Bfa17 v Minister for Immigration

[2019] FCCA 1229

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFA17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1229

Catchwords:
MIGRATION – Application for judicial review of decision of Immigration Assessment Authority (Authority) affirming decision not to grant Safe Haven Enterprise (subclass 790) visa – whether Authority acted irrationally or unreasonably in finding that the applicant gave inconsistent evidence or in concluding that the inconsistencies were such as to adversely affect its assessment of the applicant’s credibility – whether the Authority misunderstood an aspect of the applicant’s claims and made adverse credibility findings on the basis of such misunderstanding – no jurisdictional error.

Cases cited:

SZLGP v Minister for Immigration & Citizenship [2008] FCA 1198

Applicant: BFA17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 843 of 2017

Judgment of: Judge Manousaridis

Hearing date: 27 April 2018

Date of Last Submission: 27 April 2018

Delivered at: Sydney

Delivered on: 15 May 2019

REPRESENTATION

Solicitors for the Applicant: Mr S Hodges of Hodges Legal

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 843 of 2017

BFA17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In this application for judicial review the applicant, who is a national of Sri Lanka, claims that the second respondent (Authority) made two jurisdictional errors in affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (SHEV). The first is that the Authority relied on what the applicant submits are minor inconsistencies in concluding the applicant was not a credible witness. The second is that it made adverse credibility findings against the applicant on the basis of an incorrect interpretation of the applicant’s claims.

Claims for protection

1. The applicant stated his claims for protection in a statement that accompanied his application for a SHEV (Statement).[1] He there states as follows:

   [1] CB79

   a)The applicant is a Tamil and a Hindu from Eastern Province. During the applicant’s school days he stayed in two areas, one controlled by the Liberation Tigers of Tamil Eelam (LTTE), the other by the Sri Lankan Army (SLA). The two areas were located approximately 26 kilometres from each other.

   b)Both areas were heavily militarised, and movement between the two areas was restricted. The Criminal Investigation Department (CID) maintained a heavy presence in the area. There were many check points on both sides.

   c)The LTTE required at least one member of every family to work for it to fight against the SLA. In the SLA-controlled area, there were heavy restrictions on civil life because the SLA “was suspicious of Tamils working for the LTTE”.

   d)From January 2000 to 21 September 2003 the applicant moved between addresses in Colombo, Pankudaly, Kallady and Thirupulugamam to avoid being targeted by the LTTE and the SLA. The applicant went to Dubai in September 2003 where he worked as a labourer in a carton factory. He remained in the United Arab Emirates (UAE) until September 2007 when he returned to Sri Lanka because his visa to remain in the UAE was not extended.

   e)When he returned to Sri Lanka the applicant continued to change addresses to avoid being targeted by the LTTE and the SLA.

   f)After the LTTE “dismembered in 2009”, the Karuna group, “being formerly part of the LTTE”, became dominant, and it worked with the SLA and the government. It was the Karuna group that was behind the LTTE’s idea of imposing the compulsory service of one person from every family. The applicant feared that because he had fled to Dubai the Karuna group would take revenge on him by kidnapping and torturing him. The applicant kept moving addresses.

   g)In about May 2012 the Karuna group made specific enquiries about people in the area to assist with an election campaign for the sister of a Karuna member. The Karuna group wanted a member of the applicant’s family to assist in the election campaign. On 1 May 2012 “they called” the applicant and then took him to assist putting up posters and “other campaign tasks”. On the night of that day, however, there was a fight between the Karuna group members and the Pillaiyan Party, a Tamil party that also worked with the Sri Lankan government. The applicant became afraid and escaped.

   h)On about 3 May 2012 the applicant received a letter from the Karuna group to attend an interrogation meeting on 7 May 2012. The applicant feared he might be tortured because the applicant “kept avoiding the service of the former LTTE and now the KARUNA group”. On about 21 May 2012 the applicant fled to India to avoid the Karuna group interrogation.

