CCD18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 53
•1 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CCD18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 53
File number: MLG 1095 of 2018 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 1 February 2024 Catchwords: MIGRATION LAW – review of the decision of the Immigration Assessment Authority not to grant a Safe Haven Enterprise (subclass 790) visa – finding that the applicant a Sri Lankan national who is Tamil and Hindu was not of adverse interest - whether the IAA’s adverse credibility findings were illogical, irrational or unreasonable – consideration of inconsistencies and the likelihood of claims – application dismissed – costs ordered Legislation: Migration Act 1958 (Cth) ss 5H(1) and 5J Cases cited: ASB17 v Minister for Home Affairs [2019] 268 FCR 271
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Division: Division 2 General Federal Law Number of paragraphs: 66 Date of last submissions: 13 November 2023 Date of hearing: 13 November 2023 Place: Melbourne Counsel for the Applicant: Mr Foster Solicitor for the Applicant: Sentil Solicitors Counsel for the First Respondent: Mr Dour Solicitor for the First Respondent: Mills Oakley The Second Respondent: Submitting an appearance save as to costs ORDERS
MLG 1095 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CCD18
Applicant
AND: MINISTER FOR IMMIGRAITON, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
1 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Application filed on 26 April 2018 and amended on 12 October 2022 is dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an application filed in this Court on 26 April 2018 (Application) and amended on 12 October 2022 (Amended Application), the Applicant seeks judicial review of the decision of the Immigration Assessment Authority (IAA) dated 29 March 2018 (IAA Decision)[1], pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
[1] Court Book (CB) 526-545.
On 29 March 2018, the IAA affirmed the decision of a delegate (Delegate) of the First Respondent (Minister) not to grant the Applicant a Safe Haven Enterprise (subclass 790) visa (Visa).
The hearing of this proceeding took place on 13 November 2023 at the Melbourne Registry of the Court (Hearing). Both the Applicant and the Minister were represented by Counsel. At the conclusion of the Hearing Judgment was reserved. These are the Reasons for Judgment in relation to the Hearing.
ISSUE IN DISPUTE
The issue in dispute is whether the IAA erred in its decision-making by considering inconsistencies in the Applicant’s claims and erroneously making adverse credibility findings against the Applicant.
SYNOPSIS
I have determined that no jurisdictional error can be found in the IAA Decision. The IAA’s reasoning was intelligible, and its credibility findings were open to it on the evidence.
BACKGROUND
The Court has before it a Court Book filed by the Minister on 28 May 2019, numbering 578 paginated pages (Court Book). The outline of submissions by the Minister lodged on 20 September 2023 and accepted for filing on 21 September 2023 (Minister’s Submissions) accurately summarise the background to this matter, at [4] to [10]. The Court adopts these submissions as its own with some amendments as follows.
The Applicant is a Sri Lankan national from the Northern Province, who is Tamil and Hindu. The Applicant resided in Malaysia from 2007 to December 2012. On 25 December 2012, the Applicant entered Indonesia, and on 7 January 2013 he was issued a United Nations High Commissioner for Refugees (UNHCR) Asylum Seeker Certificate.[2]
[2] CB 2; 47-49.
The Applicant arrived in Australia on 15 February 2013 as an Irregular Maritime Arrival.[3]
[3] CB 527, [2].
On 21 February 2013 the Department of Immigration and Citizenship (Department) conducted a screening interview with the Applicant (Screening Interview).[4] On 10 March 2013 the Department conducted an Irregular Maritime Arrival Entry interview (Arrival Interview) with the Applicant.[5] During the Arrival Interview the Applicant claimed that if he returned to Sri Lanka he would be of interest to, and a target of, the Sri Lankan Army (SLA) and paramilitary groups because of his cousin’s membership of the Liberation Tigers of Tamil Eelam (LTTE).
[4] CB 4-24.
[5] CB 25-46.
On 17 May 2016 the Applicant applied for the Visa with the assistance of a government-funded Primary Application Information Service agent and an interpreter (Visa Application).[6] The Applicant’s statement of claim attached to the Visa Application (Statement of Claim) made the following claims:[7]
[6] CB 56-120.
[7] CB 101-107.
(a)The Applicant is a citizen of Sri Lanka and does not have a right to citizenship or a right to reside in any other country.
(b)The Applicant is Tamil and Hindu and was born in the Jaffna district of Sri Lanka.
(c)The Applicant fears harm if he returns to Sri Lanka due to his past involvement in political activism. This fear includes fear of interrogation, torture and death by the Criminal Investigation Department (CID) and the SLA.
