BAO18 v Minister for Home Affairs

[2018] FCCA 2347

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAO18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 2347

Catchwords:
MIGRATION – Safe haven enterprise visa – SHEV – allegation of translation error – alleged error not raised before Delegate or Authority – no error established.

Legislation:

Migration Act 1958 (Cth), ss.5J, 65, 473DB, 473DC, 476

Cases cited:

Minister for Immigration v CZJSS & Ors [2010] HCA 48; (2010) 243 CLR 164

Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611
SZSHV v Minister for Immigration [2014] FCA 253

Applicant: BAO18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 563 of 2018

Judgment of: Judge Baird

Hearing dates:

28 June 2018

15 August 2018

Date of Last Submission: 15 August 2018

Delivered at: Sydney

Delivered on: 15 August 2018

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr N Swan

Solicitors for the Respondent: Mills Oakley

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,600.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 563 of 2018

BAO18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore, revised from transcript)  

1. This is an application pursuant to s.476(1) of the Migration Act 1958 (Cth) for judicial review of a decision of the Immigration Assessment Authority dated 7 February 2018.  The Authority affirmed a decision of a Delegate of the First Respondent to refuse to grant the Applicant a Class XE (subclass 790) Safe Haven Enterprise Visa.

2. The Applicant is a Tamil from Trincomalee District, Eastern Provence, Sri Lanka.  He arrived in Australia on 3 November 2012 as an unauthorised maritime arrival.  He appears to have first arrived at Cocos Island, but was transferred to Christmas Island Immigration Detention Centre, and subsequently had an interview at the detention centre at Wickham Point in the Northern Territory. 

3. On 3 March 2016 he lodged a valid application for the Visa.  His Visa application was made with the assistance of a solicitor and registered migration agent, and accompanying that application was a number of documents, including a letter from the Human Rights Commission of Sri Lanka (HRCSL) recording that a complaint had been made to the HRCSL on 19 January 2011.  It is not in dispute that the complaint was made by written letter purporting to be from the Applicant’s mother.  A translation of the letter of complaint, dated 19 January 2011, from Tamil to English by a qualified translator, was before the Delegate and the Authority. 

4. On 6 February 2017, the Delegate refused the Visa application on the basis that the Applicant did not face a real chance of serious harm, or a real risk of significant harm, upon return to Sri Lanka.  On 7 August 2017, the Authority affirmed the decision not to grant the Visa. 

5. On 17 November 2017, by consent, a judge of this Court remitted the matter to the Authority for decision.  The Authority, differently constituted, affirmed the decision of the Delegate on 7 February 2018.  On 5 March 2018, the Applicant applied to this Court. 

The Applicant’s claims

1. The Applicant’s 3 grounds of judicial review are set out in the application and are as follows:

   Ground 1

   The IAA failed to consider an important document (HRCSL letter) that the Applicant relied upon

   Particulars

   ·The Applicant's mother wrote to the HRCSL regarding threats to the Applicant.

   ·The IAA's reasoning at [19] was unreasonable when it disregarded this evidence

   ·The IAA failed to consider that "unknown persons" was a reference to the Sri Lankan authorities who were pursuing the Applicant [19].

   Ground 2

   The IAA's decision is affected with legal error

   Particulars

   ·The IAA concludes that the Applicant "was not recalling a genuine personal experience" regarding the circumstances that caused him to depart Sri Lanka [21].

   ·The IAA's finding referred at [21] required an assessment that was partly based on the Applicant's behaviour during an interview.

   ·The IAA could not have stated that the Applicant was not recalling a genuine personal experience as the IAA did not interview the Applicant.  

   ·This assessment could not have been made without interviewing the Applicant because the way the Applicant behaves during an interview (his demeanour) would be relevant.

   Ground 3

   The IAA committed legal error at [25], it failed to consider that one of the essential reasons for the Applicant's vulnerability was due to his past experiences.

