CAQ19 v Minister for Immigration

[2020] FCCA 961

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAQ19 & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 961

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)

Cases cited:

N/A

First Applicant: CAQ19

Second Applicant: CAR19

Third Applicants: CAS19

Fourth Applicant: CAT19

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1241 of 2019

Judgment of: Judge Vasta

Hearing date: 11 March 2020

Date of Last Submission: 11 March 2020

Delivered at: Perth

Delivered on: 11 March 2020

REPRESENTATION

Solicitors for the Applicants: Rodney Senanayake

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. That the Application filed on 21 May 2019 is dismissed.

2. That the First Applicants pay the First Respondent’s costs fixed in the sum of $7,000.00.

IT IS NOTED:

A. That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

SYG 1241 of 2019

CAQ19

First Applicant

CAR19

Second Applicant

CAS19

Third Applicant

CAT19

Fourth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 24 April 2019, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicants, CAQ19, CAR19, CAS19 and CAT19 protection visas.  On 21 May 2019, the Applicants filed an originating application in this Court asking this Court to review that decision. 

2. CAQ19 is the husband of CAR19 and together those two are the parents of the CAS19 and CAT19.  The application is made by CAQ19 and the other Applicants are family members whose claims rise or fall on the application of CAQ19.

3. The claims can be summarised as follows.  The Applicant says that he was born in 1991 in the Puttalam district in the North West province of Sri Lanka.  He is of Sinhalese ethnicity.  He is married.  He and his wife had their first child born in 2011 and their second child was actually born here in Australia in 2015.  The Applicant claims, in 2012, he went to Italy.  In his application he said that he went on vacation to Italy with his wife and daughter to his sister’s place.

4. While he was there his father called him.  His father told him the opposition party was trying to kill him, that is, the father.  The Applicant claims that this is because the father had helped the government and the police to catch the local mafia in his village.  The father told the Applicant that the father was trying to hide from the opposition party goons and had tried to come to Italy but these goons were everywhere and it was impossible for him to go to the airport.

5. The Applicant found out a few days later that his father had travelled to Australia by boat.  The Applicant said that when he returned from his vacation he learned what his father had had to undergo because of the father’s attempt to help the police catch some criminals. 

6. He came to the conclusion that the police tricked his father into helping them, but then they did not help him in return.  He claimed that his situation worsened.  He said that he was threatened by the mafia every day.  He could not go to work or social events because he was constantly afraid.

7. He said that, on one occasion, he went out of his house and the mafia caught him and tried to get information about his father.  They put him on the ground and they hit him.  He claimed that he was on the gun point; that is, that a gun was put to him.  He said that he screamed for help but no villagers came to his rescue. 

8. But somehow he was able to push the men away and he ran to another village.  He called his wife and informed her about the incident.  They became very scared and they decided to go to Australia.

9. He says that he fears being harmed by the Sri Lankan government because he departed Sri Lanka illegally and tried to claim asylum in Australia. 

10. He fears repercussions over a perception that he was part of 16 people who stole the boat from which they sailed from Sri Lanka to Christmas Island. 

11. And he fears the Sri Lankan government because he has a political opinion against them. 

12. The IAA went through these claims very thoroughly.  The IAA listened to what the Applicant had written about his father in his application and what he had said at this Safe Haven Enterprise Visa interview.

13. Without going through everything that was said, it is quite clear that there were a number of vague statements and inconsistencies in the claims that the Applicant had made.  In fact, reading what the IAA had summarised as far as the interview was concerned, it is very difficult to actually ascertain what it is that the Applicant was saying. 

14. At paragraph 24 of their reasons, the IAA said this:

    24. I have carefully considered the Applicant’s claims and the evidence before me in relation to threats he received however, I have significant concerns regarding the applicant’s evidence in relation to his father’s activities and the threats made against him as a result of his father. My concerns are as follows:

    ·The applicant’s overall oral evidence at his SHEV interview was vague and evasive and not at all compelling. Despite being asked multiple times who he believed was threatening him in Sri Lanka, the applicant was unable to directly respond to the Delegate’s line of questioning or to provide a persuasive response.