(d)The Applicant left Sri Lanka due to his involvement with ‘Pongu Tamil’, a movement started by students that was separate to the LTTE (Pongu Tamil). Further:
(i)The Pongu Tamil was formed in response to the mistreatment of Tamils by the SLA and involved peaceful protests;
(ii)The Applicant was a school leader and was therefore expected to be involved with the Pongu Tamil;
(iii)The Applicant was photographed alongside other students next to placards supporting the leader of the LTTE;
(iv)The Applicant was involved in a play depicting the persecution of Tamils by the SLA; and
(v)The SLA considered the Pongu Tamil as a threat and dangerous due to opposing political opinions. The SLA stopped, threatened and assaulted those involved with the LTTE movement.
(e)Around 2002 the Applicant became involved with the United National Party (UNP), a political party whose local members supported the local Tamil community. The Applicant supported a local member for election. The local member was assassinated in January 2008 and therefore the Applicant was and is worried about what would happen to civilians.
(f)The Applicant’s cousin, who was raised with the Applicant as his ‘sister’, left the Applicant’s household and joined the LTTE, as she was constantly assaulted by the SLA as a female Tamil. Further:
(i)The Applicant’s cousin was separated from the family due to a division in the Northern Province;
(ii)The Applicant’s cousin had one leg amputated as a result of injury sustained in the fighting;
(iii)The Applicant’s cousin left the LTTE in 2003 and was married;
(iv)The Applicant’s cousin started vising the Applicant’s family home. The CID began investigating the Applicant’s cousin, as the CID was suspicious of all LTTE combatants and associates; and
(v)The CID began interrogating the Applicant and his family around April or May 2006. The Applicant’s father was assaulted and the family was threatened if they did not cooperate.
(g)When fighting resumed in Sri Lanka in 2007, the Applicant’s family became fearful for his safety and arranged to send him away. The Applicant travelled from Colombo to Malaysia in 2007. Further:
(i)The Applicant was registered with UNHCR in Malysia and lived with relatives but faced harassment from authorities due to his immigration status; and
(ii)On 12 March 2010 the Applicant’s cousin and the Applicant were abducted from their home in Malaysia for four (4) days. They were both interrogated and accused of being involved in the LTTE. They were released, but their details, including the Applicant’s passport, were kept by the abductors. The abduction was instigated by Sri Lankan Tamils and carried out by counterparts in Malaysia.
(h)The Applicant travelled to Indonesia and then Australia as he was fearful of his life in Malaysia and scared of being returned to Sri Lanka. Further:
(i)He fears he is still at risk as his father continues to be harassed by the CID; and
(ii)It is unsafe for the Applicant to relocate within Sri Lanka as the whole country is ruled by the SLA and its associates.
On 30 June 2016 the Department acknowledged receipt of the Visa Application.[8]
[8] CB 123-128.
On 21 September 2016 the Department invited the Applicant to attend an interview on 13 October 2016.[9]
[9] CB 129-149.
THE DELEGATE’S DECISION
On 1 June 2017 the Delegate refused to grant the Applicant the Visa (Delegate’s Decision).[10] The Delegate was not satisfied that the Applicant was owed protection obligations under s 36(2)(a) of the Migration Act as he did not meet the criteria for a refugee under s 5H(1) based on the following findings:
(a)Given the Applicant’s very low level of capacity in political activities more than 10 years ago and the change in the political climate in Sri Lanka, the Applicant did not hold a well-founded fear of persecution on account of his political opinion;
(b)The Applicant was not a person of particular interest to the authorities or considered a threat to the Sri Lankan State prior to his departure from Sri Lanka and would not be at present as a result of his participation in Pongu Tamil activities;
(c)The chance of the Applicant being imputed with a LTTE connection for reasons of the Applicant’s Tamil ethnicity was remote and the Applicant, as the cousin of a person with an actual link to the LTEE, would not be of interest to the authorities; and
(d)The Applicant does not hold a well-founded fear of persecution on account of being a failed Tamil asylum seeker, as there is no information to suggest he would be a person of interest to authorities. Even if the Applicant were charged and detained, a short period of detention would not amount to serious harm.
[10] CB 153-170.
On 7 June 2017, the Delegate’s Decision was referred to the IAA.[11]
[11] CB 189-195.
THE IAA DECISION
On 7 and 29 June 2017, the IAA requested by email further documents and information from the Applicant.[12] On 14 July 2017, the Applicant sent articles posted on the internet in relation to Sri Lanka by email.[13]
[12] CB 198-201.
[13] CB 203-214.
On 14 July 2017 the IAA requested by email a Word document statement from the Applicant.[14] On 15 July 2017 the Applicant provided by email a written statement responding to the Delegate’s Decision.[15] The Applicant attached internet reports and articles regarding Sri Lanka.[16]
[14] CB 215.
[15] CB 217-223.
