Coq16 v Minister for Immigration and Anor and; Cok16 v Minister for Immigration and Anor
[2020] FCCA 2713
•30 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COQ16 v MINISTER FOR IMMIGRATION & ANOR and COK16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2713 |
| Catchwords: MIGRATION – Application for judicial review – two applications heard together – applicants related – credibility issue – mental health claim – no matters of principle – applications dismissed. |
| Cases cited: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FOE17 [2020] FCAFC 73 |
| Applicant: | COQ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1947 of 2016 |
| Applicant: | COK16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1946 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 19 February 2020 |
| Date of Last Submission: | 19 February 2020 |
| Delivered at: | Townsville |
| Delivered on: | 30 September 2020 |
REPRESENTATION
| Counsel for the Applicant in proceedings MLG1946/2016 and MLG 1947/2016: | Mr Krohn |
| Solicitors for the Applicant in proceedings MLG1946/2016 and MLG 1947/2016: | Ambi Associates |
| Counsel for the Respondents in proceedings MLG1946/2016 and MLG 1947/2016: | Mr Hosking |
| Solicitors for the Respondents in proceedings MLG1946/2016 and MLG 1947/2016: | Australian Government Solicitor |
ORDERS
IN PROCEEDINGS MLG 1947 of 2016
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.00.
IN PROCEEDINGS MLG 1946 of 2016
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1947 of 2016
| COQ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
MLG 1946 of 2016
| COK16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
Background
The applicants in each of the respective matters are brothers who shared the same legal representation. As the application largely depends upon the arguments with respect to the older brother, COQ16, the two applications for judicial review were heard together.
The applicants, who are male Sri Lankan citizens of Tamil ethnicity, arrived in Australia by boat in 2012 as Irregular Maritime Arrivals. They both applied for protection visas in September 2012. Their applications were refused by a delegate of the Minister on 26 October 2012 (in the matter of COQ16) and on 29 October 2012 (in the matter of COK16). The delegate’s decisions were reviewed by the then Refugee Review Tribunal (‘RRT’), at which stage the applicants were represented. The RRT affirmed the delegate’s decisions on 4 December 2012, the RRT’s decisions were quashed by consent on 29 February 2016. The applications were then remitted to the Administrative Appeals Tribunal (‘the Tribunal’), as a result of the changes in statutory review pathways. The applicants were no longer represented by this stage. The Tribunal affirmed the delegate’s decisions on 17 August 2016 and those decisions (for the respective applications made on the same day) are the subject of this application for judicial review, which was filed in this court by each applicant on 12 September 2016.
Claims made by the applicants
Because the application for COK16 turns on the application of COQ16, I will focus on the claims of COQ16. The applicant COQ16 claimed to have been detained and harmed in Sri Lanka by the Sri Lankan Army (‘SLA’) and Police (‘CID’), as a result of suspicions that he had assisted the Liberation Tigers of Tamil Eelam (‘LTTE’).
At his entry interview in July 2012 (see COQ16 CB p.20) COQ16 said that he had been working in town M when, in 2008, the SLA detained him, beat him and interrogated him ten times. He said that he was released after a month. He said he had no difficulties for a period, then was told by his mother in 2012 that the CID was looking for him. As a result of this information, he says he did not go home and instead went to another town, S and went into hiding there. The applicant said that whilst in hiding his brother (COK16) was harassed and a friend of their father encouraged them to seek refuge, as their lives were in danger. The applicant, COQ16, said that after coming to Australia his father was targeted by the CID.
In his Protection Visa application (CB p.27) the details of COQ16’s claim changed. In his Statement (CB p.77 to 79) he said that he moved to town M in 2010 and that it was then that he and 15 other fishermen were arrested. In summary he said that he was not released, but escaped after two months when a bomb was detonated at the army base, following which he went into hiding in M. He said that he then went to another town to drive taxis in 2011. He said that his mother had told him the CID had tortured his brother and were looking for him, after which he left Sri Lanka on his father’s advice.
