CJM18 v Minster for Home Affairs
[2018] FCCA 2621
•29 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CJM18 v MINSTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2621 |
| Catchwords: MIGRATION – Application for review of a decision made by the Immigration Assessment Authority. |
| Legislation: Migration Act 1958 (Cth) ss.473CB , 473DD |
| Cases cited: Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 |
| Applicant: | CJM18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | DNG 11 of 2018 |
| Judgment of: | Judge Young |
| Hearing date: | 29 August 2018 |
| Date of Last Submission: | 29 August 2018 |
| Delivered at: | Darwin |
| Delivered on: | 29 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Mr Liveris |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed 6 April 2018 be dismissed.
The Applicant pay the First Respondents costs in the sum of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNG 11 of 2018
| CJM18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Ex - Tempore
These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for judicial review of the decision of the Immigration Assessment Authority made on 14 March 2018. The grounds of the application are as follows:
1. That the authority’s decision was affected by error of law;
2. The authority did not give due regard to possible vagueness in the translation of the statement provided in 2014 in respect of whether the applicant’s father was a member of the Liberation Tigers of Tamil Elam.
The particulars provided are:
(a) The official translation of the statement provided that the applicant’s father was “involved with the LTTE”.
(b) The interpreter at the SHEV interview, upon reading the statement in Tamil, was of the opinion that the statement literally read that the applicant’s father was “in the Tigers”.
(c) The Authority reviewer did not give any or any adequate consideration to whether the term “involved with the LTTE” could be interpreted broadly enough to encapsulate the possibility that the applicant’s father was a member of the LTTE.
Ground 3 is that:
The Authority gave insufficient [weight] or any weight to the statutory declaration provided to the Authority.
The background is as follows. The applicant was born in Sri Lanka, and he left Sri Lanka in 1990 when he was five years old and lived in a refugee camp in India for 22 years. He then came to Australia by boat, arriving at Christmas Island in 2012. The claims he advanced for refugee status were, and I summarise, that he was involved in demonstrations against the Sri Lankan Government in India and he became known as a result of media reports and on that basis he feared consequences from the Sri Lankan Government who monitored such activity.
He also said that after he arrived in Australia he became aware in about 2014 that his father had been involved in the Tamil Tigers and had been, in fact, a member of the Tamil Tigers. He said that his father’s brother had disappeared and was thought to have been killed by the Sri Lankan authorities around about 1990. He also said that his father had been involved in a particular battle between the Tamil Tigers and the Sri Lankan Army in about 1990 and that as his father fled that precipitated his family fleeing to India in that year.
The applicant says that because of his father’s involvement or membership in the Tigers that he would be at risk of harm should he return to Sri Lanka. The Authority assessed those claims and, essentially, found, in relation to the claims that the applicant had a profile as a result of demonstrations and a media profile, rejected that claim. It rejected his claims that he came to the attention of the Indian Police, the so-called “Q section,” and had been threatened with deportation as a result of his activities against the Sri Lankan Government.
The Authority questioned the applicant’s credibility in relation to his claims about the Indian Police and noted that there was evidence that the applicant’s story had changed over time in relation to whether or not he had been threatened by the so-called “G division” or the camp superintendent in India or “Q section” of the Indian Police. The Authority found that the applicant was of no interest to either the G division or the Q section. In relation to the applicant’s claim that his father had been involved in or a member of the Tamil Tigers the Authority made some specific findings.
It accepted, at paragraph 12 of the decision, that the applicant’s father was involved with the LTTE although the applicant had provided very little information about his father’s role and had stated that he still does not know the full extent of his father’s association with the LTTE. The Authority noted that that was perhaps not surprising as the applicant had left Sri Lanka when he was a young child. The Authority accepted that the applicant’s father, coming from Northern Sri Lanka, as he did, in an area controlled by the Tamil Tigers at one point, would have had some level of involvement with the LTTE in the 1980s before the family left Sri Lanka.
The Authority said at paragraph 13 that:
Beyond that, however, given the absence of any further detail or supporting information from the applicant, I am not satisfied that the applicant’s father was a member of the LTTE or that the SLA [Sri Lankan Army] has been searching for the applicant’s father since the battle of 1990 at Paththuwettuwan between the LTTE and the Sri Lankan Army and that his uncle was taken by the Sri Lankan Army and had been missing for more than 20 years.