    ·There were a number of inconsistencies between his SHEV application and the applicant’s evidence given at the interview.  The applicant has provided a conflicting narrative in relation to his time spent in Italy and that his wife also travelled to Italy. I note in his SHEV application the applicant stated that in 2012 he went to Italy with his wife and daughter for a vacation to his sister’s place.  Whilst his SHEV application states he worked in Italy from August 2011 until April 2013 as a painter, no travel or residential history in Italy is reflected in his wife’s SHEV application. At his SHEV interview the applicant stated his mother sponsored him to go to Italy where he worked but his wife and child remained in Sri Lanka.

    ·The applicant’s [sic] claimed in his SHEV application that the opposition goons were after his father because he helped the government and police to catch the local Mafias in their village.  At his SHEV interview the applicant could not state with any certainty what his father did or who he helped and provided a number of contrary responses.  The applicant stated he didn’t know what his father did.  He did not know if his father was in a gang although he lived like he was in a gang.  He then stated his father was doing politics for different people and politicians came to their house but he had no idea which political party his father worked for. Then he stated his father was an informant for the police when people bought hash from India.  He also stated his father worked as a fisherman although he could never remember a day when his father brought money to the house.

    ·I consider it significant that the applicant’s own evidence conflicted with the applicant’s father’s evidence provided in the arrival interview that ‘there was a small, small threat a long time ago but in the meantime [he] had this opportunity so [he] came here’. In contrast to the applicant’s claims that there was a big risk or threats to his life at the time he departed Sri Lanka in 2013. The applicant’s response to the Delegate to explain this inconsistency was not persuasive or credible. I am not convinced the applicant’s father was being pursued by the mafia at the time he departed Sri Lanka, or that he was a person of interest; rather, he had an opportunity to travel to Australia and he took it.

    ·The applicant’s varying descriptions on the attack against by him by the mafia at his home on his return from Italy were also unconvincing.  In his advanced screening interview in August 2013 the mafia hit him in the stomach; he started struggling and then ran away.  In the SHEV application the applicant stated the mafia went to his house, put him to the ground, hit him, and he was ‘on the gun point’. At his SHEV interview, the applicant initially said in relation to the threats that he had been receiving that nobody ‘bodily harmed him’. He then stated that there were three people and they hit him and they had a knife; he jumped over a wall and he ran away.  The applicant was not certain they had a gun because most people in Sri Lanka had knives.  The applicant’s changing evidence in relation to this incident is a concern.  I do not accept the passage of time of approximately six years would cause the applicant to have a poor memory of this event which would have had a substantial impact on him given it is the key reason the applicant decided to leave Sri Lanka with his wife and child. The applicant has not provided any independent medical evidence to confirm that he is suffering ongoing trauma that would impact on his memory.  The surrounding substantive details as to this claimed attack, a description of his attackers, the time it occurred was also lacking.  I note despite claiming to be on the ‘verge of death’ the applicant was able to run away from his three attackers (or as per his SHEV interview evidence he jumped over a wall0; this in itself lacks credibility.

15. The IAA came to the view that the Applicant fabricated this claim that the father’s life was in grave danger at the time he departed Sri Lanka and travelled to Australia and that when the Applicant returned to Sri Lanka he was under threat of the mafia every day. 

16. The IAA did not accept that, on his return to Sri Lanka from working in Italy, the Applicant was under threat of the mafia every day, or that he was constantly under fear of losing his life, or that on one occasion when he went to his house he was caught by the mafia who tried to get information from him about his father, hit him or physically harmed him or threatened him with a weapon and that he ran away.  The IAA rejected this claim in its entirety and were more persuaded that the Applicant, like his father, was given the opportunity to travel to Australia and chose to do so.

17. The IAA found that the Applicant was of no interest to the Sri Lankan authorities, political opposition, the mafia, or any other group at the time he departed Sri Lanka.  Given that this claim was rejected in its entirety the IAA was not satisfied that the Applicant faced a real chance of any harm on this basis now or on their return to Sri Lanka, or in the reasonably foreseeable future.