[16] CB 224-523.
On 29 March 2018 the IAA affirmed the Delegate’s Decision.[17]
[17] CB 525-545.
The Minister’s Submissions accurately summarise the IAA Decision, at [11] to [18]. The Court adopts these submissions with some amendments as follows.
Firstly, the IAA considered the information before it. The IAA considered the information sent by the Applicant to the IAA after the Delegate’s Decision. The IAA determined that pursuant to s 437DD of the Migration Act, the new information provided by the Applicant that pre-dated the Delegate’s Decision submitted by the Applicant could not be considered as the Applicant had not satisfied the IAA: that the new country information was not and could not have been provided to the Delegate; or that the information was credible personal information that was not known or that had the information been known, it may have affected the consideration of the Applicant’s claims.[18] The IAA was however satisfied that there were exceptional circumstances to justify the consideration of two (2) articles that post-dated the Delegate’s Decision as the information could not have been provided prior to the Delegate’s Decision and would assist in providing further context to country information.[19]
[18] CB 527-528, [7].
[19] CB 527-528, [1]-[7].
The IAA then outlined the Applicant’s claims for protection, which largely reflected the claims outlined at paragraph [10] herein, as follows:[20]
(a)The Applicant feared being taken, interrogated, tortured and killed by the CID and the SLA if he returned to Sri Lanka. This fear was based on his past political activism and suspicion that he was a LTTE supporter;
(b)The authorities were detaining Tamils, who are suspected LTTE associates, supporters and combatants, in a similar situation to the Applicant for questioning and they were disappearing;
(c)The Applicant’s fears persist as his Father continues to be harassed and interrogated by the CID as to the whereabouts of the Applicant. Further, the Applicant’s cousin fled Sri Lanka which has increased threats and the danger to the Applicant and his family, with the most recent visit by the CID being in early 2016;
(d)The Applicant fears harm from authorities and cannot be protected;
(e)The Applicant’s family has been threatened by the CID not to report the harassment to non-government organisations, which also would not be able to protect the Applicant and his family; and
(f)The Applicant’s mother warns him to not return to Sri Lanka as it is not safe.
[20] CB 528, [8].
The IAA then assessed the Applicant’s evidence and his claims for protection. The IAA largely accepted the Applicant’s claims and found that the Applicant was generally consistent about his cousin’s involvement with the LTEE, his political involvement and the adverse attention he and his family received.[21]
[21] CB 529-532, [11]-[25].
The IAA did not however accept significant parts of the Applicant’s claims and evidence about events in January 2007 leading up to the Applicant leaving Sri Lanka and the events after he left Sri Lanka in February 2007.[22] The IAA determined:
29.Given the significant inconsistencies, changes and credibility issues with his evidence, I am satisfied that the applicant has embellished, exaggerated and fabricated his evidence about events after he departed Sri Lanka in 2007 in order to boost his claims for protection. […][23]
[22] CB 532-533, [26]-[28].
[23] CB 533, [29].
Based on the credibility findings and assessment of the protection claims as outlined above, the IAA then assessed whether the Applicant was a refugee under s 5H(1) of the Migration Act. The IAA considered whether the Applicant had a profile that country information suggested he was at risk of harm, now or in the foreseeable future, for any real or perceived LTTE links or for any imputed political views, because of his support for the UNP and Pongu Tamil and/or as a Tamil male from the north of Sri Lanka.[24] The IAA took into account various sources of country information dated from 2012 to 2017. The IAA concluded:
48.The applicant does not have a profile that country information suggests he is at risk of harm, now or in the foreseeable future, for any real or perceived LTTE links, for any imputed political views, because of his support for the UNP and Pongu Tamil, and/or as a Tamil male from the north. […][25]
[24] CB 534-538, [33]-[49].
[25] CB 538, [48].
The IAA accepted that the Applicant may be considered a failed asylum seeker by the Sri Lankan authorities if he were to return to Sri Lanka.[26] The IAA was not satisfied that the Applicant faces a real chance of persecution on the basis of being a failed Tamil asylum seeker, now or in the reasonably foreseeable future based on country information and findings that the Applicant’s profile is not of interest to the Sri Lankan authorities and the evidence in relation the treatment of returnees after they return to Sri Lanka.[27]
[26] CB 534, [30].
[27] CB 539-540, [51]-[58].
The IAA concluded that the Applicant does not have a well-founded fear of persecution within the meaning of s 5J of the Migration Act and that the Applicant does not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act. Therefore, the Applicant did not satisfy s 36(2)(a) of the Migration Act.[28]
[28] CB 540, [59]- [60].
The IAA undertook a complementary protection assessment and was not satisfied that the Applicant faces a real risk of significant harm. Therefore, the Applicant also did not meet s 36(2)(aa) of the Migration Act.[29]
[29] CB 540 and 541, [61]-[65].