In his protection visa interview COQ16 said that he had obtained a Sri Lankan passport in 2007 and had travelled to India three times, without difficulty. He obtained a driver’s licence in 2011 (in his own name) and drove taxis in town C whilst living with his aunt. On this occasion he said that his father was beaten by the CID and his parents were in hiding at his aunt’s house.
The delegate invited the applicants to comment on the differences in the versions given, and ultimately declined to grant COQ16, or his brother, a visa. The applicants were also provided with an opportunity to give evidence and provide information to the Tribunal.
Decision with respect to COQ16
The Tribunal rejected COQ16’s claims. The Tribunal did not accept that COQ16 had given a credible account, noting in the decision, among other issues:
53. A significant issue that was identified by the Tribunal and discussed with the applicant was his ongoing interaction with the authorities at a time when he claimed to be in hiding and wanted. There is a significant amount of evidence that contradicts the applicant’s evidence about this aspect of his claims.
54. The applicant was issued a passport by the Sri Lankan authorities in 2007 in his name with his address included. The applicant stated a friend assisted him to obtain it. The issuing of a passport to the applicant by the Sri Lankan authorities with the pertinent personal information about the applicant demonstrates that the authorities had little concern with the applicant at this time.
55. The Tribunal noted that the Sri Lankan authorities has a sophisticated intelligence capacity9 and in the Tribunal’s view, once the applicant was issued with a passport in his identity, it would have led to his being detained and questioned if he was genuinely thought to be person of interest to the authorities. He was not.
56. Using this passport, the applicant travelled to India on three occasions, in January 2009 for 15 days, in January 2010 for 15 days, and in December 2011/January 2012 for a month10. The applicant stated he was travelling on pilgrimages. The departures and arrivals were from the International airport in Colombo. The Tribunal asked if the applicant had any difficulty leaving Sri Lanka. The applicant stated he did not, he was with a group of other pilgrims and the travel had been arranged by an agent. He had no issue with the authorities departing Sri Lanka. The Tribunal asked if the applicant had any issues returning to Sri Lanka on any of these occasions. The applicant stated he could not remember. The Tribunal noted that the applicant had not previously raised any concern as to his treatment at the airport.
57. The Tribunal considers that the applicant’s departure from and return to Sri Lanka on three occasions demonstrates that he is not a person of interest to the authorities. The Tribunal notes that during a period where the applicant claimed the authorities were looking for him and he was in hiding, the applicant was prepared to interact with the authorities, using his personal identification, on 6 occasions. The Tribunal noted later in the hearing that Immigration officers, intelligence officers and CID all are present at the airport, yet none of these intercepted the applicant during his departure or return to Sri Lanka…
[…]
58. The Tribunal asked why the applicant did not attempt to remain in India after leaving Sri Lanka, but chose to return, if he feared he would be harmed. The applicant stated that he could not stay in India, he did not have a visa. The Tribunal noted that the applicant did not have a visa to remain in Australia yet did so. In the Tribunal’s view, if the applicant had a genuine fear of serious harm from the Sri Lankan authorities he would not have returned to Sri Lanka from India on the occasions he went. India, although not a signatory to the Refugees’ Convention in 2009 was reported to be accommodating more than 100,000 refugees from Sri Lanka. Also, the UNHCR has an office for determining refugee status in New Delhi.
[…]
68. The Tribunal considers that the evidence provided by the applicant demonstrates that he had no concern with the authorities, and the authorities had no concern with him. The Tribunal considers that the applicant has contrived the claim that he was detained for periods of time between 2008 and 2010 by the authorities. The Tribunal notes that this refutation of the applicant’s claims has not solely relied on the evidence of the applicant, which he himself states is vague due to his mental state, but on the independent documentary evidence provided regarding his travel and licence application. The Tribunal does not accept that the applicant was detained by the authorities for working in an LTTE controlled area. The Tribunal considers that this claim to have been detained by the authorities has been fabricated to support his claim for protection.
