CEE17 v Minister for Immigration

[2019] FCCA 2621

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEE17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2621

Catchwords:
MIGRATION – Tamil – Hindu - whether the Authority erred in not exercising its power under s 473DC of the Act to invite the applicant to an interview or otherwise get new information – whether the Authority erred in the exercise of its power under the law and thereby denied the applicant natural justice or procedural fairness – whether the Authority made findings which were unreasonable – whether the Authority made findings which were unreasonable.

Legislation:

Migration Act 1958 (Cth), ss 5H, 5J, 36, 473DA, 473DB, 473DC, 473DD, 476.

Cases cited:

CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641.

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12.

DPI17 v Minister for Home Affairs [2019] FCAFC 43.
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1.
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30.

Applicant: CEE17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 1036 of 2017

Judgment of: Judge McNab

Hearing date: 22 May 2019

Date of Last Submission: 22 May 2019

Delivered at: Melbourne

Delivered on: 20 September 2019

REPRESENTATION

Counsel for the Applicant: Mr Krohn

Solicitors for the Applicant: Vrachnas Lawyers

Counsel for the Respondents: Ms Lucas

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application filed 22 May 2017 be dismissed.

2. The court orders that the Applicant pay the costs of the First Respondent fixed at $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1036 of 2017

CEE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application dated 22 May 2017, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) made on 5 May 2017. The Authority’s decision affirmed a decision of a delegate (‘Delegate’) of the First Respondent (‘the Minister’) refusing to grant a Safe Haven Enterprise visa (XE-790) (‘the visa’). This proceeding is brought pursuant to s 476(1) of the Migration Act 1958 (Cth) (‘the Act’).

2. The matter was heard on 22 May 2019.

3. For the reasons which follow, I have concluded that the application should be dismissed.

Background

1. The applicant is a citizen of Sri Lanka and was born on 10 August 1990. He is of Tamil ethnicity and Hindu religion.

2. The applicant arrived in Australia on 21 October 2012 and lodged his application for a Safe Haven Enterprise Visa (‘SHEV’) (XE-790) on 12 May 2016.

3. On 11 October 2016, the applicant was invited to attend an interview to discuss his visa application (‘the SHEV Interview’). The SHEV Interview occurred on 31 October 2016.

4. The applicant’s migration agent sent further written submissions dated 11 November 2016 to the Delegate on 14 November 2016.

5. On 20 March 2017, the Delegate declined to grant the application for the visa.

6. The application was then referred under Part 7AA of the Act to the Authority to review the Delegate’s decision.

7. On 5 May 2017, the Authority affirmed the Delegate’s decision not to grant a protection visa.

Applicant’s claims to fear persecution

1. The applicant’s submissions, at [9], outlined the applicant’s reasons for seeking protection:

   9. The applicant’s reasons for seeking protection including the following claims:

   a) The Applicant is a national of Sri Lanka and of no other country.

   b) He has no right to enter and to reside in any other country.

   c) The Applicant is of Tamil ethnicity.

   d) The applicant is Hindu.

   e) In 2005, the LTTE took the Applicant four or five times for forced labour. He was given civil defence training.

   f) After being displaced and returning home in about June 2007, the Applicant was questioned and assaulted by the Sri Lankan army. They detained him briefly, but beat him severely, injuring his chest and hip. He was unable to get hospital treatment at that time.

   g) He was taken in Army round ups on two other occasions, when he was taken to a public place, his identity was checked, and he was threatened not to support the LTTE.

   h) The Applicant grew up and, after being at school, worked on his father’s farm in eastern Sri Lanka.

   i) In the area there were also Sinhalese people who disliked and were unpleasant to the Applicant’s father and family. Often, they used to throw stones at his family’s property at night, and the Applicant later elaborated that they threw stones at his father. His father was afraid of the (Sinhalese) police.

   j) In late 2011, some cows were taken from the Applicant’s father’s farm. His father was afraid of the police, so the Applicant himself went to make a complaint that he believed Sinhalese people had stolen the cows. The police were abusive and refused to take any action. The Applicant became angry and threatened to make a complaint to higher authorities.

   k) On the following day, and on the next day, there were threatening telephone calls to the Applicant’s home, asking where he was. On the third day, a white van came and men were looking for him. He then went into hiding at his aunt’s home, and, on the advice of his father, left Sri Lanka for his safety.