In relation to the data breach, which is not the subject of a ground of review by the applicant but which I think needs to be given some attention, the Authority said at paragraph 18 of its decision that it accepted that the applicant’s personal information was published on the department’s website in 2014 and that this information included his name, date of birth, nationality and that he was an irregular maritime arrival and his detention status.
The Authority referred to the consideration of this issue by the delegate and accepted the delegate’s conclusion that the information disclosed did not reveal the applicant’s refugee claims or that he had applied for a protection visa and accepted the delegate’s observation that there was no evidence that Sri Lankan authorities were or are aware of the data breach or that they accessed the applicant’s information. The data breach was also considered at paragraph 37 of the Authority’s decision where it said:
Additionally, I am not satisfied that the fact that in 2014 the department briefly published on its website some of the applicant’s personal information, although not his claims for protection, would increase the chance of harm for the applicant such that there would be a real chance of harm for any reason.
Turning to the applicant’s grounds of review in relation to ground 1:
The applicant’s decision was affected by error of law.
This is an unparticularised complaint and in the absence of particulars I am not required to consider that, unless, on an examination of the decision of the Authority, some error is apparent to me, in which case I would have to give appropriate consideration to that. So in relation to ground 1, to the extent that it is unparticularised, I dismiss it.
In relation to ground 3, the claim is that:
The Authority gave insufficient or any weight to the statutory declaration provided to the Authority.
This is a reference to the statutory declaration that appears at court book 271. This statutory declaration is dated 19 September 2017. It was prepared after the delegate’s decision on 19 July 2017. The provenance of the document appears to be from the delegate’s interview with the applicant that took place on 1 June 2017.
There is a notice at court book 89 providing a time for an interview, and the applicant told me that, as far as he recalled, the interview was not adjourned, so I infer from that that the interview took place on 1 June 2017. On 19 September 2017, as I say, the statutory declaration was made, and the Authority gave specific consideration to how it should treat that statutory declaration at paragraphs 3 through to 9 of the decision. It recognised that the statutory declaration contained information that was not before the delegate and it found that there was new information in that document for the purposes of section 473DD of the Act.
That new information was identified in the following terms by the applicant. First, he was told not to disclose his plans to leave India in 2012 because of fear of repercussions for him and his family and fear of the activities of the Indian Police, so he was unable to tell his parents about his planned departure. Secondly, he was informed by his family that shortly after he had left the refugee camp in India the family were questioned by Indian Police about his whereabouts and he said that as a result of leaving the camp without informing the authorities, coupled with his previous actions and surveillance, that the Indian Police would pass on those details to the Sri Lankan Government.
The Authority noted that the applicant had not explained why the new information could not have been given to the delegate before the decision was made on 19 July 2017 or why the information was credible personal information which may have affected consideration of the applicant’s claims, that is, a reference to the criteria in section 473DD(b) of the Migration Act 1958 (Cth). The Authority found that it was not satisfied that the information about the non-disclosure because of fear of repercussions could not have been given to the delegate before the delegate’s decision, stating that the events had occurred well before the decision was made and the events, if true, would have been known to the applicant at the time of the hearing before the delegate.
In relation to the second part of the information, that is, learning that his family had been questioned by the police about his whereabouts and the fears that that gave rise to, the Authority pointed out that the applicant had not explained when he received that information and the Authority noted that during the applicant’s initial interview he said that he spoke with his mother every day by telephone. The Authority concluded that he could have obtained that information at any point during those telephone conversations between when he arrived in Australia in 2012 and September 2017, the time of the hearing or the interview with the delegate.
So the Authority was not satisfied that that was new information in the sense required by section 473DD(b). The particular complaint that the applicant makes is that the statutory declaration was not given sufficient weight or any weight by the Authority. It seems to me that, on a reading of the Authority’s decision, that it was not a question of weight but the Authority concluded that the information, to the extent that it was new, did not satisfy the requirements of section 473DD(b) and, therefore, could not be considered.
I see no error in the Authority’s approach to that question and I am satisfied that the Authority’s refusal to consider that new information was mandated by section 473DD. To the extent that the statutory declaration contained information that was not new, the Authority treated that information, essentially, as submissions and accepted the statutory declaration or those parts of the declaration containing submissions on that basis. I am not satisfied that there is any substance to ground 3 and it will be dismissed.
