CMQ16 v Minister for Immigration
[2017] FCCA 998
•16 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CMQ16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 998 |
| Catchwords: MIGRATION – Immigration Assessment Authority – whether the Authority considered all relevant material – whether the Authority made an unreasonable inference – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5H. 5J, 36, 473CB, 476. Immigrants & Emigrants Act 1949 (Sri Lanka) |
| Applicant: | CMQ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2413 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 16 May 2017 |
| Date of Last Submission: | 16 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Buncle |
| Solicitors for the Applicant: | Allens |
| Counsel for the Respondents: | Ms R Graycar |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The amended application is dismissed.
The Applicant pay the First Respondent’s costs fixed in the amount of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2413 of 2016
| CMQ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
Claims for protection
This is an application for a constitutional within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA, made on 10 August 2016, affirming the decision of the delegate not to grant the applicant a protection visa.
The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. In November 2006, the applicant travelled legally to India where he resided until July 2010. The applicant departed Sri Lanka on 7 August 2012.
The applicant is a Hindu Tamil and was born in the Jaffna district which was controlled by the LTTE the entire time that the applicant lived there until 1991. The applicant claimed he feared harm from the Sri Lankan authorities and other associated government agencies. The applicant feared that he would be identified as a suspected LTTE member and would face persecution as a Tamil from the North and as a failed asylum seeker who departed Sri Lanka illegally.
The applicant claimed that the house that he was living in was near a checkpoint which was constantly bombed and that in October 2006, a grenade was thrown at the checkpoint as a result of which the applicant alleges that members of the CID and/or army came to his house and accused him of throwing the grenade. In the arrival interview, the applicant said he was detained for questioning for two days by the CID and that there were no charges. The applicant explained that the checkpoint was right in front of his house and that it was around 7.30 that the army and the CID came into his house.
They hit him and took him to the camp. They investigated the applicant and asked him who threw the bomb. After two days his parents came and were crying for them to let him out. The applicant said that they released him the next day in the morning, and the next day in the morning they took him for investigation and that they took him for an hour and they threatened him and asked him questions. The applicant alleges that after that he had to sign in at another village. The applicant said that because of these problems it has led to recent problems and asserted that:
“They have all the names under suspicion and mine is there too so because of that the CID are coming back for more investigation.”
Statement of 25 January 2015
The applicant provided a statement dated 25 January 2015 in support of the application for protection lodged on 25 September 2015. In that statement the applicant said that his house was 200 metres away from the checkpoint which was constantly bombed. The applicant says:
“In October 2006 a grenade was thrown at the checkpoint and a lot of smoke filled our house. Within five minutes of the explosion members of the CID and the army had come to my house.
The applicant said that the CID accused him of throwing the grenade and said that he had sent his wife and child away so that he could organise the attack. The applicant’s child and wife had gone to India. The applicant alleges that nine Sri Lankan army officers and one CID officer had dragged him by the foot and they took him to the camp and the applicant alleges in that statement that his mother and father came with him. They were begging them to release him.
The applicant also alleged that they were hitting and kicking him and also hitting his father. The applicant alleges that he was taken to a room at the camp that was about 400 metres from the house. The applicant alleges that he was asked who bombed the checkpoint and that he and his family were accused of conducting grenade attacks under the guidance of the LTTE. The applicant alleges that he was accused of being involved in the LTTE and that if he told the truth he would not be harmed.
The applicant alleges that every time he told them he did not know they would beat him with a fist and kick him. The applicant alleges that they hit his ear and severely affected his hearing. The applicant alleges that they released him and told him that he needed to return on the next day. The applicant alleges that he wanted to leave his village but because it was late at night and there was a curfew he could not make those arrangements. The applicant alleges in the statement that he went back the next day and was interrogated and beaten again.
The applicant alleges that they threatened that if he did not confess to being involved with the LTTE he would not be alive to spend his life with his wife and child. The applicant alleges that on this occasion his parents were with him and they were begging the CID to release him. The applicant alleges that he was released and told to sign in once a week at a particular village about three kilometres away. The applicant alleges that he decided it was unsafe for him to stay and so on 17 November 2016 he travelled to India to join his wife and child.
In the statement, the applicant alleged it was very dangerous for Tamils to leave the country and that he paid an agent to help him. The applicant returned to Sri Lanka in July 2010 and alleges that at the end of 2012 a CID officer came to his house and that he was not home at the time but that his wife was at home and he asked his wife where he was but that his wife did not tell him any information. The applicant alleges that it was because of this that he fled Sri Lanka.