   l) After he left Sri Lanka, men came again asking his father where he was, and threatening his father three or four times.

   m) In 2014, the Applicant thought that things may have improve so that he could return home. He asked his father to make some inquiries, which he did discreetly, but this had the effect of a false accusation (of assault) being made against the applicant, and a summons for him to go to a particular police station. [W]hen he did not go, men came and beat his father so badly that his father was in hospital for a week.

   n) People therefore have come searching for the applicant both before and after he left Sri Lanka.

   o) The applicant cannot avail himself of the protection of the state, nor relocate to a place of safety within Sri Lanka.

   p) The Applicant has departed Sri Lanka illegally and made a claim for asylum in Australia.

   q) The applicant feared serious harm, including death. He said, “There is no guarantee for my life there”.

   (citations omitted)

Delegate’s decision

1. On 20 March 2017, the Delegate declined to grant the application for the visa.

2. The Delegate accepted that the applicant was a Tamil Hindu and that he was forced into manual labour for the Liberation Tigers of Tamil Elam (‘LTTE’).

3. The Delegate accepted that the applicant made a complaint to the local police station around late 2011. The Delegate further accepted that the Sinhalese police officer may not have made a record of the applicant’s complaint and that this angered the applicant, causing him to threaten the police officer with a complaint to a higher authority.

4. The Delegate did not accept that this resulted in person(s) in a white van asking about the applicant in his village. Nor did the Delegate accept that there were a number of follow-up visits to the applicant’s house, that his father was assaulted or that his father had subsequent interactions with unknown individuals concerning the applicant’s whereabouts. The Delegate made this finding as the Delegate did not believe it was logical that police would remain interested in a person who did not make the threatened complaint to the higher authority and had left the area 3 days after the interactions with the police.

5. The Delegate did not accept that the Sri Lankan government would view the applicant as pro-LTTE because he was forced to do manual labour for the LTTE.

6. The Delegate did not accept that there was a renewed interest in the applicant in around 2014. The Delegate found this on the basis that the Delegate did not accept that the police had any ongoing interest in the applicant.

7. Further, the Delegate did not accept the police and medical records supplied by the applicant. The Delegate did so due to information supplied by the Department of Foreign Affairs and Trade (‘DFAT’) that document fraud is common in Sri Lanka.

8. The Delegate concluded that:

   I do not accept that there was an accusation that the applicant assaulted someone in 2014 following his father’s enquiries in the community and I do not accept that the Police have any interest in the applicant for the reasons claimed.[1]

   [1] Court Book, 134.

Authority’s decision

1. On 5 May 2017, the Authority affirmed the Delegate’s decision not to grant a protection visa. The Authority did so without any new information.

2. The Authority accepted that:

   a)the applicant was forced to do manual labour for the LTTE on about 4 occasions;

   b)that the applicant and his family were displaced for a period in 2007;

   c)the applicant was detained, questioned and beaten by the Sri Lankan Army (‘SLA’);

   d)the local Sinhalese people threw stones onto the applicant’s property during the night;

   e)the applicant’s cattle were stolen;

   f)the applicant did report the theft of the cattle to the police, and that the police officer refused to record the complaint;

   g)the applicant threatened to complain to a higher authority, aggravating the police officer;

   h)two days after making the complaint, the applicant’s father received phone calls from a person speaking broken Tamil about the applicant;

   i)on the third day after making the complaint there were person(s) in a white van in the village asking after the applicant; and

   j)that due to this fear because of the phone calls and the person(s) in the white van, the applicant left the village and went to stay at his aunt’s house, and his father then made arrangements for him to leave Sri Lanka in October 2012.

3. The Authority did not accept other claims made by the applicant. The Authority noted that the applicant claimed for the first time in the SHEV interview that local Sinhalese had thrown rocks at his father. The Authority found that this claim was an ‘embellishment’ as it was not raised in the visa application process prior to the SHEV Interview.[2]

   [2] Authority’s decision record, dated 5 May 2017, [16].

4. The Authority rejected ‘as a fabrication’ the applicant’s claim that men had come looking for him when he was hiding as the applicant provided various different statements of what happened.[3]

   [3] Authority’s decision record, dated 5 May 2017, [17].

