BJU17 v Minister for Immigration - [2018] FCCA 816

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJU17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 816

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant:

BJU17

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

BRG 291 of 2017

Judgment of:

Judge Vasta

Hearing date:

12 March 2018

Date of Last Submission:

12 March 2018

Delivered at:

Brisbane

Delivered on:

12 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr Boccabella

Counsel for the First Respondent:

Mr Byrnes

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The Application for adjournment by the Applicant is refused.
The Application filed on 31 March 2017 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 291 of 2017

BJU17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

Application for Adjournment

This matter has an unfortunate history. The chronology has been very helpfully set forth by Mr Byrnes, but one can see from the decision of the Immigration Assessment Authority (“the IAA”) that it has been a long time for this particular Applicant to have his claims heard and determined.
The Applicant is a national of Sri Lanka of Tamil ethnicity. He arrived in Australia as an unauthorised maritime arrival on 8 September 2012.
On 22 December 2015, he applied for a safe haven enterprise visa. He was interviewed by the delegate on 15 February 2016. On 21 November 2016, the delegate refused to grant the Applicant the visa.
On 6 December 2016, the Applicant was provided with a copy of the audio of the protection visa interview. This followed his request for such on 5 December 2016. Because this was a fast-track decision, the matter was automatically referred to the Immigration Assessment Authority.
On 23 March 2017, that Authority, having reviewed the decision of the delegate, made a decision to affirm the original decision not to grant the Applicant a visa.
On 31 March 2017, the Applicant applied to this Court for such a decision to be reviewed. The grounds of that application were simply that the decision was affected by error. There was no other detail.
The Applicant appeared before Registrar Belcher on 3 October 2017 as a first Court date. The Registrar made an order which required, amongst other things, for the Applicant to file any amended application by 27 November, file any affidavit in support by 27 November, and to file submissions 14 days prior to the hearing; that is, 26 February 2018. And the hearing for this matter was set down for 12 March 2018 at 2.15 pm.
As far as the Court was concerned, nothing more was heard from the Applicant. The Minister filed the court book bundle as the Minister was required to do, and the Minister filed their submissions in accordance with the orders.
At 13:39 hours today, that is, 36 minutes before the hearing was scheduled to commence, my Associate received from Mr Boccabella submissions and an affidavit of his associate, Ms Manderville. The submissions were to the effect that the Applicant had not complied with the order of Registrar Belcher because the court book bundle did not contain all relevant documents.
Mr Boccabella, in those submissions, postulated that the IAA member must have had some recourse to the protection visa interview, because there were extensive references to it, and even some parts referred to in quotation marks. He therefore submitted that the IAA would have either had a transcript or had listened to the interview.
The submissions postulated that if the IAA had listened to the interview, it would have been expected that such would have been disclosed during the course of the reasons. Mr Boccabella concluded that, because he saw no references to the IAA listening to a recording, then it must have been a transcript that the IAA looked at. Mr Boccabella further concluded that such a document was a relevant document that was not contained in the bundle.
Mr Boccabella forcefully submitted that the Minister had failed to comply with the order number 1 by Registrar Belcher, and therefore the Applicant was prejudiced and an adjournment was needed.
The problem with that submission was that one simply has to read the decision of the IAA to discover that, in paragraph 27, the IAA member clearly says this:
“This inconsistent information regarding the Applicant's employment status was not clarified at the CHEV interview. After listening to the recording of the CHEV interview, I have formed the view that the Applicant was confused as to which incident the delegate was referring to, and this may be attributed to translation issues.”
It was quite obvious to anyone who looked at the decision of the IAA with a modicum of thoroughness that it was obvious that there was no transcript but that the member had listened to the interview.
Mr Boccabella today argued that because the IAA referred to some parts of that interview and put it in quotation marks, therefore they must have taken a transcript or had written down parts of the interview and that documentation should have been part of the record.
