CLE19 v Minister for Home Affairs

[2020] FCCA 1110

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLE19 v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 1110

Catchwords:
MIGRATION – Application for judicial review – protection visa – application for extension of time – delay due to incarceration – extension of time granted – application allowed.

MIGRATION – Application for judicial review – protection visa – IAA – where IAA relied upon a misreading of a transcript of interview with applicant – application allowed.

Legislation:

Migration Act 1958 (Cth), s.477.

Cases cited:

SZWCO v Minister for Immigration and Border Protection [2016] FCA 51

Gill v Minister for Immigration and Border Protection [2017] FCAFC 51

Minister for Immigration and Border Protection v SZUXN [2016] FCA 516

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133

ASB17 v Minister for Home Affairs [2019] FCAFC 38

Applicant: CLE19

First Respondent: MINISTER FOR IHOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 1950 of 2019

Judgment of: Judge Riethmuller

Hearing date: 14 March 2020

Date of Last Submission: 14 March 2020

Delivered at: Melbourne

Delivered on: 8 May 2020

REPRESENTATION

Counsel for the Applicant: Mr McDonald-Norman

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Mr Barrington

Solicitors for the First Respondent: Mills Oakley Lawyers

ORDERS

1. The time for filing the application for judicial review be extended to 21 June 2019.

2. A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 12 March 2018.

3. A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine the application for review according to law.

4. The First Respondent pay the costs of the Applicant fixed in the sum of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1950 of 2019

CLE19

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘the IAA’) dated 12 March 2018, which affirmed a decision of a delegate of the first respondent to refuse to grant a Safe Haven Enterprise visa (SHEV) (subclass 790) to the applicant.

2. The applicant is a citizen of Sri Lanka and arrived in Australia on 8 November 2012 as an unauthorised maritime arrival. Five years later, on 19 January 2017 the applicant lodged an application for a Safe Haven Enterprise visa (SHEV) (XE-790). On 23 May 2017 a delegate of the Minister refused to grant the visa. On 12 March 2018 the IAA affirmed this decision.

3. The applicant seeks an extension of time in which to commence these proceedings pursuant to an Amended Application filed 30 January 2020. The applicant filed his application on 21 June 2019, which was 431 days outside the 35 day time limit pursuant to section 477(1) of the Migration Act 1958 (Cth) (‘the Act’). The applicant sets out his explanations for his circumstances, which in essence, detail that he has been incarcerated since 18 June 2017 and was therefore not aware of his right to file an application to seek review of the decision. In the context of this case I am satisfied that this is an adequate explanation for the delay. I am also persuaded that the applicant has an arguable case, and therefore leave should be granted.

Claims for protection

1. The applicant claims to be a Tamil from the Northern Province of Sri Lanka and his claims for protection are summarised at paragraph [5] of the IAA’s decision as follows:

   ·He fled Sri Lanka in October 2012 because of problems he was having with the Sri Lankan authorities due to his involvement with the People’s Liberation Organisation of Tamil Eelam (PLOTE);

   ·He cannot return to Sri Lanka and if forced to return he will be killed or imprisoned indefinitely and there is no one in Sri Lanka who can protect him;

   ·He knows this will happen because the Criminal Investigation Department (CID) is still looking for him;

   ·It was only due to his father’s connections that he was able to be released from CID custody, so now that his father has passed away he would not be released, he would be imprisoned and killed;

   ·If he returns to Sri Lanka, the authorities will identify him at the airport and detain him and they will know he left the country illegally;

   ·He cannot live anywhere safely in Sri Lanka. He has been targeted by the Sri Lankan authorities in all of the different areas of Sri Lanka that he has lived;

   ·He will never be able to live free from harm or danger anywhere in Sri Lanka because he will always be targeted by the authorities and he believes that if he returns they will imprison him indefinitely or kill him;

   ·He fears persecution and he will suffer significant harm due to his profile with the Sri Lankan authorities which is a result of his cumulative claims including:

   ·His father’s profile with the Sri Lankan authorities and his association to his father;

   ·His involvement in the 2010 election campaign;

   ·His imputed connection to the LTTE. His imputed association with the LTTE arises because of his Tamil ethnicity and he spent time with LTTE supporters who had been released from detention;

   ·His Tamil ethnicity;

   ·His young age and strong build;

   ·His illegal departure from Sri Lanka and residence outside Sri Lanka for over four years.