   i)When in India, the applicant’s father received a letter from the Karuna group asking the applicant’s father to present the applicant for interrogation on 2 June 2012. The applicant’s father did not go, and advised the applicant to stay in India.

   j)Because the applicant was unable to obtain permanent residency in India, the applicant’s father asked him to “secretly come back” to Sri Lanka so that the applicant’s father could organise the applicant’s departure to Australia. The applicant returned to Colombo on about 20 July 2012, and the applicant’s father arranged for the applicant to depart Sri Lanka on 6 September 2012.

   k)After the applicant left Sri Lanka, the CID approached his brother twice in one month in 2014 and asked him of the applicant’s whereabouts. The applicant’s brother was forced to tell the CID the applicant was in Australia. The CID told the applicant’s brother to bring back the applicant “otherwise they would give him trouble”. The applicant’s brother fled to Switzerland where he is seeking protection.

2. The applicant supported his claims by providing two letters, each of whose letterheads contained the words “Thamil Makkal Viduthalai Pulikal” (TMVP).[2] The first letter is dated 3 May 2012, and states:[3]

   As there are important matters to be discussed with you, Mr [applicant’s first initial and surname], we request you to attend 07/05/2012 at 10.00 am in the morning without failure and disregarding any difficulties associated with it.

   [2] CB97, CB103

   [3] CB97

3. The second letter is dated 28 May 2012; and it is identical to the letter dated 3 May 2012 except there is included the name of the applicant’s father, rather than the name of the applicant, and the time and date of the required attendance are different.[4]

   [4] CB103

4. In addition to these letters the applicant relied on what purports to be a translation of a complaint made by the applicant’s father at the police station identified in the document.[5] The document, which is dated “2012-06-07” and headed “COMPLAINT FOR SAFETY”, is as follows (errors in original):

   Full name is . . . . Came to the station and states the following: I have been living in the above address with family. On the 2012-06-05 a group of 05 unidentified persons came to our house and asked for my son, [name of applicant]. At that time he had gone to India. Later they said: when [last name of applicant] inform us. Later they made frequent phone calls and asked: Has [applicant’s last name] come back. Furthermore they threatened: if he comes we will shoot him dead. I do not know who these persons are. I am making this complaint to the police station as I fear for the safety of my son. That is what I have to say.

   I read and explained the above matter to the complainant. He accepted and signed it. I . . . recorded this complaint.

   [5] CB98

5. According to the Authority’s reasons, at his interview with the delegate (SHEV interview) the applicant claimed the LTTE chose him to be the one member of his family who had to serve the LTTE, and the applicant travelled to Dubai to avoid that forced recruitment.[6] The Authority also recorded that at the SHEV interview the applicant referred to threats of harm from the Pillaiyan group.[7]

   [6] CB224, [10]

   [7] CB224, [13]

Authority’s reasons

1. The Authority first considered whether the applicant faced a real chance of serious harm because of any perceived past links with the LTTE. The Authority was willing to accept that at the time he went to the UAE the applicant held a subjective fear that he would be recruited by the LTTE, and that his fear motivated the applicant’s decision to travel to the UAE.[8] The Authority, however, found the evidence before it did not support the conclusion the LTTE ever sought to recruit the applicant. The Authority noted that the applicant told the delegate that neither he nor any other member of his family were connected to the LTTE.[9] The Authority also considered country information regarding the overall situation of Tamils in Sri Lanka and, for reasons it is not necessary to repeat here, it concluded that Tamil civilians who lived in the former LTTE controlled areas of the northern and eastern regions of Sri Lanka who had given no more than low level support to the LTTE during the civil war did not face a real chance of significant harm for that reason alone.[10]

   [8] CB224, [10]

   [9] CB224, [11]

   [10] CB227, [24]

2. The Authority then considered whether the applicant faced a real risk of significant harm from the TMVP, the Karuna group, or the Pillaiyan group, due to any imputed political opinion. The Authority was willing to accept that the Karuna group and the Pillaiyan group operated in the Eastern Province where the applicant resided; that the Eastern Province is the powerbase of the Karuna group and the Pillaiyan group; the applicant was asked by members of the Karuna group to assist with election campaigning; the applicant sought to avoid having to assist the Karuna group; and the applicant had a subjective fear arising from his seeking to avoid the request from the Karuna group which in part motivated him to travel to Colombo and to India. The Authority, however, was not satisfied the applicant faced a real chance of serious harm from the TMVP, Karuna group, or the Pillaiyan group due to any imputed political opinion now or in the reasonably foreseeable future. The Authority so concluded for two reasons.

