BBM18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 961
Federal Circuit and Family Court of Australia
(DIVISION 2)
BBM18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 961
File number(s): SYG 581 of 2018 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 18 November 2022 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision by Immigration Assessment Authority (Authority) affirming decision not to grant Safe Haven Enterprise visa – whether Authority made findings that are illogical, irrational or unreasonable – whether any such findings to the extent made are material – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5H(1), 36(2)(a), 476 Cases cited: Nathanson v Minister for Home Affairs [2022] HCA 26 Division: General Number of paragraphs: 84 Date of hearing: 1 October 2021 Place: Sydney Counsel for the Applicant: Mr G Foster, by video Solicitor for the Applicant: Sentil Solicitor Counsel for the First Respondent: Mr T Reilly, by video Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
SYG 581 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BBM18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
18 November 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs set in the amount of $7,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
introduction
The applicant, a citizen of Sri Lanka, applies for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV).
claims for protection
The applicant stated his claims for protection on a number of occasions. It would be convenient if I begin with the claims the applicant made at an interview in March 2013, as recorded in a document titled “Enhanced Screening interview transcript pro-forma” (ES interview).[1]
[1] Exhibit A
ES interview
The applicant there stated as follows:
(a)The applicant’s current job was that of a bar attendant, and he had been in that occupation since 2008, when he returned from Saudi Arabia.
(b)The applicant’s brother, brother-in-law, and nephew travelled to Australia on the same boat as the applicant.
(c)The applicant lived with his wife in Batticaloa, and had resided there since 1983.
(d)The applicant came to Australia because, since 2008, he had been receiving threats from “some people”. This occurred after the applicant returned to Sri Lanka from overseas and started his job at the bar.
(e)In the 2008 election period, while the applicant was working at the bar, a group of people came by in a van, and asked the applicant to give them “five Laks”, but the applicant refused. The group then demanded the applicant give them 50 cases of liquor, but the applicant again refused. The group took out a pistol and placed it on the applicant’s head, stating they were going to kill him, but then stated they would “take care of that later”. After they left, the group started to make telephone calls to the applicant.
(f)The group of people threatened the applicant on two further occasions, and they showed the applicant a pistol outside the applicant’s shop.
(g)The applicant did not report these incidents to the police because he thought that complaining to the police would cause other problems. At around that time one of the applicant’s friends had been killed at the applicant’s house, but the police did not ask the applicant anything about it. The applicant did not know the reason why his friend had been killed. “They came to the house to kill” the applicant. The applicant’s “manager (boss)” told the applicant not to complain to the police, and to stay calm.
IMAE interview
The applicant also stated his claims at an interview in April 2013 as recorded in a document headed “Irregular Maritime Arrival Entry Interview” (IMAE interview).[2] The applicant there claimed as follows:[3]
(a)From 1993 to 2008 the applicant worked for the American army base in Saudi Arabia (US Army Base). The applicant decided to return to Sri Lanka because he thought the situation was better.
(b)Three months after he returned to Sri Lanka the applicant went to work in a liquor shop. In March 2008, during an election, several people arrived in a white van to the applicant’s work, and asked that he pay them “5 Lakhs”. After the applicant refused, the people demanded he provide 50 cases of liquor, but the applicant again refused. The people pointed a pistol at the applicant’s head, left, and then came back and again pointed a pistol at the applicant’s head.
(c)The applicant was not involved with the Liberation Tigers of Tamil Eelam (LTTE), but a couple of times the LTTE had come to the applicant’s house to kill him. That occurred before the applicant went to Saudi Arabia. The applicant believes the LTTE wanted to kill him because he is Sinhalese, “they want to kill some people”, and they came to the applicant’s area to kill the applicant, but he escaped out of his home.
(d)Before the applicant went to Saudi Arabia “some people in a white van killed” the applicant’s friend.
[2] CB7
[3] CB23
Statutory declaration
The applicant also set out his claims in a statutory declaration the applicant made and submitted with his application for a SHEV.[4] The applicant there claimed as follows:
(a)Before the applicant went to Saudi Arabia in September 1993 the “army intelligence” came to the applicant’s house and threatened to shoot him; but they instead ended up shooting and killing the applicant’s Tamil friend who was visiting the applicant at that time. They took the body and the applicant to the police station. The applicant told the police that he wanted to lodge a report of police brutality, but the police refused to accept the report.
(b)The police suspected the applicant was involved with the LTTE. The applicant was the only Sinhalese in his area; the rest were Tamils. At the same time, the LTTE thought the applicant was an army intelligence informer, and thought the applicant had tipped off the army to kill the applicant’s Tamil friend. In 1993 the applicant left for Saudi Arabia because he was “being suspected by both sides”.
(c)In early 2008 the applicant returned to Sri Lanka from Saudi Arabia where he had worked at the US Army Base as a radio operator and security guard. A few months after he returned to Sri Lanka the applicant worked in a liquor shop in Batticaloa. In 2010, however, the applicant had a problem with “underworld” people extorting money from him. These people knew the applicant had money because they knew of the applicant’s job in Saudi Arabia “for 15 years” as a radio operator and security guard.
(d)The applicant gave these people money on four occasions. They continued, however, to extort money from the applicant. The applicant went into hiding to avoid them. The applicant hid at his younger brother’s house in Colombo, at the applicant’s friend’s house in Nittambuwa, and at the applicant’s younger sister’s house in Gampaha. The applicant did not go to the police because he did not trust them.