   Particulars

   ·The Applicant was sexually assaulted in the past.

   ·The IAA assesses future harm the Applicant would face - if he would be sexually assaulted in the future.

   ·However the IAA did not consider that because the Applicant was sexually assaulted in the past there was a real chance of a similar incident happening in the future.

   ·The Authority considered everything else other than the fact he was a victim of sexual assault when assessing future harm due to the Applicant being a vulnerable client.

1. The matters raised by the Applicant in support of his application for Visa have been summarised in the Minister’s written submissions, which I have put to the Applicant today, and which he has agreed are correct.  They are as follows:  

   (a)he is of Tamil ethnicity and a Hindu;

   (b)he was born in [redacted], an LTTE controlled village, and lived there until April 2006. Several villagers died during the war between the LTTE and the Sri Lankan authorities;

   (c)he was not an LTTE member himself, but he is perceived to be an LTTE member because of where he grew up;

   (d)in 2006, the Applicant and his family fled to a refugee camp in Trincomalee. There, he was tortured and sexually assaulted. He subsequently fled the camp and stayed nearby. He would visit the camp occasionally to see his parents, and was targeted by the authorities when he returned to the camp;

   (e)the Applicant fled to Australia. Since his arrival in Australia, he has heard that the Sri Lankan authorities have continued to search for him;

   (f)he has visible scarring from a shell attack;

   (g)as the Applicant had previously been the victim of a sexual assault, the Sri Lankan authorities may look to him for further sexual favours, and he may be socially ostracised if information about the past attacks became public;

   (h)if he returns to Sri Lanka, he would be imprisoned because he is perceived to be an LTTE member and because he departed Sri Lanka illegally.

The Authority’s decision

1. The Authority commenced its decision by setting out the information that was before it. It noted that the Applicant had provided a letter, dated 5 February 2017, from the Applicant’s father. The Authority considered that the letter amounted to new information. The Authority may only have regard to new information where it considers exceptional circumstances exist: at [5]. Given that the new information was said to have occurred a day after the Delegate made his/her decision, the Authority considered that exceptional circumstances did exist, and had regard to the letter: at [6].

2. The Authority accepted the Applicant’s claim to be of Tamil ethnicity, and that while growing up his family was affected by civil war. It accepted that persons from his village died, and it also accepted that he and his family located to a refugee camp in 2006: at [14]. The Authority, however, found that the Applicant’s evidence about events leading to his departure from Sri Lanka to be inconsistent and unconvincing. In particular, the Authority identified inconsistencies in his evidence presented at different times that undermined the credibility of the Applicant’s claims. Commencing at [16]–[20], the Authority set out these inconsistencies.

3. Firstly, the Authority observed inconsistencies in the Applicant’s evidence as to why he was being pursued by Sri Lankan authorities between 2006 and 2012: at [16].

4. Secondly, it found inconsistency in his evidence as to the difficulties he faced in the refugee camp: at [17].

5. Thirdly, that his evidence was “vague and inconsistent” regarding his interactions with the authorities after he stopped living in the camp: at [18].

6. Fourthly, it found that there were inconsistencies in his evidence as to what he was doing in the years leading up to his departure from Sri Lanka in 2012: at [20].

7. It also expressed concern about a letter allegedly written by the Applicant’s mother to the HRCSL, to which letter I have already adverted to and will come to again.  It expressed concern in relation to this letter because it contradicted at least four aspects of the Applicant’s own evidence.  At [19], it set out these concerns as follows:

   [19] I am not satisfied that the applicant was involved with the LTTE. I am not satisfied that there is any familial link to the LTTE. I am not satisfied that the applicant was sought by, or under the suspicion of the Sri Lankan authorities after 2006. I do not consider that the applicant would now be imputed to hold pro- LTTE opinions, or be suspected of having been involved with the LTTE himself. I am not satisfied that the applicant would be placed on any watch list, “stop list” or be of any interest to the Sri Lankan authorities. On the evidence before me I find there is no real chance of the applicant being harmed by the Sri Lankan authorities or any other group or person on the reason of his scarring or on the basis of being a young Tamil male from a former LTTE controlled area now or in the reasonably foreseeable future.