2. The relevant claims, for the purpose of this review, concerned his claimed involvement with the ‘People’s Liberation Organisation of Tamil Eelam (PLOTE)’, and the extent to which the CID continues to pursue him. 

The IAA’s Findings

1. On 23 June 2017 the IAA received a submission from the applicant’s then representative which challenged the delegate’s findings, to the extent it discusses evidence which was before the delegate, and contains argument addressed towards the IAA. The IAA did not consider this submission to constitute as being ‘new information’.

2. The IAA accepted the applicant is a national of Sri Lanka and that he is Tamil and Hindu. 

3. In relation to the applicant’s interactions with the police in relation to his possible Liberation Tigers of Tamil Eelam (‘LTTE’) involvement, the IAA found:

   46. I accept that the applicant was questioned by the police about his possible LTTE involvement because he was Tamil when he was taken off a bus in Mattala by the police in 2007 and when he was detained and questioned by the police in Colombo in 2009. I also accept that the CID detained, questioned, threatened him with their guns and beat the applicant in around June and August 2010 about his possible LTTE involvement because he assisted his father’s 2010 election campaign with PLOTE and because he had some friends who were Tamil boys from the Vanni.

4. However, the IAA did not accept that the applicant was of continuing interest to the police, saying:

   48. First, as a number of the reports note, being Tamil does not give rise to a need for protection.  Secondly, although the applicant was detained and questioned, as well as sometimes threatened and beaten, on four occasions by the Sri Lankan authorities about suspected LTTE involvement, he was released on each occasion within a day at most, and he was never arrested, charged, taken to court, imprisoned or sent for rehabilitation by the Sri Lankan authorities under the PTA or otherwise, and the applicant doesn’t claim that he or his family members had any actual involvement with the LTTE. Additionally, country information also suggests that the questioning, monitoring and harassment of Tamils, such as the applicant was subjected to, was common under the Rajapaksa government. Thirdly, on my findings, the CID have not made any enquiries or shown any interest in the applicant and his family since his last detention, questioning and mistreatment in August 2010 either while he remained in Sri Lanka or after he left for Australia in October 2012. Furthermore, since the applicant left Sri Lanka there has been a change of government, the security situation and general conditions for Tamils in Sri Lanka have improved markedly, and as the UKHO 2017 report notes, a person’s past or suspected LTTE membership or involvement no longer generally gives rise to a need for protection. (emphasis added)

5. The third reason given by the IAA relies upon findings made earlier in paragraph [28] of the decision, where the Tribunal noted inconsistencies, but also accepted many parts of the applicant’s claims.  Importantly, for the argument that follows, they rejected his claims that the police had interrogated his brother, believing that the brother was the applicant:

   28.    Given the inconsistencies, plausibility and credibility issues with his evidence, I am satisfied that the applicant has embellished and exaggerated parts of his evidence to boost his claims for protection. Based on his otherwise consistent claims, supporting documents and the country information, I am prepared to accept that he was detained for four to five hours up to a day on three occasions, once by the police in Colombo in 2009, and then by the CID in around June and August 2010; that he was questioned about possible LTTE associations while detained, including the CID mentioning his work for PLOTE and his friends who were Tamils from the Vanni; that on the two occasions he was detained and questioned by the CID he was also threatened with guns and beaten; his father contacted friends to assist in obtaining the applicant’s release on those three occasions; and after his release by the CID he went to Mannar and Trincomalee in late 2010 and early 2011 to avoid the CID. I reject his claims that his Tamil friends were in the LTTE and released from detention; that he was otherwise in hiding from 2011 to 2012; that he was released from detention each time only because of the intervention of his father’s friends; that the CID came searching for him after he was released in August 2010; that the CID have visited his home to interrogate his mother about his whereabouts, search the house and warn they will deal with him on his return; that his father was also under scrutiny from the authorities; and that on one occasion the CID interrogated his brother because they thought he was the applicant, as embellishments and exaggerations. (emphasis added)

Application for Judicial Review

1. The applicant filed an Amended Application in this jurisdiction on 30 January 2020. The grounds include particulars that are excessively long, so I have not set them out in this decision. The amended grounds of appeal were as follows:

   1. In its assessment of whether the Applicant had provided an inconsistent account of his brother’s encounter with the Sri Lankan authorities, the Second Respondent (Authority):

   a. engaged in unreasonable, irrational or illogical fact-finding;

   b. failed to give proper, genuine or realistic consideration to the material before it; and/or

   c. failed to form a correct understanding of the Applicant’s evidence and hence failed to form the state of satisfaction as to the criteria for the visa required by the Act.

