CMY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 104
•30 September 2021
Federal Circuit and Family Court of Australia
(DIVISION 2)
CMY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 104
File number(s):
SYG 1367 of 2018
Judgment of:
JUDGE STREET
Date of judgment:
30 September 2021
Catchwords:
MIGRATION – Immigration Assessment Authority – whether the Authority made an unreasonable finding which no reasonable decision maker would have made – whether the Authority failed to consider new information – whether the Authority correctly applied s 473DD of the Migration Act 1958 (Cth) – no jurisdictional error made out – application dismissed
Legislation:
Migration Act 1958 (Cth), ss 5H(1), 5J(4), 36(2)(a), 36(2)(aa), 473CB, 473DD, 476
Cases cited:
AUS17 v The Minister for Immigration and Border Protection [2020] HCA 37
Division:
Division 2 General Federal Law
Number of paragraphs:
52
Date of last submissions:
6 August 2021
Date of hearing:
4 August 2021
Place:
Sydney
Counsel for the applicants:
Mr G Foster
Counsel for the first respondent:
Mr H P T Bevan
Solicitor for the applicants:
Sentil Solicitors
Solicitor for the first respondent:
Clayton Utz
ORDERS
SYG 1367 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
CMY18
First Applicant
CNA18
Second Applicant
CNB18 (and another named in the Schedule)
Third Applicant
AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE STREET
DATE OF ORDER:
30 September 2021
THE COURT ORDERS THAT:
1. The application is dismissed.
2. The first and second applicants pay the first respondent’s costs, fixed in the amount of $7,328.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET:
INTRODUCTION
This is an application for a constitutional writ 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”) made on 18 April 2018, affirming the decision of a delegate of the first respondent (“the delegate”) not to grant the applicants Safe Haven Enterprise Visas (“the Protection Visas”).
BACKGROUND
The first and second applicants are husband and wife and the third and the fourth applicants are children in respect of whom there has been a litigation guardian order made. The third and fourth applicants were included as members of the family unit in the Protection Visas application.
The applicants are citizens of Sri Lanka and their claims were assessed against that country.
The applicants were found to be Christian Tamils from a particular area that was under the control of the Liberation Tigers of Tamil Eelam (“LTTE”) during the Sri Lankan Civil War. In that particular area, the first applicant was often arrested and detained during roundups, for a period of either two or fourteen days.
In around May 2008, the Sri Lankan Army (“SLA”) arrested the first applicant and a particular friend at a checkpoint, and they were taken for questioning. The particular friend was found to be involved in attacks on the SLA. The first applicant was falsely charged with being involved with the LTTE and possessing a grenade under the Prevention of Terrorism Act 1978 (Sri Lanka) (“the PTA”).
The first applicant claimed that he was detained, tortured, assaulted and was on remand. The first applicant claimed he was then placed under a detention order and was released on bail. The first applicant alleged that he was ultimately convicted and sentenced to nine months imprisonment, serving six months, during which time he was assaulted in prison.
The first applicant claimed that, in 2010, after the first applicant’s release, he was taken to a police station and assaulted twice. The first applicant’s family then left where they were living and fled to another location, where they lived for two to three years. During this time, the first applicant alleged that the Singhalese community became aware of the first applicant’s time spent in prison and the reasons for it, and subsequently assaulted him.
The first applicant claimed that he is at risk of being forced to attend a rehabilitation camp if he were to return to Sri Lanka. The first applicant alleged that the authorities have visited his house and asked about his whereabouts since his departure.
The second applicant claimed that the authorities will torture and restrict her because of her reputed association with the LTTE, her status as a woman, and the authorities’ alleged suspicion of her history and the information that she has provided to the Australian authorities. Both applicants also claim to fear harm by reason of a data breach.
AUTHORITY’S DECISION
The Authority identified the background to the review application and had regard to the material given by the secretary under s 473CB of the Act. The Authority identified having been provided with submissions, which the Authority took into account. The Authority also identified new information, which is the subject of the sole Ground in the amended application. That Ground in the amended application alleges error in respect of the Authority’s rejection of the new claims; an issue to which the Court will return.
The Authority summarised the applicants’ claims. The Authority accepted that the first applicant was harassed by a number of Singhalese people when he relocated with his family and that he was suspected of having links to the LTTE. The Authority accepted that the first applicant lodged a complaint against a particular person with the Sri Lankan Police (“SLP”), who was subsequently arrested, which added to the animosity.
The Authority accepted that the first and second applicants were dependent upon the second applicant’s mother for practical assistance.
