first applicant been told about MA’s involvement in the LTTE after his arrival in Australia that such significant information would not have also been communicated to the second applicant, who is the sister and immediate family member of MA and this information then provided by her at the entry interview.

1. As I have said, it is quite instructive, when one looks at both those interviews, that it is not a case of the First Applicant being asked about apples and the Second Applicant being asked about oranges.  One looks at both of those interviews, as they should, in proper context.  And it is very easy to see that this aspect of the IAA’s reasoning is both rational and logical. 

2. The complaint further talks of the IAA finding this, at paragraph 44:

   …I remain unconvinced that given their significant period of residence with MA that had these claims been true they would have been aware of MA’s involvement with the LTTE prior to their arrival in Australia.

3. The claim is that if the person, MA, was doing his job well, as an intelligence operative, that he would have worked in secrecy and so therefore the Applicants could not have known beforehand about that. 

4. Of course, the IAA has said that they remain unconvinced because they have taken into account all of the evidence.  The fact that the First Applicant in the interview with the delegate stated that they only knew that MA was working in the communications shop and had no idea that he was in the LTTE until they came to Australia does not sit well with what he said in that first interview.

5. The claim that they both made, that they believe MA may have joined the LTTE after learning that JA had been killed, was also considered, but given everything that had been said, the IAA was unconvinced. 

6. That finding of being unconvinced was certainly open on the evidence. 

7. In the end, it is for the Applicants to prove these matters.  All the IAA is saying is that the Applicants have not proved these matters.  There is nothing irrational or illogical about that finding.

8. Finally, it is said that paragraph 46 says:

   46. Having regard to all the evidence, including the evolution and plausibility, I am not satisfied….

   It is submitted that such a statement is a roll up and that the IAA has taken into account other factors in an amorphous way that is not able to be reviewed in any proper way.

9. I do not share that characterisation of what it is that paragraph 46 is saying.  Paragraph 46 is, really, summarising everything that has been said from paragraphs 40 to 45.

10. It does not seem to me that that phrase, “Having regard to all the evidence, I am not satisfied” does speak of an impermissible manner in which the IAA has gone about its duties.  Again, I stress that these were not positive findings.  They were findings of non-satisfaction.  Those findings are open on the evidence.  They are logical.  They are rational.

11. It seems to me then that Ground one does not display any jurisdictional error.

12. Ground Three has been amended somewhat, and I have given leave for that, ground two having been abandoned.  Ground Three is this:

    3. The IAA fell into jurisdictional error by failing to perform its statutory task in that it failed to review the applicant’s claim.

13. There are two aspects to this. 

14. Firstly, there was a - if one goes to the Court book, one sees a letter from the United Nations High Commission for Refugees.  The Applicants submit that the IAA has failed to properly consider that aspect in its claim.  The submission is that the letter from the UNHCR should be looked at in assessing the whole of the claims and not in the way in which the IAA has done so. 

15. Having dealt with it in such a perfunctory manner, the submission is that the IAA has failed to compete its statutory duty to review.

16. If one goes to what the IAA has said, especially paragraphs 61 and 62, it illustrates how the IAA has treated this evidence.  Paragraph 61:

    61. The first applicant claimed that while in Malaysia he overstayed his visa and was detained for three months by the Malaysian authorities and released with the assistance of the United Nations High Commissioner for Refugees (UNHCR). He also stated that while staying in Malaysia his father had passed away and the second applicant had expressed to him that she was having problems caring for their children who at the time were little. He stated that he thought that any problems he previously had in Sri Lanka were over and he decided to return to Sri Lanka.  He said that prior to departing Malaysia he had to pay an overstay fee before receiving his passport back. He then voluntarily returned to Sri Lanka by plane in 2012.  He stated that on return to Sri Lanka nothing happened to him at the airport and “they let me in”.  It was put to him that as nothing had happened to him on return it could indicate the Sri Lankan authorities had no interest in him at the time.  He stated “possibly”.

    62. I accept when in Malaysia the first applicant overstayed his visa and was detained by the Malaysian authorities.  I accept the first applicant was taken to a detention centre where he was held for three months before being released with the assistance of UNHCR.  I accept that the first applicant registered with the UNHCR as an asylum seeker.  The first applicant’s evidence regarding these aspects of his claim has been generally consistent and further substantiated by the UNHCR letter which is independent evidence which bears the name and photograph of the first applicant.