Decision with respect to COK16
Both COQ16 and COK16 were interviewed with respect to the case of the other applicant. COK16’s case rests upon the risk to him due to the alleged adverse interest of Sri Lankan authorities in his brother, COQ16. As with COQ16’s case, the Tribunal rejected the applicant on the basis of credibility, saying:
50. Given the findings regarding the lack of interest or harm from by the authorities in the applicant and his brother, the Tribunal does not accept that any member of the applicant’s family have been targeted by any person, known or unknown. The Tribunal does not accept that people have been into the family home seeking the applicant or his brother, and causing difficulty to his parents.
Grounds for Review
The applicant COQ16 relied upon three grounds for judicial review. At the hearing Counsel argued Ground 1 (with respect to particulars (a) to (c)) together with Ground 2, on the basis that they are all grounds relating to issues concerning the applicant’s mental health. Grounds 1(d) and 3 were argued separately. It is convenient to address the grounds on the same basis.
The substance of the claim by COK16 is that if COQ16 succeeded, then he ought to succeed on the basis that he is also at risk, as COQ16’s brother. Had COQ16 been successful in his application for judicial review there would have been much to be said for this argument. COK16’s arguments therefore focused upon the same points as COQ16.
As COK16’s grounds are substantively the same as those of COQ16 (or, as the Minister put it, focus solely on the process of reasoning by which the Tribunal disposed of his claims, based on his brother) his case was not argued separately, but said to follow the outcome in COQ16. Whilst the grounds set out in COK16’s case are not literally identical, they convey the same substantive arguments and need not be set out separately.
Grounds relating to impact of mental health
Grounds 1(a) to (c) and ground 2 were argued together at the hearing. Those grounds provide:
1. The Tribunal fell into jurisdictional error in that it was unreasonable.
Particulars
(a) The Tribunal was aware of the Applicant's claims to have mental illness which prevented him from remembering accurately.
(b) The Tribunal's rejection of the claims of the Applicant was based in part on the inconsistency it saw between his claims to have been in hiding, and his interactions with the authorities of Sri Lanka. and based in part on the vagueness or inconsistencies of his claims.
(c) It was unreasonable for the Tribunal to have rejected the Applicant's claims to have been detained, without using its power to get further information or a medical report about his mental health.
[…]
2. The Tribunal fell into jurisdictional error in that it failed to exercise its powers according to law.
Particulars
(a) Further or in the alternative to Ground 1, the Tribunal failed to exercise its powers under section 427(l)(d) of the Migration Act 1958 or otherwise to make inquiries or get information about the mental health of the Applicant.
The substance of the applicants’ arguments is that:
a)the Tribunal was aware that he claimed to have a mental illness condition that arguably prevented him from accurately recalling events;
b)the Tribunal ought to have made enquiries about his condition and its impact; and
c)that as the Tribunal failed to make enquiries to obtain evidence about the condition and its impacts the Tribunal could not place any weight upon the inconsistencies in the applicant’s evidence.
The first difficulty that the applicant faces is that there is no ‘duty to enquire’ upon the Tribunal, only a duty to review. In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 (‘SZIAI’) at [25] the court said:
[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that. (footnote omitted)
However, in very limited circumstances, the duty to review will entail making enquiries. This flows logically when one considers an issue where there is ‘an obvious inquiry about a critical fact, the existence of which is easily ascertained’: SZIAI at [25] per Heydon J. Thus, as the Full Court recently reiterated in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FOE17 [2020] FCAFC 73:
54. In Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184; (2017) 256 FCR 235 the appellants argued that the Tribunal was obliged, in conducting its review, to undertake inquiries by exercising its power to summons witnesses. That ground was rejected. In doing so, after referring to Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 (SZIAI) at [25], the Full Court (Dowsett, Pagone and Burley JJ) said at [33]:
There is no general obligation to make inquiries, but as Kenny J noted in Minister for Immigration and Citizenship v Le [2007] FCA 1318; (2007) 164 FCR 151 at [60], an obligation may arise in “rare or exceptional circumstances”. The mere fact that it may have been reasonable to make an inquiry does not mean the lack of such an inquiry amounts to a jurisdictional error; SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30] (Bennett J); MZZGB v Minister for Immigration and Border Protection [2014] FCA 1052 at [63] (White J); Singh v Minister for Immigration and Border Protection [2017] FCA 1285 at [64] (Murphy J).
In Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 the applicant had given inconsistent evidence and asked the Tribunal to commission a medical report. The Tribunal could have asked the applicant’s treating medical practitioner for a report on how his mental health issues may have affected his memory. The High Court of Australia (the ‘High Court’) found that the Tribunal was entitled to determine the case on the material before it and not required to seek further evidence.
Not surprisingly, the applicant was unable to point to any Australian decision where such a ground had been successful with respect to the impact of mental health issues on a person’s credibility.
The applicant sought to rely upon a single judge decision from the Supreme Court of Nauru in CRI029 v Republic [2017] NRSC 75 (‘CRI029 ‘) (available at In that decision relief was granted on the basis that the Tribunal had failed to arrange a mental health examination in accordance with paragraphs 207 and 208 of the United Nations High Commissioner for Refugees Handbook. Those paragraphs provide that:
It frequently happens that an examiner is confronted with an applicant having mental or emotional disturbances that impede a normal examination of his case. A mentally disturbed person may, however, be a refugee, and while his claim cannot therefore be disregarded, it will call for different techniques of examination.
The examiner should, in such cases, wherever possible, obtain expert medical advice. The medical report should provide information on the nature and degree of mental illness and should assess the applicant’s ability to fulfil the requirements normally expected of an applicant in presenting his case”.
A careful reading of the decision indicates that the basis upon which the applicant in CRI029 was successful appears to be based upon whether he was sufficiently well enough in health to be able to have a hearing. If I am wrong in this interpretation of the decision, it cannot be followed in Australia, as it would be then based upon the dissenting judgment of Kirby J in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [20014] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 992 when the court is bound to follow the majority judgments of the High Court.
In the case before this court, the Tribunal specifically considered the applicant’s claims to suffer from mental health issues, saying in their decision that:
50. The Tribunal notes that the credibility of the applicant is a relevant concern. The previous Tribunal provided in writing some adverse information arising from the inconstancies arising out of the applicant’s evidence and that of his brother. The delegate in their decision also raised concern about the applicant’s credibility.
51. The present Tribunal noted issues of inconsistency at the hearing. The applicant first stated that he could not remember dates, then later details of his claims, because of his mental health issues. The applicant stated that this was the reason he could not remember what had been said, and that if he spoke more he would provide further incorrect information.
52. The Tribunal is concerned by the paucity of mental health information about the applicant since early 2014. The applicant claims to have a serious mental health issue but has not received treatment for two years. The applicant confirmed he had maintained a part time driving job during this time. He explains his failure to get medical assistance on the lack of a Medicare card, but the Tribunal noted that the applicant had chosen not to take up free opportunities for treatment or assistance, irrespective of his Medicare status, and had had mental health assistance from hospital and community care workers. It appears that the applicant has disengaged from the services himself and has remained in the community without using medical assistance for some time. The Tribunal is concerned that the applicant is now using his mental health to try to explain the inconsistencies in his evidence. Notwithstanding that, the Tribunal does note that this was the repeated comment of the applicant, and the Tribunal has taken this into account in its determination.
The Tribunal member took into account the claims by the applicant to have suffered mental health issues. There is nothing to suggest that evidence of a mental health examination would have been definitive, nor compelling in this case. Moreover, on the facts of this case, in the finding rejecting the applicant’s credibility on the issue of whether he was of interest to the authorities, the Tribunal based its findings upon the documents: see the finding as set out in paragraph [68] of the decision (quoted above).