PROCEEDINGS BEFORE THE COURT
The Application was filed in this Court on 26 April 2018, within 35 days of the date of the IAA Decision pursuant to s 477 of the Migration Act.
On 11 October 2022 the Applicant lodged the Amended Application, together with a list of authorities and written submissions (Applicant’s Submissions), which were accepted for filing on 12 October 2022.
On 24 August 2023 Orders were made by a Registrar of this Court for the Applicant to file written submissions, an amended application and any additional evidence on which the Applicant sought to rely.
The Applicant relied upon the following at the Hearing:
(a)The Amended Application;
(b)The Applicant’s Submissions; and
(c)The Applicant’s List of Authorities, filed 9 November 2023.
The Minister relied upon the following at the Hearing:
(a)The Response, filed 18 June 2018;
(b)The Minister’s Submissions; and
(c)The Minister’s List of Authorities, filed 8 November 2023.
The Applicant relied on the following grounds of review in the Amended Application (Grounds of Review):
The decision of the Second Respondent to refuse to grant the Applicant a Safe Haven Enterprise Visa is affected by the following jurisdiction error:1. The Second Respondent erred in law by making a decision not take into relevant information, particularly that he is a young Tamil male from the north.2. The Second Respondent ignored relevant material in a way that affected its exercise of power.3. The Respondent has not properly considered the alternative criterion in under the Complimentary protection.Application to FCC
Ground 1: The IAA erred when it considered there were ‘inconsistencies’ in relation to his claim about being abducted in April 2020 [28] such that these asserted ‘inconsistencies’ enabled the IAA to reject as a fabrication as to how his passport was stolen as an embellishment. [29]
PARTICULARS
i.[CB532]-[CB533]
As to the first bullet point [CB533]: (First Claim)
i.The IAA attempted to contrast the Applicant’s claims recounted at [CB12] with [CB105];
ii.In respect of [CB12], the IAA stated ‘He inconsistently claimed that the abductors who came to the house were Malay Tamils but his interrogator was a Sri Lankan Tamil (arrival interview in February 2012) or that his abductors who came to the house were both Malay and Sri Lankan Tamils and he was interrogated by the two men, one Malay Tamil and one Sri Lankan Tamil (SHEV written statement)’;
iii.However, the account in [CB12] was confused in respect of the interrogator being ‘a Sri Lankan Tamil’ because the Applicant’s account used both the singular ‘he’ (“he asked us”) and plural ‘they’ (“they asked us”);
iv.The use of the word ‘he’ being singular can be contrasted against the references at [CB105] of two questioners;
v.Accordingly the IAA was wrong to be selective and to choose the reference ‘he’ so as to attempt to demonstrate an inconsistency that there was only one interrogator, and to ignore the other reference ‘they’ which would be consistent with his account at [CB105] that there were multiple interrogators;
vi.The finding was therefore unreasonable, irrational and/or illogical;
As to the second bullet point [CB533]: (Second Claim)
i.The IAA finding the Applicant ‘changed his evidence’ from the account given at [CB12] to the account given at [CB106] in paragraphs [31]-[34];
ii.The two versions are not inconsistent such that the Applicant has not ‘changed his evidence’;
iii.The two versions are different aspects of the one event;
iv.The criticism that they ‘couldn’t afford to pay their abductors a bribe’ [CB106] is not inconsistent with the husband collecting his cousin’s jewellery since paying a ‘bribe’ would denote cash;
v.The criticism that ‘the husband collected the cousin’s jewellery and gave it to the abductors’ is not inconsistent with ‘the abductors kept the jewellery they were wearing’ [CB106] at paragraph [32] since the abductors could well have done both;
vi.Accordingly the IAA was wrong to assert the Applicant ‘changed his evidence’ and did not consider that the apparent discrepancies were merely different features of the same event;
vii.The finding was therefore unreasonable, irrational and/or illogical;
As to the fourth bullet point [CB533]: (Third Claim)
i.The IAA stated at [CB533]: ‘Given his evidence about his activities in Sri Lanka before he left in 2007, together with K’s positions as a fighter and then trainer while she was the LITE from about 1996 to 2003, I do not consider it credible that the Sri Lankan authorities would have sufficient interest in the applicant to arrange to abduct him in Malaysia some three years after he left Sri Lanka as suggested by the applicant. Additionally, I do not consider it credible that, if it were accepted that the Sri Lankan authorities did have sufficient interest to arrange such an abduction, that he would have been released by his abductors;’;
ii.The IAA failed to provide any reasons or basis for either conclusion;
iii.The IAA did not refer to any publication article or other credible source upon which either of the above conclusions could be based;
iv.The IAA referred to publications and articles in respect of Sri Lanka, which did not refer to Malaysia nor to the relationship between the Sri Lankan authorities and the Malaysian authorities concerning locating persons such as the Applicant and his sister at the relevant time;
v.The IAA statement at [CB533] was therefore nothing more than an expression of unsupported opinion and demonstrated that the Reviewer applied no intellectual process in coming to these conclusions which were therefore unreasonable, irrational and/or illogical;
vi.The IAA accordingly committed jurisdictional error.