17. In my view, that shows that the IAA has treated the letter from the UNHCR in a proper way.  It has looked at the claim as to what occurred in Malaysia and has come to the conclusion that the First Applicant was generally consistent. The letter corroborated what it was that he was saying had occurred in Malaysia. 

18. It seems to me that the letter can do no more than that.  And at its highest, it has achieved what it was that it set out to do, and that is to corroborate part of those claims.  There is no further use that that letter could have in the assessment of the claims.  This is confirmed at paragraph 63, where the IAA said:

    63. I also accept after paying an overstay fee in Malaysia the first applicant voluntarily returned to Sri Lanka…

19. That was as far as that letter could have gone.  I should say that the submission was that the IAA had to decide whether the evidence was fabricated or otherwise not genuine or find that the evidence was irrelevant or, if it did neither of those two things, had to deal with it, and it has not done so. 

20. With regard to that submission – I reject it.  I am of the view, as I have said, that the IAA did give it the appropriate weight, for the reasons in paragraph 62, and that it was properly used in the assessment of the Applicants’ claims. 

21. The letter of 23 January is reproduced in the court book at page 267.

22. The letter on the letterhead from a person, PG, former Deputy Minister, Leader, Democratic People’s Congress, was dated 23 January 2017.  It read:

    TO WHOM IT MAY CONCERN

    I like to certify that I have been knowing XXXXX X Holding N.I.C No. 741540592X and his sister, family for long period.  I came to know that he and his family including sister are seeking asylum in Australia.  When he was in Sri Lanka he faced lot of Security Problem. 

    In this situation if he come back to Sri Lanka definitely he will have unnecessary security problem for his life.

    Thanking you

    Yours Truly

23. The submission is that the IAA made no findings that the letter was not genuine but has given the letter no weight and, in effect, dismissed the letter at the threshold in the absence of valid reasons.  The submission is that, as a result, the IAA has failed to evaluate the letter’s contents, which prima facie provide support for the applicant’s claims. 

24. What the IAA has said about the letter is this, in paragraph 77:

    I have also considered the reference letter signed by PG, a former Deputy Minister and leader of the Democratic People’s Congress.  The letter is dated 23 January 2017.  The first applicant was asked how he knew PG.  He stated that he had voted for him and when he had faced problems with the Sri Lankan authorities including when he was in jail they would go to him and he would help.  He was asked whether he had a personal association with this person, he stated “no personal relationship always helped us”. The letter is brief.  It states the first applicants name and national identity card number and that he has known the applicants “for a long period”. It does not provide a timeframe.  It states the first applicant has “faced a lot of security problems...he will have unnecessary security problem for his life” if he returns to Sri Lanka.  The letter gives no detail of the nature of such problems and is extremely general in nature.  I am not satisfied the author had any personal knowledge of the applicant’s claimed experiences, and given the brevity of its contents, I do not accept it corroborates the applicant’s claims.

25. The problem with the ground is that it has made almost an assumption that there has been a positive finding that there is something wrong with the letter. 

26. What the IAA has said is simply that it is not satisfied that the author had any personal knowledge of the Applicant’s claimed experiences and, given the brevity of the contents, does not accept that it corroborates the Applicant’s claim.  That is something that is well and truly open on the evidence, and when one looks at the letter, such a finding is a proper disposition as to what worth that letter has.

27. That is not to say that any other decision-maker would have come to exactly the same view, but that is not the test.  The test really is whether or not, when one looks at that, has there been an intellectual process as to what use that letter can have in furthering the claims.  The IAA did not accept that the author actually did have personal knowledge of the Applicant, and that is a conclusion that was open to the IAA.

28. I do not find, then, that the way in which that letter has been treated by the IAA, has meant that the IAA has failed to complete its statutory duty to review. 

29. Therefore, I do not find that ground 3, as amended, illustrates any jurisdictional error. 

30. Having looked at all of the material, I am satisfied that the decision of the IAA has not been affected by jurisdictional error.

I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 17 April 2019