Blu18 v Minister for Immigration
[2019] FCCA 1767
•27 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLU18 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1767 |
| Catchwords: MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority’s findings were legally unreasonable – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.473DC, 476 |
| Cases cited: DPI17 v Minister for Home Affairs [2019] FCAFC 43 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 |
| First Applicant: | BLU18 |
| Second Applicant: | BZL18 |
| Third Applicant: | BMA18 |
| Fourth Applicant: | BMD18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 796 of 2018 |
| Judgment of: | Judge Emmett |
| Hearing date: | 24 June 2019 |
| Date of Last Submission: | 24 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2019 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Stephen Hodges (Hodges Legal) |
| Counsel for the Respondents: | Ms Rachel Francois |
| Solicitors for the Respondents: | Clayton Utz |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 796 of 2018
| BLU18 |
First Applicant
| BZL18 |
Second Applicant
| BMA18 |
Third Applicant
| BMD18 |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 23 February 2018 (“the Authority”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 23 August 2017 refusing the applicants a Safe Haven Enterprise Visa.
The applicants are a husband and wife and their two children from Sri Lanka, who arrived in Australia on 1 May 2013 as unauthorised maritime arrivals. The first applicant and second applicant, being husband and wife respectively, made partially separate claims for protection. The third and fourth applicants relied on their parents’ claims as members of the same family unit.
The background to this matter, the claims of the first and second applicants and the relevant aspects of the Authority’s decision are accurately summarised in counsel for the first respondent’s written submissions as follows:
“A. Background
2. The applicants are a husband and wife and their two children from Sri Lanka (CB 51), who arrived in Australia on 1 May 2013 as unauthorised maritime arrivals (CB 370 - 371). By letter dated 29 August 2016, the applicants were informed that the Minister had lifted the bar under section 46A(2) of the Migration Act 1958 (Cth)(Act) and they were invited to apply for the visas (CB 43).
3. On 29 March 2017, the applicants lodged the application for the visas (CB 50 – 301). The first applicant (husband) and second applicant (wife) made partially separate claims for protection. The third and fourth applicants (children) relied on their parents' claims as family members.
4. The husband claimed to fear harm on the basis of (CB 89 – 96 (2017 statement), 229 – 236 (2015 statement)):
(a) imputed links to the LTTE - his brothers were jailed by the CID and brought to court on suspicion of involvement in the 1997 Dalada Maligawa bomb blast;
(b) his support of MP Pararajasingam and his family's support of the TULF and TNA - for which he was abducted by the Karuna group and CID on Election Day, 2 April 2004 and harmed by a former LTTE senior member (Gaddafi Master);
(c) a court case brought by his friend against members of the Karuna group, in which the husband was a witness;
(d) previous harm from the Karuna group and CID - including an attempted kidnapping of his family in February 2007, and extortion attempt in December 2012 with respect to his business; and
(e) being a Tamil male from a former LTTE controlled area, a goldsmith and owner of a jewellery store previously subjected to extortion, having attended LTTE martyrs day celebrations in Sri Lanka and Australia, and on the basis of future political activities.
5. The wife claimed to fear harm on the basis of (CB 225 – 228 (2015 statement)):
(a) her family's profile as LTTE supporters - her father and grandmother were killed for helping the LTTE, her brothers went missing and the family faced past mistreatment by the army;
(b) her husband's problems with the Karuna group (including the court case) - for which she was harmed by the Karuna group; and
(c) an attempted rape by Karuna group members.
6. Relevantly, in the context of this application, the alleged assaults and threats to the wife in 2012:
(a) were not mentioned by the husband in any form as a reason for his leaving Sri Lanka in his arrival interview on 4 July 2013 despite allegedly knowing about the attack (CB 12, 234 [39]); and
(b) were not mentioned in any form by the wife who only spoke of conduct against her husband in her arrival interview on 4 July 2013 (CB 33).
7. On 5 June 2017, the husband and wife were interviewed by the delegate (CB 329, 346, 373, 378). The account during the interview of the alleged assault was not consistent with the written accounts: see CB 379, 462 and contrast CB 227 [17] and 234 [39] - [40]. By letter dated 23 August 2017, the applicants were informed that the delegate had refused to grant them the visas (CB 365ff).
B. Relevant aspects of the IAA decision
8. In relation to the issue of the alleged attempted rape of the wife, the IAA did not take into account a new claim made to it that this was an attempt by Karuna intelligence and the CID to disgrace their family. The IAA was not satisfied that it was credible for the purposes of s 473DD(b)(ii) of the Act given that: neither the husband or wife mentioned it in the arrival interview; the attempted rape (but not this new claim) had been mentioned in their written statements; the claim conflicted with the wife’s assertion that she did not know the identity of her attackers; and, the IAA was (for reasons set out in its decision) not satisfied that the underlying claim of sexual assault was reliable (at CB449 [11]).
