BTA17 v Minister for Immigration and Anor
[2020] FCCA 1915
•17 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BTA17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1915 |
| Catchwords: MIGRATION – Persecution – review of Immigration Assessment Authority (“IAA”) decision – visa – protection visa – refusal. PRACTICE & PROCEDURE – Application for extension of time to bring proceedings – allegation that the IAA’s decision affected by jurisdictional error by reason that relevant considerations were not taken into account, evidence was not taken into account, findings ungrounded on evidence were made and an incorrect test was applied. |
| Legislation: Migration Act 1958, ss.5, 5H, 5J, 36, 473BB, 473CA, 473CB, 474, 477 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, sch.4 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | BTA17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1228 OF 2017 |
| Judgment of: | Judge Cameron |
| Hearing date: | 2 July 2020 |
| Date of Last Submission: | 2 July 2020 |
| Delivered at: | Sydney |
| Delivered on: | 17 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms T Baw |
| Solicitors for the Applicant: | Lander & Rogers |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The time for the commencement of this proceeding be extended to 24 April 2017.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1228 of 2017
| BTA17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a citizen of Sri Lanka who arrived by boat at Christmas Island on 17 August 2012 without a visa permitting him to enter and stay in Australia. On 25 September 2015 he lodged a Safe Haven Enterprise (subclass 790) Visa (“SHEV”) application with what is now the Department of Home Affairs (“Department”) alleging that he feared persecution in Sri Lanka because of his ethnicity and imputed links to the Liberation Tigers of Tamil Eelam (“LTTE”). On 1 September 2016 a delegate of the first respondent (“Minister”) refused the applicant’s application and referred his matter to the second respondent (“IAA”) for review. The applicant was unsuccessful before the IAA whose decision was dated 31 January 2017 and on 24 April 2017 he applied to this Court for judicial review of that decision.
The applicant’s application was filed outside the limitation period prescribed by s.477 of the Migration Act 1958 (“Act”) and the applicant has applied for an extension of time within which to bring this proceeding.
For the reasons which follow, the time within which to bring this proceeding will be extended but the application for judicial review will be dismissed.
APPLICATION FOR AN EXTENSION OF TIME
Section 477 of the Act provides the time limit which applies to proceedings for judicial review of IAA decisions. At the time of the IAA’s decision, it relevantly provided:
477 Time limits on applications to the Federal Circuit Court
(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision means:
…
(ca) in the case of a migration decision made by the Immigration Assessment Authority—the date of the written statement under subsection 473EA(1); …
Because the IAA’s decision was dated 31 January 2017, the applicant was required to file his application for judicial review with the Court on or before 7 March 2017. As stated earlier, the application was not filed until 24 April 2017 and so it was brought out of time.
Application in writing citing reasons
The consequence of the application having been filed late is that the Court must consider the two questions posed by s.477(2) of the Act. The first of these is whether an application supported by reasons has been made to the Court for an extension of time. The application commencing this proceeding contained an application for an extension of time and set out the basis on which the applicant said that an extension of time would be in the interests of the administration of justice. The initial criteria for the granting of an extension of time have therefore been satisfied.
Interests of the administration of justice
The second question posed by s.477(2) of the Act is whether it is in the interests of the administration of justice to extend the time. In the circumstances of this case, that question will be determined by whether the applicant has provided a satisfactory explanation for his delay in commencing the proceeding and whether the allegations made in the substantive application for judicial review have sufficient merit that the Court should consider them at a trial. The Minister did not contend that the delay caused him any material prejudice.
Satisfactory explanation for delay
In his amended application the applicant alleged in support of an extension of time:
1.I was unable [sic] file the application within 35 days of the date of the Second Respondent’s decision because I did not receive the decision until after 35 days had elapsed from the making of the decision.
2.My application has reasonable prospects of success because the Second Respondent’s decision dated 31 January 2017 is infected with jurisdictional errors.
3.It is necessary in the administration of justice that an extension of time is granted because I was unable to file an application within time because I did not receive the Second Respondent’s decision until after 35 days had elapsed from the making of the decision.
4.It is in the public interest that an extension of time is given because I should [sic] be prevented from filing an appeal because of an administrative error of the Department of Immigration and Boarder Protection or the Immigration Assessment Authority.
5.It is in the public interest that I am not returned to Sri Lanka to be killed because of an administrative error by the Department of Immigration and Border Protection or the Immigration Assessment Authority.
6.Granting the extension of time would not cause undue prejudice to the First or Second Respondents.
In his affidavit affirmed 18 April 2017, the applicant deposed:
a)at the end of September 2016 he changed address and informed the Department of this by telephone;
b)on 31 January 2017, the IAA made its decision, but he did not receive it;
c)during the week of 10 March 2017, he received a phone call from the Department asking what he was going to do now that the IAA had made its decision. He told the Department that he had not received it;
d)he then returned to his old address and was given the decision by the person who was then living there; and
e)he was unable to file his application for judicial review within time because he only received the decision on 10 March 2017.