8. At [21] the Authority stated that, considered cumulatively, the difficulties with the Applicant’s evidence, led it to “conclude that the Applicant was not recalling a genuine personal experience in relation to his circumstances and the events that he claims led to his decision to leave Sri Lanka”.  It summarised these as follows:

   As noted above, there were inconsistencies in the applicant’s evidence as to why he was a person of interest to the Sri Lankan authorities, the interactions he had with the authorities both while residing at the IDP camp and after he left the camp, the reason why he stopped visiting his parents at the IDP camp, and what he was doing between 2009 and 2012. I also find the applicant’s mother’s letter to the HRCSL in 2011 not supportive of his claims that he was being pursued by the Sri Lankan authorities from 2006, or that his mother still resided in the IDP camp as recently as 2016. In light of the evidence discussed and due to the prevalence of document fraud in Sri Lanka I give this letter and the documents purportedly issued by the HRCSL no weight. I also find the applicant’s inconsistent evidence as to his employment circumstances since 2009 not insignificant.

9. As is apparent from [21], the Authority also gave the letter to the HRCSL, and documents purportedly issued by it, no weight. 

10. At [22] the Authority expressed concerns about the letter from the Applicant’s father, dated 5 February 2017, and gave it no weight as evidence that the Applicant was a person of adverse interest to the Sri Lankan authorities. 

11. At [23], the Authority accepted certain aspects of the Applicant’s evidence, but did not accept other aspects of the evidence set out at [23].

12. The Authority continued identifying the matters it was not satisfied with through [23], [25], [31] to [32], [33] to [37], [40] and [41], and concluded at [42] and [43] that in light of its findings. it was not satisfied that the Applicant had a well-founded fear of persecution within the meaning of s.5J of the Act, and hence he did not satisfy section 36(2)(a) of the Act.

13. In its complementary protection assessment, relying on its earlier findings, the Authority was not satisfied that the Applicant’s circumstances individually or cumulatively gave rise to a real risk of significant harm: at [50]. Accordingly, the Authority was not satisfied that the Applicant met the criteria in section 36(2)(aa) of the Act: at [51].

Proceeding in this Court

1. The Applicant appeared unrepresented with the assistance of a Tamil interpreter.  The Minister was represented by Mr Nicholas Swan of counsel.  At the commencement of the hearing today, I explained to the Applicant the consequences that would flow if a costs order was made against him.  He confirmed that he wished to proceed with the hearing.  I also confirmed with the Applicant that he wished to proceed with grounds 1 to 3 of his application and he said that, “yes, yes”, he did. 

2. The Applicant did not tender any evidence.  He did however rely on submissions comprising 6 paragraphs he filed on 25 June 2018.  The submissions are as follows (names anonymised):

   1.The IAA made a legal error at [CB241,19].

   2.The IAA states that it had concerns regarding a letter written by my mother to the Human Rights Commission (HRCSL) in January 2011 because in this letter my mother refers to "[Nickname]" who is referred to in the English Translation as my "step-brother" [CB 89].

   3.At the Entry interview at CB 12, I responded to a question put to me, I stated "They would come and ask me questions. They would come and ask me about [proper name], my cousin because he has some problems"

   4.I wish to state that the IAA failed to consider my response as recorded in the Entry Interview before it chose to draw a negative inference at [CB241,19] regarding my mother's letter to the HRCSL letter.

   5.The Sri Lankan Translator appears to have made an error at [CB 89] when he translated the word "cousin". When considering all the information and material before the IAA it was so unreasonable to draw a negative inference on the basis of a translation error contained in the translation.

   6.The IAA fell into legal error as it failed to consider the claim I raised at the entry interview concerning [proper name] which is whom my mother refers to in her letter of January 2011 and refers to him as [Nickname].