Even if the applicant was correct in the claim that the Tribunal could not place weight upon the inconsistencies in his evidence (which I reject), it would leave the documentary evidence before the Tribunal, which was the basis of its decision in any event.
The applicants’ arguments in these respects must be rejected.
Argument as to the lack of evidence
Ground 1(d) alleges that it was not open to the Tribunal to conclude that various branches of government in Sri Lanka would share information. The ground if framed as:
1. The Tribunal fell into jurisdictional error in that it was unreasonable.
[…]
(d) It was unreasonable for the Tribunal to have rejected the Applicant's claims to have been detained and in hiding on the basis of his interactions with the authorities because this was based on the assumption that the authorities in one area of government at one time (such as passport or immigration or licensing) would act always consistently and effectively with other areas of government (such as CID).
I am not persuaded that it was unreasonable for a Tribunal member to accept that various branches of government dealing with immigration, licensing and policing, did share information. This is an inference that simply reflects matters upon which a Tribunal member is assumed to have knowledge. Further, in this case the Tribunal member also relied upon evidence available to them, as set out in paragraphs 55 and 57 of the decision (set out above).
This ground must be refused.
Ground 3
The third argument was that the Tribunal failed to consider that COQ16 may have been detained by the SLA or CID, even though the Tribunal had rejected his claim to have been in hiding. The ground was framed as:
3. The Tribunal fell into jurisdictional error in that it failed to consider relevant considerations.
Particulars
(a) The Tribunal failed to consider whether, even if the Applicant was not in hiding after his detention (Decision record, [63]), he may nevertheless have been detained on suspicion of involvement with the LTTE, and may be at risk of harm by the authorities if he returns to Sri Lanka and checks are made with his local police.
This ground, as argued, appeared to stem from the fact that the Tribunal identified that COQ16’s claims could be considered in two parts, that of being harmed and that of being in hiding for fear of harm. This was an appropriate approach by the Tribunal, as it does not necessarily follow that rejection of a claim of actual harm means that the applicant must fail on a claim of fear of harm: put simply, that an applicant may embellish their version with a false claim of actual harm does not, of itself, necessarily result in their claims being rejected if they nonetheless have a real fear of serious harm.
As put in the text of Ground 3, the claim is that COQ16 may be at risk of harm, even if he had not been in hiding. However, the evidence indicates that the government authorities were not looking for the COQ16 as he crossed the border using his own passport a number of times and applied for a licence.
The difficulty for the applicants is that COQ16’s credibility, as it related to both aspects of the claim, was rejected. The findings with respect to him obtaining a licence, passport and traveling in and out of Sri Lanka show that he was not at real risk of harm, as the Tribunal said, recounting its findings when turning to the COQ16’s brother’s position:
73. The applicant has claimed that his brother was harmed by the CID looking for him. Given the findings of the Tribunal that the applicant was not in hiding, and was not being sought by the CID or anyone else, the Tribunal finds that the applicant’s brother was not harmed by the authorities.
In the circumstances of this case the ground must be rejected with respect to both applicants.
Conclusion
As the applicants have not established a ground for judicial review his application must be dismissed. Costs should follow the event at scale, and I so order.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 30 September 2020
Corrections
In paragraph [26] the use of the word ‘not’ was removed from the third last word of the sentence, so that the sentence reads, “I am not persuaded that it was unreasonable for a Tribunal member to accept that various branches of government dealing with immigration, licensing and policing, did share information” rather than the previous version which read, “I am not persuaded that it was unreasonable for a Tribunal member to accept that various branches of government dealing with immigration, licensing and policing, did not share information.” (emphasis added)
The Orders for MLG1946/2016 set out on page 4 were amended to read as orders ‘1’ and ‘2’ rather than continue as Orders ‘3’ and ