Com16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1773
•4 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
COM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1773
File number(s): SYG 2456 of 2016 Judgment of: JUDGE HUMPHREYS Date of judgment: 4 August 2021 Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (Protection) visa – whether the finding of the Authority was infected by jurisdictional error – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed Legislation: Migration Act 1958 (Cth), ss 472HD, 473EB, 473HB, 476(2)(a), 476(4) Cases cited: Applicant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Number of paragraphs: 43 Date of last submission/s: 15 July 2021 Date of hearing: 15 July 2021 Place: Parramatta Solicitor for the Applicant: The applicant appeared in person, unrepresented. Solicitor for the Respondents: Mr Hillyard, Sparke Helmore Lawyers ORDERS
SYG 2456 of 2016 BETWEEN: COM16
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
4 AUGUST 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant to pay the first respondent’s costs fixed in the amount of $6,500.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a Muslim male citizen of Sri Lanka. The applicant comes from the Trincomalee district in the Eastern Province of Sri Lanka. The applicant arrived in Australia on 16 August 2012 as an offshore entry person.
On 27 October 2015, the applicant applied for a Safe Haven Enterprise (Protection) visa. On 14 June 2016, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a protection visa.
The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 26 July 2016, the Authority affirmed the decision not to grant the applicant a protection visa
The applicant now seeks judicial review of the Authority’s decision.
THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION
After setting out relevant background, the Authority notes that it received a submission from the applicant dated 7 July 2016. The submission states, in part, that the interpreter used at the Safe Haven Enterprise Visa (“SHEV”) interviews was not NAATI accredited and that incorrect references may have been drawn by the delegate. The Authority states that it had listened to the audio recording of the SHEV interview and noted that, while there were occasions when the interpreter had difficulty understanding the applicant’s particular Tamil dialect, clarification was sought on each occasion and the questions were then rephrased. The Authority concluded that it did not consider that the applicant’s claims of the delegate’s findings were affected by any interpreting issues and was therefore satisfied that the applicant had an adequate opportunity to present all claims in full.
The Authority, at paragraph 7 of its decision, sets out the applicant’s claims which included that he was exposed to systemic and discriminatory conduct towards Tamils as a minority group in Sri Lanka. Further, as a Muslim the applicant was involved in disputes with majority Buddhists, particularly in relation to a temple to be built in his home area. The applicant claims that he received an anonymous telephone death threat and was chased by a group of unknown men. In 2011, the applicant’s brother was stopped when riding a bike, severely beaten and received four stitches to his head. The applicant was convinced that the people who attacked his brother were the same group of people who had chased the applicant previously.
The applicant received further death threats in March 2011. In April 2011, a group of men dressed all in black went to the applicant’s home. The applicant’s mother-in-law told the men that the applicant did not reside there anymore and that he had moved to Colombo. They did not believe her, forced their way into the applicant’s house to look for him, leaving only after they realised he was not there. The applicant claims that his wife and family continue to receive threats from people who have been looking for him. The applicant fears that the death threats will be realised if he were to return to Sri Lanka. The applicant believes that the threats are politically and religiously motivated.
Paragraphs 9 and 10 of the Authority’s decision deal with interpreting issues and inconsistencies between the applicant’s 2013 invalid application for protection and the 2015 valid SHEV application. The Authority was satisfied as to the explanation of the applicant and drew no adverse inferences from inconsistencies between the two applications. The Authority repeated, however, that it did not consider the applicant’s claims that the delegate’s findings were affected by any interpreting issues.
At paragraphs 11 and 12 of its decision, the Authority accepted that in 2011, the applicant stood as a candidate for the Liberal party, a minor party in Sri Lankan politics. The applicant was unsuccessful, attracting only officially 294 votes out of 10,800 cast. On the basis of the applicant’s short, low level involvement in Liberal politics and the 2011 electoral results, the Authority was satisfied that the applicant had an insignificant political profile Sri Lanka.