The Authority took into account that the first applicant made no mention of being detained by the LTTE or SLP in his screening interview. The Authority found it incredible that if, as the first and second applicants asserted, the first applicant was falsely charged, resulting in him being imprisoned for one and a-half years, that neither applicant mentioned it at all during their screening interviews.
The Authority referred to the second applicant’s evidence that, after the first applicant was released on bail in 2008, he had to sign in at a particular police station once a month and that the court case concluded in 2010. The Authority referred to the applicant’s claims as to having spent ten months in an internally displaced person’s camp in 2008. The Authority referred to the implausible evidence in relation to the first applicant being in jail. The Authority also referred to the second applicant providing inconsistent evidence about when bail was granted. The Authority did not accept that the second applicant had any memory deficits. The Authority found it implausible that the first applicant would not know where he returned to after he was released from prison in 2010, especially if he was assaulted twice on the journey.
The Authority found that the significant inconsistencies raised doubt about the credibility of the first applicant’s claim about being jailed for one and a half years. The Authority found that the first applicant spending 10 months in a particular camp in 2008 was inconsistent with the first applicant’s claim to have then been arrested and spending a year in prison, before being granted bail.
The Authority referred to the first applicant’s evidence during the Protection Visa interview, where the first applicant was unable to answer a number of specific questions. The Authority referred to the first applicant’s explanation that he had not been educated and, because of a head injury, his memory is very poor. The Authority referred to the first applicant not having provided corroborating evidence of having a poor memory. The Authority was not satisfied that the first applicant has any memory deficits.
The Authority referred to the applicant having ran his own business, and was not satisfied that the first applicant’s lack of formal education impacted on his ability to answer questions about the time that he spent in jail. The Authority also referred to the applicant having been legally represented at the time of the Protection Visa interview, and found it implausible that if, as the first applicant asserted, he pleaded guilty to his charges and was legally represented at his trial and convicted, he would have no documentation of this at all.
The Authority referred to the evidence about the first and second applicants being granted bail. The Authority found that the first and second applicants did not mention the first applicant being detained under the PTA in the screening interviews.
The Authority referred to the first applicant giving inconsistent evidence about who arrested him, and where and when he was arrested. The Authority referred to there being no corroborative documentation and did not accept that the first applicant would have been granted bail. On all the evidence, the Authority was not satisfied that the first applicant and his particular friend were ever arrested by the SLA.
The Authority was not satisfied that the SLP and/or the SLA filed a case against the first applicant, that he had a grenade, that he was charged under the PTA, that he was granted bail, that he had to report to a particular police station once a month, or that he was convicted and sentenced to a further nine months imprisonment. The Authority found that the first and second applicants had fabricated those claims.
The Authority did not accept that the first applicant was tortured on the fourth floor of a Sri Lankan Criminal Investigation Department (“CID”) building, that he was tortured at a camp, that he was required to periodically report to authorities at a particular location, or that he attempted to seek redress from the human rights groups in Sri Lanka. The Authority did not accept that the first applicant went to the SLP and the village leader and advised them of his jail time.
The Authority did not accept that the first applicant has particular vulnerabilities and/or mental issues that would render him unable to work and live in Sri Lanka without family support. The Authority found that the first applicant is capable of supporting himself and his family without the need of family or financial support.
The Authority accepted that the first applicant had no involvement with the LTTE and that the LTTE tried to conscript him. The Authority found that it was not satisfied the LTTE ever put a gun to the first applicant’s head or ever put him in jail. The Authority was not satisfied that the second applicant was ever detained by the LTTE, or that her mother ever paid a ransom to secure a release.
The Authority was not satisfied that the second applicant’s father was a cook for the LTTE, or that the SLA killed him in 2002. The Authority found that the second applicant’s father had no involvement with the LTTE. The Authority found that this is consistent with her arrival interview, where the second applicant stated that no members of her family had LTTE involvement. The Authority accepted that the second applicant had no involvement with the LTTE. The Authority did not accept the second applicant’s assertion that the first applicant is marked as an LTTE person.
The Authority was not satisfied that the CID has ever come to the applicants’ family homes and asked about the applicants’ whereabouts since the applicants left Sri Lanka. The Authority was not satisfied that the second applicants’ relatives have been harassed and questioned by the SLP or SLA because of the second applicant or a relative having left Sri Lanka.
The Authority accepted that the applicants left Sri Lanka illegally and have sought asylum in Australia.
The Authority was not satisfied that the second applicant was ever detained by the LTTE, or that her mother paid a ransom to secure her release. The Authority did not accept that the second applicant’s father was a cook for the LTTE, or that he had been killed by the SLA.
The Authority did not accept that the second applicant’s brother was in hiding because it was not safe. The Authority was not satisfied that the second applicant’s brother had been harassed or questioned by the SLP or SLA because his relatives left Sri Lanka. The Authority was not satisfied that, since the applicants’ departure, the CID has ever come to any of the applicants’ family homes and asked about the applicants’ whereabouts.
The Authority was satisfied that the chances of the first applicant being targeted because of real or perceived links to the LTTE if he returned to Sri Lanka are remote. The Authority was satisfied that the first applicant’s profile would not give rise to any adverse attention by the Sri Lankan authorities or Singhalese people. The Authority was satisfied that the applicants can return to Sri Lanka and would not face a real chance of harm by any of the Sri Lankan authorities or Singhalese people on account of a real or perceived links to the LTTE. The Authority was not satisfied that the applicants would face a real chance of harm from a particular Singhalese family for the non-payment of a debt.
The Authority was satisfied that the applicants would be able to live and work in Sri Lanka on return without a real chance of harm. The Authority was satisfied that the second applicant does not face a real chance of harm from the Sri Lankan authorities or the Singhalese people because of her husband and/or because she is a woman. The Authority was satisfied that the applicants can return to Sri Lanka, and would not face a real chance of harm because they are Christians. The Authority was satisfied that the applicants can return to Sri Lanka and would not face a real chance of any harm for being more proficient in speaking Tamil than Singhalese.
The Authority was not satisfied that the applicants’ profiles and the data breach gave rise to a real chance of harm as returning asylum seekers. The Authority found that there is no real chance the applicants will be given a custodial sentence, or required to report regularly to local police, if returned to Sri Lanka. The Authority found that the investigation, prosecution and punishment for illegal departure would not amount to persecution within the meaning of s 5J(4) of the Act. The Authority was not satisfied that those steps involved systematic and discriminatory conduct.
The Authority found that the applicants failed to meet the definition of refugee in s 5H(1) of the Act. The Authority also found that the applicants do not meet the criteria in s 36(2)(a) of the Act.
The Authority then turned to the issue of complementary protection. The Authority was not satisfied that, as a necessary and foreseeable consequence of the applicants being returned to Sri Lanka, there is a real risk that the applicants will suffer significant harm now or in the reasonably foreseeable future. The Authority was not satisfied that the applicants faced a real chance of any harm as returning asylum seekers. Therefore, the Authority found that the applicants do not meet the criteria in s 36(2)(aa) of the Act.
Accordingly, the Authority affirmed the decision of the delegate under review.
BEFORE THE COURT
These proceedings were commenced on 15 May 2018.
The matter was previously listed before another Judge of this Court, but was relisted for hearing before this Court on 4 August 2021, by orders dated 2 June 2021.
THE GROUND
On 4 August 2021, the applicant was granted leave to file an amended application. On 6 August 2021, the amended application was filed, setting out the following Ground for relief which Mr Foster of counsel, on behalf of the applicants, relied upon:
1. The IAA erred when it was not satisfied the First Applicant's new claims were credible, such error leading the IAA to make unreasonable findings which no reasonable decision maker would have made.
Particulars
i. Paragraph 13 [CB369];
ii. The IAA found it incredible the new claims had not been mentioned in the 1st and 2nd Applicant’s’ statement [CB369];
iii. The IAA found it incredible the new claims were not included in post SHEV submissions [CB369];
iv. The 1st Applicant’s explanations did not address reasons for not providing the information earlier;
v. The IAA incorrectly stated there was no corroborating evidence substantiating his memory problems;
vi. The new claims did give explanations as to why the new claims had not been given earlier [CB324];
vii. Previous material before the IAA at [CB324], [CB368], [CB126], [CB156] was consistent with the explanations;
2. The IAA should have accepted the explanations given by the Applicant such that S 473DD and (ii) were satisfied;
3. The IAA should have considered the new information contained in the Submissions of 27 September 2017 which would have supported the 1st Applicant’s claims, but did not do so, such failure amounting to jurisdictional error.
CONSIDERATION
Mr Foster, of Counsel, took the Court to the Authority’s reasoning in paragraph 13, and also to each of the references in the court book identified in support of that Ground.
The Authority’s reasons are not to be read with a keen eye for error. It is apparent, on a fair reading of the Authority’s reasons as a whole, that the reference in paragraph 13 to “incredible” was consistent with a preliminary assessment in relation to the criteria under s 473DD of the Act, and not an ultimate finding of credibility.