18. The IAA then looked at this aspect of the Applicant stealing the boat.  Whilst it’s not that clear what the Applicant was saying, it seems that the Applicant was claiming that the boat that was taken by himself and 13 others, apart from his wife and child, sailed to Australia.  And he said that after that boat had gone, there was a claim that the 16 people had stolen the boat, or hijacked the boat.  He said that some of those persons who had come on the boat voyage had paid two million rupees for the voyage.

19. The Delegate asked the Applicant whether he was claiming that the owner was saying that the Applicant and the other 15 people had stolen the boat.  The Applicant said that usually before a boat is put in the harbour it is insured, and he thought that the owner had taken money from the insurance and that that was a private matter, but that he could take more money so he was asking the police to investigate a claim that the boat had been stolen specifically rather than it being, as it were, a normal departure.

20. The Applicant claimed that this is the way people do things in Sri Lanka and that money motivates everything and that a claim that the boat had been stolen was untrue.  But he claimed that, if it were that he is returned, he will be arrested or tried or found guilty of stealing the boat. 

21. It seems that once the 16 people arrived in Christmas Island, 14 of them made, as it were, claims for protection.  The other two people were the true people smugglers, the captain of the boat and the organiser.  Those two people, it would seem, were deported straight away back to Sri Lanka.

22. The Applicant says that these two people have an ongoing Court case and that he claims that these two people have implicated him and the other 13 people in this whole enterprise so that when it is that the Applicant returns to Sri Lanka he will be dealt with by the justice system.  He says that these two people have been given a more lenient sentence to give evidence against him and that their matters are still proceeding before the Sri Lankan Courts.

23. The Applicant provided some documents that the IAA went through, but none of those documents in any way corroborate anything that the Applicant has said.  The IAA accepted that those in charge of the boat, or were considered to be the chief or assistant pilots, were arrested and departed soon after their arrival in Australia. 

24. The IAA said that whilst they accepted that there were ongoing investigations that concerned a number of people, the ownership of the boat and whether the boat departed without the knowledge of the owner, the IAA was not satisfied the Applicant was a person of interest in those inquiries.

25. The IAA said that the suspects have already been identified and the IAA noted that the Applicant has never claimed to have driven or skippered a boat. Further, the IAA accepted that the Applicant, his wife and child were simply passengers on the boat.  The IAA noted that there was no evidence, other than what he Applicant has said in an interview, to support the Applicant’s own claim that he is wanted by the authorities, or that the boat owner has demanded 200,000 rupees from each family, or that the government is enforcing any of these matters.

26. Given the considerable concerns that the IAA already had regarding the Applicant’s credibility, the IAA was not satisfied that the Applicant was telling the truth about this aspect either. 

27. The Applicant said, in his SHEV application, that he had an anti-government political opinion, and he said that the Sri Lankan government has a very low tolerance towards those not following their line of thoughts.  However, at the SHEV interview, the Applicant stated he didn’t know which political party in Sri Lanka his father had worked for.  He said he had no idea because he himself did not know about politics in Sri Lanka and, he said, even now if there were an election going on, his wife would know and be 100 per cent interested but he would not. 

28. The IAA noted that Sri Lanka was a democracy with mixed Parliamentary and presidential form of government and that there were regularly held democratic elections.  The IAA noted that the most recent elections in 2015 were fair elections and the outcome reflected the will of the people.   Further, that local government elections held in February 2018 were described as the most peaceful elections in the country’s history, although there were 145 incidents of violence recorded and 21 of those were categorised as major.

29. The country information demonstrated what the situation was and that there is an improved security situation since the Applicant departed Sri Lanka in 2013.  The IAA noted the scant information provided by the Applicant in relation to this claim of having an anti-government opinion and the IAA did not find that such a claim was convincing. 

30. The IAA found that the Applicant was not politically inclined.  His ethnicity has no ties to the LTTE, he has no religious problems and he has no political profile of concern with the authorities. 

31. The IAA had already found that his father was of no interest to the authorities or the political opposition or to the mafia. 

32. For all of those reasons, the IAA was satisfied that the Applicant do not face a real chance of any harm on account of any actual or imputed political opinion on their return to Sri Lanka. 