Paragraphs 14 through to 19 of the Authority’s decision deals with the applicant’s claims of telephone and personal threats. The Authority accepted that the applicant may have received telephone and personal threats in the course of the 2011 election campaign, however, the Authority did not accept the extent of the threats as claimed. At paragraph 15 of its decision, the Authority noted a number of inconsistencies in regards to the applicant’s claims that he was chased by a group of men ranging from February 2011, to 2012 and then later 2008. Given the high degree of inconsistency, the Authority was not satisfied that the applicant’s claim were true. On a similar basis, the Authority found that it was not satisfied that the applicant’s brother was attacked by the same unknown men in February 2011.
At paragraph 17 of its decision, the Authority noted inconsistent information in relation to the applicant’s claims that men came to his home looking for him. The applicant initially stated that he was not at the house as he was staying elsewhere. However, in the applicant’s 2013 application, he stated that he was at his house when the van pulled up around midnight and that three men came to the door and spoke to his wife. The Authority did not accept that the applicant would forget that he was at home during such an incident and, given the degree of inconsistency, was not satisfied as to the credibility of this claim.
At paragraph 18 of its decision, the Authority accepted that the applicant may have received telephone threats during the course of the 2011 election, but did not accept that the threats continued after the election or that he was forced to go into hiding. The Authority noted a letter provided in support, but concluded that the letter did not overcome the significant credibility issues within the applicant’s own evidence and gave it little weight.
At paragraph 19 of its decision, the Authority accepted that the applicant may have an inability to give precise accounts or consistent account of past events due to a range of factors such as anxiety, trauma or a substantial lapse of time. It found, however, that the contradictions and inconsistencies in the information provided by the applicant were of such significance that it could not be explained by such factors as memory lapses or stress.
Paragraph 20 and onwards of the Authority’s decision deal with claims in relation to the fact that the applicant would be the subject of persecution owing to his ethnicity or other reasons. At paragraphs 22 and 23 of its decision, the Authority did not accept the submission that simply opposing the major parties in Sri Lanka in any capacity was sufficient to expose the applicant to retaliatory acts of physical violence, harassment, including arrest, detention and torture. The Authority accepted that some individuals may have been the subject of such actions, however, the Authority was satisfied that these incidents involved individuals with an established political profile and Tamil politicians who were perceived to be supporting an agenda of autonomy and separatism. The Authority was of the view that none of these characteristics applied to the applicant, as he was an extremely minor political personality lacking any real significance or influence in Sri Lanka’s political environment.
Paragraphs 25 and onwards of the Authority’s decision deals with the applicant’s fears due to being a Muslim. The Authority noted that the applicant had not claimed to be subjected to any harm or mistreatment due to his religion, nor had the applicant claimed to have experienced mistreatment as a result of a Buddhist temple being built on his family’s land or as a result of a land dispute between religious groups. In reviewing country information, the Authority concluded that the risk to the Muslim population in Sri Lanka is relatively low, both in terms of both political and religious violence. The Authority concluded that the chance of the applicant suffering harm for being a Muslim was remote.
Paragraphs 28 and onwards of the Authority’s decision deals with the applicant’s fears relating to being a Tamil. The Authority noted that country information from December 2015 indicated that the overall situation in relation to Tamils in Sri Lanka has improved. The Authority concluded that the available evidence gave no indication that the applicant had engaged in any Tamil political or separatist activity. As a result, the Authority considered that the applicant would not be considered to have any real or imputed profile that would attract the attention of the Sri Lankan authorities or that he would suffer persecution as a result of his race upon his return to Sri Lanka
Paragraphs 32 and onwards of the Authority’s decision deals with issues relating to the applicant’s illegal departure from Sri Lanka. The Authority accepted that the applicant may be detained, questioned and charged for departing Sri Lanka illegally. The Authority noted, relying on country information, that if the applicant were to plead guilty, he would be fined and then free to go. Conversely, if the applicant were to plead not guilty, he would be granted bail on a personal security immediately by a magistrate or may be required to have a family member act as a guarantor. The Authority noted that this was a law of general application and was not discriminatory on its face, nor is it applied in a discriminatory manner. In these circumstances, the Authority did not find that the applicant would face a real chance of persecution from Sri Lankan authorities as a failed asylum seeker or as a returnee.
Paragraphs 44 and onwards of the Authority’s decision deals with complimentary protection considerations. For similar reasons, the Authority was not satisfied that the applicant met the criteria for complimentary protection. Accordingly, the Authority affirmed the decision under review.
SHOULD AN EXTENSION OF TIME BE GRANTED?
The application for judicial review was filed on 12 September 2016, approximately 2 weeks outside the 35 day time limit proscribed for these type of matters. The applicant relies upon the time delay as not being significant. Further the applicant alleges that he did not receive the Authority’s decision in the post. The applicant claims that he only became aware of the decision after making inquiries with the Department. The applicant submits that the grounds of judicial review have merit.
The Minister opposes the grant of an extension of time. The Minister concedes that the delay of 13 days is moderate. It is submitted however, that the explanation for the delay is simply not credible and that the substantive application lacks sufficient merit to warrant an extension of time.
In SZTES v Minister for Immigration and Border Protection [2015] FCA 719, the following considerations were held to be relevant when considering an application for an extension of time. They are first, the extent of the delay. Second, the explanation for the delay. Third, any prejudice to the respondent due to the delay and fourth, the merits of the proposed application.
The extent of the delay in this case is relatively small, some two weeks. The explanation offered is plausible, although not strong. Irrespective of the applicant’s claim of not receiving the decision, the applicant was deemed to have received the decision of the Authority by virtue of s 473EB, s 473HB and s 472HD of the Migration Act 1958 (Cth) (“the Act”) on 4 August 2016. The first respondent has suffered no prejudice. On an impressionistic view, which is the relevant standard at this point, the grounds are arguable.
In these circumstances, it is appropriate for leave to be granted for the Initiating Application to be filed out of time. The matter can then be properly considered on its merits.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review are as follows verbatim:
Ground One
Interpreting Issues
Particulars
•1.1 There were interpreting issues/concerns during my protection visa interview which was addressed in a written submission to the IAA.
•1.2 The IAA at [9] stated “As noted, while there were occasions at the SHEV interview when the interpreter had difficulty understanding the applicant’s particular Tamil dialect…”
•1.3 The IAA who is likely not to have understood what was been communicated by myself in Tamil to the Tamil interpreter (who had difficulty in understanding my Tamil dialect) stated at [10] “I do not consider that the applicant’s claims or the delegate’s findings were affected by any interpreting issues and am satisfied that the applicant had adequate opportunity to present all claims in full”.
•1.4 It appears the IAA disregarded written submissions on this issue made to the IAA. The relevant excerpt of that written submission (which referred to the delegate’s decision/decision record) to the IAA stated
“At [22] it appears the interpreter during the delegate’s interview had trouble understanding the applicant as “the interpreter needed to ask the applicant to repeat what he had said “on several occasions”.
•1.5 It is not I who had problems in understanding the Tamil interpreter, rather it was the Tamil interpreter who did not understand me. Therefore it is possible that the Tamil interpreter may not have interpreted all that I may have said/responded, hence for this reason the delegate’s decision is infected with jurisdictional error.
Ground Two
Religious claim not assessed.
Particulars
•2.1 Submissions made to the IAA regarding the problems I could face in practicing my Muslim religion were not assessed. It appears the IAA's focus was if I was/ not subjected to (physical) harm or mistreatment due to my religion [25]. The IAA failed to consider if as a Muslim (with certain attributes which the delegate had accepted - listed below) I would be prevented from practicing my religion. Though I may not have been physically harmed, on account of my religion clearly I was not able to practice my religion due to the Buddhists taking over land owned by the Muslims. The IAA further failed to apply the real chance test when assessing my religious based claim.
•2.2 Certain attributes were accepted by the delegate which should have been considered by the IAA when assessing this particular claim founded on religion.
•2.2.1 The review applicant was involved in a land dispute [51 – delegate’s decision record] with local Buddhists [50 – delegate’s decision record].
•2.2.2 The review applicant holds a “political opinion” and that “he may be perceived by others as holding such an opinion [75 – delegate’s decision record].
•2.2.3 A rise in religious tensions between Muslims and Buddhist majority [80 –delegate’s decision record].
•2.2.4 The review applicant has been a leader in his mosque and was involved in a land dispute/discussions with regard to land being returned to Muslims [80 – delegate’s decision record].
The Court notes that the above grounds have been renumbered from the Initiating Application to assist in understanding, however, the wording has not been changed.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant was assisted by a Tamil interpreter. The hearing was conducted by telephone due to COVID-19 health restrictions in place at the time in New South Wales. Prior to the commencement of the hearing, the Court ensured that the applicant was in possession of a copy of the relevant court books and that the first respondent’s written submissions were interpreted to him. The Court also ensured that the applicant had access to a pen and paper so that he was able to take notes during the course of the hearing should he wish to.
At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the process by which the hearing would be undertaken.
Despite Court orders, no written submissions or other material was filed by the applicant in support of his case. The applicant told the Court that he had nothing else to add. The applicant claimed that he needed protection due to land disputes and his participation in the election. At the conclusion of the first respondent’s oral submissions, the applicant was again asked if he wished to say anything in response. The applicant stated that there were still problems in Sri Lanka and that Muslims were being shot and that there was ongoing conflict.
THE FIRST RESPONDENT’S SUBMISSIONS
Ground one raises two contentions. The first is an assertion that the delegate’s decision is infected by jurisdictional error because of the interpretation issues. It is alleged that it was “possible that the Tamil interpreter may not have interpreted all that (he) may have said”. The first respondent submits that the Court has no jurisdiction to review the delegate’s decision: see s 476(2)(a) and s 476(4) of the Act. In so far as it is alleged that interpretation errors caused the Authority’s jurisdiction to somehow miscarry, such a contention cannot be made out in the absence of a transcript prepared by an accredited interpreter, setting out the words used by the applicant and the delegate, the interpretation of those words by the interpreter, and the proper interpretation of those words in the Tamil language.
The second contention is that the Authority failed to consider evidence in the form of written submissions addressing the interpretation issues at the Safe haven Enterprise Visa interview. That contention fails at a factual level in circumstances where the Authority specifically considered, but was not persuaded by the applicant’s submissions regarding the quality of interpretation it his interview with the delegate: see paragraphs 5 and 10 of the Authority’s decision. Those findings were open to the Authority for the reasons it gave. This contention rises no higher than an invitation to engage in impermissible merits review.
Ground two makes a number of contentions in respect of the Authority’s consideration of the applicant’s religious beliefs. Firstly, the applicant contends that the Authority failed to consider a claim raised and submissions provided on 8 July 2016 that the applicant would be prevented from practising his religion due to Buddhists taking over land owned by Muslims. However, this claim was subsumed by the Authority’s broader finding about the applicants’ risk of harm as a Muslim. In particular, the Authority found that the applicant had “not been subjected to harm or mistreatment due to his religion” or as a result of “a Buddhist temple being built on his family’s land”: see paragraph 25. The Authority was not satisfied the actions of the Buddhists in building the temple amounted to persecution. The Authority also referred to country information about significant steps taken by the Sri Lankan government to “improve religious freedoms”: see paragraph 26 of the Authority’s decision. Those findings were sufficient to dispose of the applicant’s claim about his ability to adhere to his religion.