(e)The “boat people that have been returned to Sri Lanka” told the “CID” (that is, the Criminal Investigation Department) that the applicant is “the “people smuggler” for the boat we came with”. The CID does not know the applicant’s full name, but mentioned the name “S” as the smuggler. The applicant is scared that if he is deported the CID will arrest him at the airport, detain him for interrogation, and then charge him as a smuggler.
(f)The applicant is afraid he will be harmed by Mr R, the people smuggler for the boat on which the applicant travelled to Australia. Mr R is a prominent people smuggler who has killed many people, he is quite powerful, and bribes all the police and other Sri Lankan security agencies. The applicant had a deal with Mr R under which the applicant agreed he would be responsible for the boat charges payable to Mr R by the applicant, the applicant’s brother, the applicant’s brother in law, and the applicant’s nephew. The applicant’s brother, the applicant’s brother-in-law, and the applicant’s nephew have not paid the applicant the charges; and Mr R has gone to the applicant’s wife for the money. The applicant fears Mr R will kill the applicant if the applicant does not pay the charges to Mr R.
[4] CB74
The applicant supported his application with a document that purports to be a translation of a police report issued by the CID in 2013 in relation to the charging of a person, Mr W for people smuggling (Purported Police Report).[5] The Purported Police Report states that 20 asylum seekers who had illegally sailed from Sri Lanka to Australia, and who had attempted to enter Australian territory illegally, had been taken into custody by Australian authorities, and deported to Sri Lanka by a charted plane. The Purported Police Report identified two persons as having acted as skippers, and noted that a person named “Mr R” had organised the trip, and charged each person between “Ra 1 lakh and 7 lakhs”, and that two other persons had collected money “from these suspects”.[6] After the SHEV interview, the applicant’s agent provided to the delegate what was claimed to be the original version of the Purported Police Report.[7]
[5] CB133; Exhibit R1
[6] CB134
[7] CB115, 122-128
SHEV interview
The applicant made the following claims during the SHEV interview.[8]
[8] Exhibit A
Extortion claim
The applicant received death threats, and people asked him for money. This started in 2010. The applicant initially said that the last threat occurred in March 2010, but after the delegate noted that he had asked when the applicant received the last threat because the applicant did not leave Sri Lanka until 2012 or 2013, the applicant said the threats started in 2010, and he received the last threat in about December 2012, one month before he left Sri Lanka.
Four people came to the shop the applicant “was running” - two waited outside, and two came in. They asked the applicant for protection money. The applicant said he could not pay, but the people then demanded 60 cases of liquor bottles, with each case containing 10 or 12 bottles. The applicant refused, and one of the people took the pistol out and pointed it to the applicant’s head. After some customers started screaming, the people said they would come back later.
The people came back two weeks later, but they did not come inside the shop. A person was carrying a pistol, and he threatened the applicant again. The people called for the manager, but the manager was not there. The applicant was in charge of the shop. The applicant had not previously seen these people. The applicant, however, had seen the manager give money to people, although not the people who had returned to the shop. After the people had threatened him, the applicant stopped working and resigned.
The people phoned the applicant, and threatened to come to the applicant’s house. The people told the applicant to pay them money, otherwise they will kill him. The people did not tell the applicant why they demanded money from him or why they threatened to kill him. The reasons they did so, however, is because they thought the applicant “had a lot of money” that he had “brought from Saudi Arabia”. They also thought the applicant was the owner of the shop because the applicant had been “with the owner for” two years; they thought the applicant had a share in or a partnership in relation to the shop. In response to the delegate’s asking: “had [the boss] been giving them money before”, the applicant said he did; and that, when the applicant worked there, he had seen LTTE cadres come and ask for money, and the manager gave them money.
In response to the peoples’ demands for money under threat of their killing the applicant, the applicant said he would give them money, totalling 10 lakhs. The applicant gave the money in bags he delivered at different times and in different places.
The applicant did not report the threats to the police because he had a bad experience with the police in relation to the police killing his friend.
Killing of friend claim
There was a bomb blast in Batticaloa. The CID came in a white van. The applicant was standing outside his house. The CID came in and pointed their weapon at the applicant. The applicant’s friend was in the applicant’s house. The CID asked who the applicant’s friend was. The applicant told the CID not to kill the applicant because he is Sinhalese. The CID asked the applicant who the applicant’s friend was. The applicant said he was the applicant’s friend. The applicant’s friend stood up because he was scared. He is a Tamil. The CID shot him. The CID then took the body and the applicant in the vehicle to the police station. The applicant said he wanted to make a complaint to the police, and the CID told the applicant he could not make a complaint, and they chased the applicant away. This happened in 1992.
Fear of Mr R
Mr R was the smuggler who arranged the applicant’s transport to Australia. The applicant’s friend, Mr J, introduced him to Mr R about one month before the applicant left Sri Lanka. Mr R is a Tamil, and he was in a terrorist group. The applicant thought Mr R belonged to an organisation called “PLOTE”. The applicant heard Mr R had been arrested for being involved in people smuggling and, after the applicant left Sri Lanka, Mr R was imprisoned for people smuggling. After the applicant came to Australia Mr R went to the applicant’s house and threatened the applicant’s family. The applicant initially said he owes Mr R 500,000 rupees, but the applicant then said that he had paid Mr R 500,000 rupees (and later said 600,000 rupees) in two instalments but Mr R is asking for more, namely, 20 lakhs, which the applicant is unable to pay. The applicant initially said that each of his family who travelled with the applicant paid 6 lakhs to Mr R, but then he said some people have paid, but some have not paid. The applicant then said that “[w]e agreed to pay” Mr R 10 lakhs.
Claim based on being viewed as people smuggler
In the course of being shown the Purported Police Report, the applicant said that someone who came “here” on the boat, who had been deported to Sri Lanka, and a person from the CID, came to the applicant’s house on two occasions. They spoke to the applicant’s wife about the applicant’s whereabouts. The applicant claimed his name is mentioned in the Purported Police Report. The applicant also claimed the CID will take the applicant into custody and put him behind bars.
After the hearing the applicant’s agent provided submissions in relation to this part of the applicant’s claims, together with what was claimed to be the original of the Purported Police Report.[9] The agent submitted there were three persons with the name of “S”; the applicant had given evidence at the SHEV interview that someone among the returnees from the boat on which the applicant travelled to Australia had given information to the CID at the airport that Mr R and “S” collected money from the boat passengers. The applicant believed the returnees were trying to save themselves by “pointing fingers” on the three persons who had the name “S” so that they could escape from being accused of people smuggling.[10]
[9] CB115-128
[10] CB115
authority’s reasons
The Authority accepted the applicant’s father moved to Batticaloa in 1983 for work; the applicant did a series of odd jobs in Sri Lanka after he left school; and the applicant then worked in Saudi Arabia from 1993 to 2008 at a US Army Base as a radio operator and security guard while his family - his wife and two daughters - remained in Sri Lanka.[11]
[11] CB179, [8]
Claim that friend was killed
The Authority also accepted the applicant had a friend who was shot and killed.[12] The Authority, however, found the applicant had given three versions of the circumstances in which the applicant’s friend was killed.[13] The first was the version the applicant gave at the “screening interview”, namely, that persons in a white van came to the applicant’s home in 1988 and, for reasons the applicant did not know, killed the applicant’s friend. The second version is that which the applicant gave during the “arrival interview”, by which I infer the Authority meant the IMAE interview. The third version is that which the applicant gave during the SHEV interview.
[12] CB179, [11]
[13] CB179, [9]
The Authority preferred the applicant’s “earlier evidence”, and found that the applicant’s friend “was killed in 1988 by unknown persons”; and further found that the applicant fabricated the other aspects of his claims concerning the death of his friend, including that he was suspected by either the police or army intelligence, or by the LTTE, of working for the other side.[14] The Authority relied on its finding that the applicant did not in his earlier evidence mention that it was the CID that had killed his friend. The Authority did not consider it plausible that the applicant would not have mentioned earlier something as significant as the killing of his friend by the CID particularly if, as the applicant claimed, the killing of his friend was the catalyst for the applicant’s decision to go to Saudi Arabia.[15]
[14] CB179, [11]
[15] CB179-180, [10]
Extortion claim
The Authority accepted the applicant had been generally consistent in his claims that he had been subjected to demands and threats, but the Authority found there were significant discrepancies between the accounts the applicant gave at different times. The Authority noted the following discrepancies:[16]
(a)In the SHEV interview the applicant mentioned for the first time that he actually paid money to the men who came to the shop.
(b)In his “written statement”, which I take to be a reference to the applicant’s statutory declaration, the applicant claimed that those who threatened him were underworld people and in the SHEV interview the applicant said these people were asking for protection money, while in an “earlier interview (arrival and induction interview 2 April 2013) [the applicant] said they were from groups contesting the election”.
(c)In “earlier interviews” the applicant stated the incidents occurred in 2008, while in the SHEV interview the applicant said they occurred in 2010.
(d)In the SHEV interview the applicant made contradictory statements about whether he had seen his manager previously give the men money, and whether they were LTTE members.
(e)In his written statement, and in the SHEV interview, the applicant claimed the people extorted the applicant because they knew he had money, while in “an earlier interview” the applicant said he did not know why he was asked for money.
(f)In the SHEV interview the applicant made the new claim that after the second incident the applicant stopped working at the shop, the persons phoned the applicant, and they then came to the applicant’s home.
[16] CB180, [12], [13]
The Authority concluded the applicant exaggerated and embellished his claims to have been extorted; and the Authority was not satisfied the applicant paid amounts of between five and ten lakh on at least four occasions to unidentified underworld people.[17] The Authority, however, was prepared to accept that the applicant was present on two occasions when unknown persons came to the shop, asked the applicant for money and liquor, and threatened him with a pistol for refusing to accede to their demands; but the Authority preferred the applicant’s “earlier evidence that these demands occurred shortly after [the applicant] started working at the shop in 2008”. The Authority therefore found there were two such incidents in 2008; that the incidents were associated with criminal activities by groups active at the time; and that the threats were opportunistic, and related to the applicant’s work in the liquor shop, and the perception the applicant had access to the till and liquor, rather than being related to the applicant personally.[18] The Authority did not accept that these people continued to extort money from the applicant, or that the applicant feared these people and, for that reason, the applicant went into hiding in Colombo, Nittambuwa, or Gampaha until he left for Australia.[19]
[17] CB180, [16]
[18] CB181, [18], [20]
[19] CB181, [19]
Threats from Mr R
The Authority was prepared to accept that the applicant owes to Mr R the balance of the amount the applicant claims he owes Mr R, and that Mr R had been to the applicant’s home and asked the applicant’s wife for the remaining amount.[20] The Authority also accepted that on the applicant’s return to Sri Lanka Mr R may pursue the applicant for the outstanding debt.[21] The Authority found, however, that the applicant fabricated aspects of his claims relating to Mr R; and the Authority was not satisfied Mr R is a powerful figure who bribes the police and security agencies, or that Mr R will kill the applicant and the police will not be able to prevent that from happening, or that Mr R is the leader of a terrorist group, or that Mr R used to be an LTTE member and later worked for army intelligence against the LTTE, or that Mr R threatened the applicant’s wife with a weapon, or that Mr R increased the sum he claimed the applicant owes.[22] The Authority also found that the applicant had the means to pay Mr R through the sale of some land. The grounds on which the Authority did not accept all of the applicant’s claims in relation to Mr R, and found the applicant had fabricated a part of those claims, are that the applicant’s evidence, and the debts he claims he owed Mr R, had “evolved over time”; the applicant’s evidence about why Mr R would be seeking additional money was “repetitive, vague and frequently nonsensical”; and the applicant gave contradictory evidence about Mr R.[23]
[20] CB182, [23]
[21] CB183, [24]
[22] CB182, [23]
[23] CB182, [21], [22], [24]
Claims based on people smuggling, illegal departures, and failed asylum seeker
The Authority did not accept that the Purported Police Report or the documents that were submitted as originals of that document were genuine, and found the applicant fabricated his claim to be suspected of involvement in people smuggling operations. The Authority, therefore, also did not accept that CID officers visited the applicant’s house twice to investigate him in June and August 2013.[24] The Authority relied on its finding that the documents the applicant provided appeared to relate to two separate court cases, but the Authority principally relied on what it found were anomalies in the documents the applicant had submitted. These included one of the documents which was signed on 12 March 2013 referring to previous correspondence that was dated 4 April 2013.[25]
[24] CB183-184, [27]
[25] CB183, [27]
The Authority accepted the applicant left Sri Lanka illegally, and that, if he returns to Sri Lanka, the authorities there will surmise the applicant had made a claim for asylum in Australia; that he is liable to be charged for an offence under the Immigrants and Emigrants Act 1949; that on his return he will be arrested at the airport and taken into police custody for up to 24 hours, or may be held in prison until such time as a magistrate is available; if the applicant pleads guilty he will be fined and released; and if he pleads not guilty, he will immediately be granted bail by the magistrate on personal surety, or he may be required to have a family member act as guarantor. The Authority found, however, that this would not constitute serious harm, and in any event would not be the result of any discriminatory application of the law.[26]
[26] CB184-185, [28]-[36]
Conclusions
Given these findings, the Authority concluded the applicant does not meet the requirement of the definition of “refugee” in s 5H(1) of the Act and, therefore, does not satisfy s 36(2)(a) of the Act. Relying on the same findings, the Authority also concluded there are not substantial grounds for believing that, as a necessary or foreseeable consequence of being returned from Australia to a receiving country, there is a real risk the applicant will suffer significant harm.
grounds of application
The applicant relies on grounds 3, 4, 5, 6, 7, 9, 11, and 12 of the further amended application filed on 17 August 2021, but does not press grounds 1, 2, 8, 10, and 13-19.
Ground 3
Ground 3 of the further amended application is as follows:
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 [the] CID (earlier Statutory Declaration [CB74])’.
Such error leading to unreasonable, illogical or irrational decisions and amounting to jurisdictional error.
This ground is directed to a number of findings.
Findings in paragraph 10 of Authority’s reasons
The first are the findings the Authority made in paragraph 10 of its reasons. The Authority there stated the applicant was unresponsive when the delegate pressed him for why the applicant “hadn’t mentioned after he arrived in Australia that it was the CID who shot his friend”, and the Authority then found that it did not consider it “plausible that the applicant would not have mentioned earlier something as significant as the killing of his friend by the CID particularly if, as he claimed, it was the catalyst for his decision to go to Saudi Arabia to work”. The applicant submits that, contrary to what the Authority stated, the applicant did state in his statutory declaration that the “army intelligence once came” to the applicant’s house to threaten to shoot the applicant, and further submits that the “army intelligence” ought reasonably to have been understood by the Authority to refer to the CID.[27]
[27] Applicant’s Submissions to the Federal Circuit Court of Australia, [3(a)-(d)]
This part of the applicant’s submissions assumes that what the delegate had put to the applicant was that the applicant did not at any time before the SHEV interview refer to the CID. That assumption is not correct. The delegate referred to the applicant not having referred to the CID at the “earlier interviews”. That is apparent from the following transcript of the SHEV interview (emphasis added):[28]
[28] Exhibit A
A: So then they took the body also in the vehicle and they took me also to the police.
Q: Okay and what happened then?
A: Then the other offices in the police came and had look and then I told them I want to make an entry in a police complaint to the police. And they said no you can’t and then chased me away.
Q: Okay. What... when did it happen? What year?
A: That happened in 1992 That’s why I decided to go to Saudi Arabia.
Q: Okay, yeah I am a bit confused because in your first interview you said 1988 in Australia.
A: No that was in 1992.
Q: Okay. And because of that that's when you went to Saudi Arabia?
A: Yeah
Q: Okay .... The other thing I wanted to check ... because again in your earlier interviews . . . you said that ahh ... when you were talking about this ... people in a white van killed your friend in your house. Which is correct. But you said you didn’t know who they were umm and you didn’t know why. Which is a little bit different.
A: I didn’t know who they were because after they took me to the police suddenly I found ... I realised they were CID.
Q: Sure so after you found out it was CID. I guess what I am saying is when you arrived in Australia in your first interviews you said you didn't know who they were ...
A: Yeah, at the time of shooting I didn’t know who they were. They were wearing civil suits ... because they were in civil.