As I pointed out to him, that is not necessarily the case at all, and that many judges, myself especially, often listen to evidence and will then, in their judgments, write down what has been said and put it in quotation marks.
It then was somewhat reluctantly conceded that the Court could have formed a view that the Minister had actually complied with order 1 of the orders of Registrar Belcher. Nevertheless, the application was made, “for reasons of fairness”, that the Applicant was still entitled to an adjournment.
Mr Boccabella submits that he has only been able to look at the matter, but not having had the CHEV interview has meant that he has not got the full brief and cannot give any proper advice.
There are a number of problems with that submission.
Firstly, as I explained in my recitation of the chronology, the Applicant himself was given the audio of this interview on 6 December 2016. There is nothing in anything that Mr Boccabella has shown to me as to whether he has asked specifically for that material, especially given that the court book has been in Mr Boccabella's possession since late December of 2017, and the court book clearly shows the emails at pages 49 to 55 of the court book bundle where such audio copies were given to the Applicant.
The second thing is that there was only a request made very late last week for this interview to the solicitors acting for the Minister. Those solicitors sent the copy on a USB by courier to the offices of Mr Boccabella. In the affidavit of Ms Manderville that was sent to my chambers at 13:39 hours today, Ms Manderville talks of the fact that such USB was not able to be opened because it was in a “wav” format, it would seem, and Mr Boccabella's computer could not open it. The file was resent via a web link and Mr Boccabella has only heard some of it. The interview apparently is nearly four hours in duration.
The problem with this is that there is nothing that can be pointed to that would definitely assist the Applicant. There is nothing that would show, on the face of it, that there has been an error by the IAA. Mr Boccabella cannot, and does not, give any amended grounds for this application. There are no particulars of the ground other than it is a decision affected by error.
The chronology given to me by Mr Byrnes is also quite enlightening. After the Minister filed the bundle of relevant documents on 23 October, it heard nothing from the Applicant until 12 December 2017 when Ms Manderville, the associate to Mr Boccabella, sought an electronic copy of the court book, and a signed authority to have that was also presented.
Because of the size of the file, it needed to be sent by an external web link, which was given to Ms Manderville at 4.24pm on Tuesday, 12 December 2017. Nothing more seemed to be heard from the Applicant or Ms Manderville or Mr Boccabella to the solicitors for the Minister.
On 15 February 2018, Ms McConnell, the solicitor for the Minister, sent an email to Ms Manderville seeking confirmation of whether Mr Boccabella of Counsel was acting on behalf of the Applicant and whether he would be appearing at the final hearing that is occurring today. Mr Boccabella was copied into that email. There was no response.
The submissions were due on 26 February and so Ms McConnell sent a further email to both Ms Manderville and Mr Boccabella, again seeking to know whether Mr Boccabella was acting and whether the submissions were to be filed. There was no answer to that email. The deadline for the submissions came and went.
On 5 March, the Minister filed his outline of submissions in accordance with the orders of Registrar Belcher.
On 7 March 2018 at about 4.35 pm, Ms McConnell returned a missed telephone call from Mr Boccabella. It was at this time that he advised that he was not sure if he was acting for the Applicant in respect of these proceedings, but he sought a copy of the audio of the interview, as I have already outlined.
It is totally contrary to the efficient disposition of matters in this Court for there to be such an application for adjournment at the eleventh hour, as has happened here. The Court has had this matter set down for five months. There has been nothing filed with the Court. There has been nothing shown as to what would be gained by such an adjournment. The Applicant has had more than sufficient time to get his house in order.
It is no excuse that Mr Boccabella misread the decision of the IAA, nor is it an excuse that the audio recording was not able to be looked at until this time. This is especially so when the Applicant himself has had a copy of that audio since 6 December 2016 and there is no evidence at all to show that the Applicant does not have that copy anymore.
In all the circumstances, it seems to me that this is a matter where an adjournment is not in the interests of justice, and it is not fair, to either the community or the Respondent, for this matter not to be heard today.
Therefore, I refuse the adjournment and we will get on with the hearing.