Entry Interview – 18 January 2013
In the transcript of entry interview dated 18 January 2013, the applicant described the incident in 2006 that there are were army points all along and what happens is people actually throw bombs at the points. The applicant said that:
“So when that happened it was actually the army point which is right in front of our house. So like this happened around at 7, 7:30 when they ... when that happened, army and CID came right in front of my house ...”
The applicant alleges that they came to his house and that as he was the eldest they hit him and took him to the camp. When asked what did they do at the camp, the applicant said:
“They were investigating me. They were asking me 'were you the one who threw the bomb? If it wasn't you, then who was it, tell me?' They kept me there for two days and ...my mum and my dad came ... they, they were crying they let me out. They released me and then the next day in the morning they took me again to investigation.
The interviewer then asked “How long did they take you that time?” The applicant replied, “They took me in for one hour”.
The applicant was asked:
“You mentioned that they hit you and then they took you to the camp, did they do any other, did they physically assault you at any other time?”
And the applicant responded:
“The next day, when they took me, they are throwing me and they were asking me questions.”
The applicant was asked what happened in 2012 and what the problems were, and the applicant said:
“Because they have all the names, the suspicion, my is there too, and because of that, the CID are coming back for more investigation.”
In the transcript of the safe haven interview dated 3 February 2016, the applicant was asked about the incident in 2006 and the inconsistencies between the applicant’s account and what was said in the applicant’s statement of entry.
On 8 June 2016, a delegate refused the applicant’s application on the grounds that the applicant failed to meet the criteria under the Act.
The Authority’s Decision
On 10 June 2016, the Authority wrote to the applicant identifying that the matter had been referred to the Authority for review. The Authority identified that it had been provided with all the documents considered relevant to the applicant’s case and identified a fact sheet and Practice Direction in respect to the limited circumstances in which the Authority could consider new information and also provided an opportunity to provide submissions. No submissions were provided by the applicant.
The Authority, in its decision dated 10 August 2016, identified the applicant’s background and the material referred to the Authority under s.473CB of the Act. The Authority set out the applicant’s claims for protection, including the alleged incident in 2006, in respect of which the applicant then went to India. The Authority accepted that the applicant departed Sri Lanka in 2012 illegally and would be returning home as a failed asylum seeker, a person who departed illegally. The Authority also accepted it as plausible that the applicant had relatives who are members of the LTTE and accepted that, apart from these familial links, the applicant was not involved with the LTTE in any way.
Inconsistent evidence
The Authority addressed the incident in 2006 in questioning of the applicant, and set out what the applicant had said in his statement, and identified that there was inconsistency between the applicant’s account of the 2006 incident between his safe haven entry visa statement dated 25 September 2015 and his entry interview dated 8 January 2013.
The first inconsistency identified by the Authority was in relation to the applicant’s assertion that his parents were with him when he was taken away as a result of the grenade attack, and, at the interview, that he said he went on his own. Finding that this was an inconsistency was rational, logical and open on the material before the Authority. The inconsistency was not minor or trivial.
The Authority noted that the applicant had given three different accounts of the same incident. That observation by the Authority was open on the material before the Authority and cannot be said to be irrational, illogical or unreasonable. The Authority made reference to having listened to the entry interview in its entirety and noted the inconsistent accounts in relation to the applicant being assaulted for two days and being kept for two days and made reference to the delegate noting that the applicant had given different accounts of the incident and that the delegate had given the applicant an opportunity to comment on the inconsistent evidence.
The Authority made reference to the applicant’s claim that he did not understand how the accounts differed and repeated the accounts that he had already given to the delegate. The Authority made reference to the difference in relation to the applicant being taken after he was released back to the camp and saying he went back to the camp the next day. Again, the observation of the inconsistency was rational, logical and reasonable. The inconsistency was not trivial or minor.
The Authority made reference to the applicant being asked why the authorities released him, and the applicant alleged that was the normal pattern: “they beat you on the road and then they come and take you.”
The Authority made reference to the applicant leaving Sri Lanka to join his wife and child in India and that he went there legally with his own passport and when his family returned in July 2010. The delegate raised with the applicant that his departure may indicate that the applicant was of no interest to the authorities given he was able to depart and re-enter Sri Lanka using his own travel documents. The applicant alleged in response that the authorities did not know about what atrocities had been committed by the army in his village.