As to the fifth bullet point [CB533]: (Fourth Claim)
i.The IAA was critical of the Applicant’s failure ‘to mention further visits to his family by the authorities in his arrival interview, if they occurred, or that the CID would still be making enquiries about the applicant some nine years ago after he left Sri Lanka.’[CB533];
ii.It is to be noted the arrival interview occurred on 21/02/2013 [CB4-[CB24];
iii.The SHEV statement was dated 13th May 2016 [CB107];
iv.The Applicant was not asked in the arrival interview about whether any member of the CID was harassing his father or his family – see interview transcript [CB4]-[CB24]; see also Part A/B/C [CB25]-[CB46];
v.There is not material to suggest that, at the time of the arrival interview, the Applicant had knowledge the CID visited his father or family;
The criticism that the Applicant failed to mention any visits were made to his family by the Sri Lankan authorities in his arrival interview, is based on an underlying premise, to wit, the Applicant knew of such visits. There is no material that suggests same;
Accordingly, the criticism is without is without any foundation, is unreasonable, irrational and/or illogical;
The IAA therefore committed jurisdictional error.
(Words in bold added. Otherwise as written)
CONSIDERATION
The finding that the Applicant did not face a real chance of suffering harm if he returned to Sri Lanka
The Grounds of Review allege that the IAA erred in its decision due to its assessment of the inconsistencies in the Applicant’s claim. The particulars of the Grounds of Review allege that the IAA’s assessment of the evidence was incorrect and therefore the IAA Decision was unreasonable, irrational and/or illogical. Counsel for the Applicant submitted that the Applicant challenges the followings findings in the IAA’s Decision at [28]:[30]
(a)First Claim: “[The Applicant] inconsistently claimed that the abductors who came to the house were Malay Tamils but his interrogator was a Sri Lankan Tamil (arrival interview in February 2013) or that his abductors who came to the house were both Malay and Sri Lankan Tamils and he was interrogated by two men, one Malay Tamil and one Sri Lankan Tamil (SHEV written statement)”;
(b)Second Claim: “[The Applicant] changed his evidence from the abductors called his cousin’s husband and threatened to kill them, the husband collected the cousin’s jewellery and gave it to the abductors, after which they were released (arrival interview) to they couldn’t afford to pay their abductors a bribe and they were just released but the abductors kept the jewellery they were wearing (SHEV written statement)”;
(c)Third Claim: “Given [the Applicant’s] evidence about his activities in Sri Lanka before he left in 2007, together with K’s positions as a fighter and then trainer while she was with the LTTE from about 1996 to 2003, I do not consider to [be] credible that the Sri Lankan authorities would have sufficient interest in the applicant to arrange to abduct him in Malaysia some three years after he left Sri Lanka as suggested by the applicant. Additionally, I do not consider it credible that, if it were accepted that the Sri Lankan authorities did have sufficient interest to arrange such an abduction, that he would have been released by his abductors”; and
(d)Fourth Claim: “In his arrival interview the applicant mentioned his mother told him there were still checkpoints in Sri Lanka and it was not safe for him to return home but did not claim that the authorities or EPDP had made any further enquiries about him after he left Sri Lanka. In his SHEV written statement he claimed the CID continues to harass his father in Jaffna and last came in early 2016 to ask about his whereabouts. I do not consider it credible that he failed to mention further visits to his family by the authorities in his arrival interview, if they occurred, or that the CID would still be making enquiries about the applicant some nine years after he left Sri Lanka”.
[30] CB 532 and 533; Transcript P2:L23-39.
The Minister submitted that the IAA Decision must be read holistically and with regard to the entire context of the decision,[31] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, in which Kirby J said, at 291:
The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.
[31] Transcript P15:L1-5; Minister’s Written Submissions, filed 21 September 2023 (‘Minister’s Submissions’), [21].
The Minister submitted that a decision may be ‘unreasonable’ where it lacks an evident and intelligible justification: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [59]. The Minister submitted that the reasons of the IAA display an evident and intelligible justification for the conclusion reached, and a conclusion that another decision-maker could reach on the material available.[32] Counsel for the Minister further submitted that that the IAA Decision is reasonable as the IAA reviewed and considered: the Applicant’s claims as made at the various interviews and in the Statement of Claim; the dates of the alleged events; the likelihood of events occurring; and inconsistencies.[33]
[32] Minister’s Submissions, [24].