3. First, the Authority did not accept the applicant’s claims that he was threatened by members of the Karuna group. In particular, it did not accept that the Karuna group or the TMVP sent any letters to the applicant or to his father, or that supporters of the Karuna group, TMVP, or any unknown armed men went to the home of the applicant’s father and made threats against the applicant. The Authority found the applicant fabricated these claims.[11] The Authority relied on a number of matters:

   a)The Authority found the applicant had given inconsistent evidence about which political party was threatening him. At the entry interview the applicant claimed he was forced to work by the political party Sunthanathira Katchi (SK). With his application for a SHEV the applicant provided letters purportedly on the letterhead of TMVP. In the Statement and at the SHEV interview the applicant claimed the Karuna group and the Pillaiyan group threatened him. The Authority was prepared to assume that when the applicant referred to the Karuna group he also intended to refer to the TMVP because country information showed that the Karuna group is a faction that split from the LTTE in 2004 to form the TMVP, and that the Karuna group and the Pillaiyan group are different factions that split from within the TMVP in around 2008. The Authority said, however, it was concerned the applicant made no further reference to the SK after the entry interview, and that the applicant made no reference to threats of harm from the Pillaiyan group at the SHEV interview.[12]

   b)The Authority considered the applicant had provided materially inconsistent evidence “as to his fearing the Karuna group on return to Sri Lanka from Dubai”.[13] I will later address what the Authority said in this part of its reasons because ground 4 is directed to this aspect of the Authority’s reasons.

   c)The third matter on which the Authority relied is the two purported letters from the TMVP. The Authority noted that neither letter is addressed to the applicant; they are both addressed to the applicant’s father, and indicate the TMVP wished to discuss matters with the applicant’s father.[14]

   d)The Authority found implausible the applicant’s claims that the TMVP had written to his father in circumstances where the applicant does not claim that the TMVP had threatened the applicant’s father after the father refused to respond to the TMVP’s letter.[15] The Authority also found it implausible that the “Karuna group/TMVP would know to send the second letter to the applicant’s father because the applicant was in India”.[16]

   e)The Authority found the police statement to be inconsistent with the applicant’s claims because it purportedly records the applicant’s father stating that armed men unknown to the father made threats to the father, whereas the applicant claimed the men were known to the applicant and his father as being from the “TMVP/the Karuna group”.[17]

   f)The Authority did not accept that the purported letters from the TMVP or the police statement “are credible” due “to the inconsistencies between the applicant’s claims and the contents of the two letters and the police report”.[18]

   g)The Authority considered the applicant made a new claim before the delegate, namely, that he was often personally approached by supporters of the Karuna group to assist with election campaigning; but in the Statement the applicant “referred to letters and phone contact only”.[19]

   [11] CB225, [18]

   [12] CB224, [13]

   [13] CB225, [14]

   [14] CB225, [15]

   [15] CB225, [15]

   [16] CB225, [15]

   [17] CB225, [16]

   [18] CB225, [16]

   [19] CB225, [17]

4. The second reason on which the Authority relied for not being satisfied the applicant faced a real chance of significant harm from the TMVP, the Karuna group, or Pillaiyan group is country information the Authority was satisfied showed that although there were “some reports of the Karuna group and Pillaiyan group continuing to operate in Eastern province . . . there [sic] influence and power has been significantly reduced due to the change of government in Sri Lanka in 2015”. On the basis of that information, the Authority concluded it was not persuaded that because the Karuna group was once allied with the Sri Lankan military the Karuna group remains powerful.[20]

   [20] CB226, [19]

5. The Authority considered the applicant did not face a real chance of significant harm because he was a failed asylum seeker or because he departed Sri Lanka illegally. It is unnecessary to set out the Authority’s reasons because the applicant does not claim the Authority made any jurisdictional error in this part of its decision.