The applicant was not cross-examined on this evidence and I accept it. The fact that the IAA’s decision did not come to the applicant’s attention earlier than it did is the result of the applicant’s provision of his new address to the Department rather than to the IAA. That was a mistake and I accept that it occurred. In circumstances where the applicant did act promptly once he knew of the IAA’s decision, and the delay was not very great in any case, it should not weigh too heavily against him.
I conclude that the applicant has demonstrated a satisfactory explanation for the delay in commencing the proceeding.
Merits of substantive application
It should be noted in relation to the question of the merits of the substantive application that in proceedings for judicial review of an IAA decision, the Court cannot reconsider the visa application underlying that decision. Its task is to determine whether the relevant Tribunal decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. Consequently, before the Court would conclude it to be in the interests of the administration of justice to extend the time within which to bring a proceeding, it is necessary that an applicant demonstrate that his or her case has sufficient merit that the Court should consider it at a trial.
For the reasons that follow, I am not persuaded that the IAA’s decision is affected by jurisdictional error. Nevertheless and as will become apparent, the applicant’s arguments were sufficiently meritorious to conclude that it is in the interest of justice that the time for the commencement of this proceeding be extended so that they might be considered in detail.
It should also be recorded that the matter was fully argued by counsel for the parties.
FAST TRACK REVIEW LEGISLATIVE FRAMEWORK
On 18 April 2015 the Act was amended to provide for a “fast track review” process in relation to certain unauthorised maritime arrivals: sch.4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
Section 5(1) of the Act relevantly defines a “fast track applicant” as a person:
(i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii)who has made a valid application for a protection visa in accordance with the determination;
The applicant is a fast track applicant.
Section 5(1) also defines a “fast track decision” as a decision to refuse to grant a protection visa to a fast track applicant. A “fast track reviewable decision” is relevantly defined as a fast track decision in relation to a fast track review applicant: s.473BB of the Act. Certain fast track applicants are excluded from the fast track review process but it has not been suggested that the applicant was such an applicant.
Section 473CA of the Act provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. There is no provision for a fast track applicant to apply to the IAA for a review.
STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA
Since 18 April 2015, the Act has prescribed the conditions for the grant of a protection visa relevantly in the following terms:
36 Protection visas—criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…
(2A) A non-citizen will suffer significant harm if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non-citizen; or
(c)the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
…
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
…
(b)the persecution must involve serious harm to the person; and
…
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)a threat to the person’s life or liberty;
(b)significant physical harassment of the person;
(c)significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
…
Protection visa claims
The applicant’s written claims for protection were made in his application for a SHEV dated 25 September 2015 and in his supporting statement. The applicant also gave oral evidence at an arrival interview on 22 August 2012, at an entry interview on 24 October 2012 and at a departmental interview on 29 April 2016.
The facts alleged in support of the applicant’s claim for a protection visa were summarised by the IAA in its decision record. Relevantly, the applicant made the following claims:
a)he is a Hindu Tamil from Batticaloa, Eastern Province, Sri Lanka;
b)he thinks his father was killed by the Sri Lankan army (“SLA”) because he worked as a tailor for the LTTE and has been missing since he was a child;
c)in 1997 after finishing school, he returned to his family home where he was regularly stopped at an SLA camp in his village and harassed by Criminal Investigation Department (“CID”) officers;
d)in 2001 he confronted soldiers from the camp who were clearing trees on the family property. Later that day or the next, the soldiers returned and took him to the camp for around five hours where he was threatened with a knife, beaten, forced to work as well as humiliated by having to remove his clothes and swim. His grandmother came to the camp and was physically abused. He was released and left with his grandmother;
e)in his statement he said that the soldiers had demanded he return the next day to the camp to do jobs like lifting rocks, cutting trees and building barricades. He later clarified at his SHEV interview that he never returned to the camp. He also said that that had been the first time the SLA or CID had come to the family home, and that there had been no visit in 2000 as alleged in his statement;
f)after this incident the SLA would come to his home to buy items and ask for things to cut the trees as well as to harass his family, in particular his sisters. The SLA would also enquire about the applicant and because of this he was afraid to go out at night and when he did go out during the day, drunken soldiers would grab him, use foul language, beat him and urinate on him when he went past the camp;
g)from 2001 to 2004, while he studied and worked in Batticaloa, he occasionally visited the family home on weekends in secret. He made friends with fellow students who were involved with the LTTE intelligence wing, although at the time he did not know of their involvement. Security authorities regularly came to the bar where he worked and he believed from the way they looked and pointed at him that they were looking for him. However, as there was a ceasefire, the authorities did not detain anyone publicly;
h)during this period he was eating in a restaurant with a friend who was involved with LTTE intelligence. His friend recognised CID officers who then chased the applicant and his friend when they left the restaurant but they escaped on a bus;
i)in 2003 SLA soldiers visited the family home to detain him because he was linked to the LTTE. They interrogated and physically assaulted family members, checked for weapons and took money and jewellery;
j)in 2004 the LTTE attacked the SLA camp near his home and the SLA suspected that he was involved. After the attack he went to work in another district. The CID came to the hostel where he was staying and he hid to avoid them. In the applicant’s statement he said it was after the attack on the camp that the CID went to the family home to capture him and when they found he was not there, they interrogated his family, beat them and stole money and jewellery;
k)from 2005 to 2008 his sister was harassed by CID officers and eventually told them his whereabouts. He feared for his safety and made arrangements to travel to Saudi Arabia to work. He departed in September 2008 having bribed officials at the airport. When he returned in April 2011, he stayed mostly indoors at home for safety;
l)in January 2012 he opened a bar near the family home. He lived at home, but often spent nights at friends and families’ homes to avoid detection.
