AXP20 v Minister for Immigration and Anor

[2020] FCCA 2967

FEDERAL CIRCUIT COURT OF AUSTRALIA

AXP20 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2967

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to take into account integers of the applicant’s claim – whether the Authority made a decision so illogical or unreasonable that no reasonable person would have made it – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DC, 477

Applicant: AXP20

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 507 of 2020

Judgment of: Judge Street

Hearing date: 2 November 2020

Date of Last Submission: 2 November 2020

Delivered at: Sydney

Delivered on: 2 November 2020

REPRESENTATION

Counsel for the Applicant: Mr P Bodisco

Solicitors for the Applicant: Abu Legal

Solicitors for the Respondents: Mr L Dennis, MinterEllison

ORDERS

1. Leave is granted to the applicant to rely upon the amended application filed on 29 October 2020.

2. The applicant’s affidavit dated 2 November 2020 be filed on or before 4:00pm on 6 November 2020.

3. The amended application for an extension of time under s 477 of the Migration Act 1958 (Cth) is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $3,737.00.

DATE OF ORDER: 2 November 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 507 of 2020

AXP20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an extension of time under s 477 of the Migration Act 1958 (Cth) for the bringing of proceedings seeking a writ in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act, made on 6 February 2019, affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Safe Haven Enterprise visa. 

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

3. The applicant arrived in Australia as an unauthorised maritime arrival on 5 May 2013.

4. The applicant claimed to fear harm from the Sri Lankan authorities because he is a Tamil, and because of alleged involvement with the Liberation Tigers of Tamil Eelam (“LTTE”), and by reason of being a failed asylum seeker who left Sri Lanka illegally. 

5. On 9 November 2018 the Delegate found that the applicant failed to meet the criteria for the grant of the Safe Haven Enterprise visa. The Authority wrote to the applicant on 15 November 2018 explaining that the application had been referred to the Authority for review, and provided an attached factsheet and Practice Direction, giving the applicant an opportunity to put on new information and submissions. No such documents were filed.

6. The Authority identified the background to the visa application and had regard to the material given by the Secretary under s 473CB of the Act. 

7. The Authority identified that the applicant is a Tamil Hindu born in a particular district in the Eastern Province, and that he moved to another particular district of the Eastern Province shortly after he was born. 

8. The Authority summarised the applicant’s history in relation to being a van driver, and referred to an incident in 2006 when the applicant alleges that he was transporting people and was captured and tortured at an army camp, and then he was released, and he returned home.

9. The applicant had identified a further incident, which the Authority referred to, a couple of weeks later involving the Sri Lankan Army (“SLA”) coming to his home looking for him, and that he was allegedly hung upside down from a tree, threatened and beaten, causing scars on his legs, and that he was accused of transporting goods for the LTTE, and that his wife was raped in front of him. 

10. The applicant claimed that he feared death and torture from the SLA, and in 2007 departed Sri Lanka illegally. 

11. The Authority identified the relevant law.

12. The Authority identified that there are significant inconsistencies between the information the applicant provided during his Arrival interview, the information in his statement of claim submitted with his Safe Haven Enterprise visa interview, and the evidence he gave at the Safe Haven Enterprise visa interview. The Authority identified that this gave rise to credibility concerns. 

13. The Authority referred to having listened to the Safe Haven Enterprise visa interview recording and noted that the applicant confirmed at the interview that he could hear and understand the interpreter.

14. The Authority referred to the applicant responding without hesitation, providing cogent responses to the questions asked through the interpreter, and the Authority found that the applicant was able to engage appropriately during that interview. Taking into account those circumstances, including that the applicant may have felt distressed, the Authority was satisfied that the applicant was given an opportunity to present his claim and did not accept that the manner in which the interview was conducted prevented the applicant from doing so.

15. The Authority specifically referred to the applicant’s mental health and noted that no medical evidence had been provided to support the applicant’s suffering from some mental health condition, or that he is currently receiving treatment for such a condition, and the Authority did not accept that he suffers from a mental condition. 

16. The Authority summarised what occurred during the Arrival interview. 

17. The Authority made reference to the Safe Haven Visa application. The Authority found the applicant’s claimed history in relation to his departure from a particular area after a purported incident, leaving his family at risk, to be entirely implausible. The Authority also found it implausible that he would not also have mentioned the relevant incident in relation to being mistreated by the authorities. The Authority found the applicant’s claims in relation to a particular incident to be generalised, vague and unconvincing, and did not accept that the applicant transported goods for the LTTE at that time, or was questioned and mistreated as claimed. 