Secondly, the applicant submitted that the Authority failed to consider a number of aspects of his claims. First, that the applicant was involved in a land dispute with local Buddhists. Second, that the applicant held a “political opinion” and “that he may be perceived by others as holding such an opinion”. Third, that there had been a rise in religious tensions between Muslims and the Buddhist majority and finally, that the applicant had been a leader in his mosque and was involved in a land dispute/discussions with regard to land being returned Muslims.
The first respondent submitted that the Authority considered each of these aspects of the applicant’s claims at paragraph 25, 11 to 12, and 26 of the Authority’s decision. Whilst expressed as a failure to consider, the applicant’s actual complaint is that the Authority did not accept his claims to fear harm. Again, the first respondent submitted that this invites the Court to engage in impermissible merits review.
Thirdly, ground two contends that the Authority failed to apply the “real chance” test when assessing the applicant’s claim to fear harm on the basis of religion. The first respondent submitted that such a contention cannot be sustained on a fair reading of the Authority’s decision record. The Authority considered the applicant’s claim in respect of the Convention ground, finding that “the applicant does not face a real chance of persecution on account of his Muslim faith” at paragraph 27 of its decision.
CONSIDERATION
Ground one makes a number of complaints about the standard of interpretation. In relation to the delegate’s decision, the Court has no jurisdiction to undertake a review of it. The Court only has jurisdiction in relation to the Authority’s decision.
The applicant’s complaints, in so far as they relate to the SHEV interview, go no further than suggesting that “it is possible that the Tamil interpreter may not have interpreted all that I may have said”. In order for there to be jurisdictional error, there must be evidence before the Court that the standard of interpretation at the SHEV interview was so inadequate that the applicant was prevented from making his claims and that the errors made in interpretation were material to the outcome and were adverse to the applicant: see Applicant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 at [16]-[17]. No such evidence has been presented.
The interpreting issues and inconsistencies were squarely addressed by the Authority at paragraphs 5 and 10 of the decision record. The Authority noted that it had listened to the audio recording of the SHEV interview and was not satisfied that there were interpreting issues given that clarification was sought each time by the interpreter and questions were rephrased where there were difficulties.
It is further clear that the Authority considered this claim in the applicant’s written submissions but was not persuaded by it. Given the complete lack of evidence of significant errors in the interpretation which affected the understanding of the applicant’s claims, the conclusion of the Authority was open to it on the evidence before it and for the reasons it gave. Ground one reveals no jurisdictional error.
Ground two makes claims that the applicant would face physical harm or treatment due to his religion. The Authority clearly considered the applicant’s claims that he would be discriminated against due to him being a Muslim and found that “the applicant has not been subjected to harm or mistreatment due to his religion, as a result of a Buddhist temple being built on his family’s land”: see paragraph 25 of the Authority’s decision. At best, this ground seeks the Court to undertake impermissible merits review. The Authority clearly considered relevant country information and discounted the applicant’s claim for the reasons it gave.
Ground two also makes claims that the Authority failed to consider that the applicant held a political opinion, that there has been a rise in religious tensions between Muslims and the Buddhist majority and that he had been a leader in his mosque and was involved in a land dispute with regard to land being returned Muslims. Again, it is clear that the Authority considered each of these claims and did not accept them. Again, all this ground does is invite the Court to engage in impermissible merits review.
In terms of the ground’s third aspect, the applicant contends that the Authority failed to apply the “real chance test”. This was clearly considered by the Authority at paragraph 27 of its decision, but was rejected, based on the evidence before it and for the reasons it gave. The conclusion was open to the Authority and is not tainted by any legal unreasonableness, irrationality or illogicality. Ground two reveals no jurisdictional error.
As the applicant is unrepresented, the Court has carefully perused the Authority’s decision record but is unable to ascertain any unarticulated jurisdictional error.
CONCLUSION
The application is dismissed.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 4 August 2021
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