3. The Applicant submitted, as is clear from the written six paragraphs of the submission above, that the letter purportedly from his mother was an incorrect translation where it refers to [Nickname] as the Applicant’s “stepbrother”.  The Applicant submitted that the correct translation would be “was his mother’s oldest sister’s son.” 

4. The Applicant submitted that at the immigration detention centre interview he had clearly indicated that [Nickname] was his mother’s oldest sister’s son.  In response to a question I put to him as to what did the Applicant call this relative, the Applicant said, “I call him older brother.”  A copy of the English translation of the letter referred to in the Authority’s decision at [19] is contained in the court book in evidence. 

5. The letter is as follows:

   I [Applicant’s mother] of the above said address beg to state that my son is [Applicant] and his National identity Card no. [number], Past few days a group of unknown persons came to our house and inquired the whereabouts of his step brother [Nickname]. I said he is not here. Then they asked ‘Where is [Applicant]? I Said ‘he is my son and hi is not here. They were shouted at me with bad words and asked me ‘Are you from [village] area? And Said “we have to inquire your son. You must handover him otherwise you have to pay money for us and if you refuse to do this we have to send him inside under terrorist stamp”.  Strictly said and went out I thought that if my son [Applicant] stays in house it is danger for his life and as such I kept him hiding in our relatives house. As a mother I and my Family are in fear. I think about the life threatening and security of my son [Applicant] and as such I am placing this complaint to you.

6. There was no original Tamil letter in evidence in the court book; however, Mr Swan’s instructing solicitor, was able to obtain a copy of what purports to be a Tamil letter under the same HRCSL reference, and date stamped 19 January 2011.  It is identified as a true copy by Glory Francis, the regional coordinator, Human Rights Commission of Sri Lanka, Trincomalee.  The letter was tendered into evidence. 

7. It appears from the HRCSL reference, which is the same reference as the translated letter in evidence, and from the HRCSL’s cover letter, and from the identification of the regional coordinator, Glory Francis, on each of the HRCSL cover letter, the translation, and the letter in Tamil, that all 3 documents were submitted as part of the Applicant’s original application for a SHEV Visa. 

8. There is no evidence before me that there is any error in the translation.  I note that the translation is stated to be a true copy, and is translated by a sworn translator from Tamil to English as stamped and signed.  The inference is available to me, and, in the absence of any other material, I find, that the English translation is a true copy of the letter translated from Tamil to English. 

9. I drew the Applicant’s attention to the 3 written grounds in the application and invited the Applicant to make any oral submissions he wished on those three written grounds.  He said to me that he had nothing to add. 

Consideration of ground 1

1. Turning first to the written submissions provided to me by the Applicant and ground 1 of the application, I do not have before me any evidence of an incorrect translation in relation to the Tamil original and English translation of the letter that was referred to by the Authority at [19] of the Authority’s decision. 

2. There is no proof that there is an error in the English translation, merely a submission by the Applicant.  There was no complaint made regarding the quality of translation in this respect, namely, that the letter refers to [Nickname] in translation as stepbrother rather than as cousin.  It is one of the Applicant’s own documents, and the Applicant should have been aware of any error of translation and drawn attention to it before the Delegate. 

3. I say this in particular because the letter, at least in translation, and I infer in the original, was amongst the documents submitted by the Applicant’s registered migration agent with his Visa application.  Further, the Delegate drew attention to the letter, as is apparent from the Delegate’s decision, where the Delegate says:

   The applicant was asked about the HRCSL Complaint Letter during his SHEV interview. The applicant was asked why the HRCSL Complaint Letter would refer to the people looking for him as ‘unknown persons’. The applicant advised this was because the CID do not wear uniforms, but believed that no one other than the army or CID would do something like that. The applicant was then asked why, if the authorities had been regularly questioning his parents about his location since 2006, they would only make a complaint about this one incident in 2011. The applicant responded that his mum must have mistakenly written days instead of years. The applicant was also asked why, if the authorities kept looking for him after this, as claimed, his parents did not make another complaint to the HRCSL. The applicant responded that the HRCSL does not take complaints again and again, so one complaint is sufficient.