6. Finally, although the Authority was willing to accept that the applicant’s brother had sought asylum in Switzerland, the Authority did not accept that the applicant’s brother did so because the CID spoke to the applicant’s brother. The Authority based that finding on the findings it had already made “regarding the general credibility of the applicant together with his vague evidence regarding the CID questioning his brother”.[21] The Authority also relied on the applicant’s not having claimed that the CID attempted to contact any other member of the applicant’s family after the applicant’s brother’s departure.[22]

   [21] CB229, [38]

   [22] CB229, [38]

Ground 3 of the amended application

1. The applicant relies on only grounds 3 and 4 of the amended application.  Ground 3 is as follows:

   The Authority committed jurisdictional error by relying on minor inconsistencies to support its adverse credibility findings.

   PARTICULARS

   a.At paragraph 13 of its decision, the Authority found that the applicant’s evidence in relation to the political party that was threatening him was so inconsistent such that it undermines his credibility.

   i.In the applicant’s entry interview, he claimed that the Suthanathira Katchi (‘SK’) and the Tamil Makal Viduthalai Pillikal (TMVP) political parties had approached him in order to get him to assist their election campaign.

   ii.In his Safe Haven Enterprise Visa (SHEV) statement, the applicant claimed that he had been approached by the Karuna Group in 2012.

   iii.In his SHEV interview, the applicant claimed to fear harm from the Karuna Group and the Pillaiyan Group.

   b.Although the authority refers to country information that the TMVP was founded by Karuna and that the Karuna Group and the Pillaiyan Group were factions of the TMVP, it considered that the applicant’s evidence was inconsistent enough to attract adverse credibility findings.

2. This ground must be read with the ground as stated in applicant’s written submissions, where the ground is stated as follows (markup added):

   The Authority committed jurisdictional error by relying placing undue weight on minor inconsistencies to support its adverse credibility findings to the extent that it was irrational, illogical and manifestly unreasonable.

3. In his oral submissions Mr Hodges, who appeared for the applicant, made a number of submissions. First, he submitted the Authority’s finding of inconsistency “is inappropriate”.[23] By that Mr Hodges said he meant that there was no basis for the Authority to find there was an inconsistency, at least “not without deeper analysis of the changing political forces in Sri Lanka during the relevant years”.[24] Second, Mr Hodges submitted the Authority used the word “inconsistent” “without identifying the inconsistency”.[25] Mr Hodges submitted the Authority gave no analysis “of what the group or entity known as SK was doing at any time”.[26] Third, Mr Hodges submitted there was no inconsistency between the applicant mentioning SK in the entry interview and his not mentioning SK in the Statement.[27]

   [23] T6.15

   [24] T6.25

   [25] T6.45

   [26] T7.15

   [27] T13.15

4. The Minister submitted it was reasonably open to the Authority to find that the applicant’s mentioning of SK at the entry interview but not in the Statement, and the applicant’s not mentioning the Pillaiyan group until the SHEV interview, constituted inconsistencies; and that the inconsistencies were relevant to the assessment of the credibility of the applicant’s claim that he had been approached by the Karuna group. The Minister further submitted that the inconsistencies constituted a modification of the basis on which the applicant said he feared harm and, for that reason, cannot be said to be a “minor inconsistency” in the sense discussed by Gordon J in SZLGP v Minister for Immigration & Citizenship.[28]

   [28] [2008] FCA 1198, at [25]

5. In essence, ground 3 claims:

   a)there were insufficient points of difference between the SK, the TMVP, the Pillaiyan group, and the Karuna group such as to have rendered it reasonable for the Authority to have expected the applicant to differentiate between these groups; and

   b)the Authority therefore acted unreasonably or irrationally by relying on the applicant’s failure to distinguish between these groups at different stages of his application for a SHEV as a ground for making adverse credibility findings against him.