m)in April 2012 a CID officer came to the bar and asked the bar staff about him. In May 2012 the same CID officer visited his mother and told her the applicant had to visit him at the SLA camp but he did not;
n)in June 2012 CID officers came to the bar and took cases of beer without paying, telling staff to come to the camp to collect the money. In his statement he said the CID officers came a number of times but clarified in his SHEV interview this only happened once in June 2012;
o)in July 2012 soldiers noticed his bike outside the bar and came in looking for him. The applicant was in the back of the bar and hid nearby. Later that day he and his mother went to the police station to lodge a complaint. The police were dismissive. Instead of returning home with his mother, he disguised himself as an elderly person and went to stay at his aunt’s place. That night the CID visited the family home and told his mother they would kill the applicant if they caught him. They returned on each of the next three days; and
p)he feared he would be harmed from the CID, SLA and the Karuna group if he returned to Sri Lanka. He fears he will be identified at the airport and will be arrested after returning home and handed over to the CID, SLA or Karuna group where he fears he will be tortured and killed.
The IAA’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the IAA found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act. The IAA’s decision was based on the following findings and reasons:
a)the IAA found “[in]consistencies” between the applicant’s statement of claims in his arrival interview, invalid application, SHEV application and SHEV interview that cast doubt on some claims;
b)the IAA accepted the applicant’s identity as a Hindu Tamil Sri Lankan;
c)the IAA accepted it was plausible that the applicant’s father was missing and might have been killed by the SLA on suspicion of being involved with the LTTE as well as the applicant being regularly stopped in 1997 at the local checkpoint and harassed by CID officers;
d)the IAA accepted as plausible that in 2001 the SLA cut down some trees and when confronted by the applicant, took him to the camp on one occasion where he was mistreated as well as his grandmother being assaulted;
e)the IAA accepted that the applicant’s family would have had to pass the SLA checkpoint and on such occasions were subject to abuse from soldiers as well as the applicant being harassed and this may have included being sworn at, beaten and urinated on;
f)the IAA however did not accept the claim the applicant made at the SHEV interview that the SLA came to the family home to buy items, to ask for tools to cut the trees and to then enquire about him. The IAA also did not accept that the SLA had an ongoing interest after the tree incident or that they made visits to the family home after the events in 2001, and therefore also did not accept that the applicant’s sisters were specifically targeted for harassment;
g)the IAA found it plausible that the applicant studied in Batticaloa with students who had links to the LTTE and accepted that this might have resulted in the CID observing the applicant with these students although did not accept that if the CID were investigating him they would tell his family or chase him from a restaurant. As the applicant was residing at the same address while studying, the CID had had significant opportunities to detain him if he was of concern;
h)the IAA did not find the applicant’s association with students involved in the LTTE, if there had been any, of a level high enough to have implied links to the LTTE. The IAA took into account the applicant’s ability to travel overseas in 2008 when assessing whether he was of interest to authorities;
i)as the IAA found the applicant had not been imputed with links to the LTTE, it did not find had been the CID would have suspected him of any involvement in the 2004 LTTE attack on the SLA camp. It also did not believe the CID would have gone to his family home in preference to looking for him at his school, place of work or residence in Batticaloa where, he had claimed, the CID were watching him;
j)the IAA gave significant weight to the applicant’s ability to obtain a passport in April 2008 and travel to Saudi Arabia. The Sri Lankan civil war was still underway and a wide ranging security regime was in force at the time. The IAA did not believe the applicant bribed officials at the airport so that he could leave the country and this claim does not explain how the applicant returned without incident in 2011.
k)the IAA did not accept that the applicant was of interest to the CID when he returned to Sri Lanka in 2011 as he had been able to live openly and establish a business and attend it every day at regular opening and closing hours without being detained;
l)the IAA accepted that in 2012 the Eastern Province was militarised and harassment was experienced by the general population so it is plausible the CID came to his bar and took beer. The IAA noted that this was an isolated incident and did not accept that taking beer was done to lure the applicant to their camp;
m)the IAA accepted that the applicant went to the police about his beer being stolen and that the police may have been dismissive but it did not accept that this would have resulted in a group of CID officers visiting the family home and threatening to shoot the applicant, or that he avoided them by disguising as an elderly person. The IAA was not satisfied that the CID had had sufficient interest in the applicant to warrant that level of attention;
n)the IAA noted that the applicant had not claimed to have had any contact with the Karuna group and only speculated that they might have passed information about him to the CID. As the IAA found that the applicant was not of adverse interest to the authorities it was not satisfied that the Karuna group passed information about him to the authorities;
o)the IAA accepted that at the time the applicant departed Sri Lanka illegally and sought asylum in Australia during 2012, Tamils experienced harassment, monitoring and that there were reports of human rights abuse committed by the SLA. However, it found that the applicant had no profile of concern with the authorities and did not believe that the CID made enquiries about him after his departure;
p)the IAA accepted as plausible the claim the applicant’s father was killed as a result of suspicions that he had links to LTTE. However, there was no indication that the disappearance of his father resulted in any interest in the applicant or his family and the IAA therefore found he had not been imputed with an LTTE profile on the basis of his father and that there was no real risk that the applicant would suffer harm because of any suspicion his father had worked for the LTTE;
q)the IAA accepted the applicant’s concerns for his safety in Sri Lanka, given his experiences when the Tamil population had been subject to scrutiny, monitoring harassment and ongoing checks for links with the LTTE. However, the IAA was not satisfied that there was a real chance the applicant would experience harm on return to Sri Lanka on the grounds of his ethnicity, and also because he did not have a real or imputed LTTE profile. Country Information indicated that since he left Sri Lanka in 2012 circumstances there had changed significantly;
r)while the applicant advanced no claims to fear harm because of his religion, the IAA was satisfied he would not be restricted in his practise of it and would not experience serious harm as a Hindu; and
s)the IAA accepted that the applicant would be considered to be a failed asylum seeker and, based on country information, would be questioned, charged and potentially held in police custody for up to 24 hours. However, as the applicant had only been a passenger on the boat, the IAA was satisfied that he would face only a brief period in detention which would not amount to serious or significant harm.
PROCEEDING IN THIS COURT
In the amended application the applicant alleged:
1.The second respondent (the IAA) fell into error by failing to take into account relevant considerations.
Particulars
a.The Tribunal made a finding at D[13]: “[t]he applicant was studying, working and residing at the same address during this time, providing the CID significant opportunities to detect and detain him if he was of concern”.
b.However, the Tribunal failed to take into account the applicant’s evidence that he was working and living away from home, there was no evidence that the CID had any opportunity to detect him, and the Tribunal mad misconstrued the applicant’s evidence, as follows:
(i) After the incident in 2001 in which the military detained and beat the applicant, he did not live at home for the next 2 years. He had finished his studies and he lived above the restaurant where he worked, about 30-35km away from his home. On the weekends he would come back to his home secretly at night.
(ii) The Tribunal misconstrued the applicant’s evidence at D[4] pg3 bullet point 3, it was not the applicant’s evidence that the authorities came regularly to his place of work.
(iii) It was only in or about late 2003 that the authorities came once to look for him at his place of work.
(iv)It was in 2003 that they came inquiring after him at his home and harassed and robbed his family. After that incident, he changed jobs and moved to another area.
c.The Tribunal made a finding at D[15]: “the claim that the CID went to the family home rather than seek him at his school, place of work or residence, belies his earlier claim that they were observing him he [sic] while was in Batticaloa”.
d.However, again the Tribunal failed to take into account that the applicant’s evidence that he was effectively hiding from the CID and continually tried to remain undetected, as follows:
(i) Shortly after the incidents in 2003 and late 2003, in which the military inquired after him at his family home and his place of work, that he left the area completely. He changed jobs and went to work at a hotel far away from his home. He stayed away from his family home for 2.5 years.
(ii) During that time, the CID would come to the hotel where he worked to ask for protection money. When the CID came to the hotel, the applicant would hide. Initially he remained undetected, but in or about late 2007 he was identified. After that, he went into hiding for 3 months until he left for Saudi Arabia.
e.The Tribunal made a finding at D[20]: “when the applicant returned to Sri Lanka in 2011 he did not come to [the] attention at the airport, nor for the 12 months after his return, and that he was able to live openly at home and establish a business”.
f.However, the Tribunal failed to take into account the applicant’s evidence that for most of that year, he was in hiding, as follows:
(i) For the first 10 months of his return to Sri Lanka, he was living concealed in his home from April 2011 to January 2012.
(ii) After the President announced in January 2012 that the LTTE were defeated, he decided to come out of hiding and start a business.