The Authority expressed the view that, if the applicant was of interest to the authorities for the grenade attack or his links to the LTTE, he would have been detained when the attack occurred, and he would not have been able to depart and re-enter Sri Lanka without coming to the attention of the authorities. That was an observation open to the Authority and cannot be said to be irrational, illogical, or unreasonable.
The Authority observed there was no evidence to suggest that the applicant had any difficulty with the authorities during the two years following his return from India to Sri Lanka until the alleged incident in July 2012.
The Authority found, based on the inconsistent accounts of the 2006 incident, that the applicant was not questioned, taken or beaten by the army or the CID in relation to the grenade attack or in relation to either real or imputed links to the LTTE or that he was told to sign in on a regular basis or that he was of interest to the authorities in Sri Lanka for any reason. That adverse finding was open to the Authority and cannot be said to be unreasonable, irrational or illogical.
The Authority set out the applicant’s incident in August 2012, in which the applicant alleged that he learned that one of the CID officers who tortured him in 2006 had been transferred to a local army camp. The applicant alleged that the officer kept a record of suspects who had been requested to sign in and who had not complied and that the officer was asking these suspects to report to the camp. The Authority made reference to the applicant’s evidence regarding how he came to know that the officer had returned to the village was significantly different between his safe haven entry visa statement, which was to the effect that the officer came to his home when he was out and spoke to his wife, and his safe haven entry interview, in which the officer spoke to his brother about him in the village but did not speak to the applicant, any other family members or anyone else personally.
The Authority observed that this account was despite repeated questionings from the delegate which should have reminded the applicant of the account he gave in his safe haven entry statement. The Authority observed that, when the delegate specifically mentioned the details of the account of the safe haven entry statement and invited the applicant to comment, the applicant said he only remembered that account when the delegate told him. Given the line of questioning by the delegate, the Authority did not accept the applicant would have forgotten that the CID officer visited his wife at home while the applicant was out, if it had occurred.
The Authority also made reference to the applicant’s claim that, after he left Sri Lanka, the CID visited his home upon learning that he left Sri Lanka, and they took his passport from his wife. The Authority made reference to the fact that, in his safe haven entry visa interview, the applicant said this occurred within a month of his arrival in Australia. The Authority made reference to the applicant telling the delegate that, when he departed Sri Lanka, he told his wife to go live with her parents and he thinks that she went the next day. The Authority observed that, given that the applicant’s wife left their home the day after the applicant left Sri Lanka, the Authority did not accept that within one month of his departure the CID went to his home and took the passport from his wife. That adverse finding by the Authority was open and cannot be said to be irrational, illogical or unreasonable.
The Authority also made reference to the applicant stating the CID questioned his brother and threatened to kill the applicant if he returns to Sri Lanka.
The Authority found that the applicant was not of interest to the authorities in Sri Lanka for any reason and that he was not a questioned or beaten by the CID or the army in 2006 or told to sign in at the camp as claimed. The Authority did not accept that the CID officer had any interest in the applicant in 2012 or that he spoke to the applicant’s brother about him before the applicant left Sri Lanka or that the officer visited the applicant’s home looking for the applicant before or after his departure, or that the CID visited the applicant’s wife at the home after his departure and took the applicant’s passport, or that the CID visited the applicant’s brother in about September 2012, or at any other time in regard to the applicant and threatened that the applicant would be killed if he returned to Sri Lanka. Those adverse findings by the Authority were open and cannot be said to be irrational, illogical, or unreasonable.
Refugee assessment
The Authority correctly identified the relevant law. The Authority found that as the claimed incident did not occur in 2006 or in 2012, and that the applicant was not of any interest to the authorities in 2006 or at any time thereafter, the Authority was not satisfied the applicant has a real chance of persecution now, or in the reasonably foreseeable future from the authorities due to the claimed incidents.
LTTE links
The Authority made reference, in relation to the applicant’s claims of fear of LTTE links, to the applicant’s departure from Sri Lanka in 2006 and his return in 2010 using his passport. The Authority made reference to the fact that the applicant alleged that his life was relatively safe after he returned from India until the alleged incident in 2012 and that he did not provide any evidence to suggest that anything untoward happened to him during that two year period.