   2. In its assessment of whether the Applicant had provided an inconsistent account of the basis on which he was suspected or questioned by the Sri Lankan authorities, the Authority:

   a. failed to give proper, genuine or realistic consideration to the material before it;

   b. failed to form a correct understanding of the Applicant’s evidence and hence failed to form the state of satisfaction as to the criteria for the visa required by the Migration Act; and/or

   c. engaged in unreasonable, irrational or illogical fact-finding.

Ground One

1. The applicant complains that the IAA made an error in its findings with respect to the circumstances in which his brother was sent from Sri Lanka to India. The relevant finding appears (at paragraph [26] of the decision) where the IAA says:

   26. …Additionally, he gave inconsistent evidence about his brother at the SHEV interview. When discussing his family at the beginning of the SHEV interview, he said his brother went to India about a month before as a student for a course that was starting soon. Towards the end of the SHEV interview he said the authorities came looking for him and mistook his brother for him; that it happened just before his first interview on Cocos Island (making it approximately November 2012) and after his father died (making it sometime from 2014); and for that reason only they sent his brother to India…

2. In this passage, the IAA says that the applicant gave two reasons for the brother travelling to India: 

   a)first, in order to study; and,

   b)second, in order to avoid adverse interest by the CID. 

3. Significantly, the passage points to an apparent inconsistency in timing of the events between 2012 and 2014.  That difference in timing is all the more significant as it was not evidence simply based upon claimed dates, but is evidence based upon the timing of other significant events, that is, the time that the applicant was on Cocos Island in November 2012 and the time when his father died in 2014.  An inconsistency in timing, in such circumstances, would tell strongly against the credibility of the applicant’s evidence in this respect. 

4. The applicant argues that there was no evidence to support the inconsistencies found by the IAA, pointing out that in the SHEV interview on 11 May 2017, (the transcript of which appears at Annexure ‘CH-1’ to an Affidavit filed 30 January 2020), the applicant said (at T14.1) that his brother went to India as a student.  The applicant said that his brother had applied to go to college there and set out when he went to college. Later in the interview (at T21.18) the applicant said:

   “I gave my first submission or first interview when I was in Cocos Islands.  Now, before I went to RILC [Refugee and Immigration Legal Centre], just before that, they had gone to look for me at home and they thought it was my – I was – they mistook my brother for me.”

   And (at T21.29):

   “… So because of that only we sent him to India last month.”

5. In his statutory declaration made on 22 October 2016, which appears at Court Book p.94, the applicant said:

   32. About two weeks ago, the younger brother was interrogated by the CID because they thought he was me. They told my mother that they only questioned him because they thought he was me. For this reason, we are now very worried for my brother's safety in Sri Lanka.

6. It appears that the IAA has misread the transcript and assumed that the reference to the applicant’s brother going to India was related in time to the period when the applicant was on the Cocos Islands, rather than at a time when the applicant went to Refugee and Immigration Legal Centre. As a result, the IAA made a finding (at paragraph [26] of the decision) that does not have an evidentiary basis, at least with respect to the timing of the brother’s travel to India. 

7. The IAA also made findings with respect to the reason that the brother went to India. This is a more difficult part of the applicant’s claim, in that the applicant says that the brother was sent to India because of adverse inference from the CID and that this was the only reason (on a fair reading of the sentence at T21.29 quoted above). Yet in other evidence it is clear that the applicant’s brother went to India for the purpose of studying. This gives rise to different possible inferences, including that the applicant was fabricating the claim concerning the CID and taking advantage of his brother travelling to India for studies in any event, or that the CID claim was correct and the arrangements for studies were put in place to justify the brother’s trip to India and occupy him while he was there, or that the claim that the brother was studying in India was false.

8. This is a finding of fact for the IAA to make based upon its impression of the evidence. It was open to the IAA to make such findings of fact, provided that it had regard to the relevant evidence before it. In this case, however, the findings that are based on alleged timing differences were, in my view, significant in the IAA coming to the view that inconsistent evidence had been given. In these circumstances, the IAA has erred.