(iii) He was able to operate his business without any trouble from the CID for only about 2 months, or at most 4 months, before the harassment started again.
2.The IAA fell into error by misconstruing the applicant’s evidence, or claim, or integer of a claim.
Particulars
a.The Tribunal made a finding at D[4] pg3 bullet point 3: “[h]e studied and worked in Batticaloa from 2001 to 2004. … The security authorities regularly came to the bar where he was working and the applicant believes from the way they looked and pointed at him that they were looking for him”
b.However, the applicant’s evidence was not that the authorities regularly came to the bar where he worked, his evidence was that it was only in or about late 2003 that the authorities came one to look for him at his place of work.
c.Consequently, the IAA reached an erroneous conclusion at D[13] because there was no evidence that the CID had detected the applicant or had significant opportunity to detect him.
3.The IAA fell into error when it made a finding on a critical matter without any evidentiary foundation, or further in the alternative the finding was irrational.
Particulars
a.The Tribunal made a finding at D[13]: “I am not convinced by the applicant’s explanation that they took no direct action against him because at this time they only detained people at night in secret or that he and a friend evaded the CID by running from a restaurant and catching a bus”.
b.The Tribunal provided no reason for being unconvinced and it failed to point to any evidentiary basis for rejecting the applicant’s explanation and evidence.
Misconstruing claim or evidence – Ground 1(a)(b)(c)(d) and Ground 2
The applicant submitted that some of the IAA’s intermediate findings of fact were illogical, in that they were unsupported by evidence, and that these shortcomings meant that the ultimate decision on the review was affected by jurisdictional error. It is not apparent from the Court Book, which was Ex.1, what documents the Department provided to the IAA in compliance with s.473CB of the Act which relevantly provides:
473CB Material to be provided to Immigration Assessment Authority
(1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b)material provided by the referred applicant to the person making the decision before the decision was made;
(c)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
…
However, one thing which the IAA’s decision record does indicate was supplied is a recording, whether sound recording or transcript, of the delegate’s interview with the applicant. The way the IAA describes, or rather recounts, aspects of that interview in para.4 of its reasons indicate that it was working from an original source rather than someone’s notes. The parties’ addresses in this proceeding indicated that they proceeded on that assumption.
Paragraph 13 of the IAA’s decision says:
I accept as plausible that the applicant studied in Batticaloa with students who had links to the LTTE and I accept that this may have resulted in the CID observing the applicant with these students. However, I do not accept that if the CID was conducting an observation of the applicant that they would tell his family, thereby alerting the applicant, and possibly the LTTE, to their activity. Conversely, if the CID had plans to take direct action and detain or question the applicant, as chasing him and his friend from a restaurant would indicate, then I consider that they had opportunity to do so. I am not convinced by the applicant's explanation that they took no direct action against him because at this time they only detained people at night in secret or that he and a friend evaded the CID by running from a restaurant and catching a bus. The applicant was studying, working and residing at the same address during this time, providing the CID significant opportunities to detect and detain him if he was of concern. (emphasis added)
The applicant also referred to the IAA’s statement in its summary of the evidence at para.4 of its decision record that:
He studied and worked in Batticaloa from 2001 to 2004. He visited the family home on some weekends, but came in secret to avoid any harassment. He made friends with some fellow students who were involved with the LTTE intelligence wing, although he did not know of their involvement at the time. The security authorities regularly came to the bar where he was working and the applicant believes from the way they looked and pointed at him that they were looking for him, but as it was a period of peace (ceasefire) they did not detain anyone publicly and they only detained people at night in secret. (emphasis added)
Paragraph 15 of the IAA’s decision reads:
I accept that there was an LTTE attack on the army camp near his home in 2004 and that following this attack security would have been increased and would have resulted in further suspicion of Tamils in general and of any potential LTTE links. However, I do not accept as plausible that the army suspected the applicant of being involved with this attack and they went to the family home to capture him. I have not accepted that he was associated with LTTE intelligence wing members to a level that attracted an imputed LTTE profile and there is no reason to believe that the CID would otherwise suspect him of involvement in this attack. Furthermore, the claim that the CID went to the family home rather than seek him at his school, place of work or residence, belies his earlier claim that they were observing him while he was in Batticaloa. (emphasis added)
The applicant’s argument in relation these issues was summarised in his address in the following terms:
… the relevant sentence is at the very end, the very last sentence:
The applicant was studying, working and residing at the same address during this time, providing the CID significant opportunities to detect and detain him, if he was of concern.
And then, at paragraph 15, over to the next page, at 167, the IAA finds:
The claim that the CID went to the family home, rather than seek him at his school, place of work or residence, belies his earlier claim that they were observing him while he was still in Batticaloa.
Now, the basis of that finding misconstrues the evidence for the claims, because it was based on the IAA’s underlying erroneous assumption or inference that the authorities knew where he was working, since 2001, and regularly went there. But that was not the evidence.