Substantive Application

Earlier today I refused an application for an adjournment in this matter. The Applicant, as I have earlier said, is a Sri Lankan national. He is a Tamil from the Jaffna District in the northern province of Sri Lanka, and has also lived in another northern area of Sri Lanka.
His sister and her husband were members of the LTTE between 1999 and 2000. Fourteen of the applicant's relatives were shot and killed in 2006. Some were killed in their home by the Sri Lankan military. The Applicant was detained in 2006.
The Applicant claims that he was subjected to extortion demands by paramilitary groups. In August 2006, the Applicant claimed that his brother-in-law and his daughter were injured by an exploding shell. The applicant claimed that in February 2007 that his brother-in-law was detained by Sri Lankan Army officials and disappeared, and that he remains missing. He also claimed that one of his uncles disappeared around the same time.
The Applicant said that he feared for his safety and he went to Qatar, where he lived and worked from 2007 until September 2010. The Applicant said he returned to Sri Lanka in 2010 as the war had ended and he thought he would be safe.
However, Tamils continued to be subjected to what is known as round-ups; that is, they were taken, interrogated, tortured, some let go but some disappeared. The Applicant claimed that he was taken four or five times for questioning by the Sri Lankan Army in 2010 and 2011. He said that he was usually held for a day and then released.
The Applicant said he returned to Qatar in early 2011 and stayed there until he returned to Sri Lanka in mid-2012. He claimed that in June or July of 2012 he was detained by the army and accused of making a bomb. He was released when the customer for whom the Applicant was working told the authorities that the Applicant had been fixing his lorry and not working on a bomb. The Applicant said that after this incident, he decided to leave Sri Lanka.
He claimed that he feared that he would be harmed if he returned to Sri Lanka because of his Tamil ethnicity; because he is from the northern province of Sri Lanka and is perceived to be involved with the Tamil Tigers; because he departed Sri Lanka illegally and will be returned as a failed Tamil asylum seeker; and that he would be subjected to increased scrutiny because of his family history. He also fears harassment and extortion from the Eelam People's Democratic Party, the People's Liberation Organisation of Tamil Eelam, and the Tamil Eelam Liberation Organisation.
The Immigration Assessment Authority (“the IAA”) methodically looked through each of the claims that the Applicant had made, and, after going through all of them, came to these conclusions:- that the chance of the applicant facing serious harm from extortionists in the future in Sri Lanka is remote; that the chance of the Applicant facing harm in Sri Lanka because he is a Tamil from the north and is perceived to be a supporter of the LTTE is remote; his fears of persecution in this regard are not well-founded; that the procedures under which the Applicant, as a returnee, would be dealt with and any penalties to which he may be subjected will be applied in a non-discriminatory basis under a law of general application, and as such do not constitute persecution under the Act; and that cumulatively, the IAA was not satisfied that there is a real chance that the Applicant will face serious harm now or in the reasonably foreseeable future in Sri Lanka.
The IAA also found that his fears of persecution were not well-founded, and therefore he did not meet the requirement of the definition of refugee, and also that the complementary protection criteria also were not met by the Applicant.
The Applicant before me had originally only pressed this one ground, which was that the decision of the Second Respondent, the IAA, was affected by legal error.
Mr Boccabella, who appears today, particularised that legal error as being that the IAA made contradictory findings which affected the conclusion that the Applicant would not suffer harm from extortionists in the future, which therefore affected the conclusion that the Applicant would not suffer harm if returned to Sri Lanka. If such were shown, the Applicant submits that this would amount to a jurisdictional error.
The IAA when dealing with the Applicant came to a conclusion that generally the Applicant was a credible historian. The only matter to which the IAA held some negative finding was that the Applicant claimed that in 2006 his garage was bombed, and when I say garage, that is in effect a shop where mechanical repairs are done to cars. The IAA did not accept that the garage had been bombed in 2006.
At paragraph 36, the IAA said this:
“36. The applicant has consistently claimed that he is a mechanic and works a garage and the paramilitary groups kept demanding money. He said that the SLA also demanded that he fix their vehicles without being paid and that this happens about once a month. He was continually harassed in this way. It means that he had no income for himself and his family. Everyone has to pay, otherwise there is a big risk of being killed. He referred to many people being killed and dead bodies in the paddy fields. The applicant clarified at the SHEV interview that his father is a labourer and is not targeted in this way; it is people with business who are targeted and he is targeted because he had his own garage and is a business person. The applicant stated that working for another person rather than managing his own business would not bring enough income. The applicant clarified that the extortion he was subjected to was one of the reasons he left Sri Lanka and came to Australia.”
In that paragraph, the Applicant has made the claim that he would not earn enough money working for another person and that is why he would be managing his own business. Again, within the same paragraph, such is contradicted, because as the business owner, he is having to pay extortion money to the Sri Lankan Army, and to quote the Applicant, it means that he has no income for himself and his family.
So there is a contradiction even there by the Applicant, that if he were working for another person, rather than managing his own business, he would not bring in enough income, but in managing his own business, because of the extortion, he is not bringing in any money whatsoever; and he clarified that if he were a worker he would not be targeted in this way, as his father is not targeted because it is only people with a business who are targeted.
At paragraph 37, the IAA said that
“37. As noted by the delegate, country information indicates that there is fear among the Sri Lankan population regarding paramilitary groups who engage in criminal activity including extortion. In assessing the applicant’s past experiences of extortion the delegate noted that the applicant’s evidence that it is primarily business owners who are subjected to extortion. The delegate noted that the applicant had operated his own business for approximately one month only, between June/July and August 2012 and prior to this, his income in Sri Lanka was primarily derived from employment as a mechanic in garages owned by others…”
The delegate did not accept that the Applicant was subject to extortion and did not accept that he would face harassment from paramilitary groups if he were to return to Sri Lanka. But at paragraph 42, the IAA said this:
“42. I find that the applicant was somewhat exaggerating his status as a business owner; however after assessing all the evidence I accept that he was subjected to extortion demands when he set up his own garage and that his family were subjected to extortion demands from the PLOTE member. I accept that the applicant's concerns about extortion contributed to his departure from Sri Lanka in 2012. In assessing the chance of the applicant being subjected to extortion from paramilitary groups in the future in Sri Lanka, I note the following country information”
And the IAA member went on to talk about that particular country information.
In paragraph 45, the IAA wrote:
“45. In summary, the country information indicates that despite having renounced their paramilitary activities, there are credible reports that paramilitary groups continue to be active in Sri Lanka, including in criminal activity. I accept that these groups continue to operate in the applicant's home area. I note that the applicant does not claim he will be setting up his own garage or other business if he returns to Sri Lanka. It was not clarified in the SHEV interview whether or not his family continue to be subjected to extortion demands by the PLOTE member. However, the applicant did clarify in the SHEV interview that his father, who works as a labourer, is not subject to extortion demands. Whilst extortion is a serious crime I note that neither the applicant nor any member of the family have been kidnapped by extortionists in the past, and while the applicant stated his family had ‘tough times’ as a result of the extortion by the PLOTE member the applicant does not elaborate on what this involved. He does not claim that he or any member of his family were harmed in any way other than financially and he does not claim that he or any member of his family suffered financial loss to the extent that they could not sustain themselves economically. After assessing the evidence I find the chance of the applicant facing serious harm from extortionists in the future in Sri Lanka is remote.”