9. Counsel for the Minister argues that in light of the overall findings (at paragraph [28] of the decision, set out above), this error by the IAA (which is accepted at least with respect to the findings about timing) ought not to impugn the decision as a whole. Counsel for the Minister points to a number of facts and circumstances in support of this argument, saying in their Submissions filed on 17 February 2020, that:

   34. Importantly, the Authority’s conclusion that the Applicant had “embellished and exaggerated parts of his evidence to boost his claims for protection” was based (in addition to the inconsistency above) on:

   (a) the implausibility of the Sri Lankan authorities releasing the Applicant reasonably shortly after detaining him on each occasion (CB 254 [23]);

   (b) changes in the Applicant’s evidence between the arrival interview and the SHEV interview concerning the reasons for his detention (CB 254 [24]);

   (c) inconsistencies between his SHEV statement and SHEV interview about his addresses in Sri Lanka (CB 254 [25]);

   (d) inconsistencies between his employment as an air conditioner technician and his claim that he was in hiding from his release in 2010 (CB 254 [25]);

   (e) the implausibility that the CID would visit his home some 48 times looking for the Applicant, despite having detained and released him only twice since 2010 (CB 254-255 [26]);

   (f) the timing of the Applicant’s brother being mistaken for the Applicant, being two weeks before the SHEV statement was made (which the Authority considered to be ‘not coincidental’) (CB 255 [26]); and

   (g) his failure to mention at the SHEV interview that his father was under scrutiny from the authorities (CB 255 [26]).

10. The difficulty confronting the Minister in this case is that it is not possible to unravel the findings of fact by the IAA in order to isolate what, if any, influence the error (with respect to the timing inconsistency) had upon the IAA findings. This is not an uncommon problem which arises in cases where the courts are limited to judicial review: see the helpful discussion in SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [60] to [67] as approved and applied in Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 at [79-82], and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516. I note, in particular, that the application for these principles does not automatically lead to a finding of jurisdictional error: see SZUXN. The difficulty in this case is that the alleged inconsistency of timing appears significant in assessing credibility.  With respect to the matters identified by Counsel for the Minister, I note that many are based upon assessment and impression of the evidence, rather than clear inconsistencies. I note the comments of Gleeson CJ in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [4], that:

    Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.

11. In the circumstances of this case, the IAA’s finding as to the inconsistency in dates, a consideration which led to the IAA determining that the applicant gave inconsistent evidence (about his brother) must have been a significant part of the circumstances leading to the ultimate outcome. In the circumstances, I am not persuaded that it is of such minor matter or so irrelevant to the ultimate outcome that the error should not lead to relief in the unusual circumstances of this case. 

1. I therefore find that this ground is made out.

Ground Two

1. The second ground relies upon the principles set out in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133. In that case, the Full Court considered circumstances where an applicant had noted on his initial statement that it was intended only to be a summary and not a full statement of the circumstances that he relied upon. The Full Court said:

   44. … it is notable that there is no reference in the Tribunal’s reasons for decision to the important express qualifications set out in paragraph 1 of the appellant’s statutory declaration, nor to the transcript of his interview. Having regard to the seriousness of the Tribunal’s adverse credibility findings and to how they were arrived at, we conclude that the Tribunal simply overlooked this material. This is not a case where an inference could reasonably be drawn to the effect that the Tribunal did turn its mind to this material but concluded that it was not relevant and therefore made no reference to it in its reasons for decision. No such inference could reasonably be drawn here given the significance of the material to the critical issue being addressed by the Tribunal, namely whether or not there were inconsistencies in the appellant’s written and oral evidence.

   45. … the overlooked material is potentially significant in the particular facts and circumstances here. The appellant made plain in his statutory declaration that he would provide further information to the Department in support of his application for a protection visa, which he did. That information elaborated upon some important aspects of what was set out in his statutory declaration. In determining that there were inconsistencies in the appellant’s evidence, the Tribunal focused exclusively on the contents of the statutory declaration (while ignoring the introductory paragraph) and what the appellant told the Tribunal at the hearing. Most importantly, the Tribunal paid no regard to what the appellant is recorded as having told the Departmental officer. That material had to be considered before the Tribunal could determine whether or not there were inconsistencies in the appellant’s evidence in support of his claims.

2. This was reiterated (at paragraph [48]) where the Court said:

   48. … The appellant had, after all, made clear in his original statutory declaration that he would expand upon his claims in that interview. Further, in any situation where an applicant is given an opportunity to attend an interview or engage in a review process, it is reasonable for that applicant to expect that she or he will be able to expand on, or explain, aspects of the narrative she or he has given prior to that point. This expectation and the other matters to which we previously referred (see [24]-[26] above) must be properly considered by a decision-maker in making any assessment of the applicant’s claims and evidence.