The more important of those questions is whether it had been open to the IAA to conclude that the CID had known where to find the applicant from 2001 onwards and, relevantly, at the time they were alleged to have visited his family home in 2003. The transcript of the applicant’s interview with the delegate indicates that it was open to the IAA to have made that finding:
410
BTA17
So when I was working in the bar and I finished in the evening since it was too late to go home, the owner said that I could stay overnight, there was this restaurant which had rooms.
411
DIBP
Which bar are you talking about working in the evenings? When's this?
412
BTA17
From 2001 to 2004.
…
415
DIBP
What part... where were you in Sri Lanka?
416
BTA17
In the Batticaloa town.
…
419
DIBP
Did the authorities impact on your daily life in Sri Lanka?
420
BTA17
They did impact on my life, at that time it was like at peace and they were mainly gathering information.
421
DIBP
When's that time? When is that?
422
BTA17
From 2001 to 2004 we were all able to get along normally. Even the LTTE was going around openly. During this time I have been to a lot of places with my friends, so looking at that, they suspected me of belonging to the LTTE.
423
DIBP
I will talk to you more about that but so you are saying... you fear the CID because they suspect you an LTTE member. Is there any other reason or ground that you're seeking protection, other than that?
424
BTA17
This is the main reason.
425
DIBP
Are there any others?
426
BTA17
No.
…
429
DIBP
Were you threatened or physically harmed in Sri Lanka because of this reason?
430
BTA17
They did threaten me. They have come home with defence to detain me.
431
BTA17
Without my knowledge they have taken photos with my friends who belong to the LTTE, and they had shown it at my house.
432
DIBP
So you said they showed the pictures at the house, is that right?
433
BTA17
Yes
434
BTA17
So they pointed me out and asked whether I was the elder brother?
435
DIBP
Where were the photos taken? Like where were you when they were taken?
436
BTA17
In Batticaloa at the places I was working in.
437
BTA17
I didn't actually see those photos so I don't know exactly but I think it was taken in Batticaloa.
438
DIBP
Who saw the photos?
439
BTA17
My younger sister, my uncle, my mother.
440
DIBP
And when they showed the photos to them, what was said?
441
BTA17
They said he's LTTE so there's a danger and that they would definitely detain me.
442
DIBP
And when did this happen?
443
BTA17
In 2003.
Although an inference is open on the evidence that it was on the strength of the photographs the CID allegedly showed his family that the applicant believed the CID had observed him in Batticaloa, the applicant did not link the two at his interview with the delegate. Rather, his evidence that the CID saw him with his friends in Batticaloa in the period 2001 to 2004 was unqualified:
From 2001 to 2004 we were all able to get along normally. Even the LTTE was going around openly. During this time I have been to a lot of places with my friends, so looking at that, they suspected me of belonging to the LTTE.
It was open to the IAA to accept that evidence in that form, as it appears to have done. It was therefore open to the IAA to conclude that before their alleged visit to the applicant’s home in 2003, the CID already knew where they could find him.
As to the second point, the applicant contended in his written submissions that:
There is no evidence that the CID or army were regularly coming to his place of work during these years.
The years in question, as the quotation above at [28] shows, were 2001 to 2004, not 2001 to 2003 as the applicant appears to argue.
The applicant’s evidence was that after 2003, presumably in 2004, the CID came and pointed at him. The transcript of his interview with the delegate records:
488
DIBP
Did they ever come and look for you at the … restaurant? Or where you were staying then?
489
BTA17
They have come. I couldn’t exactly identify them but I am certain they had come there.
490
DIBP
How do you know they were looking for you?
491
BTA17
The way they looked at me. Their mannerisms. I could sort of make out that they were looking at me.
492
BTA17
I had told my boss also about this, that I was afraid.
493
DIBP
Did they ever speak to you?
494
BTA17
They didn’t actually speak to me but they were pointing at me so I could make out that they were observing me.
495
DIBP
And when was that?
496
BTA17
This happened after 2003.
497
BTA17
Once when I and my friend were going out, they were chasing us, we managed to get on a bus and escape.
498
DIBP
What happened when they were chasing you?
499
BTA17
My friend and I were eating in a restaurant and then came outside. Since my friend was in the intelligence wing of the LTTE, he could identify these people. He alerted me saying “let’s get out of here”.
500
DIBP
And when was that?
501
BTA17
After 2003.
502
DIBP
How much after?
503
BTA17
About 2 or 3 months afterwards.
504
DIBP
So early 2004?
505
BTA17
At the end of 2003.
The way the applicant described the CID’s attentions indicates that it happened more than once. The evidence does not permit a conclusion as to how frequent that surveillance was or whether it could properly be described as regular but it plainly happened on a number of occasions and I infer that it is to that fact that the IAA was referring when it used the word “regularly”. The IAA’s finding that there had been such surveillance on unspecified occasions in the period 2001 to 2004 was open to it.
