BBM18 v Minister for Home Affairs
[2018] FCCA 2032
•25 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BBM18 v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2032 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.5, 36, 473CB |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 AQN15 v Minister for Immigration & Anor [2016] FCCA 58 Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 NAFF v Minister for Immigration (2004) 221 CLR 1 Waterford v Commonwealth (1987) 163 CLR 54 WZATH v Minister for Immigration & Anor [2014] FCA 969 WZAVW v Minister for Immigration [2016] FCA 760 |
| Applicant: | BBM18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 581 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 25 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 25 July 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
INTERLOCUTORY ORDERS
To the extent that the applicant was identified by name in the transcript of proceedings, that name is not to appear on the transcript.
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 581 of 2018
| BBM18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 8 February 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
Background facts relating to the applicant’s claims for protection and the Authority’s findings on them are set out in the Minister’s outline of legal submissions.
The applicant, a citizen of Sri Lanka of Sinhalese ethnicity, arrived on Cocos Island as an unauthorised maritime arrival on 18 March 2013. On 15 December 2016, the applicant applied for a Safe Haven Enterprise Visa (SHEV).[1] The delegate interviewed the applicant on 22 March 2017, and refused the SHEV on 12 May 2017.[2]
[1] Court Book (CB) 36 – 101
[2] CB 138 – 156
The applicant claimed that:
a)he returned to Sri Lanka in 2008 after working in Saudi Arabia;
b)in 2010 people from the Tamil underworld were extracting money from the applicant and threatened to kill him if he did not pay. They knew he had money because they knew he worked at the US army base in Saudi Arabia;
c)the applicant gave money to underworld people on four instances. The applicant did not want to pay money to the underworld anymore so he went into hiding;
d)the applicant did not seek protection from the police because he does not trust them;
e)before the applicant went to Saudi Arabia, army intelligence personnel came to his home and threatened to shoot him, however, they shot and killed his Tamil friend who was visiting at the time. They then took the applicant and his dead friend to the police. The police suspected the applicant of LTTE[3] involvement;
f)the applicant was the only Sinhalese person in a predominantly Tamil area. The LTTE suspected the applicant was an army intelligence informer and had tipped off the army regarding his friend’s death;
g)fellow passengers on the boat to Australia who have since returned to Sri Lanka told the CID that the applicant was a people smuggler. The CID has been to his family house twice to investigate these claims. If returned he will be arrested, detained and charged as a people smuggler; and
h)the applicant fears harm from “R”, the people smuggler who arranged his trip to Australia. R is a prominent people smuggler who can bribe police and officials. The applicant owes R the boat fees from his family members. R visited the applicant’s wife regarding the outstanding fees. R will kill the applicant and the police will not stop him. R is a leader of a terrorist group, he used to be an LTTE member but later worked for the army intelligence against the LTTE.
[3] Liberation Tigers of Tamil Eelam
The Authority's key findings
The Authority had regard to the material given to it by the Secretary under s.473CB of the Migration Act 1958 (Cth) (Migration Act). On 21 July 2017, it was provided information by the applicant’s representative in the form of a statement by Ben Emmerson, UN Social Rapporteur on human rights and country terrorism regarding his findings following a visit to Sri Lanka from 10 July to 14 July 2017. This statement was not before the delegate and was therefore new information. It accepted that the statement could not have been provided to the delegate given the publication date. The Authority found that on its face it may have relevance to the applicant’s claims and that there were exceptional circumstances which justified considering the new information.[4]
[4] [3]
The Authority summarised the applicant’s claims[5] and outlined the relevant legal framework.[6] The Authority had concerns as to the truthfulness of the applicant’s claim to fear harm because of the death of his friend. The Authority considered the applicant’s claim had evolved over time.[7] In light of the “unsatisfactory” nature of the applicant’s evidence the Authority preferred his earlier evidence and found his friend was killed in 1988 by unknown persons and the rest of the claim was fabricated.[8] It was not satisfied the applicant went to Saudi Arabia because of the death of his friend.[9]
[5] [4]
[6] [5] – [6]
[7] [9] – [10]
[8] [10]
[9] [11]
The Authority considered the significant changes, inconsistencies and discrepancies in his account to have been a victim of extortion in 2010.[10] It considered the letter of recommendation signed by the manager of the liquor shop but found it did not overcome the “very significant” issues regarding the applicant’s evidence.[11] The Authority found the applicant exaggerated and embellished his claims and was not satisfied the applicant was paying money to people who were extorting him and threatened to kill him.[12] However, the Authority accepted that demands for money occurred after he commenced working at the liquor shop, and that two incidents in 2008 were opportunistic and not related to the applicant personally.[13] The Authority found the applicant fabricated claims of continued extortion and hiding to bolster his protection application.[14]
[10] [12] – [15]
[11] [15]
[12] [16]
[13] [18]
[14] [19]
The Authority noted the possibility that the applicant may be a victim of similar demands in the future however the Authority found that there was not a real chance the applicant will suffer harm from unidentified people demanding money or goods should he return to Sri Lanka.[15]
[15] [20]
The Authority considered the applicant’s claims to be at risk from people smugglers, but found his evidence to have materially changed and to contain discrepancies and inconsistencies.[16] Therefore the Authority found that the applicant had fabricated aspects of his claims and did not accept the following:[17]
a)R is a powerful figure who can bribe police;
b)if the applicant does not pay R, the police will not be able to prevent R killing him;
c)R is the leader of a terrorist group;
d)R was an LTTE member and later worked for army intelligence against the LTTE;
e)R threated the applicant’s wife with a weapon; or
f)R has increased the sum the applicant owes.