That is supported by and consistent with the third last sentence in paragraph 13, which expressly refers to the Authority not being satisfied that the first applicant’s new claims are credible. Accordingly, this is not a case where the Authority has engaged in any error in the approach to s 473DD of the Act by use of the reference to “incredible” in paragraph 13.
Further, that expression should not be read with a keen eye for error. The expression was consistent with a preliminary assessment of credibility and does not support the Authority making an ultimate credit finding in the application of s 473DD of the Act. Accordingly, no jurisdictional error arises by reason of the reference to “incredible” in paragraph 13 of the Authority’s reasons.
Mr Foster submitted that the contention in the Authority’s reasons that there was no corroborating evidence to substantiate the first applicant having problems with his memory was incorrect, and referred to the second applicant’s statement. That, however, reflects an unfair reading of the Authority’s reasons. A fair reading of the Authority’s reasons clearly reflects that the Authority, in the context of the new claims, was identifying the absence of being provided with corroborating evidence to substantiate the first applicant’s claim of having problems with his memory, and not an assertion that there is no reference to memory problems in the material before the Authority. The reference to substantiate, on a fair reading, does not reflect anything other than a preliminary assessment of credibility.
Further, it is apparent from the Authority’s reasons that it expressly referred to the second applicant’s reference to the memory problems of the first applicant. There was clearly no corroborating medical evidence in respect of the first applicant’s memory problem provided in support of the new information, or other new information in relation to the first applicant’s memory problem. In that regard, the Authority’s reasons were logical and rational, and reflect a preliminary assessment of the new information consistent with the application of the whole of the statutory provision. The disagreement with the Authority rejecting the first applicant’s explanation does not identify any jurisdictional error in the Authority’s approach to s 473DD of the Act.
It is also apparent from the Authority’s reasons at paragraph 12 that the Authority had a genuine intellectual engagement with the substance of the explanation advanced by the applicants in sub-paragraphs 5 to 7 of the Ground. In substance, the alleged explanation of consistency is an invitation to engage in merits review.
The Authority’s reasons in paragraph 13 provided an evident and intelligible justification for the adverse exercise of the discretionary powers in s 473DD of the Act. The Court accepts the first respondent’s submission that the Authority is required to first assess the new information against the criteria in ss 473DD(b)(i) and 473DD(b)(ii) of the Act, and then take into account the outcome of that assessment in determining the criteria under s 473DD(a) of the Act.
The Authority correctly identified the statutory constraint at paragraph 8 of its reasons. The Authority also correctly identified the new claims arising from the submissions at paragraph 10 of its reasons, and correctly found that the new claims, on their face, predate the delegate’s decision and would be within the first applicant’s knowledge. There was no challenge to that finding, which was logical and rational. The Authority, at paragraph 12 of its reasons, set out the applicant’s explanation for not providing the information earlier, in that he did not provide details of his new claims during the Protection Visa interview because he found it stressful, because of his mental deficiencies.
The Authority dealt with the new claims at paragraph 13 of its reasons, and noted that the details of the CID visiting the family are scant. The Authority was prepared to accept the claims about the delegate’s interview, but found that it was not credible that the things in the new claims had occurred. These things were not mentioned in either the first or second applicant’s written statements to their visa applications or the post-hearing submissions.
The Authority correctly identified that the applicants’ explanation did not address these omissions in circumstances where the applicant was represented. The Authority referred to the lack of corroborative evidence being provided in support of the claimed memory defects which, on a fair reasoning, is a reference to contemporaneous corroborating evidence in support of the new claims in a preliminary assessment of the statutory criteria.
The Authority was not satisfied that the new claims were credible, in the context of the represented applicants, who were given ample opportunity to provide, and could have provided, the new information prior to the delegate making her decision. The Authority found that the new information did not satisfy either limit of s 473DD(b) of the Act, and concluded that it was not satisfied that there are exceptional circumstances under s 473DD(a) of the Act.
The reasoning of the Authority does not disclose error and is consistent with the reasoning procedure identified in AUS17 v The Minister for Immigration and Border Protection [2020] HCA 37 at [11] and [12]:
[11] Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
[12] The result, as has been recognised by the Federal Court in numerous other cases[16], is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD.
Accordingly, no jurisdictional error as alleged in the amended application is made out.
The amended application is dismissed.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.
Associate:
Dated: 30 September 2021
SCHEDULE OF PARTIES
SYG 1367 of 2018
Applicants
Fourth Applicant:
CNC18
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1
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