It is reasonable to infer, and I find, that the “earlier interviews” to which the delegate intended to refer, and to which the Authority understood the delegate intended to refer, are the IMAE interview, and the ES interview, both of which occurred before the applicant made his statutory declaration. In the IMAE interview the applicant said that before he went to Saudi Arabia “some people in a white van killed” the applicant’s friend; and in the ES interview the applicant said that one of his friends had been killed at the applicant’s house, but the police did not ask the applicant anything about it; and the applicant did not know the reason why his friend was killed. In neither the IMAE interview or in the ES interview did the applicant refer to the CID or to “army intelligence”.
The Authority correctly understood the delegate to have put to the applicant that at previous interviews - being the IMAE and the ES interviews - the applicant did not claim it was the CID who had killed his friend. This part of ground 3, therefore fails.
Finding that applicant’s evidence unsatisfactory
The applicant submits the Authority gave “[n]o particulars” of the finding in paragraph 11 of its reasons that the evidence the applicant provided at the SHEV interview about the death of his friend was of an “unsatisfactory nature”. The applicant submits the evidence the applicant gave was not unsatisfactory, and the Authority’s description of the applicant’s evidence as “unsatisfactory” is unjustified and irrational.[29]
[29] Applicant’s Submissions to the Federal Circuit Court of Australia, [3(e), (f)]
This submission appeals to the merits of the Authority’s findings. It was for the Authority to assess whether the evidence the applicant gave at the SHEV interview was unsatisfactory. The question in determining whether the Authority made a jurisdictional error is whether it was reasonably open to the Authority to find the applicant’s evidence was unsatisfactory. I am not satisfied it was not reasonably open to the Authority to so find.
The Authority identified the grounds on which it found the applicant’s evidence at the SHEV interview about his friend’s death was unsatisfactory, and they are the matters the Authority identified in paragraph 10 of its reasons for decision. These are the applicant’s not having mentioned in his earlier interviews that the CID was involved in the death of his friend; the Authority’s finding that the applicant was unresponsive when the delegate pressed the applicant why he did not previously mention that the CID had shot his friend; and the applicant’s not having referred to the claims in his written statement that the police refused to take his statement because they suspected the applicant was involved with the LTTE, and at the same time the LTTE thought the applicant was working for army intelligence. The transcript from the SHEV interview I have reproduced above shows it was reasonably open to the Authority to find that the applicant was unresponsive when the delegate pressed the applicant about why he had not in earlier interviews claimed the CID had killed the applicant’s friend. The applicant’s explanation was that he only found out later the CID shot his friend. That, however, was incapable of being considered an explanation of why the applicant did not in the earlier interviews state that the CID killed his friend, being a time by which the applicant would have known, if true, that the CID killed his friend.
This part of ground 3, therefore, also fails.
Accepting earlier versions of friend’s death
The applicant submits the Authority did not particularise its finding that it preferred to accept the applicant’s friend was killed in 1988, and rejected the applicant’s claim that it was the death of his friend that prompted the applicant to go to Saudi Arabia; and that the Authority’s findings are unjustified and irrational or unreasonable.[30] I do not accept that submission. The Authority did give reasons for its findings. The Authority found the applicant had consistently claimed his friend had been killed and, for that reason, it was prepared to find the applicant’s friend had been killed; but the Authority also found the applicant had given unsatisfactory evidence about the circumstances of the death of his friend. It was reasonably open to the Authority, given these findings, to find that the applicant’s friend had been killed by unknown persons. That reflected the claims the applicant made in the IMAE and ES interviews.
[30] Applicant’s Submissions to the Federal Circuit Court of Australia, [3(g)]
This part of ground 3 also fails.
Ground 4
Ground 4 is as follows:
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;
Such error leading to unreasonable, illogical or irrational decisions and amounting to jurisdictional error.
This ground, as framed, is directed to the Authority’s having relied on the following finding in concluding the applicant had fabricated his evidence:[31]
Further, in his SHEV interview he did not refer to the claims in his written statement that the police refused to take his statement because they suspected he was involved with the LTTE; that at the same time, the LTTE thought he was working for army intelligence and that he tipped off the army to kill his Tamil friend; and because he was suspected on both sides he left for Saudi Arabia.
[31] CB179, [10]
The ground claims the Authority acted unreasonably, illogically, or irrationally in purporting to rely on such findings, first, because the applicant was not asked about this and, second, because he had previously advised of these matters in an earlier interview.
The ground does not disclose any jurisdictional error. The delegate asked the applicant to tell the delegate what the applicant knew about the circumstances of the death of the applicant’s friend.[32] The applicant’s omitting in his answer a detail he had given on a previous occasion - in this case, in his statutory declaration - affords a rational basis for doubting the truth of that detail. The relevant detail relates to the reason for which the applicant claimed the police did not allow the applicant to make a complaint in relation to the death of the applicant’s friend. That detail, according to the Authority, was a claim that the police believed or suspected the applicant was involved with the LTTE.
[32] The delegate asked: “Tell me about the time you say someone was killed in your house”.
In his written submissions, however, the applicant submits he did not in his statutory declaration say that the reason the police refused to take the statement from him was because he was suspected of being a LTTE member; and, for that reason, the Authority’s stating that the applicant had previously claimed that the police “refused to take [the applicant’s] statement because they suspected he was involved in the LTTE” distorts the evidence the applicant had given in his statutory declaration.[33] It is true that the applicant did not, in his statutory declaration, in terms state that the reason the police refused to take his statement was because they suspected he was involved with the LTTE. Nevertheless, it was reasonably open to the Authority to so characterise the effect of what in the following passage the applicant did say:[34]
They then took the body and me to the police station. I told them that I wanted to lodge a report of the police brutality and the police refused to accept the report. They suspected that I was involved with the LTTE as well. In my area I was the only Sinhalese and the rest are Tamils.