[16] [21] – [23]
[17] [23]
Noting the applicant’s evidence that he has the means to pay R through the sale of land, the Authority did not accept that the applicant is at risk of harm from R if returned as he has a means to discharge the debt.[18]
[18] [24]
The Authority noted the inconsistencies and errors in the documents provided by the applicant supporting his claim to have been identified in court documents as a person who collected money from passengers on the boat.[19] It did not accept the documents were genuine and found the applicant fabricated this claim. Nor did it accept that CID[20] officers visited his house twice to investigate him in June and August of 2013.[21]
[19] [27]
[20] Criminal Investigation Department
[21] [27]
The Authority accepted the applicant left Sri Lanka illegally.[22] It noted the applicant is Sinhalese, he did not claim to have been involved with the LTTE and its earlier finding that the applicant’s claim to be suspected of LTTE involvement was fabricated. It found the applicant does not meet the profile of people who are tortured and arrested on national security grounds as set out in the Special Rapporteur’s statement.[23]
[22] [28]
[23] [30]
The Authority accepted the applicant is liable to be charged for illegal departure. However, it found the applicant was not at risk of a custodial sentence but would be subject to a fine.[24] Considering the applicant’s circumstances the Authority found the imposition of a fine would not amount to serious harm.[25] The Authority noted that even if the applicant was detained, the period of detention would not be more than a few days and that this does not rise to the level of serious harm.[26] Considering the totality of the treatment that may arise due to the applicant’s illegal departure, the Authority found this treatment does not amount to serious harm.[27] Further, it found that the investigation, prosecution and punishment for illegal departure is the result of a law of general application and does not amount to persecution. Therefore, it was not satisfied the applicant was at risk of serious harm on the basis of his illegal departure or returning as an asylum seeker.[28]
[24] [31] – [32]
[25] [33]
[26] [34]
[27] [35]
[28] [35]
Taking into account the claims accepted by the Authority, it found that “even considered together” there was not a real chance of serious harm to the applicant upon return.[29]
[29] [36]
Considering the claims it accepted against the complementary protection framework,[30] the Authority found that when taken together those claims did not amount to a real risk of significant harm within the meaning of s.36(2A) and s.5(1).[31]
[30] [41] – [42]
[31] [43]
The present proceedings
These proceedings began with a show cause application filed on 6 March 2018. The applicant now relies upon an amended application, filed on 29 May 2018. There are nineteen grounds in the amended application:
1.IAA erred in not being satisfied the applicant will be at risk of serious harm now or in the reasonably foreseeable future if returned to Sri Lanka
2.IAA erred in finding the Applicant does not meet S 5H (1) or S 36 (2)(a) of the Migration Act
3.IAA erred in concluding that it was not plausible that the Applicant would fail to mention earlier something as significant as the killing of a friend by CID [para 10], when the Applicant had earlier mentioned these claims. [earlier interview]
4.IAA erred in finding the Applicant fabricated aspects of his evidence [para 11], partly on the acceptance by the IAA that the Applicant had not referred in his SHEV interview to police refusal to take his statement because they suspected he was involved with LTTE; that at the same time LTTE thought he was working for army intelligence and that the Applicant had tipped off the army [para 10], when the Applicant was not asked about these matters at the SHEV interview and when he had previously advised of same in an earlier interview;
5.IAA erred in stating incorrectly the following factual matters:
a.He had 2 daughters [para 8], when the evidence is he has 1 son and 1 daughter;
b.His father moved to Batticoloa in 1983, when the evidence was that he moved in 1977 [para 8]
6.IAA erred in stating the Applicant had said in an earlier interview (2013) the people extorting money 'were from groups contesting the election' [para 12], when he said they were extorting at election time;
7.IAA erred in stating the Applicant had made 'contradictory statements' in his SHEV interview about his manager and the LTTE [para 12], when the applicant made no such contradictory statements;
8.IAA erred in stating the Applicant had said in an earlier interview the extortions occurred in 2008 [para 12] which is incorrect and contrary to the evidence given;
9.IAA erred in concluding that the evidence given about why he was extorted in the SHEV interview was 'inconsistent' with evidence given in an earlier interview (para 13), when there is no inconsistency or no material inconsistency;
10.IAA erred in not being satisfied there is a real chance the applicant would face harm on return to SL as a failed asylum seeker, now or in the reasonably foreseeable future or that he faces a real chance of persecution now or in the reasonably foreseeable future,