Mr Boccabella submitted that when one looks at all of that evidence, that I have just read into the record, the IAA has accepted that the Applicant has set up his own business in the garage, albeit only for a month, and that the Applicant was subjected to extortion demands, and that those demands form part of the reason why he wanted to leave Sri Lanka and go to Australia.
Mr Boccabella submitted that the sentence that started “I note that the applicant does not claim he will be setting up his own garage or other business if he returns to Sri Lanka” is not borne out by the evidence, because the evidence was that the Applicant did set up his own business because he could not get as much money if he was working for someone else; specifically, that working for another person rather than managing his own business would not bring enough income.
Therefore, Mr Boccabella submits that the Applicant would necessarily be setting up his own business, and so therefore the statement that “I note that the applicant does not claim he will be setting up his own garage or other business if he returns to Sri Lanka.” is false and has then led to an error that the IAA has made in saying that they find the chance of the Applicant facing serious harm from extortionists in the future in Sri Lanka is remote.
It seems to me that such a statement, when looked at in context, is not as contradictory as it may seem. When one looks at what was being said in paragraph 36, it is clear to me that the Applicant was in effect answering the criticism of the delegate. The delegate initially questioned whether the Applicant was setting up a business because he had only been there for about a month, and having set up his own business and just starting, as it were, how would he have been subjected to those sorts of extortion claims.
The Applicant instead gave compelling reasons to the IAA as to why it was that he was actually a person who was setting up his own business and therefore why the extortion claims were real.
It does not follow that the Applicant was saying that he would necessarily go back to setting up a business if he did return to Sri Lanka. This is especially so when one takes into account what he had said, that as a business owner, because of the extortion, he was not making any money at all. In effect, he had said that if he were working, as he had always worked before he set up his own business, he would have more money than what he was making setting up his own business, because as a worker he was not targeted by extortionists.
It seems to me that such a view that he did not claim that he would be setting up his own garage or other business if he returns to Sri Lanka was a finding of fact that was open to the IAA to make.
It may be that others may have come to a different conclusion, but that conclusion was one that was open. Given that it was open, the conclusion that followed from that finding of fact that the chance of the Applicant facing serious harm from extortionists in the future in Sri Lanka being remote was a finding that was open.
Given that that is the only matter for which there is any suggestion that a jurisdictional error existed, it leads to the only conclusion I can make.
I find there is no jurisdictional error and this application ought be dismissed, with costs in the sum of $7,328.00.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 15 May 2018