9. The IAA did not accept the wife’s claims with respect to the attempted rape because:
(a) she did not mention this claim in any form until September 2015 (and the applicants confirmed at the arrival interview that extortion demands were the sole reason for their departure) (at CB462 [77]);
(b) the account of the claimed assault was inconsistent in a number of key respects, and was inconsistent with the husband’s account of where the attack took place and surrounding details (at CB462 [78] – [79]; and
(c) the IAA did not accept as plausible that the husband would have left his wife and children at home alone as claimed, in the circumstances of the claimed extortion attempts and threats (at CB462 [80]).”
The proceeding before this Court
The applicants were represented by Mr Stephen Hodges, solicitor.
At the commencement of the hearing Mr Hodges sought leave to rely on a further draft particular to Ground 1 that he had written on a piece of paper whilst awaiting the commencement of the hearing, and handed to the Court. That particular is as follows:
“Failure by the Authority to consider the use of the discretion under s.473DC.”
Leave was opposed by the first respondent on the basis that there was no notice whatsoever of this further particular to be relied upon. The first respondent submitted that the particular arose in response to reference by the first respondent in their submissions to the absence of any finding by the Delegate based on the second applicant’s demeanour during her interview with the Delegate. The proposed amendment was based on DPI17 v Minister for Home Affairs [2019] FCAFC 43 (“DPI17”) where the Full Court of the Federal Court held that the Authority erred in not inviting comment from an applicant in accordance with s.473DC of the Act. However, unlike in the case before this Court in DPI17 a transcript of the Delegate’s interview had been provided and the same inconsistencies were relied upon by both the Delegate and the Authority.
Having regard to the lateness of the application for leave and based on the lack of reasonable prospects of success of the draft particular and in circumstances where the facts in the case before this Court were markedly different from DPI17 (which was acknowledged by the applicant’s solicitor), leave to rely on the draft particular was refused.
Upon that refusal, the first respondent’s solicitor informed the Court that he wished to say nothing further in chief and simply to rely on his written submissions. The applicant confirmed that he relied only on Ground 1 of the Application, filed on 22 March 2018, and that the applicant no longer relied upon either Ground 2 or Ground 3.
Ground 1 is as follows:
“Ground 1 - The Authority's reasoning concerning Applicant 2's sexual assault claim was so unreasonable and not open to it.
Particulars
I. The Authority formed the view that Applicant 2's sexual assault claim was not consistent in a number of respects, essentially due to inconsistencies in the written statement and what was said during the SHEV interview [78].
2. The Authority raised concerns at [77] that Applicant 2 did not “mention that she was assaulted....” at the arrival interview in July 2013 [77].
3. Applicant 2 claimed she did not want to talk about the sexual assault at the arrival interview “as she had a male interpreter” [77] and on that basis the Authority formed the view that “descriptions of sexual assaults may be difficult” [77].
4. The delegate accepted “that the applicant was sexually assaulted based on her statements at the PV interview” [page 10 - delegate's decision record].
5. The delegate (a female), interviewed Applicant 2 face to face and made a positive finding regarding the sexual claim on the basis of Applicant 2's oral statements made at the PV interview.
6. The sexual assault claim is a sensitive claim, accepted by the Authority as a claim that is difficult to describe.
7. Therefore it could be said that the delegate (unlike the Authority) had the benefit of observing Applicant 2 when she made statement that were difficult to describe.
8. It could therefore be said that Applicant 2's demeanour is likely to have assisted the delegate when she made a positive finding.
9. The Authority however made a finding on the papers after listening to the audio recording.
10. It was so unreasonable for the Authority to have deviated from a positive finding made by the delegate where Applicant 2's demeanour is likely to have contributed to the delegate's positive finding.
11. For these reasons the Authority's decision is affected with legal error.”
Ground 1 asserts that the Authority’s reasoning concerning the second applicant’s sexual assault claim was so unreasonable as to amount to jurisdictional error (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611).
The applicant referred to Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 where Allsop CJ stated as follows:
“...sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power…”
The applicant’s solicitor stated that the second applicant claimed that she had not talked about the sexual assault incidents at the arrival interview because she did not like talking about it and because the interpreter at the arrival interview was male.
It is well established that caution should be exercised by decision makers in relation to omissions by applicants of matters at entry interview, and, that interviewees are being asked to digest a lot of information quickly and in circumstances which they may perceive as hostile (see MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80).
The applicant’s solicitor submitted that the Authority failed to consider that it would be especially difficult to recount descriptions of sexual assault in front of a foreign official and that the second applicant had advanced her claim of sexual assault in a written statement, dated 10 September 2015. The applicants also submitted that the Authority’s rejection of the second applicant’s claim was based on minor inconsistencies rather than substantial inconsistencies which went to the centre of the claim.
The first respondent contends that the inconsistencies relied upon by the Authority were not “minor” inconsistencies but were significant differences which could rationally form the basis for Authority’s findings.
A fair reading of the Authority’s decision record makes clear that there were three lots of reasoning relied on by the Authority for its rejection of the applicant’s claim of sexual assault.