11.IAA erred when it stated [paragraph 22] 'the family owed money to him or ..' when the words in italics were not given in evidence;
12.IAA misinterpreted, misunderstood and confused the document (and parts thereof) referred to in paragraph 27, and in particular
a.Concluded that the person [R1] was not the person otherwise referred to as 'R', such conclusion thereby amounting to an inconsistency and anomaly, when the evidence never suggested that [R1] was R and made it clear that [R1] was not [R2] (see paragraph 2 on page 2);
b.Concluded that the document related to 2 separate court cases, when it was a document in respect of a suspect W[…] but which document also referred to 2 boatloads of asylum seekers, such conclusion thereby amounting to an inconsistency and anomaly when there was no such inconsistency or anomaly;
13.IAA erred in not accepting the document referred to above as genuine, and in forming the view that the Applicant has fabricated his claim to be suspected of involvement in people smuggling operations [paragraph 27];
14.IAA erred in being satisfied the Applicant was not at risk of a custodial sentence and associated risk of mistreatment due to the matters set out above [paragraph 32] when it had incorrectly rejected the document referred to above;
15.IAA erred in finding the Applicant does not have a well founded fear of persecution within the meaning of S 5J;
16.IAA erred in finding there is not a real chance of harm to the applicant now or in the reasonably foreseeable future
17.IAA erred in finding the Applicant does not meet S 36 (2)(aa) of the Migration Act
18.IAA erred in affirming the Delegate's decision not to grant the applicant a protection visa
19.IAA erred in not granting the applicant a protection visa, such errors amounting to errors in law.[32]
[32] named individuals have been anonymised
The applicant relies upon an affidavit filed with his original application, which I received.
I also have before me as evidence the court book lodged on 27 April 2018 and an unredacted copy of the translated documents appearing at CB 134 and 135.[33]
[33] exhibit R1
At the outset of today’s hearing, the applicant requested an adjournment for the purpose of consulting his legal advisors and arranging representation at a later hearing. The applicant told me that he had consulted a lawyer who had prepared his original and amended application and he had paid $2,200. The applicant told me that he understood that a barrister had also been arranged to represent him. He was not, however, able to name the barrister. Both the application and amended application provide an email address for service of [email protected] The applicant told me that this was his lawyer. I accept that that person prepared the original and amended applications. I do not accept that person is a legal practitioner. That is because in the lawyer’s certification in both the application and amended application, there appear the typed words:
I have not retained a lawyer and barrister to represent me in the Court yet.
Further, in the applicant’s affidavit, made on 4 March 2018, he states that he had not, at that time, retained a lawyer and barrister to represent him, but that he would obtain legal assistance once he had listened to the recording of the Departmental interview and seen the court book. The applicant was provided with the court book about three months ago. I refused the adjournment, as the applicant has already had ample opportunity to obtain such legal assistance as he wished.
The applicant told me that although he had read the Minister’s submissions, he only had a superficial understanding of them. He adopted an invitation from me that the Minister’s counsel present his submissions first and that the applicant respond. That is how the matter proceeded.
In his submissions, the applicant referred to factual errors made by the Authority in relation to his family. The Minister concedes that the Authority was in error in identifying the applicant as having two daughters when he has a son and a daughter. The applicant also asserts that the Authority misstated the age of his father. Accepting those errors as real, they did not, however, have any impact on the outcome of the matter before the Authority.
I invited the applicant’s submissions on the unredacted translations, which became exhibit R1. The applicant asserts that he is identified by one of his given names in [3] of the first document. The applicant also asserts that the Tribunal was in error in identifying the person or persons named as R in the two documents as different people and drawing an adverse conclusion from it.
The documents are, on their face, somewhat confusing. A person by the same name commencing with the letter R is referred to in both documents. However, other people are referred to who are plainly different people. The first document is problematic inasmuch as it asserts that at least one person was removed from Australia some days before they were alleged to have arrived. There is an unprofessional appearance in the translation of the documents. In my view, it was open to the Authority to draw adverse conclusions from them.
The applicant’s submissions otherwise went to the merits of the Authority decision. Those merits are beyond the scope of this proceeding.
I agree with the Minister’s submissions on the grounds of review.