6. The only basis for this claim is that the Authority referred to country information that the TMVP was founded by the Karuna group and that the Karuna Group and the Pillaiyan group were factions of the TMVP.

7. I do not accept the claim. First, that the Authority referred to country information to the effect that the TMVP was founded by the Karuna Group, and that the Karuna Group and the Pillaiyan group were factions of the TMVP, does not necessarily imply that there were insubstantial points of difference between, on the one hand, TMVP, the Karuna Group, and the Pillaiyan group and, on the other, SK. Nor does it necessarily imply there were insubstantial differences between TMVP, SK, or the Pillaiyan group. If anything, that the Pillaiyan group split from within the TMVP would reasonably suggest there were substantial points of difference between the TMVP and the Pillaiyan group, otherwise the Pillaiyan group would not have decided to split from the TMVP. Second, the Authority did consider whether there were points of difference between the Karuna group, TMVP, the Pillaiyan group, and SK. After noting that the TMVP was formed by the Karuna group, and that the Pillaiyan group subsequently split from the TMVP, the Authority was willing to accept that when the applicant referred to the TMVP he was intending to refer to the Karuna group.

1. Ground 3, therefore, fails.

2. Before I leave this section of my reasons, it may appropriate to note that, as I have set out earlier in these reasons, the Authority relied on a number of matters for not accepting the applicant’s credibility, none of which is challenged by the applicant. Further, and as I have also noted, the Authority found that the power of the Karuna group has been significantly reduced after the change of government in 2015, and that the Authority, therefore, was not persuaded that because the Karuna group was once allied with the Sri Lankan military the Karuna group remains powerful. The applicant has not challenged this part of the Authority’s reasons. I mention these matters because, even if the applicant had succeeded in establishing the Authority acted irrationally or unreasonably in relying on the applicant’s inconsistent claims about the number and identity of the parties he claimed threatened him, there may well have been a real question about whether such irrationality or unreasonableness was material.

Ground 4 of the amended application

1. Ground 4 of the amended application is as follows:

   The Authority committed jurisdictional error by making adverse credibility findings based on an incorrect interpretation of the applicant’s claims.

   PARTICULARS

   a.At paragraph 14 of its decision, the Authority noted that, in his SHEV statement, the applicant has left Sri Lanka for Dubai in 2003 out of fear of being forcibly recruited by the Karuna Group.

   b.The Authority found this claim to be ‘materially inconsistent’ with the applicant’s claim elsewhere that he had gone to Dubai because he feared being forcibly recruited by the LTTE as well as country information which indicates that the Karuna Group did not exist in 2003. It was held that this inconsistency undermined the credibility of the applicant’s claims.

   c.A clear reading of the applicant’s SHEV Statement dated 8 March 2016, indicates that the applicant did not advance either of the claims referred to above.

   i.On the contrary, in paragraph 15 of his Statement, the applicant clearly states that the Karuna Group split from the LTTE in 2009.

   ii.In paragraph 16 of his Statement, the applicant claims that the Karuna Group was behind the idea of compulsory service for one person in the family during the LTTE fight against the SLA. Here, the applicant does not claim that the Karuna Group existed as a separate entity but rather a faction within the LTTE.

2. Mr Hodges made no separate oral submissions in support of ground 4 other than to say, as he began to address ground 3, that he would “touch on some of the matters that are relevant to ground 4”.[29]

   [29] T3.20

3. Given that ground 4 is directed to paragraph 14 of the Authority’s reasons, it would be convenient to reproduce that paragraph:

   In his SHEV statement, he claimed to fear harm from the Karuna group, because he went to Dubai to avoid serving the Karuna group. When the delegate questioned the applicant regarding this part of his claims, he stated because Karuna worked with the army, that was why the army sometimes questioned him. I consider that explanation does not clarify why the Karuna group would target the applicant for harm because he went to Dubai. As discussed above, his evidence elsewhere is he went to Dubai due to a subjective fear of forced recruitment by the LTTE, not to avoid the Karuna group. The country information I referred to above indicates too that the Karuna group did not exist at the time the applicant went to Dubai. I consider the applicant has provided materially inconsistent evidence as to his fearing the Karuna group on return to Sri Lanka from Dubai and I consider that inconsistent evidence undermines the credibility of his claims.