Ground 2 relates to a criticism the applicant makes about the translation of the statement he provided in 2014 about his father’s involvement with the Tamil Tigers. The source document was written by the applicant in Tamil and appears at court book page 210. The document is dated 13 June 2014 and, as I say, is written in Tamil. It appears that after the interview with the delegate on 1 June 2017, where the applicant was represented by a lawyer and assisted by an interpreter, the delegate sought or the applicant offered to obtain an English translation of that Tamil document. A copy of an English translation of that document appears at page 208 of the court book.
The seal of the official translation by the Interpreting and Translating Service NT is dated 15 June 2017, so, it is dated after the date of the interview with the delegate. I infer from that that it was provided to the delegate after the interview but before the delegate’s decision on 19 July 2017. The translated document is given a date 13 June 2016 at the top of the page. I consider that is likely to be an error for 13 June 2014, the date of the original document. The translated document was sent to a Mr Carlos Palacios, who appears to be the applicant’s case officer, and, indeed, judging by the delegate’s decision, was also the delegate who made the decision on 19 July 2017.
The email is addressed to Mr Palacios from a Mr Kadirgamar who is, as I understand it, a lawyer employed by a firm of solicitors in Darwin, Ward Keller, and Mr Kadirgamar says this:
Please find attached the official translations of the [applicant’s] birth certificate and his statement that was provided to the department in 2014. It is clear from the translated document that he sought to convey that his father was “involved with the Liberation Tigers”. This evidences that his father was, in fact, a member of the LTTE as opposed to simply providing assistance to the movement.
The email then goes on to speak about other matters.
It is apparent that Mr Kadirgamar asserted that the translation “involved with the Tigers” appearing in the English document was intended to mean that the applicant’s father was, in fact, a member of the Tamil Tigers. I infer that that material was likely to have been provided to the Authority by the Secretary pursuant to section 473CB of the Act, that is, the material to be provided to the Authority. The other documents that would have been before the Authority include the statutory declaration made by the applicant on 29 February 2016 and I might add that none of the statutory declarations signed by the applicant contain a jurat or swearing clause saying that the document was translated or interpreted to the applicant.
There is no explanation for that, though at one point the applicant did tell me in submissions today that Mr Kadirgamar, his solicitor, was of Tamil ethnicity. Whether that had anything to do with it I have no idea but the statutory declaration made on 29 February 2016 and which was prepared by Ward Keller solicitors says at paragraphs 9 and 10 in relation to the applicant’s father.
9. Specifically, we were fearful as my father was suspected as an LTTE supporter. Men came to our house in Sri Lanka looking for my father and threatened my mother with harm during the course of the investigations.
10. I did not know it at the time, but I later found out (in approximately 2014) that my father had been an LTTE supporter. I still do not know the full extent of his association with the LTTE.
In a further statutory declaration, the one that was provided to the Authority and dated 19 September 2017, to which I have already referred, the applicant says at paragraph 8:
My father’s involvement with the LTTE are [sic] outlined in the written statement that I provided in 2014. That statement provides that he was involved with the LTTE, was a fugitive from the Sri Lankan authorities on this account since the battle of 1990 at Paththuwettuwan and that he had left Sri Lanka following the arrest and disappearance of his brother who was also involved with the LTTE.
Again, I should repeat a reference to the email from the applicant’s solicitor dated 15 June 2017 to the delegate enclosing the translation of the applicant’s 2014 statement in Tamil where the lawyer asserted that “involved” used in the translated document, in fact, was intended to mean that the applicant’s father was a member of the LTTE. The Authority considered these matters at paragraphs 12 and 13 of the decision. At paragraph 12 the Authority said that it accepted that the applicant’s father was involved with the LTTE, although it accepted that because the applicant was very young when his family left Sri Lanka that he might not know the details of that involvement.
At paragraph 13 the Authority considered the information about the extent of the father’s involvement with the LTTE and addressed the applicant’s concern that there had been a translation error in relation to the statement he had written in 2014 in Tamil and which was translated into English in the document that I have already referred to. The Authority, essentially, traced the history that I have just described of the claims of involvement and membership and the Authority concluded by saying while it accepted the father’s involvement in the LTTE in the 1980s but beyond that:
Given the absence of any further detail or supporting information from the applicant, I am not satisfied that the applicant’s father was a member of the LTTE or that the SLA has been searching for the applicant’s father since the battle of 1990.
So the Authority was aware of the applicant’s assertion that there was a translation error and, essentially, without making any finding about whether there was an error or not, concluded that the information was insufficient to persuade it that the applicant’s father was a member of the LTTE. The ground of appeal which asserts a translation error is really not easily amenable to resolution by this Court. It is not possible for me to conclude whether or not there has been an error of translation. The applicant has not provided any other evidence about the translation, for example, an alternative translation. It was simply asserted in the ground of review that that was an error.
As I say, I cannot reach any conclusion about whether that is true or not. In a sense, it is irrelevant because as the Authority made clear, in my view, whether or not there was a translation error, it was not satisfied, having regard to the vague information provided by the applicant, that his claim that his father was a member of the LTTE was, in fact, true. I can see no error with that process of reasoning. Accordingly, I dismiss ground 2.
I raised one other issue with counsel for the Minister and it related to the Authority’s treatment of the data breach.
I was concerned because I had in mind the High Court’s approach to the data breach set out in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 and, in particular, at paragraphs 90 and 91 of the judgment where the Court referred to the fact that attempting to make findings about who may have obtained access to the personal information released in the data breach would be “a hopeless endeavour”. The Court said that, in a digital age the scope for access to information and its transmission to other parties around the world is largely unlimited. In that case the High Court said that the department’s or the Minister’s failure to provide exhaustive information about who had accessed the server did not deprive the applicant in that case of procedural fairness because there had been an instruction that the delegate or the delegates undertaking the International Treaty Obligation Assessments in those cases were to assume that the persons or entities from whom the applicants feared harm had accessed the information.
I raised a concern with counsel for the Minister that that approach in SZSSJ had not actually been followed in the Authority’s decision and I pointed out to counsel for the Minister that there had been four relevant decisions made by Rares J in recent times, including in BFR15 v Minister for Minister for Immigration and Border Protection [2018] FCA 1057.
In BFR15 his Honour upheld a series of appeals by applicants where the delegates undertaking ITOAs or an ITOA had not applied that assumption. In this case the assumption has not been applied either, at least in the unambiguous terms described in SZSSJ. At paragraph 18 the delegate says that it accepted that the applicant’s personal information was published on the website in 2014 in the notorious data breach and that the information included his name, date of birth, nationality, the fact that he was an irregular maritime arrival and his detention status. Referring to the delegate’s decision, the Authority accepted that the data breach did not reveal the applicant’s claims or the fact that he had applied for a protection visa.
It said, taking up the delegate’s conclusion, that there was no evidence that the Sri Lankan authorities were or are aware of the data breach or that they accessed the applicant’s information. In my view, having regard to the “hopeless endeavour” described by the High Court, there is not likely to be any evidence of that kind, whether or not the information was accessed by, in this case, the Sri Lankan authorities. To look for evidence, in those circumstances, is meaningless, in my view, and the fact that there is no evidence where there could hardly be expected to be evidence, tells us nothing.
That is why the High Court said that, in substance, that it was a “hopeless endeavour” and approved of the approach taken in SZSSJ of assuming that the material had been accessed. At paragraph 37 in the decision the Authority, having not been satisfied the other claims advanced by the applicant gave rise to a protection obligation, said:
Additionally, I am not satisfied that the fact that in 2014 the department briefly published on its website some of the applicant’s information, although not his claims for protection, would increase the chance of harm for the applicant such that there would be a real chance of harm for any reason.
That formulation falls short of assuming that the information had been accessed. However, it does involve a consideration by the Authority of whether that information would be likely to increase the applicant’s risk of harm. I interpret that paragraph along with paragraph 18, essentially, as being an assessment of whether or not the nature of the information released was of a kind that would increase the risk of harm for the applicant and, having regard to the nature of the information released, it might reasonably be thought that that did not increase the risk of harm, that is, the applicant’s name, date of birth, nationality, the fact that he was an irregular maritime arrival and his detention status.
That is the sort of information that would be available to the Sri Lankan authorities, in any event, should the applicant return to Sri Lanka and be interviewed on arrival. In my view, the reasoning process adopted by the Authority, even though it has not adopted, frankly, the assumption referred to by the High Court in SZSSJ, is a reasoning process that is not irrational and is open to it. For that reason, I find that the Authority’s reasoning in relation to the data breach, although, in my view, falling short of the most desirable approach, that is, an assumption of the kind described by the Court in SZSSJ, does not constitute error, whether on grounds of unreasonableness or any other ground. I dismiss the application.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Young
Date: 14 September 2018
2
2