5. The Authority also rejected the applicant’s claims of what happened in Sri Lanka after he had left. The Authority did not believe that it was plausible that the police would maintain an interest in the applicant in circumstances where the applicant did not escalate the complaint as he had threatened. Further, the Authority did not find it credible that two and a half years after the event the police would manufacture assault charges against the applicant. Similarly, the Authority did not believe that the applicant’s father, who did not make the original complaint in 2011 about the cattle being stolen due to fear of the police and since having allegedly been beaten by the police, would go and make enquiries about the applicant to see if such enquiries would be noticed.

6. The Authority rejected documents evidencing his father’s beating on the basis of the applicant’s credibility and as DFAT information indicates that such documents may be forged.

7. The Authority, under the heading ‘refugee assessment’, considered whether the applicant was owed protection by Australia.

8. The Authority provided reasons at [35] of the decision record why it did not consider the applicant to be at a risk of harm for any links to the LTTE, or any imputed political opinion, now or in the reasonably foreseeable future. These reasons were:

   First, on the evidence, residing in a LTTE controlled area of itself does not give rise to a need for protection. Secondly, although the applicant was interrogated and mistreated by the Sri Lankan authorities in June 2007 about his involvement with the LTTE he was released after 40 minutes and never again detained and questioned about any LTTE links or other political views or activities, including when he was recognised by the same SLA officers during a later round up. Thirdly, although he was arrested two or so further times around August and September 2007, that was during general round ups in the area by the SLA who just checked IDs and gave general warnings to the applicant and the others. Fourthly, the incident in 2011 with the Sinhalese police officer was initiated by the applicant contacting the police to report a crime and was not in relation to any suspicion the Sri Lankan authorities held against the applicant whether for involvement with the LTTE or otherwise. Fifthly, based on the applicant’s evidence as to what was said during his argument with the police officer and the reference to the applicant causing trouble in the subsequent phone calls, I am satisfied that the two threatening phone calls and visit to the village by a person in a van occurred in order to intimidate the applicant into not pursuing the matter further and was not an attempt to arrest or detain the applicant. Sixthly, on my findings, the Sri Lankan authorities including the local police made no further enquiries about, nor showed any interest in, the applicant following on from the two calls and van visit in late 2011. Seventhly, on my findings, the Sri Lankan authorities have not enquired about the applicant’s whereabouts since he left Sri Lanka.

9. The Authority did not accept that the Applicant had a reputation as a ‘trouble maker’ or as an opponent of the government. The Authority stated that the applicant does not have a profile that suggests he would be at risk of harm from the Sri Lankan authorities, ‘now or in the foreseeable future, for any links to the LTTE or for any imputed political views’.[4]

   [4] Authority’s decision record, dated 5 May 2017, [37].

10. The Authority accepted that if the applicant was returned to Sri Lanka, the authorities would consider the Applicant to be a failed asylum seeker who departed Sri Lanka illegally. The Authority stated that the applicant would not be at risk of any adverse attention due to the Authority’s previous findings. The Authority also considered that even should the applicant be detained for a period, it would only be for a brief period. The Authority found that such detention would not reach the threshold of s 5J(5) of the Act: ‘I do not consider that a few days in detention would constitute the necessary level of threat to his life or liberty, or to be significant physical harassment or ill treatment under s.5J(5) of the Act or otherwise amount to serious harm for the applicant’.[5]

    [5] Authority’s decision record, dated 5 May 2017, [51].

11. The Authority concluded that the applicant did not meet the requirements of the definition of refugee in s 5H(1) and therefore, does not meet the requirements to s 36(2)(a).

Grounds of review

1. The Applicant, by an amended application filed 23 April 2019, sought review on the following grounds:

   1. The Authority erred in interpreting or applying the law, and failed to exercise its jurisdiction, or erred in the exercise of its jurisdiction, to review the decision of a delegate of the First Respondent.

   Particulars

   (a) The Authority did not exercise its power under section 473DC of the Migration Act 1958 to invite the Applicant to an interview or to seek evidence from the Applicant's father or otherwise to get new information from the Applicant about his claims when:

   (i) the credibility of the Applicant was critical to the Authority's decision;

   (ii) there was a critical issue which the duty of the Authority under the Act made it necessary for the Authority to seek the best possible evidence, namely the claims of questions, threats and harm directed to the Applicant's father after the Applicant left Sri Lanka;

   (iii) the Authority in the absence of that evidence made positive findings against the Applicant of untruthfulness, and embellishment and fabrication of evidence.

   2. The Authority erred in the exercise of its power under the law and thereby denied the Applicant natural justice or procedural fairness.

   Particulars

   (a) The Applicant refers to and repeats Particular (a) to Ground I of this application.

   3. The Authority failed to have regard to relevant considerations including relevant information.

   Particulars

   (a) The Authority made no clear finding about the claim that the authorities came three or four times to question the Applicant's father about him after his departure from Sri Lanka.

   (b) The Authority failed to consider the Applicant's actual claims in that it wrongly considered that the Applicant had claimed that his father had attended the police station to make inquiries in 2014.

   4. The Authority fell into jurisdictional error in that it was unreasonable or acted without logically probative evidence.

   Particulars

   (a) The Applicant refers to and repeats Particular (a) to Ground I of this application.

   (b) The Authority had no logically probative evidence and no evident and intelligible justification for its findings that the Applicant was untruthful, and had embellished and fabricate his claims and evidence, even on oath or in a statutory declaration.

   (citations omitted)

Applicant’s submissions

Ground 1(a) – error of law; 2(a) – denial of natural justice or procedural fairness; 4(a) – unreasonableness

1. The applicant complains of not being invited to an interview by the Authority and that the Authority did not seek information from his father. Under the heading ‘application of the law to the present matter’, the applicant asserts that this is either one or more of an error of law, a denial of natural justice or procedural fairness, or is legally unreasonable. This claim, therefore, relates to grounds 1, 2 and 4, respectively.

2. The applicant asserts that it was unreasonable of the Authority not to exercise its power under s 473DC(3) to invite the applicant to an interview in circumstances where:

   a)the credibility of the applicant was central to the Authority’s decision;

   b)the Authority has a duty to seek the best possible evidence; and

   c)the Authority made adverse findings about the applicant’s credibility.

3. The applicant states that:

   The gravity of the Authority’s task, and the small probability of persecution or significant harm which is sufficient to engage Australia’s protection obligations under the Act, both indicated that a reasonable Authority in this matter would have exercised its power under section 473DD(3).

4. Particular 1(b) was abandoned by the applicant.

Ground 2 – whether the Authority erred in the exercise of its power under the law and thereby denied the applicant natural justice or procedural fairness

1. By the applicant’s submissions, this ground has been considered by ground 1.

Ground 3 – the Authority fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or information

1. The applicant claims that the Authority did not consider his claim that the Sri Lankan authorities came three or four times to question the applicant’s father about him.

2. The applicant claims that the Authorities statement that it does ‘not accept the claims about subsequent events … after he came to Australia. I do not consider it plausible that the authorities would maintain an interest in the applicant …’ does not ‘cover’ the applicant’s allegations.[6]

   [6] Authority’s decision record, dated 5 May 2017, [18].

3. The applicant states that if 3 or 4 visits occurred, ‘then there was not necessarily the interval of two and a half years between his departure and the assault charge, which the Authority found not credible’.[7] It is said that the failure to assess this claim may have greatly changed the assessment of the applicant’s credibility.

   [7] Applicant’s submissions, filed 24 April 2019, [48].

Ground 4 – unreasonableness

1. The applicant refers back to ground 1, stating that the Authority has made a jurisdictional error as it has made findings which are illogical in the sense of being unsupported by any probative evidence.

2. The applicant states that the Authority was unreasonable in not inviting the Applicant to an interview per s 473DC(3).

3. The applicant further states that the Authority had no basis on which to state that the applicant’s evidence was an ‘embellishment’.[8] The applicant says that there was no evident and intelligible justification for such a conclusion.

   [8] Authority’s decision record, dated 5 May 2017, [16].

4. The applicant also submits that the finding that the father did not go to the police due to his fear of the police was an unsound conclusion based upon unreasonably flimsy grounds.

5. Lastly, the applicant submits that the Authority rejected, without reasons, claims made in respect of the applicant father’s inquiries, letters from the police, hospital report and police complaints.