18. The Authority referred to the applicant identifying an incident in his statement of claims, which was noted during the Arrival interview, that he was driving and transporting people to a particular location and that the SLA accused him of transporting LTTE goods. The Authority noted that the applicant had provided a distinctly different account of the events of the 2006 incident at the Safe Haven Enterprise visa interview, and that he said he was released from the SLA camp at a particular time, and the applicant claimed he did not go back out of fear until the next night. 

19. The Authority referred to the incident described in the applicant’s statement of claims and his explanation as to why he did not provide all the information in his Arrival interview. The Authority found that if the applicant had genuinely been of interest to the Sri Lankan authorities he would never have been released on the first occasion in 2006, and no amount of pleading by his wife could have dissuaded them from taking him to a particular camp.

20. The Authority referred to the applicant’s evidence at the Safe Haven Enterprise visa interview as lacking in detail and being generalised, vague and unconvincing. The Authority found that the applicant had significantly embellished his account of these events over time to include repeated questioning and harassment by the Sri Lankan authorities, and the alleged rape of his wife, and going into hiding.

21. The Authority was prepared to accept that the applicant was stopped by the SLA in 2006 whilst driving between two particular locations, and that he was interrogated and mistreated at that time. The Authority did not, however, accept that the Sri Lankan authorities visited the applicant or his wife at home after that detention, or that he was beaten, or his wife beaten or raped, at that time, or that the applicant went into hiding as a result of those events. The Authority was not satisfied that the applicant was of adverse interest to the Sri Lankan authorities prior to his departure from Sri Lanka. 

22. The Authority identified that the applicant continued to have contact with his sister, and possibly other family members, and did not accept the applicant lost contact with his family after he moved to a particular location in 1997.

23. The Authority did not accept that the applicant is at risk of harm for reason of having been in prison in relation to an assault incident in Australia. 

24. The Authority did not accept that the applicant worked directly for the LTTE or had any involvement with the LTTE. The Authority took into account that the applicant did not indicate that any family members were ever LTTE members or that any family members had involvement with the LTTE. The Authority found that, other than being detained and mistreated in 2006 on one occasion on suspicion of involvement with the LTTE, the applicant was not of adverse interest to the Sri Lankan authorities, and was not charged or taken to Court, and was not further detained or imprisoned, including under the Emergency Regulations.

25. The Authority was satisfied that the risk of torture from military and intelligence forces has decreased since the end of the civil conflict, and found that the risk to the applicant, with his history and profile, of being tortured in Sri Lanka or suffering a white van abduction, to be remote.

26. The Authority referred to the applicant claiming to have scars on his body resulting from being mistreated during interrogations by the Sri Lankan authorities. The Authority noted that there was no medical evidence to support the scarring being consistent with torture. The Authority accepted that the applicant was mistreated by the SLA during an interrogation in 2006, and was prepared to accept that the applicant has some scarring.  The Authority referred to the country information and, in particular, the Department of Foreign Affairs and Trade (“DFAT”) being unaware of people being detained because of scarring. The Authority did not consider that there is evidence to support the applicant having scarring that will lead to adverse attention from Sri Lankan authorities on his return, or that he is at risk of harm as a result.

27. The Authority was not satisfied that the applicant faced a real chance of harm on return to Sri Lanka as a result of a data breach. The Authority referred to the applicant having sought asylum and did not accept that this gives rise to a real chance of serious harm for the applicant. 

28. The Authority found that the applicant did not have a well-founded fear of persecution, and found that the applicant did not meet the criteria of the definition of refugee in s 5H (1) of the Act, and that the applicant did not meet the criteria in s 36(2)(a) of the Act.

29. The Authority found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, there is a real risk that the applicant would suffer significant harm. The Authority found that the applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review.

Before the Court

1. The amended application meets the requirements of s 477 of the Act insofar as seeking an extension of time under the relevant provision.  The delay in the present case is substantial. It was 356 days outside the relevant time period. The explanation for that delay is one which refers to the applicant’s indigent circumstances and being unable to obtain legal assistance. It is apparent that the applicant had a period of imprisonment, and that the applicant has advanced also some evidence concerning having sought some counselling, as well as a reference in that regard to a vision impairment, and it can be accepted that the applicant may have had language difficulties insofar as the making of an application within the relevant time period.

2. Notwithstanding Mr Bodisco’s submissions in that regard, the Court does not regard the explanation for the delay as satisfactory; however, the more relevant issue is, at an impressionistic level, the merits of the grounds in the amended application. 