However, the regularity of the CID’s visits to the bar, or the fact that those visits may not have started in earnest until 2004, is not the relevant point, which is that the CID knew how to locate the applicant in Batticaloa in the period 2001 to 2003 and could have arrested him there if they had wanted to, which, as they did not arrest him, supported a conclusion that they did not want to. That conclusion was available to the IAA on the evidence.
The applicant also argued that the statement in the last sentence of paragraph 15 of the IAA’s reasons was unsupported by evidence. He submitted:
There is no probative evidence upon which to draw an inference that the photos were taken by the authorities over a period of time by regular attendance at his workplace
but that is not what the IAA said in para.15 of its reasons. What it said was that the alleged visit of the CID to the applicant’s home was inconsistent with his evidence that the CID already knew where he was because they had previously seen him with his friends in Batticaloa.
The remaining allegation in these grounds is based on para.18 of the IAA’s reasons where it said:
I have not accepted that the applicant was imputed with an LTTE profile and that he was of interest to the authorities and I do not accept that when he moved to work in another district in 2004 after the camp attack, that the CID came to the hostel where he was staying and he hid to avoid them. It follows that I do not accept that from 2005 to 2008 his sister was harassed by CID officers until she revealed his whereabouts.
The applicant submitted that the IAA had failed to give proper, genuine and realistic consideration to his evidence concerning events in 2004 and subsequently because it had dismissed his “LTTE claim” at an earlier stage of its reasons. However, in circumstances where the IAA had concluded that the Sri Lankan authorities had not imputed LTTE links to the applicant, the essential factual foundation of these subsequent claims disappeared. The IAA’s approach to then was not erroneous.
No jurisdictional error is demonstrated in connection with the matters canvassed in ground 1(a), (b), (c) and (d) or ground 2.
Misconstruing evidence – Ground 1 (e) and (f)
Paragraph 20 of the IAA’s decision reads:
I note that when the applicant returned to Sri Lanka in 2011 he did not come to attention at the airport, nor for the 12 months after his return, and that he was able to live openly at home and establish a business. I do not accept that he was of interest to the CID because of an imputed LTTE profile and therefore I do [not] accept that from April 2012 a CID officer began to make enquiries about him because of an imputed LTTE profile, or for any other reason. Furthermore, if he was of interest to the CID his account of the CID's numerous unsuccessful attempts to locate [him] is simply not plausible considering he attended his place of business every day at regular opening and closing hours. (emphasis added)
The applicant argued that the first sentence of that paragraph demonstrated that the IAA had misunderstood his evidence. He submitted that his evidence had been that:
a.When … asked what happened between April 2011 and when he bought the bar in January 2012, he said that he stayed at home and barely left the house, even his neighbours did not know that he had come back …
b.… he had hidden in the house for those initial 10 months of his return because he had not recovered from the previous incidents with the army and authorities before he had left, and to his knowledge the army was not aware of his return …
c. He [had] said that in January 2012 the President announced the LTTE was defeated. Also the army camp at the front of his house was removed whilst he was away …. He also was observing the situation for a while and felt that there were no more problems, he needed to get a job too so he bought a bar in January 2012 and started working there …
d.… in a document attached to his protection visa application, [he had stated] that: “I thought the CID officers would no longer have tabs on me as the war had finished. I remained in doors [sic] and tried to assess the situation for my safety. I mistakenly thought that as the army camp had closed near my home I was now safer” …
e.Initially for the first 3 or 4 months of opening the bar, there was no problem ... Then in April a person by the name of … from the CID came to check if it was the Applicant who ran the bar … The CID came looking for the Applicant at his home and at the bar, and the CID told the people there to ask the Applicant to come to meet him at the paper factory camp … .That was when the troubles started again for the Applicant.
f.… in the document attached to his visa application, [he stated]: “After two months, the CID came to know of my ownership of the bar and they returned from a larger camp further away” …
(references omitted)
The applicant submitted that he had not come to the CID’s attention in 2011 because he had been in hiding following his return from Saudi Arabia whereas the IAA’s understanding was that he had been living “openly at home”. The applicant argued that the IAA misunderstood the evidence which led it to draw an erroneous conclusion that the lack of police attention indicated that he was of no interest to them.
The applicant’s argument was, in short, that a person does not live “openly” if they are in hiding. However, the issue is not that simple. Paragraph 20 must be read in the context of the paragraphs which precede it. At para.16 the IAA referred to the applicant’s allegations concerning his departure from Sri Lanka for Saudi Arabia and rejected the assertion that he had departed after an airport official had been bribed. It said in relation to that at para.16 of its reasons:
… I have had regard to advice from the Department of Foreign Affairs and Trade (DFAT) and the UK Home Office regarding security checks at the airport. DFAT advise of “stop” and “watch” electronic databases which record “names of those for whom Sri Lankan security services consider to be of interest, including for separatist or criminal activities” and the UK Home Office report cites the experiences of Tamils travelling to and from Sri Lanka during this period.