[33] Transcript P15:L3-15.
Further, the Minister submitted that, at its highest, the Grounds of Review express disagreement with the IAA’s factual findings and invites the Court to undertake impermissible merits review, in particular in relation to the IAA’s credibility findings.[34]
[34] Minister’s Submissions, [35].
To the extent that the claims within the Grounds of Review are in the nature of merits review, the Court cannot undertake an assessment of the IAA’s findings, in particular credibility findings. The Grounds of Review must be dismissed to the extent they expresse disagreement with the IAA’s findings and invite the Court to undertake imperssible merits review.
The IAA’s Credibility Findings
The IAA accepted the Applicant’s claims where his evidence was consistent and supported by country information.
The IAA identified a number of discrepancies in the Applicant’s evidence about events during and after January 2007, including:
(a)Whether the abductors were Malay Tamils, Sri Lankan Tamils or were both Malay and Sri Lankan Tamils;
(b)Whether the abductors were paid in the form of jewellery from the cousin’s husband or took jewellery that the Applicant and his cousin were wearing;
(c)The date that the Applicant and his cousin were kidnapped; and
(d)The date that the Applicant’s passport was stolen.
The IAA considered that the Applicant’s claims were not consistent with country information about Sri Lanka.[35] The country information importantly indicated the following:
(a)Monitoring and harassment was common in Sri Lanka at the time prior to the Applicant leaving Sri Lanka and was not specific to the Applicant or his family;
(b)Since the Applicant left Sri Lanka, the government, security situation and general conditions of Tamils had changed. The UNP became part of the ruling coalition government, censorship and monitoring was reduced, harassment became isolated incidents and symbolic gestures had been made towards the Tamil community; and
(c)Membership of the LTTE no longer gave rise to protection.
[35] CB 538, [46]-[47].
Significantly, at [29] of the IAA Decision, the IAA determined that the inconsistencies had the following effect on the Applicant’s claims:
29.Given the significant inconsistencies, changes and credibility issues with his evidence, I am satisfied that the applicant has embellished, exaggerated and fabricated his evidence about events after he departed Sri Lanka in 2007 in order to boost his claims for protection. I am prepared to accept, given the limited corroboration provided by the Malaysian police report dated 12 March 2010, that his passport was stolen on 12 March 2012, but reject his claim as to how it was stolen as an embellishment. I also reject as fabrications his claims that he and his cousin were abducted in Malaysia in 2010; and that the CID or other Sri Lankan authorities, including the EPDP, have harassed his father or made enquiries about the applicant after he departed Sri Lanka in February 2007.
The IAA came to its conclusion as to the credibility of the Applicant’s claims based on: the claims made by the Applicant at the Arrival Interview; the claims in the Statement of Claim; the varying accounts relating to the number of abductors and the bribe of jewellery; the varying dates of the abduction, reporting and the loss of the passport; and in the context of country information, the interest in the Applicant and the likelihood of the events occurring three (3) years after the Applicant had left Sri Lanka.
The IAA accurately and comprehensively recounted the Applicant’s claims. The IAA reviewed and considered the Applicant’s evidence in context of relevant and reliable country information.
I will now turn to the four (4) claims within the Grounds of Review.
First Claim
The First Claim concerns the IAA’s findings relating to the Applicant’s description of his abductors/interrogators. Counsel for the Applicant submitted that the IAA challenged statements that it deemed contradictory in relation to the abductors ethnicity and number, and was unreasonable, illogical or irrational by selectively choosing the reference to “he” to demonstrate inconsistency.[36] The Applicant contends that the IAA’s misunderstanding about the Applicant’s use of singular and plural pronouns in relation to the abductors resulted in the ‘illogical’ conclusion that the Applicant’s claim was not credible.
[36] Transcript P3:L8-11 and P4:L1-19.
The Minister contended that the IAA’s rejection of the abduction account was not irrational for the following reasons:
(a)The nationality of the abductors was only one of five (5) reasons given by the IAA for rejecting the account of the abduction, and no error arises from any misunderstanding about the number of abductors or the use of singular or plural;[37]
(b)The IAA accurately summarised the Applicant’s claims regarding the nationality of the abductors at the Arrival Interview and in the Statement of Claim, and the inconsistency between the two is apparent;[38]
(c)The IAA accurately summarised the Applicant’s evidence regarding the account of and number of persons he was interrogated by at the Arrival Interview and in the Statement of Claim; and
(d)Even if a different decision maker may have reached a different conclusion on the evidence as to the nationality and number of the interrogator(s), this is not of itself a basis for concluding that there was jurisdictional error.