3. In the present case, the applicant had similarly made clear in his statement that further information would be forthcoming where (at Court Book p.91, paragraph [1]) the applicant said:

   … Please note that this is a summary of my claims and I am happy to provide further detail at my interview.

4. This appears to be a similar rider to that which was encountered in AVQ15, where the Full Court noted the statement by the appellant in that case read:

   30 The appellant’s statutory declaration contained the following introductory paragraph (emphasis added):

   1. The following is only a summary of my claims for protection. It is not an exhaustive statement of the reason or reasons why I cannot return to my country of origin. I will provide further information in relation to my protection claims during my interview with the DIAC officer.

5. In the present case, the IAA noted changes in the applicant’s evidence between the SHEV interview and the statement, saying (at paragraph [24] of the decision) that:

   24. He has consistently claimed that the CID questioned him / suspected him because of his assisting his father’s PLOTE election campaign in 2010. He didn’t mention any other reasons in his arrival interview. In his SHEV statement he referred to his big build and he was friends with some Tamil boys from the Vanni. At the SHEV interview he mentioned his friends again, however he described them as LTTE boys who had been released from detention and suggested that on the second time he was detained by the CID he was only questioned about his connection to the LTTE boys. I do not consider these changes in his evidence, particularly his failure to mention prior to the SHEV interview something as significant as his having friends who were in the LTTE and who had been released from detention, to be credible.

6. At no point does the IAA note the qualification that the applicant placed in his written statement. Counsel for the Minister sought to distinguish AVQ15 on the basis that the Tribunal in that case had made two errors: first, overlooking the qualification or rider in the written statement; and, secondly, overlooking the transcript of a subsequent interview.  However, it appears that both failures were bases for judicial review.

7. However, to distinguish AVQ15 on such a basis would be to ignore the purpose of the reasoning in paragraphs [44] and [45] of the decision (as set out above), which is to the effect that where an applicant gives a summary of their claims and offers to expand upon them, this circumstance must be taken into account in determining whether or not to accept or reject the applicant as a matter of credibility. No account was taken of this important rider on the statement given to the Department and, therefore, the applicant’s case appears to be sufficiently similar to AVQ15 that the reasons in AVQ15 ought to be applied.

8. Counsel for the Minister also sought to distinguish AVQ15 on the basis of the differences between findings as to inconsistencies and adverse credibility findings as discussed (at paragraphs [42] to [43]) of ASB17 v Minister for Home Affairs [2019] FCAFC 38, where the Court said:

   42. Differing accounts of the same event may not be “inconsistent” at all. One may be more detailed than another. One may have different emphasis. One may include a particular incident that another does not. Differences in accounts may arise from the kinds of factors to which the Full Court referred in AVQ15 at [24] and [25].

   43. On the other hand, differences in accounts may be rationally and reasonably capable of giving rise to concerns about a person’s credibility, or (perhaps more likely) reliability. Or they may not. Simply (and incorrectly) attaching the label “inconsistent” to differing accounts of an event, or differing narratives, does not make them so. Where an adverse finding is made on the basis of differences in accounts, it will usually be necessary to properly discharge the fact-finding task for a decision-maker to explain why she or he has found those differences of such a nature as to justify rejection of the narrative or account given by a person.

9. By relying upon this discussion, of differences between inconsistencies and adverse credibility findings, Counsel sought to distinguish AVQ15 by way of a limit upon its operation to cases where a Tribunal had found there were inconsistencies, rather than making adverse credibility findings, but without a formal finding of inconsistency. Whilst there is clearly a difference between inconsistencies and adverse credibility findings, the underlying reasoning in AVQ15 leads to a requirement that the decision-maker have regard to the true nature of the evidence that they are considering (and in this context the rider placed upon the brief information given in the written statement) before making determinations.

10. Whether those determinations lead to a formal finding of inconsistency or a finding that is adverse to the credibility of the applicant, does not appear to me to make a material difference to the operation of AVQ15.  On either scenario, it is important that the IAA have regard to the true nature of the evidence before making a finding. 

11. In these circumstances, I am not persuaded that the Minister has distinguished AVQ15.  I therefore find that the applicant has established the second ground.

Costs

1. At the end of the hearing, the parties agreed that costs would follow the event and that the Minister’s costs would be fixed at $5,400.00 if successful and the applicant’s at scale of $7,467.00 if successful. 

2. I therefore make orders for the Minister to pay the applicant’s costs fixed at $7,467.00.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date: 8 May 2019