The IAA continued at para.17:
I do not accept that he bribed officials at the airport so that he could leave the country and, even if I were to accept this claim, this does not explain how the applicant was able to re-enter the country [in] 2011 without incident. I give significant weight to the DFAT information which demonstrates the Sri Lankan security authorities maintain sophisticated systems at Colombo airport to detect people of concern and I do not accept that by payment of a bribe that the applicant would be able to subvert these checks if he was viewed as of concern. If the applicant had been of interest to the authorities I find it implausible that he was issued a passport and able to avoid detention when he travelled via Colombo airport in 2008 and 2011.
It was only after that reference to the sophisticated systems maintained at Colombo airport and their capacity to note the applicant passing through had he been a person of interest that the IAA went on relevantly to say in para.20:
I note that when the applicant returned to Sri Lanka in 2011 he did not come to attention at the airport, nor for the 12 months after his return, and that he was able to live openly at home and establish a business. …
The applicant’s evidence concerning his time in hiding was:
729
BTA17
So basically I didn't leave home at all. Leave home at all, I was studying at home. Even my neighbours didn't know that I had come back.
730
DIBP
So you never left the house?
731
BTA17
Barely I went out.
…
743
BTA17
Basically if the army found out that there was a new person who had suddenly come, they would make enquiries. As far as I know, the army actually didn't know that I had come back and I was back in my house.
…
759
DIBP
So you still lived at your family and then worked at the bar?
760
BTA17
Yes.
761
DIBP
Tell me what happened at the bar. Were there problems with that?
762
BTA17
Initially for the first 3 or 4 months everything was going smoothly once I started the bar. I was quite happy.
763
BTA17
Around like April things were getting busy, there were lots of orders coming. There was also a restaurant I was getting that organised as well, I had to go out and buy things.
764
BTA17
… at this time there was this CID person called .... So he had come to the bar and showed my photo and asked whether I was the person here.
The point to be made about the applicant’s residence at his family home was that he actually lived there, rather than somewhere else, and did not pretend to be someone else and this was in the context of him having passed through the airport and been processed by its sophisticated security systems not long before. He also occasionally went out. Most particularly, he continued to behave in that manner once he had started his business. What the IAA was saying in the first and second sentences of para.20 of its reasons was that after having returned to Sri Lanka through Colombo airport the applicant had been able to live at his family home as himself and to continue to do so after he started his business and that this style of living was inconsistent with his claim to fear persecution at the hands of the Sri Lankan authorities.
The IAA did not misunderstand the evidence and these particulars of ground 1 of the amended application do not support a finding of jurisdictional error.
Finding unsupported by evidence – Ground 3
In his written submissions the applicant referred to the following evidence, quoted earlier:
422
BTA17
From 2001 to 2004 we were all able to get along normally. Even the LTTE was going around openly. During this time I have been to a lot of places with my friends, so looking at that, they suspected me of belonging to the LTTE.
...
485
BTA17
From 2001 to 2004 was peace time. So during this time they never came to anyone publically, they only arrested them at night in secret.
The applicant also referred again to the following passages from the IAA’s decision record:
… The security authorities regularly came to the bar where he was working and the applicant believes from the way they looked and pointed at him that they were looking for him, but as it was a period of peace (ceasefire) they did not detain anyone publicly and they only detained people at night in secret(emphasis added)
and
I accept as plausible that the applicant studied in Batticaloa with students who had links to the LTTE and I accept that this may have resulted in the CID observing the applicant with these students. … I am not convinced by the applicant's explanation that they took no direct action against him because at this time they only detained people at night in secret or that he and a friend evaded the CID by running from a restaurant and catching a bus. (emphasis added)
After referring to those passages the applicant submitted:
The IAA’s finding was a bare assertion that it was unconvinced of the evidence without any reference to the evidence or material upon which it based that conclusion. … the IAA’s finding is illogical, irrational and without any evidentiary foundation. …
As the Minister observed, this was really only an appeal for merits review. But in any event, it was understandable that the IAA was unpersuaded by the applicant’s explanations because they made no sense. Even if the CID did only detain people at night during the ceasefire, the applicant did not explain why they would not have arrested him after dark if they had wanted him in custody. He also did not seek to explain why, if the CID had wanted to detain him on the occasion at the end of 2003 when he and a friend made their escape on a bus, they could not have done so at any later time, including those occasions after 2003 when he said he noticed that the CID had him under observation at the bar.
CONCLUSION
Although I have concluded that it is in the interests of the administration of justice for time for the commencement of this proceeding to be extended, the applicant had not made out his allegations that the IAA’s decision is affected by jurisdictional error.
Consequently, the application for judicial review will be dismissed.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 17 July 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Natural Justice
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Procedural Fairness
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