Grounds 1, 2, 10, 15, 16, 17, 18 and 19 are unparticularised assertions of error and are meaningless in the absence of particulars. The failure to particularise a ground of review is sufficient basis for it to be dismissed.[34]
[34] WZAVW v Minister for Immigration [2016] FCA 760 at [35]; WZATH v Minister for Immigration & Anor [2014] FCA 969; AQN15 v Minister for Immigration & Anor [2016] FCCA 58 at [33]
In relation to the balance of the grounds, the applicant had alleged error in the Authority’s findings without any evidentiary basis. The evidence available supports the Authority’s findings. In any case, in the absence of any evidence to the contrary, the Court is entitled to accept the Authority’s decision record as accurately reflecting the matters to which it refers.[35]
[35] NAFF v Minister for Immigration (2004) 221 CLR 1
Ground 3 appears to suggest that the Authority erred at [10] in stating that the applicant had not mentioned his friend being shot by the CID prior to the delegate’s interview. There is no such claim in the entry interview, in particular at CB 23. It is for the applicant to establish that he made this claim prior to the delegate’s interview, and he has not done so.
Ground 4 appears to suggest that the Authority erred at [10]-[11] by relying in part on the applicant not referring at the delegate’s interview to his claims that the police refused to take his statement about his friend being shot by the CID because they suspected he was working for the LTTE, because the applicant was not asked about this and he had said it in earlier interviews. Again, it is for the applicant to establish these factual assertions and he has not done so. He has not filed a transcript of the delegate’s interview. Nor is it apparent how jurisdictional error by the Authority would be demonstrated even if the applicant’s assertions are correct. In any event, the Authority had comprehensively considered the applicant’s claims about his friend’s death and the unsatisfactory evidence the applicant provided and concluded that the applicant had fabricated his claims of being suspected by the police of working for the LTTE. No error is shown in the Authority’s reasoning and this ground goes no higher than cavilling with the Authority’s findings.
Ground 5 claims that the Authority erred in finding that the applicant had two daughters[36] and that his father moved to Batticaloa in 1983.[37] While it is accepted that the Authority erred in finding that the applicant had two daughters rather than a son and a daughter,[38] this is no more than a wrong finding of fact of no significance to the Authority’s reasoning and so not an error of law.[39] The Authority’s finding that the applicant’s father moved to Batticaloa in 1983 appears consistent with CB 63, but even if he moved there in 1977 (as appears to be the case from CB 10) this would again appear to be no more than a factual error and of no significance to the Authority’s reasoning.
[36] [8]
[37] [8]
[38] CB 44
[39] Waterford v Commonwealth (1987) 163 CLR 54 at 77; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303; Abebe v Commonwealth (1999) 197 CLR 510 at [137]
Ground 6 claims that the Authority erred at [12] in stating that the applicant had said in his arrival and entry interview that extortion was from groups contesting the election. The Authority’s finding appears consistent with CB 23, and it is for the applicant to lead evidence of the arrival interview if he suggests that the Authority misconstrued it.
Ground 7 claims that the Authority erred at [12] in finding that the applicant had made contradictory statements at the delegate’s interview about whether he had seen his manager giving money to the men and whether they were LTTE. Again, it is for the applicant to prove his assertion that the Authority erred, which would require that he provide evidence of the delegate’s interview. He has not done so.
Ground 8 claims that the Authority erred at [12] in stating that the applicant had claimed in earlier interviews that the extortion occurred in 2008. What the Authority says is consistent with CB 23. It is for the applicant to prove that he did not say what is there recorded, and he has not done so.
Ground 9 claims that the Authority erred at [13] in finding that the applicant’s claim that the men knew he had money was inconsistent with his earlier claim that he did not know why he was asked for money (as recorded at CB 23). It was open to the Authority to find this evidence inconsistent, because on its face it is.
Ground 11 claims that the Authority erred at [22] in finding the applicant gave contradictory evidence about whether other members of his family owed money to him or to R, but again the applicant has not proved this by filing a transcript of the delegate’s interview. The applicant claimed that his family members owed him money at CB 75.
Ground 12 claims that the Authority erred at [27] in finding that the R referred to at CB 134 and 135 were different names, and the documents appear to relate to different court cases. It is for the applicant to demonstrate why the Authority’s conclusion was not open.
Grounds 13 and 14 suggest that the Authority erred in finding that the alleged court documents submitted by the applicant (translations of which are at CB 134 and 135-136) were not genuine and that the applicant had fabricated his claim to be suspected of involvement in people smuggling,[40] but the Authority’s conclusion was open for the reasons it gives.
[40] [27]
Conclusion
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Authority. I will, therefore, order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The applicant claims impecuniosity, but that is not a reason for the Court to refrain from making a costs order. The applicant also foreshadowed a wish to pay by instalments.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667, in accordance with Item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 1 August 2018
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