The first was the applicant’s failure to mention the claim until lodging her written statement in September 2015. The Authority accepted that descriptions of sexual assault may be difficult however considered it difficult to believe that the second applicant had not mentioned that she was assaulted or visited by the Karuna Group in 2012, particularly given it had occurred just prior to the departure of the applicants from Sri Lanka. The Authority also noted that the applicant had been asked if there were any other reasons why she left Sri Lanka and the second applicant had confirmed that the extortion demands were the sole reason for their departure. The Authority noted that the second applicant continued to mention the husband’s 2004 abduction and demands for money but did not mention any attempted kidnap in 2007 or visit by the Karuna Group in 2012.
Secondly, The Authority then identified particular inconsistencies that it found to exits as follows:
“78. Further, applicant 2's own account of the claimed sexual assault was not consistent in a number of respects. For instance in her statement she claimed she was sleeping and men broke the door down, but in her interview she said she heard a knock on the door, thought her husband was coming, so opened the door. In her statement she claimed 3 men came inside, but in her interview she stated two men came inside. In her statement she stated the neighbours came to help and the men left. However in her interview she claimed a motorbike sound was heard outside so the men ran away. In her statement she stated the men asked where her husband was. However in her interview she said the men did not say anything. In her statement she stated she phoned her husband and the neighbours helped her to join the husband at his mother's house. However, in her interview she said 10 or 1S minutes after the attack her husband came and she told him what happened but they promised not to tell anyone.”
Thirdly, the Authority found the second applicant’s account of the attack upon her not consistent with the first applicant’s statement about where the attack took place, who made phone calls to whom and whether the first applicant returned to the house.
Counsel for the first respondent in written submission identified the relevant principles relating to legal unreasonableness as follows:
“14. Third, it is well established that unreasonableness in a decision sufficient to constitute jurisdictional error will only be found where, following a consideration of the subject matter, scope and purpose of a provision, and in light of the reasons given for the decision, a finding is “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, or “obviously disproportionate". (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”); Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158). Findings of legal unreasonableness are "fairly rare and would only occur in relatively clear cases". (see Li at 376-77; Minister for Immigration and Border Protection v Eden (2016) 240 FCR, 180). If probative evidence is before a decision maker which can give rise to different processes of reasoning and if reasonable, logical or rational minds might differ in respect of the In the case before this Court, it was open to the Authority to have regard to inconsistencies that it found to exist in the second applicant’s conclusions to be drawn from that evidence, a decision cannot be said to be unreasonable simply because one conclusion has been preferred to another possible conclusion. (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”), 648-650).”
In the case before this Court, it was open to the Authority to have regard to inconsistencies that it found to exist in the second applicant’s written claims and her interview with the Delegate. I accept the submission of the first respondent’s counsel that the inconsistencies found to exist by the Authority are far more extensive than those found by the Delegate. The Delegate did in fact accept that the applicant had been sexually assaulted but was not persuaded that it was by members of the Karuna Group. The Delegate found that the second applicant had embellished her claims in order to strengthen her claims for protection.
The Authority identified particular inconsistencies that caused it concern. Breaking down the door and opening the door is a significant inconsistency. The inconsistency in her claim that three men came inside and that two men came inside is not insignificant. The Authority also referred to the applicant stating that neighbours came to help her and the men left and the Authority found that to be inconsistent with her claim at interview that a motorbike sound was heard outside so the men ran away. The Authority also identified inconsistencies as to what the men said to her during the time that they were at her home.
I do not accept the applicant’s submission that these identified inconsistences are “minor”. This is particularly so when seen in context of the Authority’s other concerns, such as the second applicant’s failure to make any mention of the Karuna Group’s conduct with respect to her in her initial interview and her positive confirmation that the second applicant’s claims related only to the extortion demands on the husband’s business.
It is well established that the Authority is not bound by the Delegate’s findings and was entitled to reach its own conclusions on its evaluation of the material before it (see DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [76] per Reeves, Robertson and Rangiah JJ.).
“75. There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.
76. It was open to the Authority to disagree with the delegate's evaluation of the material without providing to the appellant an opportunity to respond.
77. If we are wrong in this conclusion, for completeness we would indicate that whether or not the appellant was a secret informant to the CTS was not a new issue in the relevant sense even though the reasons given by the Authority for rejecting the claim differed from those of the delegate. We refer to the submissions by the appellant's lawyers which we have noted at [22] above.”
In the circumstances, the Authority’s findings were open to it on the evidence and material before it and for the reasons it gave. The Authority’s findings were probative of the issues before it and were not without an intelligible justification (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). The Authority’s findings were neither arbitrary, capricious nor irrational and were not “obviously disproportionate”.
The fact that it may have been open to the Authority to make other findings is not sufficient to establish that the Authority’s decision was so unreasonable as to give rise to jurisdictional error (see Li; SZMDS).
Accordingly, Ground 1 is not made out.
Conclusion
A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicants; and, had regard to all material provided in support. The Authority identified independent country information to which it had regard.
The Authority then made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Date: 27 June 2019
2
11
2