At the same time, the LTTE thought I was the army intelligence informer and thought that I tipped-off the army to kill my Tamil friend. I was being suspected by both sides and because of this I left for Saudi on 23 Sep 1993.
[33] Applicant’s Submissions to the Federal Circuit Court of Australia, [4(a)]
[34] CB74
It was reasonably open to the Authority to find that the applicant included the statement that the police suspected he was involved with the LTTE to show the reason why the police refused to accept a report from the applicant on the death of his friend. The Authority, therefore, did not distort the effect of the evidence the applicant gave in his statutory declaration.
For these reasons, ground 4 fails.
Ground 5
Ground 5 is as follows:
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]
Such error leading to unreasonable, illogical or irrational decisions and amounting to jurisdictional error.
The Minister accepts the Authority made the factual errors stated in this ground. The Minister submits, however, that the errors are not material to the decision the Authority made.
The applicant does not submit the Authority’s errors deprived him of a realistic possibility of a different outcome.[35] I am satisfied the errors do not deprive the applicant of a realistic possibility of a different outcome; and, for that reason, ground 5 fails.
[35] Nathanson v Minister for Home Affairs [2022] HCA 26, at [1]
Ground 6
Ground 6 is as follows:
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;
Such error leading to unreasonable, illogical or irrational decisions and amounting to jurisdictional error.
It is the case that the Authority was incorrect in recording that the applicant claimed that the people extorting money were from groups contesting the election. The applicant, however, does not submit that the Authority’s error deprived him of a realistic possibility of a different outcome. I am satisfied the error did not deprive the applicant of a realistic possibility of a different outcome; and, for that reason, ground 6 also fails.
Ground 7
Ground 7 is as follows:
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;
Such error leading to unreasonable, illogical or irrational decisions and amounting to jurisdictional error.
This ground appears to be directed to the following finding:[36]
In his SHEV interview [the applicant] also made contradictory statements about whether or not he had seen his manager previously giving the men money and whether or not they were LTTE.
[36] CB180, [12]
This passage shows the Authority found the applicant made contradictory statements about two topics: one about whether the applicant had seen his manager give “the men” money; and one about whether the men were LTTE. The Authority did not, as ground 7 claims it did, make a finding that the applicant made contradictory statements about his manager and the LTTE. Ground 7, therefore, mischaracterises the finding the Authority made and, for that reason, must fail.
In any event, it was reasonably open to the Authority to find that the applicant made contradictory statements on whether the applicant had seen his manager give money to the men whom the applicant said had come to the shop to extort money from the applicant, and on whether the men were LTTE. In the SHEV interview the applicant said that a couple of weeks after the men first attempted to extort money from him, “they” came back, but remained outside the shop. The men called for the manager, but the manager was not there, so the applicant was in charge of the shop. The applicant then said he had not seen the men before. After giving evidence of the length of time the applicant had been working in the shop, the applicant gave the following evidence (emphasis added):
Q: And had these men been there before in the previous two years?
A: No, no I had no issues ... no problems at that time.
Q: Okay. So did ... did the manager or the boss of that shop use to give these people money up till then ... before?
A: Yeah, I have seen manager giving them money.
Q: Okay, so they had been into the shop before this time?
A: No not these same people. But there were several other groups.
In this evidence it is apparent the applicant said he saw the manager give “them” money, and it is reasonably open to interpret “them” as being a reference to the people the applicant said came to the shop; and the applicant, however, also said it was not the same people.
The applicant also gave the following evidence (errors in original):
Q: Ahh okay. So these men that threated you were they LTTE?
A: A lot of groups where there I don't know who they were. Their identity.
. . . .
Q: But hadn't he, had he been giving them money before? The boss?
A: Yeah, when I worked there I had seen LTTE cadres coming there and asking for money and the manager giving them money.
It is reasonably open to interpret this passage as the applicant saying both that he did not know whether the people who had been coming to the shop were LTTE and also that the people who did come to the shop were LTTE cadres.
Ground 7, therefore, also fails.
Ground 9
Ground 9 of the further amended application is as follows:
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;
This ground is directed to the following findings:[37]
The applicant claimed in the written statement submitted with his SHEV application and in his SHEV interview that he was extorted because they knew he had money. However, this is not consistent with information given in an earlier interview that he didn’t know why he was asked for money.
[37] CB180, [13]
In his written submissions, the applicant accepts that during the IMAE interview the applicant said he did not know why the men had asked the applicant for money; but the applicant refers to having given an explanation later in the IMAE interview that he believed the men knew the applicant had worked for a long time in Saudi Arabia and thought he had lots of money; and also to the applicant having given evidence to the same effect at the EIS interview.[38] In those circumstances, the applicant submits that the “complained inconsistency is minor at the highest, but also consistent with the Applicant not actually knowing but proffering his opinion as to why he was asked for money”.[39]
[38] Applicant’s Submissions to the Federal Circuit Court of Australia, [8(a)-(c)]
[39] Applicant’s Submissions to the Federal Circuit Court of Australia, [8(e)]
The applicant does not submit that it was not relevant to the Authority’s assessment of the applicant’s claims to consider whether the applicant’s evidence at the SHEV interview was not consistent with what the applicant said at an earlier interview; and the applicant does not submit it was not reasonably open to the Authority to find that the evidence the applicant gave at the SHEV interview that money was sought to be extorted from him by people who knew the applicant had money was not consistent with information the applicant had given in an earlier interview that he did not know why he was asked for money. In those circumstances, the applicant’s submission that the inconsistency was minor, or that the applicant’s evidence could be characterised as an opinion, appeals to the merits of the Authority’s assessment of what it found to be inconsistent evidence; for it was for the Authority to determine whether there were any inconsistencies, and, if so, what weight it should give to the inconsistencies.