The Authority found that the applicant was not, and is not, of adverse interest to the authorities due to having family members who were LTTE fighters. The Authority was not satisfied the applicant faced a real chance of persecution now or in the reasonably foreseeable future from the authorities for any real or imputed links to the LTTE.
Tamil ethnicity and as a Tamil male from the north of Sri Lanka
The Authority did not accept that the applicant would be targeting following return to Sri Lanka because of his Tamil ethnicity or because he is a Tamil from the north. The Authority was not satisfied the applicant faced a real chance of persecution now or in the reasonably foreseeable future on the basis of his Tamil race or the fact he originates from the north.
Failed asylum seeker and illegal departee
The Authority found that the applicant was not of adverse interest to the authorities, despite having family members who were LTTE fighters or because of an imputed LTTE connection. The Authority found that the applicant is not of interest to the authorities for the grenade attack on the sentry-point in 2006. The Authority is not satisfied that the applicant would be viewed as having committed serious crimes, such as terrorism, which would lead to harm on return, including during processing at the airport on arrival at Sri Lanka. The Authority was not satisfied that the applicant’s familial links to the LTTE will be a cause of interest on re-entry to Sri Lanka. The Authority was not satisfied the applicant faces a real chance of harm on return to Sri Lanka as a failed asylum seeker now or in the reasonably foreseeable future.
The Authority found that the Immigrants & Emigrants Act 1949 (Sri Lanka) (“the IE Act”) was a law that is not discriminatory on its terms. The Authority found the investigation, prosecution, and punishment for the applicant’s illegal departure under the IE Act would be the result of a law of general application and does not amount to persecution for the purposes of s.5H(1) and s.5J(1) of the Act. The Authority was not satisfied that the applicant as a Tamil and failed asylum seeker would face a real chance of persecution having departed Sri Lanka illegally.
The Authority accepted that the applicant upon return to Sri Lanka would be charged under the IE Act and that if the applicant arrives over the weekend there is a chance he may be held for a short time at a nearby prison until he appears before a magistrate. The Authority was not satisfied the applicant faces a real chance of serious harm for his illegal departure either during the investigation process or during any brief period spent in detention. The Authority found that the applicant would not be subject to any custodial sentence, but that he would be fined for his illegal departure, which the Authority found did not amount to serious harm. The Authority was not satisfied the applicant faces a real chance of persecution based on being a Tamil asylum seeker who departed Sri Lanka illegally now or in the reasonably foreseeable future.
Cumulative circumstances
Having considered the applicant’s circumstances cumulatively, including his links with the LTTE and that he is a Tamil from the north and he has departed Sri Lanka illegally and would return to Sri Lanka as a failed asylum seeker, the Authority was not satisfied that there was a real chance the applicant would face persecution on return to Sri Lanka now or in the reasonably foreseeable future.
The Authority found the applicant did not meet the definition of refugee in s.5H(1) and did not meet the criterion in s.36(2)(a) of the Act.
Complementary protection assessment
The Authority made reference to the overcrowding, poor sanitation, and lack of resources in the prison conditions in Sri Lanka. The Authority was not satisfied on the evidence that there is an intention to inflict pain or suffering or extreme humiliation. The Authority found the circumstances do not amount to the death penalty, arbitrary deprivation of life or torture. The Authority was not satisfied the prison conditions, to which the applicant may be briefly subjected, of themselves constitute significant harm as defined under s.36(2A) and s.5 of the Act. The Authority was not satisfied the applicant will face a real chance of significant harm during any brief period spent in detention.
The Authority was not satisfied there are substantial grounds for believing it was a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criterion under s.36(2)(aa) of the Act and affirmed the decision of the delegate.
Proceedings before this Court
Ground of the application
The ground of the application is as follows:
1. The Immigration Assessment Authority (IAA) erred in drawing an unreasonable inference as to the applicant's credibility and failing to properly consider matters in the materials, including the submissions made by the applicant's representative during the First Respondent's assessment of the applicant's Safe Haven Enterprise Visa (SHEV). The unreasonable inference drawn from the applicant's credibility was brought about by the IAA proceeding upon the premise that the applicant's version of events in 2006 and 2012 was untruthful. This led to the IAA making incorrect factual findings and the applicant's case not being properly considered.