4. The Applicant did not raise anything about [Nickname] being his cousin and not his stepbrother.  Even if I was to accept that the reference to the stepbrother is incorrect, the Authority’s assessment of the Applicant’s evidence as unconvincing, and with inconsistencies, and commencing at [16]–[18] and [20], identified inconsistencies and vagueness, about which the Applicant does not allege there are any errors.  In relation to the letter which is alleged to have a translation error, [19] of the Authority’s decision records that the Authority had more difficulties with the letter than the inconsistency between identification of [Nickname] as a stepbrother or as a cousin. 

1. Those other difficulties with the letter set out at [19] are unrelated to the question of a relationship of [Nickname] with the Applicant being either as a stepbrother or a cousin, and the Authority’s reference to the inconsistencies in the description of [Nickname] as a stepbrother when the Applicant did not claim to have a brother or stepbrother called [Nickname], was not an operative concern of the Authority in its conclusion at [21] that it would not give weight to the letter. 

2. I note at [21] the findings of the Authority that the Applicant’s mother’s letter to the HRCSL in 2011 was not supportive of his claims that he was being pursued by the Sri Lankan authorities from 2006, or that his mother still resided in the IDP camp as recently as 2016.  It was open to the Authority on the basis of those inconsistencies and due to its reliance on the country information as to the prevalence of document fraud in Sri Lanka to give the letter and the documents purportedly issued by HRCSL no weight. 

3. I find that both the Delegate and the Authority were entitled to proceed on the basis of the translation of the letter of 19 January 2011 and that the assessment of the letter in translation is for the Authority alone.  Even if the translation had an error, the time to raise that error was before the Delegate or the Authority.  It was open to the Applicant to have submitted to the Authority that the reference to [Nickname] as stepbrother was a mistranslation or an error, but the Applicant never did so, notwithstanding that the Applicant made submissions as to other matters he said were factual errors from his mother.  In any event, the question of the relationship of [Nickname] to the Applicant was not material in the Authority’s decision in placing no weight on the letter. 

4. Ground 1 otherwise, makes criticisms concerning the HRCSL letter.  It is apparent from [19] of the decision of the Authority that it did consider the letter, and it considered the evidence of the letter and inconsistent evidence from the Applicant.  It was open to the Authority on the evidence before it to place no weight on the letter, and it was open to the Authority to consider that the claim being pursued by unknown persons within the past few days was, as stated on the face of the letter, a reference to unknown persons, and not to the Sri Lankan authorities.

5. Contrary to the particulars of ground 1, the Authority was entitled to reach its findings at [21], that the Applicant’s mother’s letter to the HRCSL in 2011 did not support the Applicant’s claims of pursuit by the Sri Lankan authorities from 2006.  The attribution of weight to any particular evidence is for the Authority alone: Minister for Immigration v CZJSS & Ors [2010] HCA 48; (2010) 243 CLR 164 at [33].

6. Given the matters identified at [19], and the other inconsistencies identified at [16]–[20] of its decision, I find that the Authority’s conclusions about that letter were rational and logical.  A rational and logical decision maker could have shared the same concerns on the basis of the material that was before the Authority: see Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131], [135] per Crennan and Bell JJ, and Hayden J at [78].

7. The Applicant’s description of the Authority’s reasoning as “unreasonable” is no more than an expression of his disagreement with the conclusions reached.  This does not show jurisdictional error.  I conclude that ground 1 is not made out.