The applicant also makes submissions in relation to the following passage from the Authority’s reasons for decision:[40]
[T]here are significant discrepancies between the accounts [the applicant] has given at different times. For example, it was only in his SHEV application that the applicant mentioned for the first time that he had actually paid money to the men he claimed came into the shop. In the written statement submitted with his SHEV application he claimed they were underworld people and said in his SHEV interview they were asking for protection money. However, in an earlier interview (arrival and induction interview 2 April 2013) he said they were from groups contesting the election.
[40] CB180, [12]
The applicant submits the applicant referred to “protection” in the IMAE interview, and the other references “were not contradictory and so could not be classed as ‘discrepancies’”.[41] This submission is predicated on the assumption that “discrepancy” means “contradictory”. As a matter of language that assumption is not correct. The word “discrepancy”, when applied to statements, may denote contradictory statements, that is, statements that cannot both be true. “Discrepancy”, however, may also denote statements that are consistent but convey different information. That is the case with the statements the applicant made at different times - men came to the shop; the applicant paid the men money; the men who came to the shop were asking for protection money; and the men who came to the shop were from groups contesting the election. These statements are consistent, but they convey different information.
[41] Applicant’s Submissions to the Federal Circuit Court of Australia, [8(d)]
In oral address counsel for the applicant appeared to accept that the Authority correctly identified the discrepancies to which it referred in this passage; but counsel submitted that the discrepancies “are minor at best”. That does not disclose any jurisdictional error. Assuming it was reasonably open to the Authority to find that there were discrepancies to the effect it identified (and I am not satisfied it was not reasonably open to the Authority to so find), it was for the Authority to determine whether the discrepancies existed and, if so, the weight that should be given to them when assessing the applicant’s claims.
Ground 9, therefore, also fails.
Ground 11
Ground 11 claims as follows:
IAA erred when it stated [paragraph 22] ‘the family owed money to him or ..’ when the words in italics were not given in evidence;
Such error leading to unreasonable, illogical or irrational decisions and amounting to jurisdictional error.
This ground is directed to the following finding:[42]
The applicant also provided contradictory evidence about whether the other members of his family owed the money to him or to [Mr R] and said that while they also owed [Mr R] money, because they got to know [Mr R] through him, [Mr R] was coming after him.
[42] CB182, [22]
The Authority identifies the subject about which it found the applicant had given contradictory evidence; and that is whether members of the applicant’s family owed money to Mr R for their travel to Australia, or whether the applicant’s family members owed the applicant money for their travel to reimburse the applicant for the money the applicant agreed to pay to Mr R for the transport of the applicant’s family. The only evidence to which the Authority relies is the applicant’s stating that while the applicant’s family owed money to Mr R, Mr R was coming after the applicant.
Whether it was not reasonably open to the Authority to find that the applicant gave contradictory evidence about whether members of his family were liable to Mr R or to the applicant requires the identification of the evidence the applicant had given about this subject on each occasion he stated his claims. The evidence is contained in the statutory declaration, which I have set out in paragraph 5(f) of these reasons, and in the evidence the applicant gave in the SHEV interview, which I have set out in paragraph 15 of these reasons.
The applicant submits that on a “fair reading” of the applicant’s statutory declaration, the applicant stated that “three people” to which the applicant refers in his statutory declaration, being the applicant’s brother, brother-in-law, and nephew, undertook to be responsible to pay Mr R; and, for that reason, what the applicant said in the SHEV interview does not contradict what the applicant said in his statutory declaration. That, however, is not the relevant question. The question is whether it was reasonably open to the Authority to construe the statutory declaration as containing a statement to the effect that the applicant had a deal with Mr R under which the applicant agreed he would be responsible for the boat charges payable to Mr R by the applicant, the applicant’s brother, the applicant’s brother in law, and the applicant’s nephew; and whether it was reasonably open to the Authority to find that, in the SHEV interview, the applicant said that these people had assumed a liability to pay Mr R direct. I am not satisfied that it was not reasonably open to the Authority to so find and, therefore, to find that the applicant had given contradictory evidence about whether the applicant’s brother, the applicant’s brother in law, and the applicant’s nephew had entered into arrangements with Mr R to pay him for arranging their travel to Australia.
Ground 11, therefore, fails.
Ground 12
Ground 12 is as follows:
IAA misinterpreted, misunderstood and confused the document (and parts thereof) referred to in paragraph 27, and in particular
a. Concluded that the person [RAJ] was not the person otherwise referred to as ‘R’, such conclusion thereby amounting to an inconsistency and anomaly, when the evidence never suggested that [RAJ] was R and made it clear that [RAJ] was not [Mr R] (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;
Such error leading to unreasonable, illogical or irrational decisions and amounting to jurisdictional error.
Ground 12 is directed to the following findings:[43]
Having reviewed the documents provided, I have a number of concerns about them. Firstly, it appears that the documents relate to two separate court cases, once [sic] concerning an individual and the other concerning a group of twenty persons. . . . Finally, R and ‘S’ (the same name as the applicant’s) are recorded as having collected the money. However, the R referred to does not correspond with the name given for R on the other document provided which I note has been translated by a different NAATI accredited translator and as referred to above, appears to relate to a different court matter.