3. There are two grounds in the amended application, and they are as follows:

   GROUND ONE:

   The IAA has failed to take into account the full integers of the Applicant’s claim.

   Particulars

   The IAA has failed to take into account the full integers of the Applicant’s claim, namely that he was tortured – and scarred on his legs – during an incident where he was hanged upside down on a tree and his wife was raped.

   GROUND TWO:

   The IAA has made a decision so illogical or unreasonable that no reasonable person would have made it.

   Particulars

   The IAA, in failing to provide an intelligible reason as to why section 473DC of the Migration Act was not utilized in order to consider the specific scars on the leg of the Applicant, has made a decision so illogical or unreasonable that reasonable person would have made it.

Ground 1

1. Mr Bodisco took the Court to the court book and the applicant’s reference to the scarring that he wanted to show in relation to an incident in 2006 where the army tortured him and his wife. That was a response to a question 75 on an arrival form that had also identified, in question 32, an incident described by the applicant where he alleged the army, after he had been driving, came to his home and brought him to where there is a big tree close to his house, and that they beat him under the tree, and that he still has the scars. The applicant also alleged that his wife was beaten in the record of the unauthorised maritime arrival and induction interview. 

2. Mr Bodisco also took the Court to the applicant’s statement in support of his Safe Haven protection claims and the work he performed as a driver, in particular, identified commencing in paragraph 9, which he continued, as identified in paragraph 11, up until 2007.  The statement in paragraph 11 refers to an incident in a truck and the applicant being accused of transporting goods, and being captured and tortured at a camp, and that he was released after around four hours, and that he returned home, and did not drive that route for some time.

3. The statement then alleged that a couple of weeks later, after the applicant had been tortured and released, the army came to his home looking for him, and that the army tortured him again, and made reference to him being hung up on a tree and being beaten, and still having the scars on his legs, and his wife allegedly being raped. 

4. Mr Bodisco submitted that there was an integer of the applicant’s claims that had not been the subject of determination in the reasoning of the Authority, and took the Court in that regard to the Authority’s reasons, in particular at paragraphs 15 and 23.

5. Mr Bodisco submitted that the scars on the legs were alleged to have been corroborative of the incident in 2006, and that the Authority, in substance, had failed to make a finding in relation to that corroborative evidence in respect of the applicant’s claims.

6. It is apparent from the Authority’s summary of the incidents that the Authority fully appreciated the two different events in 2006, and the second event advanced by the applicant in respect of the authorities coming to his home, and made an adverse finding rejecting the applicant’s claims in respect of the incident giving rise to his alleged scarring on his legs in 2006.

7. There was no integer of the applicant’s claims that the Authority, on the face of the Authority’s reasons, failed to consider. No arguable case of relevant error is disclosed by ground 1. 

Ground 2

1. In relation to ground 2, Mr Bodisco focused on the Authority’s reference in paragraph 23 to the generalised acceptance of the applicant having scarring, and submitted in the circumstance of the present case, where the applicant had wanted to show his scars at the time of the Safe Haven Enterprise visa interview, that because of the potential corroborative impact of the scars on the applicant’s claims, it was legally unreasonable for the Authority not to have taken steps under s473DC of the Act to obtain information in respect of the specific scars on the applicant’s legs.

2. In circumstances where the Authority had made an adverse finding in respect of the incident, having correctly identified the applicant alleging the sustaining of scarring from that incident, that it was rejected by the Authority, it cannot be said that there is not an evident and intelligible justification as to why the Authority did not expressly consider or take steps under s 473DC of the Act. 

3. Further, in circumstances where the Authority was prepared to accept that the applicant was mistreated when he was detained in 2006 whilst driving, and where the Authority was prepared to accept, in its reasons, that the applicant has some scarring, again it cannot be said that the absence of express consideration under s 473DC of the Act in respect of obtaining photographs concerning the applicant’s scars lacks an evident and intelligible justification.

4. No arguable case of relevant error under ground 2 is disclosed. 

5. The Court finds, at an impressionistic level, that the grounds of the amended application lack sufficient merit to warrant an extension of time under s 477 of the Act. 

6. The Court, taking into account the unsatisfactory explanation for the delay in the bringing of the application and the insufficient merit of the substantive application, is not satisfied it is necessary in the interests of the administration of justice to make an order extending time under s 477 of the Act. 

I certify that the preceding forty-five (45) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 2 November 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 27 November 2020