Consideration of ground 2

1. This ground alleges that the Authority’s decision is “affected with legal error.”  The Applicant seeks to impugn the Authority’s finding at [21] relevant to his credibility.  Credibility findings can be based on inconsistencies or aspects of the evidence, other than demeanour.  Here, the Authority has reached its findings based on the unconvincing nature of the Applicant’s evidence, and in particular, the cumulative effect of the inconsistencies the Authority identified in the Applicant’s evidence which it summarises at [15], and then sets out at [16]–[20].

2. The Authority has identified the inconsistencies in a detailed and cogent manner.  It explains how those inconsistencies lead to the Authority’s findings.  The Applicant does not, aside from the reference to the characterisation of [Nickname], allege any error by the Authority in respect of any of the inconsistencies identified.

3. It was not necessary for the Authority to interview the Applicant before reaching its finding.   The operation of Part 7AA, subject to limited exceptions, is that the Authority must review a decision “on the papers”, and without accepting or requesting “new information or interviewing the referred applicant.”

4. The Applicant does not identify any particular matter that shows that it was legally unreasonable for the Authority not to exercise its discretion.  Whilst the Applicant in particulars to ground 2 does refer to the Applicant’s “demeanour” at an interview, and I infer that means an interview before the Authority, it is not clear, and no explanation has been offered, as why that would be relevant, especially given the nature of the review under Part 7AA, and the nature of the numerous inconsistencies in the evidence that has been given.

5. The Applicant’s demeanour was not critical to the Authority’s decision.  It is, as Flick J held in SZSHV v Minister for Immigration [2014] FCA 253 at [30], open to the Authority to reach credibility findings on inconsistencies in evidence. The Authority’s finding was not illogical: see SZMDS at [131] and [135]. It was not legally unreasonable not to invite the Applicant to an interview. I conclude that no jurisdictional error is established in respect of ground 2.

Consideration of ground 3

1. In relation to ground 3, the Applicant particularises his past sexual assault.  He appears to allege that the Authority failed to consider that there was a real chance of a similar incident happening in the future. 

2. At [25] of its decision, the Authority refers to verbal submissions made by the Applicant’s representative at the end of the SHEV interview in which the Applicant’s representative claimed that the Applicant is vulnerable to sexual assault due to his past experiences, his stature, and soft spoken demeanour.

3. The Authority did accept that the Applicant had been the victim of a sexual assault in 2006, and that he may have been sexually harassed in the workplace in Australia.  The Authority referred to country information regarding persons with certain profiles being at risk of sexual violence in Sri Lanka, but it was not satisfied that the Applicant had such a profile.

4. The Authority also observed that the Applicant did not claim that he faced any difficulty from the community or otherwise in Sri Lanka following his 2006 sexual assault, noting that he resided in Sri Lanka for a further 6 years after the assault in 2006.

5. The conclusion of the Authority at [25], that it was not satisfied that “the Applicant is vulnerable to, or faces a real chance of, being sexually assaulted if returned to Sri Lanka”, was open to it on its consideration of the evidence.  This finding is sufficient to dispose of the Applicant’s claim to fear harm on the basis that he was vulnerable to sexual assault on return to Sri Lanka.  Given the consideration the Authority sets out at [25], no jurisdictional error is shown in the Authority’s reasons, and ground 3 must be dismissed.

Conclusion and costs

1. I have concluded that the grounds of review are not established.  The Application should be dismissed.  

2. In relation to costs, I note that there was a previous appearance in this matter on 28 June 2018 at which it became apparent that the Applicant had been served with a court book which related to another proceeding in this Court.  Mr Swan on that occasion, properly apologised on behalf of the Minister, and clarified that the correct court book had been provided to the Applicant before the commencement of the hearing on 28 June 2018.  I confirmed that the Applicant had a correct copy of the court book at that hearing.  The matter was adjourned by consent to today. 

3. I note that Mr Swan has informed me that the Minister’s assessment of its costs excludes the costs of preparation and attendance on 28 June 2016.  The Minister seeks costs fixed in the amount of $5,600, which I note is below the scale applicable to this application.  I will so order. 

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Baird

Date: 3 September 2018