33. The IAA looked at the data breach and found that there was nothing in the data breach that would in any way convince them that there was any harm to the Applicant because of that.

34. The IAA looked at the aspect of the Applicant being a failed asylum seeker who departed illegally.  The IAA noted that the Immigrants and Emigrants Act legislated that anyone who departed illegally does commit an offence and the IAA looked at what would happen upon the Applicants returning to Sri Lanka. 

35. Noting DFAT information that stated that all returnees are treated according to standard procedures, regardless of their ethnicity, their religion and that returnees are not subject to mistreatment during processing at the airport, the IAA found there was not a real chance of any harm upon return to the airport or in establishing their identities. 

36. None of the Applicants is subject to any arrest warrant or outstanding Court orders.  The IAA noted the youngest child, having been born in Australia, would have to be registered in Sri Lanka and that there may be a fine associated with the fact that the birth had yet to be registered but the IAA did not find that that amount of a fine was such as to constitute any serious harm. 

37. The IAA noted that the Applicant may be detained for a brief period of time and fined under the Act for having left illegally but, at most, the Applicant only faced a brief period of detention before his matter could be heard and, as such, detention did not constitute serious harm.

38. For those reasons, the IAA found that the Applicant did not meet the definition of refugee. 

39. The IAA then looked at the complementary protection assessment criteria and, after examining those matters, found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, that there was a real risk that the Applicant would suffer significant harm. 

40. The IAA looked at the fact of the members of the same family unit and found that they did not meet the criteria either and so, therefore, affirmed the decision of the Delegate.

41. The application before this Court had originally three grounds of application; Firstly, “The Immigration Assessment Authority did not afford procedural fairness; secondly, that “The Immigration Assessment Authority did not consider the arguments, facts and evidence in the case”; and thirdly, that “The Immigration Assessment Authority applied the wrong legal test”. 

42. Quite properly, Mr Senanayake, who is now representing the Applicant, abandoned the first and the third grounds so that the only ground is that the Immigration Assessment Authority did not consider the arguments, facts and evidence in the case.

43. This matter has had quite a tumultuous history as the Applicant was represented then was not represented and now, finally, was represented.  He only put his submissions into this Court last week, somewhat in contravention of the orders of Registrar Colbran.  He filed an affidavit six days ago and Mr Senanayake only came onto the record five days ago. 

44. The submission that the Applicant made is covered in an affidavit that he has given to the Court.  In that affidavit, he apologises for the late presentation of his affidavit because he was waiting for information from his father.

45. He explains, in his affidavit, that he went to Italy between the years of 2011 and that he was not married at this stage and that his first daughter was not born.  It was two weeks after he went that his daughter was born. 

1. He said that his wife did not go with him and he had mentioned that incorrectly when he had written it in his previous documents.  He said that when he was in Italy he got a lot of phone calls from the father regarding his situation in Sri Lanka.  He said that his father was talking about he, the father, owing people money and that the people who owed him money were going to attack him and then his father stopped calling him.

2. The Applicant said that, when he heard this, he became worried and so he decided that he would return to Sri Lanka because he wanted to help his father in a legal manner.  He also wanted to return for the first birthday of his daughter. 

3. He said, a few weeks after he returned to Sri Lanka, that three men came to his house and asked for his father’s whereabouts.  He then talked about them producing the knife.  He spoke that when he was in Italy, that these people were contacting his wife asking for his whereabouts and that he got frightened about that and that is why he returned to Sri Lanka from Italy and that they went to live with relations and friends to avoid being found.

4. He said that when he came to Australia after a few months, the owner of the boat

   …probably to get money and probably to escape any reasoning that he had a part in bringing us to Australia had made a report to police that we had taken the boat by force to come to Australia which was not the case.  Now even the police are looking for me.

5. He has annexed to that affidavit a statutory declaration from his father, as well as a statement from someone else who knows his father. 

6. Of course, none of this material was before the IAA and what the Applicant has tried to do is to give another explanation to try and explain the deficiencies that had been noted by the IAA. 