Considerations

Ground 1 – whether the Authority erred in not exercising its power under s 473DC of the Act to invite the applicant to an interview or otherwise get new information

1. Subject to Pt 7AA of the Act, the obligation on the Authority is to review a fast track reviewable decision by considering the review material without accepting or requesting new information and without interviewing the referred applicant: s 473DB(1). Section 473DC(3) provides that the Authority ‘may invite a person, orally or in writing, to give new information’ with the new information being supplied either in writing or at an interview. By s 473DA(1), Division 3 of the Act ‘is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the [Authority].

2. Subsections 473CB and 473DB contemplate that the Authority will evaluate for itself the material considered by the Delegate. There is no requirement that the Authority notify the applicant that it may take a different approach to that material adverse to the applicant: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [72].

3. The applicant asserts that the Authority acted in a legally unreasonable manner in failing to exercise its power under s 473DC(3) to invite the applicant for an interview. The question of whether that power ought to be exercised and whether that failure is legally unreasonable is not straight forward and is fact dependant and requires evaluation of the evidence: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [48].

4. In this case, the Authority referred to inconsistencies in the Applicant’s evidence that Sinhalese people had thrown stones at his father. The Authority noted that the applicant had made this claim at the SHEV interview, but not in the applicant’s earlier written statements. The Authority was not acting unreasonably in not exercising its power under s 473DC(3) in relation to this finding of inconsistency. The failure does not have the character of being ‘legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense’ or a course that ‘that ‘no sensible [Tribunal] acting with due appreciation of its responsibilities’ could have taken’.[9]

   [9] CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [51] (Thawley J); Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, [69] (Gageler J).

5. The importance of the finding by the Authority in relation to stone throwing at the applicant’s father is not of central importance to the applicant narrative of claims (as compared with the differences in the findings as between the delegate and the authority in DPI17 v Minister for Home Affairs [2019] FCAFC 43).

6. The Authority held that the applicant had embellished or fabricated certain aspects of his claim and referred to the applicant’s failure to mention aspects of his claims at points in the visa application process.[10] The Authority also made findings at [18] of the decision record that parts of the applicant’s claims were inherently implausible which findings were also made by the Delegate.[11]

   [10] Authority’s decision record, dated 5 May 2017, [16]-[17].

   [11] Court Book, 132-6.

7. This is not a case where it could be said that any Authority acting reasonably would have felt compelled to exercise its power under s 473DC(3).

Ground 2 – whether the Authority erred in the exercise of its power under the law and thereby denied the applicant natural justice or procedural fairness

1. Consistent with the applicant’s submissions, this ground has been dealt with in ground 1.

Ground 3 – whether the Authority failed to take into account a relevant consideration or an integer of the applicant’s claim

1. The applicant contends that the Authority rejected, without consideration, his claim that Sri Lankan authorities visited his father three or four times since the applicant left Sri Lanka.

2. The Authority did not accept the applicant’s claims about events that purportedly occurred subsequent to the Applicant’s departure from Sri Lanka. This included the finding that it was implausible that the police would maintain an interest in the applicant for such a period given the nature of the incident and the applicant’s failure to take further action on his threat to complain to higher authorities. Further, the Authority rejected that, two and a half years after the originating events, the police would manufacture an assault charge against him or that his father made enquiries to see if such enquiries would be noticed.

3. The Authority’s statement at [33] that ‘I do not accept his claims about subsequent events in Sri Lanka after he came to Australia’ incorporates and relates to the applicant’s claims of his father being visited three or four times since he left Sri Lanka. There has been no failure to consider or make a finding in relation to the claims that his father was visited by police subsequent to the Applicant’s departure.

Ground 4 – whether the Authority made findings which were unreasonable

1. It was open to the Authority to make findings that parts of the applicant’s evidence was embellished or fabricated without taking further evidence from the applicant.

2. The Authority provided clear justification for those findings, such as inconsistencies in evidence between the SHEV interview and his earlier written statements.

3. By relying on country information it was reasonable for the Authority to reject the police letter, hospital report and police complaint.

4. The impugned conclusions are not ones which no rational or logical decision maker could arrive at. Accordingly, as put by the Minister, there is insufficient basis to allege that the Authority was not entitled to reach its conclusions ‘simply because the Authority did not consider exercising its power under s 473DC of the Act’.[12]

   [12] Respondent’s submissions, filed 8 May 2019, [36].

Conclusion

1. For these reasons, I have concluded that the application must be dismissed.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 20 September 2019