[37] Transcript P15:L17-27.
[38] Transcript P14:L37-40.
In response to being asked “what are your reasons for coming to Australia” at the Screening Interview, the Applicant gave evidence that:[39]
[…] The people who came to our house they were Malaysian Tamils who claimed to be police and entered our home and searched in side […] I was told to take our UN Cards with us. Nothing else. They blind folded us and said they were taking us to the police station. I don’t know who it was who kidnapped us but the person who interviewed us was a Sri Lankan Tamil. What they asked us was are you associate with the Liberation Tigers we said no but that was the question that he asked both of us. We were held for three days we didn’t admit we were LTTE tigers and they asked us for money or jewellery and things like that.
(Emphasis added)
[39] CB 12; Transcript P3:L32-45.
In the Statement of Claim the Applicant reported the following:
[…] He said he was a policeman, in Tamil, and I believed him. As soon as I opened the door, 10 people quickly ambushed me and entered the house. They locked the door behind them […][40]
[…] They returned, and separated my cousin and I into separate rooms. We were interrogate separately. Two of our abductors were Malay, but the rest of them were Tamil. Two of the Tamils, one a Malaysian Tamil, the other a Sri Lankan Tamil) questioned what I was doing in Malaysia, and why I had fled Sri Lanka […][41]
[40] CB 105, [29].
[41] CB 105, [30].
The IAA is entitled to give such weight to the evidence as it thinks appropriate in all the circumstances: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]. It is well established that a decision maker must assess the significance of (any) inconsistency and the weight to be given to it. Simply attaching the label inconsistency and moving immediately from the label to an adverse finding of credibility or reliability may not be a rational or legally reasonable approach: ASB17 v Minister for Home Affairs [2019] 268 FCR 271, 283 at [44].
I accept the Minister’s submissions. The IAA did not merely recite the Applicant’s evidence. The IAA considered the Applicant’s claims: in the context of country information; the possible reasons for inconsistencies and gaps in the evidence; and how consistent and inconsistent evidence impacted the Applicant’s case. The IAA did not commit any errors in summarising the Applicant’s claims and evidence, and the IAA’s evaluation of the evidence did not fall short of the standard required. In determining that the Applicant’s claim in relation to his abductors was not credible the IAA did not act unreasonably or irrationally.
Second Claim
The Second Claim concerns the IAA’s findings about the release of the Applicant by his abductors. Counsel for the Applicant submitted that there was no inconsistency with the Applicant’s accounts of his abduction and release as the Applicant explained different aspects of the one event.[42]
[42] Transcript P6:L4-14.
At the Screening Interview, the Applicant gave evidence that:[43]
[…] My cousin’s husband collected his wife’s jewellery, chain and bracelets and told to come to a particular place and once that jewellery was handed over we were released.
[43] CB 12; Transcript P5:L1-8.
In the Statement of Claim the Applicant stated that:[44]
[…] After they had interrogated us over four days, and we had not been able to impart any information or even afford pay them a bribe, they released us. They were fearful after they contact my cousin’s husband, who advised that he had reported the incident to the police already. The abductors had returned to our house during this time and taken a lot of our belongings, including my passport.
[44] CB 106, [31] and [32].
Counsel for the Minister submitted that the IAA considered whether or not the abductors were paid, not the method in which they were paid.[45] The Minister submitted that the IAA determined that the Applicant’s claims were not credible having regard to the evidence about the Applicant’s profile and consideration of the time period and background to the alleged events.[46]
[45] Transcript P15:L36-P16:L17.
[46] Minister’s Submissions, [28] to [29].
The IAA’s credibility findings about the abduction reveal an evident and intelligible justification and the IAA sufficiently engaged with the evidence and claims as advanced by the Applicant. It cannot be said that another reasonable decision maker could not have arrived at the same decision. Further, the IAA’s findings the Applicant was not of sufficient adverse interest to face a real risk of harm were based on the cumulative effect of various factors and other findings.
Third Claim
The Third Claim argues that the IAA’s reasoning was flawed as it provided no reasons and/or sufficient evidence for finding that the Applicant’s claims regarding the Applicant’s political activities, and abduction and release were not credible. Counsel for the Applicant submitted that the IAA did not provide a basis for not considering it credible that the Sri Lankan authorities would have sufficient interest in the Applicant, or that if there was sufficient interest, that the Applicant would have been released.[47] Counsel for the Applicant submitted that the IAA applied no intellectual process in coming to its conclusions as there were no authorities, articles, country information or other credible sources referred to.[48]
[47] Transcript P9:L4-5.
[48] Transcript P9:L5-14.