7. As has been explained on many occasions, this is not an appeal.  This is a review.  There will be only the very rarest of exceptions that the Court can look at any new evidence that was not before the IAA.

8. The statutory declaration from the father, curiously, says this:

   2. Immigration Department stated that I have said, that the attacks that I was faced with Sri Lanka, were not serious. I had told them it was serious but what I said has been misinterpreted. 

   3. Whilst I was in Sri Lanka, I informed the police with details of drug dealers.  The people involved in drug dealing hit me and cut me.  I suffered seriously.  I have marks on my body.  I escaped and ran into the sea and that was how I escaped.  The police in Sri Lanka are different to the Australian police. The police framed me in a kidnapping case.  I have never kidnapped anyone.

   4. The Police have framed another case on me that I brought LTTE Tamils to Australia.  Both these cases are on-going.  If I go back I have to face judgment on both these charges.  These attackers are not logical. So me and my son and his family are in danger. 

9. That is the total of that material. The Applicant now says that this new information shows that what the IAA did, in saying what they said about the Applicant, was not correct and, therefore, there has been an error. 

10. When one looks at paragraph 23 of the reasons of the IAA, the IAA said this.  Paragraph 23:

    23. The Delegate noted that in his father’s arrival interview, his father had stated there had been a small threat a long time ago and he had an opportunity to come to Australia so he came to Australia…

11. The Applicant says that this is a wrong statement and that the Applicant’s father’s statutory declaration shows that it was a wrong statement.  However, the IAA was simply putting to the Applicant what was in the entry interview.  That entry interview was found at page 345 of the court book.  Under the heading “Reason to Leave” the question was asked:

    Why did you leave country of nationality (country of residence)?

    Answer: 

    The owner of the boat…he told me there was a journey and he asked if I wanted to go to Australia. 

    Question:

    Why did you come to Australia?

    Answer:

    I had the idea that I needed to go to a foreign country.  I know Australia is a good country, so I said yes and came here.

    Question:

    Why did you have the idea that you needed to go to a foreign country?

    Answer:

    It is not a special reason.  I requested a family visa to go to Italy.  In the meantime, I had the opportunity to come here so I came here.

    Question:

    So was there anything in particular that happened to you in Sri Lanka that made you leave?

    Answer:

    There was a small, small threat a long time ago but in the meantime, I had this opportunity so I came here.

    Question:

    What would you have done if you had stayed in Sri Lanka?

    Answer:

    Maybe in one or one-and-a-half years’ time I would get a visa to go to Italy.

    Question:

    Why don’t you want to stay in Sri Lanka?

    Answer:

    Because these countries are better than Sri Lanka.

12. There is nothing in the statutory declaration that would put any doubt on what was said in that interview being in any way a misrepresentation or a misinterpretation of what was said.  It was proper for the IAA to look at what the Delegate had done. 

13. The Delegate had put what the father had said to the Applicant and given the Applicant an opportunity to respond to that.  The Applicant did respond to that but, as the IAA had said, they were not convinced of the responses. 

14. There is nothing in any of that material that has now been given to the Court that would cast any doubt about the manner in which the IAA conducted their review. Firstly, the material was not before the IAA but, secondly, even if it was, it is not such that it could have, in any way, led to a different conclusion, or put any doubt as to there being any different conclusion, given, or made, by the IAA.

15. Similarly, the Applicant’s claims as to the boat are not any different to what he had claimed at the interview.  The documents that he has now put in this new affidavit do not in any way support anything that he has said about his own circumstances. 

16. It seems to me that there is nothing that is said that could put any doubt upon the conclusion that had been reached by the IAA.  For those reasons, I decline to accept any of the new evidence.  The argument is that the IAA has not considered the arguments, facts and evidence in this case.

17. The submissions that were given to me really were an attempt at an impermissible merits review.  The arguments, facts and evidence were considered.  It is simply that the Applicant does not like the conclusions that the IAA had come to. 

18. Having gone through what the IAA has done, it is quite clear to me that the conclusions that the IAA came to were open on the evidence.  That being so, there is no jurisdictional error. 

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:     1 May 2020