4. I do not accept the Authority was incorrect in stating that in the Statement the applicant claimed he feared harm from the Karuna group, because he went to Dubai to avoid serving the Karuna group. At the very least it was reasonably open to the Authority to consider that the applicant did make such claim in the Statement. That appears from paragraph 16 of the Statement:

   The KARUNA group was behind the idea of compulsory service for one person in the family during the LTTE fight against the SLA. As I had fled to Dubai to avoid service I was fearful that they might take revenge by kidnapping and torturing me.

5. That in paragraph 15 of the Statement the applicant states that the LTTE “dismembered in 2009” and that the Karuna group became dominant does not imply that the applicant claimed the Karuna group had no separate identity.  Paragraph 15 of the statement asserts the Karuna group had an identity; and the applicant claims the Karuna group was “formerly part of the LTTE”. And to claim, as it is claimed in paragraph (c)(ii) of the particulars to ground 4, that the applicant did not claim in paragraph 16 of the Statement that the Karuna group was a separate entity, but was only a faction within the LTTE, does not gainsay that the applicant claimed the Karuna group had a distinct identity; that in paragraph 16 of the Statement the applicant claimed the Karuna group – not the LTTE in general – was behind the idea of compulsory service for one person; and that it was the “they”, the Karuna group, the applicant claimed he feared might take revenge on him by kidnapping and torturing him.

6. It is not entirely clear what the Authority considered to be the inconsistent evidence the applicant gave. The most likely possibility is, on the one hand, the evidence the applicant gave at the SHEV hearing that the LTTE chose him to be the one member of his family who had to serve the LTTE, and his deciding to flee to Dubai to avoid that forced recruitment, and, on the other, the claim the applicant made in paragraph 16 of the Statement that he fled to Dubai to avoid serving the Karuna group. If that is the evidence the Authority considered to be inconsistent, a strong case could be made that it was not open to the Authority to consider the claims to be inconsistent because the applicant claimed the Karuna group formed part of the LTTE, and it was the Karuna group, while it was part of the LTTE, that was behind the idea of compulsory service. Whether or not, however, it was reasonably open to the Authority to find that the applicant’s evidence was inconsistent is not a question I need to determine; and that is because it is not a ground raised by the applicant. Ground 4 goes no further than claiming the Authority incorrectly interpreted the claim the applicant made, and I have found the Authority made not such error. For that reason, ground 4 does not succeed.

7. Even if I were to have concluded that it was not reasonably open to the Authority to have found the applicant gave inconsistent evidence about the reasons for which he went to Dubai in 2003, there would be a real question whether this would be material. First, the Authority relied on country information to the effect that the Karuna group did not exist at the time the applicant went to Dubai. Notwithstanding the Authority’s having considered inconsistent the applicant’s claims that he went to Dubai to avoid the Karuna group and the LTTE, it is inevitable the Authority would have relied on the country information that showed the Karuna group did not then exist as a reason for not accepting the applicant’s claim that he went to Dubai to avoid the Karuna group and the LTTE and, for that reason, draw inferences adverse to the applicant’s credibility. Second, as I have already noted, the Authority relied on a number of matters for finding the applicant was not a credible witness; and it also found that the power of the Karuna group has been significantly reduced after the change of government in 2015.

Conclusion and disposition

1. The applicant has not succeeded on the grounds on which he relied. I propose, therefore, to order that the application be dismissed. I will deal with the question of costs at the time I pronounce my order.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  15 May 2019