The Minister submitted that the IAA’s findings were reasonable on the evidence as the IAA considered the Applicant’s evidence about his activities in Sri Lanka, his claims relating to his cousin and country information to determine that it was not credible that the Applicant would have been of sufficient interest to authorities to arrange an abduction three (3) years after he left Sri Lanka. Counsel for the Minister further submitted that the IAA assessed the Applicant’s claims, expressed its reasoning and, based on its findings about the Applicant’s profile, came to a conclusion about the credibility of the abduction.[49]
[49] Transcript P16:L21-39.
The Applicant’s political activities were recorded at [11] and [12] of the IAA’s Decision.[50] The activities of the Applicant’s cousin “K” and other relevant events reported by Applicant are summarised at [13] to [17] of the IAA’s Decision. [51] The IAA outlined the Applicant’s claims regarding his abduction at [18] to [21] of the IAA’s Decision.[52]
[50] CB 529, [11] and [12]; Transcript P6-P8.
[51] CB 529-530, [13]-[17]; Transcript P6:L33-34.
[52] CB 531, [18]-[21]; Transcript P8:L13-36.
For similar reasons as stated in relation to the First Claim and Second Claim, I agree with the Minister’s submissions. I do not accept Counsel for the Applicant’s contention that the “IAA merely said, ‘Look, I find it incredible that could happen. I don’t’ accept it’”.[53] The IAA considered the Applicant’s evidence in detail and used country information as well as the Applicant’s consistency or lack thereof to assess the credibility of the Applicant’s claims. The IAA’s Decision provides the reasons for the IAA’s acceptances of claims as well as rejections of claims. The IAA rejected the notion that the Applicant had a profile of the type that would attract serious harm and therefore did not find the abduction plausible. The assessment of credibility is a matter for the IAA as an aspect of its fact-finding jurisdiction. No reviewable error is evident in the IAA’s taking and assessment of evidence.
[53] Transcript P12:L39-41.
Fourth Claim
The Fourth Claim contends that the IAA’s criticism of the Applicant’s failure to adduce evidence that the Applicant’s family continued to be questioned about him resulted in jurisdictional error. Counsel for the Applicant submitted that the Applicant was not asked in the Arrival Interview about whether any member of his family was being harassed and the IAA’s criticism of the Applicant is unreasonable, irrational or illogical as there is no material in the Court Book indicating that the Applicant knew of any visits to his family.[54] Counsel for Applicant further submitted that whether or not the Applicant’s father, or family, was harassed or questioned as late as 2016 was relevant to the Applicant’s claims.[55]
[54] Transcript P10:L4-17.
[55] Transcript P10:L40-43.
The Minister submitted that the IAA’s reasoning process was intelligible and that the IAA’s findings about the credibility of the Applicant were open to it.
At [48] of the IAA Decision the IAA made critical findings as follows:[56]
48.The applicant does not have a profile that country information suggests he is at risk of harm, now or in the foreseeable future, for any real or perceived LTTE links, for any imputed political views, because of his support for the UNP and Pongu Tamil, and/or as a Tamil male from the north. Although he was under suspicion because of his sister (as was his father) and his other activities with M’s UNP election campaign and Pongu Tamil and was harassed and monitored as a result, given the passage of time since he and his father were under suspicion, that the Sri Lankan authorities have not made any further enquiries about him or harassed his father since the applicant left in 2007, and the change of government and the significant shift in country conditions in Sri Lanka since his departure, I do not consider that he would be of any adverse interest to the Sri Lankan authorities, including the EPDP, or that he faces a real chance of suffering harm, if returned to Sri Lanka.
[56] CB 538, [48].
The Applicant had given evidence that his mother had told him it was not safe to return home. The IAA determined that this evidence lacked credibility on the basis that if the mother had expressed concerns about the Applicant’s safety she would have done so by referencing visits or interests about the Applicant by the CID or SLA over the nine (9) years since the Applicant had left Sri Lanka. Findings in respect of credulity involve the taking and assessment of evidence and are therefore fundamentally a matter for merits review. The IAA relied on various inconsistencies in the Applicant’s evidence not just the Applicant’s failure to adduce evidence regarding his families’ continued harassment and questioning to make findings about the Applicant’s credibility and claims. The Applicant has failed to identify how the IAA’s criticism of the Applicant in this respect resulted in jurisdictional error.
CONCLUSION
The four claims in the Grounds of Review failed to identify jurisdictional error in the IAA’s Decision. The Amended Application must be dismissed.
The Minister sought costs according to scale in the sum of $8,371.30.[57] This amount is in accordance with scale amount in Item 3 of Division 1 of Part 2, Schedule 2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
[57] Transcript P17-18.
Orders will be made accordingly.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 1 February 2024
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