COK18 v Minister for Home Affairs

[2019] FCCA 412

FEDERAL CIRCUIT COURT OF AUSTRALIA

COK18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 412

Catchwords:
MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed

Legislation:

Migration Act 1958 (Cth), ss.473BD, 473DD

Applicant: COK18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 484 of 2018

Judgment of: Judge Vasta

Hearing date: 18 February 2019

Date of Last Submission: 18 February 2019

Delivered at: Brisbane

Delivered on: 18 February 2019

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the First Respondent: Minter Ellison

ORDERS

1. That the Application filed 17 May 2018 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 484 of 2018

COK18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 9 May 2018, the Immigration Assessment Authority (“the IAA”) affirmed a decision of the delegate not grant the Applicant, COK18, a safe haven enterprise visa.  That decision having been made, the Applicant then, on 17 May 2018, filed in this Court an originating application seeking to review that decision. 

2. The background to the decision is this.  The Applicant claims that he is a Hindu Tamil from Batticaloa.  He said that his father ran a retail business in Batticaloa. In 1993, his father began using the business to provide support to the LTTE. 

3. He said in 1994 his father was under investigation by the Sri Lankan Army for suspected affiliation with the LTTE.  He said that the army often came to his house to interrogate his father regarding his involvement with the LTTE.  He said in approximately August 1994, the army arrested his father and detained him for three days.  His father was interrogated about his affiliation with the LTTE and was beaten.

4. He said that his father was taken another 10 to 15 times for various amounts of time and was interrogated, beaten and was required to sign in after he was released.  He said that the army would also come to the house, question the Applicant’s mother regarding her support for the LTTE and several times the army would beat his father at the house with the mother watching.  He claims that his father did not tell the army that he was affiliated with the LTTE and supported them.  He, however, continued to provide support to the LTTE in secret throughout the period.

5. He said that the family departed Sri Lanka in March 1995 by boat and went to India.  At this time, the Applicant was about three months old.  The Applicant has lived in India since that time until, he said, his father put the Applicant and his brother on a boat bound for Australia. 

6. The Applicant claims that since being in Australia some personal information about him was inadvertently made available in the public domain; and that he fears that he would be harmed if he returns to Sri Lanka because of his Tamil ethnicity and his father being a person of interest and high profile to the Sri Lankan Army, his returning as a failed asylum seeker, his illegal departure, the disclosure of his personal information by the Australian Government, his long absence from Sri Lanka and the lack of ties in Sri Lanka.

7. The IAA thoroughly looked at all of his claims.  Of course, his claims involving his father can only be matters which he has been told of rather than matters that he, himself, knows and experienced.  The Applicant can only talk about what he has been told.  He is still in contact with his parents who are living in India in Tamil Nadu, and he, it would seem, is talking about these matters because of what he has been told.  But the story he has been told is quite inconsistent and does not stand up scrutiny according to the IAA.

8. The support that the Applicant said that his father gave was not really expanded upon, but at his interview, he said that his father only provided first aid services to injured LTTE people from a business storage room.  There was no other kinds of support to the LTTE that was mentioned in the interview.  He was asked what his father did from the storage room, and he said that anybody who got injured in fighting would be brought over so his father would do the first aid.  He confirmed in that interview that his father was not a member of the LTTE and no other family member or relative was involved in the LTTE apart from his father.

9. He said that his father was arrested 10 to 15 times and that after the last one he had to continually report and sign in.  He was asked how come his father got released on each of these 10 or 15 occasions, and he said that it was because his father denied having supported the LTTE; but then he was released and later the army would come back to take him again.  He said he knows this because his mother had told him this.

10. The claim and what was said in the interview were inconsistent.  The application said the support was donations of money or goods from the business, and there was no mention of first aid service.  The first aid service was mentioned in the interview, but no other support was talked about. 

11. In the interview, it was said that the father had to sign in and report, but there was no mention of signing in or reporting in the application.  The IAA noted that it was unclear how the father was able to continue providing support if all he was doing was providing first aid services using his storage room in secret throughout the period; how was this was able to happen if he was constantly subjected to arrest, questioning and reporting requirements.

12. It was also unclear how his father was able to pass road checkpoints and leave Sri Lanka with the whole family if he was of continuing interest to the army or to the Sri Lankan authorities.  Whilst the IAA noted that the Applicant would not be able to speak of any of these things through personal knowledge, it is, however, the plank of his claim that his father’s LTTE involvement is what would cause him harm if he returned to Sri Lanka. 

13. The IAA was not satisfied that the father had done anything more than give some donations or goods to the LTTE, and the IAA was not satisfied that father was regarded as having a high level involvement with the LTTE.  The IAA did not accept that the father was under reporting arrangements or under surveillance at the time he departed Sri Lanka.

14. The Applicant has said that since the family has been living in Tamil Nadu in India, a friend of the father, who belonged to a political party, and the father and the Applicant and his brother helped in an election where the friend of the father was actually elected.  The Applicant said that the opposition party threatened the father after this and this was the reason that he and his brother were sent to Australia. 

15. The IAA was prepared to accept that there was some low-level support of the friend but noted that the Applicant did not claim that his father was a member of the party or held any position in the party.

16. The father, according to the Applicant, is running a clothing business in Tamil Nadu but has had no involvement with the LTTE since he left Sri Lanka. 

17. The IAA accepted that the Applicant may have been affected by the unintentional disclosure of personal data in 2014, but the information would have been his name, date of birth, nationality, gender and details about his detention and whether there was any other family member in detention; however, the information did not reveal his address, his contact details or the fact that he had applied for a protection visa or what his claims for protection were.

18. The IAA then went through the refugee assessment and came to the view that, having a look at country information, the Applicant did not have a well-founded fear of persecution. 

19. The IAA then looked at the complementary protection criteria and came to the conclusion that there was nothing on the evidence that would suggest that the Applicant would face serious harm if he were to be returned to Sri Lanka.

20. There are three grounds of this application, and I will deal with them seriatim. 

    1. The IAA’s decision was affected by error of law. 

21. There has been no particularisation of this ground.  It is a general statement which itself does not display any jurisdictional error.  There is no merit in ground 1.

22. Ground 2 is :

    2. The IAA did not give sufficient weight to the submissions made by the Applicant.

    Particulars

    a. The Applicant stated that he would not be able to pay a fine of 200,000 rupees to the Sri Lankan government.

    b. The reviewer refused to take this into account by reason that it was not previously disclosed to the department.

    c. The reviewer did not make any enquiries with the applicant (who was unrepresented) as to the reasons why he did not disclose this to the department.

    d. The Applicant referred to common practices of the Sri Lankan Government in holding family members hostage for the return of suspects.

    e. The reviewer failed to give any weight to recent media reports (which would have been available to the reviewer) that confirm that a number of detainees are still held without charge in Sri Lanka.

23. It is trite to say that the IAA must review what it is that is before it; that is, what material the Secretary gives to the IAA that was before the delegate who made the decision and, if circumstances are appropriate, can look at new information. 

24. In this case, the IAA was given some material by the Applicant before it began its review. Part of that submission by the Applicant was some arguments as to the decision that the delegate made, though they were not new information, and therefore the IAA could receive that. 

25. The Applicant then gave some information that if he were forced to pay a fine of 200,000 rupees for his illegal departure from Sri Lanka, he would not be able to pay that.  That claim was new information.  The Applicant did not claim before the delegate that he could not pay a fine.  The delegate had put to the Applicant, at the SHEV interview, that a fine could be applied to him upon return, due to his illegal departure.  The Applicant was offered a break to discuss this with his representative.

26. When the interview resumed, neither the Applicant nor his representative raised with the delegate that a fine of 200,000 rupees would be beyond his means to pay. In the submission, there was no explanation as to why this information could not have been given to the delegate. There was nothing on it that suggested that it was credible or that there were exceptional circumstances to justify considering the information. The Applicant did not suggest that his circumstances have changed since the interview. Nor was there any evidence given as to this assertion of his that he was unable to pay a fine. Therefore, that evidence did not meet the threshold in s.473BD of the Migration Act 1958(Cth) (“the Act”) as to looking at new material.

27. The other aspect was that the Applicant had given new information that the Sri Lankan government targets LTTE sympathisers of the past.  What it does is it kidnaps, in effect, children in such a way so that this would flush out the fathers of those children, and then the army would still be able to grab those LTTE sympathisers.  To this extent, the information given by the Applicant disagrees with the DFAT report that disappearances are no longer a common occurrence.  As this is country information that was not before the delegate, the sources of the information really need to be identified, so that one can work out whether that information is credible.  The sources of the information were not identified.

28. Those incidents that it refers to occurred during and immediately after the Sri Lankan war and are documented in the material before the IAA. The IAA was therefore not satisfied the new information could not have been provided to the delegate or that it was personal information and that it has little probative value. So it did not satisfy the test under s.473DD, and therefore, because that material was not properly before the IAA, it could not have been given any weight. Therefore, there is no merit in ground two.

29. I do note that the IAA, when discussing the Applicant being returned to Sri Lanka, did say that he could easily be fined, notwithstanding the fact that he left Sri Lanka illegally as a baby in 1995, some 23, almost 24, years ago, but the IAA noted that the Applicant has been working in Australia ever since.  The maximum fine given is 200,000 rupees, which is equivalent of about A$2000, and the fine can be paid off in instalments.  It would seem that, even if the information was before the IAA, it would have no real merit. 

30. Ground three states:

    3. The IAA erred in finding that the Applicant made inconsistent claims as to the support that his father rendered to the LTTE, or the finding that the Applicant’s father did not provide first aid as claimed and was not interrogated as claimed is unreasonable.

    Particulars

    a. The reviewer discredited the Applicant on the basis he did not mention in his SHEV application that his father provided first aid to LTTE members.

    b. The Applicant was told at the start of the SHEV interview that it was an opportunity for him to provide further information on his application.

    c. The reviewer acknowledged that the account of his father’s involvement was given second-hand by the Applicant as he was very young at the time.

    d. The reviewer failed to consider whether the Applicant would have received further information as to his father’s involvement from discussions with his father since the making of the written application, which is a plausible explanation for the omission.

31. The fact is that these matters really only go to matters of fact.  The inconsistency was explained by the IAA because the Applicant himself did not know these things from his personal knowledge, but, in any event, this ground is really an attempt an impermissible merits review.  The conclusions that were made by the IAA were open on the evidence.  Because those conclusions were open, there is no jurisdictional error. 

32. So, on all of the grounds, I find that there is no jurisdictional error.

33. The Applicant appeared before me today and simply said that he had been told by the IAA that everything is okay in Sri Lanka.  He says that he denies that and that the situation in Sri Lanka is bad.  He said that if he goes back to Sri Lanka, he will not have a future. 

34. The matters that the Applicant complains of right now are matters that were canvassed by the IAA.  The IAA took regard to the fact that the Applicant’s family, that is, his mother and father, are still in India, and he would be going back to Sri Lanka.

35. However, having taken all of those matters into account, the IAA came to the conclusion that the Applicant would be able to exist in Sri Lanka quite well.  That was the basis of both part of the refugee claim and also the complementary protection claim.  There is no error in anything that the IAA has done.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 10 May 2019