Particulars
Alleged inconsistencies in statements and interviews
a. The IAA found that at the SHEV interview on 3 February 2016, the applicant's account of events that occurred in 2006 and 2012 were inconsistent with the applicant's SHEV statement dated 25 September 2015 and his entry interview on 18 January 2013: Decision [11], [13], [14] .
b. The IAA draws attention to these inconsistencies in the Decision at [12], [13], [14], [20] and [21].
c. As a result of the inconsistencies, the IAA concluded that the events alleged to have occurred in 2006 and 2012 did not occur: Decision at [18], [23], [26].
d. At the SHEV Interview on 3 February 2016, the applicant's representative submitted 10 factors on the applicant's behalf that may have been the cause of the inconsistencies in the applicant's version of events in 2006 and 2012: Protection Visa Assessment, CLF 2015/46126 (PVA) at [83].
e. These factors were:
i. That the inconsistencies were not deliberate deception.
ii. That the arrival interview was brief and factual and arrival interviews were often incorrect.
iii. That the application was not prepared with a professional interpreter and that the words for “camp”, “sentry point”, and “check point” may have been confused and used interchangeably. That the word camp used in the application may be read as sentry point.
iv. That the applicant was taken to another camp 300 metres away the following day,
v. That the release of the applicant is part of a regular practice of intimidation and control where persons are beaten and then released.
vi. That the applicant forgot about the CID officer’s interaction with his wife.
vii. That the applicant fled due to long term systematic abuse and torture.
viii. That the CID officer was acting with complete impunity and with a gang mentality.
ix. That the sri Lankan authorities are notoriously corrupt.
x. That the applicant would be tracked down by the CID officer should he return to Sri Lanka, as well as come to the attention of the authorities for being a failed asylum seeker and due to links to the Liberation Tigers of Tamil Edam and for being Tamil.
f. The 1AA at [20] rejected the factor at particular (g)(vi) above by saying that the IAA docs “not accept that the applicant would have forgotten that the CID officer visited his wife at home while the applicant was out, if it had occurred”: [20].
g. The IAA did not consider any of the remaining factors listed in particular (g) above anywhere in the Decision, despite being in the materials available to the IAA when considering the applicant's SHEV application.
Departure from Sri Lanka in November 2006
h. The IAA found that the applicant was not of interest to the authorities and the events in 2006 did not occur: Decision at [18], [23], [33].
i. Further that, if the applicant was of interest to the authorities, the applicant would have been detained and the applicant would not have been able to depart and re-enter Sri Lanka without coming to the attention of the authorities: Decision, [18].
j. The IAA did not take into account nor appropriately consider that it was dangerous for Tamils to leave Sri Lanka in 2006 and that the applicant had to pay an agent to assist him in leaving Sri Lanka in November 2006.
k. This fact was available to the IAA: PVA at [14].
1. This fact was not considered by the IAA anywhere in the Decision
Consideration of the ground
Ms Buncle of counsel on behalf of the applicant sought to argue that the Authority had made findings in relation to inconsistencies in respect of matters that were trivial and minor and that the adverse credibility findings were not open and that the adverse credibility findings were unreasonable, illogical and irrational. Ms Buncle of counsel confirmed that no allegation of bias was maintained or advanced in relation to the Authority and abandoned that part of the applicant’s submissions that indirectly suggested such a submission. For the reasons already given, the adverse credibility findings by the Authority were open and cannot be said to lack an intelligible justification. Ground 1 is, in substance, an invitation to this Court to engage in impermissible merits review.
The applicant’s submissions reflect a disagreement with the adverse findings but do not make out any relevant error in the adverse credit findings. The adverse findings were not minor or trivial matters. The adverse findings were not unreasonable, illogical, or irrational given the reasoning by the Authority in support of the adverse findings.
To the extent that it was suggested in Ground 1 that there was a failure by the Authority to have regard to all of the material, Ms Buncle made reference to an outline of submissions advanced by the representative during the Safe Haven Entry interview on 3 February 2016. In substance, Ms Buncle submitted that because of the absence of reference to those submissions directly, it should be inferred that the Authority had failed to have regard to the whole of the material. The Authority expressly refers to that interview and expressly refers to the explanations advanced by the applicant in respect of inconsistencies raised with the applicant at that interview. There is no proper basis to infer that the Authority failed to have regard to the whole of the material. No jurisdictional error is made out that the Authority failed to have regard to the whole of the material. Ground 1 fails to make out any jurisdictional error.
Conclusion
The amended application is dismissed.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 18 July 2017
0
3