[43] CB183, [27]
The documents to which the Authority refers are the two documents that are exhibit R1.[44] The first document is dated “12.03.2013” (document R1(1)).
(a)The document is headed “Report filed in respect of a suspect accused produced to the court for aiding and abetting the transportation of 40 persons illegally to Christmas Island in Australia using a Trawler, from a place not recognized [sic] as a legal Harbour or a Port”.
(b)The document names a suspect, Mr W.
(c)The document contains a statement addressed to “Hon, Magistrate Negombo” by a person whose name is stated holding the position of “Officer-in-Charge of the Criminal Investigation Department of the Air Port Unit, Katunayaka”, reporting that an investigation was conducted into the information about a group of persons who attempted to enter Christmas Island illegally being deported from Australia and arriving in Sri Lanka.
(d)Next to the words “Facts established in the investigation and names of witnesses if any” there are the words “Please see the report overleaf”.
(e)The report refers to “previous correspondence dated 04.04.2013”. It states twenty asylum seekers who sailed from Sri Lanka and attempted to enter Christmas Island illegally were taken into custody and deported to Sri Lanka by chartered plane “on 03.04.2013”. Initial investigations revealed that 40 people left Chilaw. “A person named [Mr R] has organized [sic] this trip and charged each person between Ra 1 lakh and 7 lakhs. Also revealed that [RAJ] and [S] have collected money from these suspects”. The balance of the report refers to the arrest of a suspect, Mr W.
[44] A redacted version appears at CB133-136
The second document is dated “04.04.213 [sic]” (document R1(2)). It is said to contain an illegible signature above the printed words “Officer in Charge, Airport Unit Criminal Investigations Department”, and is then stated to be stamped by a named person who is described as “Inspector of Police Officer in Charge Criminal Investigations Department Airport Unit, Katunayake”. The document identifies 20 people by name who were arrested on “04.04.213”, being persons who attempted to enter Christmas Island. It states that initial investigations revealed that on the morning of “01.03.2013” a group of 40 people left for Australia “in an unnamed and unregistered boat”; that on reaching Cocos Island on “18.03.2013” they were arrested by Australian authorities. A “person named [Mr R] organized [sic] the trip and collected between Rupees 1 lakh and Rupees 07 lakhs from these persons”. It “was further revealed that [RJN] and [S] also collected monies from the suspects”.
Paragraph (a) of ground 12 is directed to the Authority’s finding that the person referred to as [RAJ] in document R1(1) does not correspond to the person referred to as [RJN] in document R1(2). Paragraph (a) of ground 12 in effect claims that document R1(2) made it clear that RAJ and RJN were not the same person, and the evidence could not be taken to have suggested they were the same person. This contention ignores what the Authority found. The Authority went no further than finding that although documents R1(1) and R1(2) both refer to “S” as being one of the two persons who collected the money, the documents referred to the other person involved in collecting money by different names. That is a finding that was reasonably open to the Authority to make.
Paragraph (b) of ground 12 contends the Authority acted unreasonably, illogically, or irrationally in finding that documents R1(1) and R1(2) related to two separate court cases. The Authority, however, did not make any such finding; it found that documents R1(1) and R1(2) appeared to relate to two separate court cases. In any event, the ground on which paragraph (b) of ground 12 relies for claiming the Authority’s finding was unreasonable, irrational, or illogical is the assertion that document R1(1) related to a suspect, Mr W, whereas document R1(2) related to one court case that involved two boatloads.
Whether document R1(2) related to one or two boatloads is not the question that I must address; the question is whether it was open to the Authority to find that documents R1(1) and R1(2) appeared to relate to two separate court cases. I am not satisfied it was not reasonably open to the Authority to so find. The Authority principally relied on document R1(1) referring to one suspect, Mr W, on the charge of aiding and abetting the illegal transportation of 40 persons to Christmas Island, and document R1(2) referring to the arrest of 20 suspects that did not include Mr W.
Even if, as the applicant submits, it was not reasonably open to the Authority to make the findings to which ground 12 is directed, it is impossible to articulate how this could be material to the Authority’s conclusion that documents R1(1) and R1(2) are not genuine, and, therefore, material to the Authority’s decision. The findings to which ground 12 is directed are contained in a paragraph that contains unchallenged findings the Authority made in relation to whether documents R1(1) and R1(2) are genuine. The applicant does not challenge the Authority’s findings that document R1(1) was signed 12 March 2013 yet refers to “previous correspondence” of 4 April 2013; and that the applicant claimed Mr W was a cook on the boat that brought the applicant to Australia which arrived on 18 March 2013, yet document R1(1) represents that Mr W had been arrested and remanded by 12 March 2013, being the date of the document, and being six days before the applicant’s boat arrived in Australia. I am satisfied, therefore, that even if the Authority acted irrationally in making the findings to which ground 12 is directed, that would not have deprived the applicant of a realistic possibility of a different outcome.
disposition
The applicant has failed on all of the grounds on which he relies. The application, therefore, will be dismissed.
The parties accepted that costs should follow the event. Counsel for the Minister submitted that if the Minister succeeds he would be seeking an order that costs be set in the amount of $7,000.
I am satisfied that costs should follow the event; and that $7,000 is a fair indemnity of the costs the Minister incurred in successfully resisting this application. I will therefore order that the applicant pay the Minister’s costs set in the amount of $7,000. I will also order a name change in relation to the Minister.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 18 November 2022
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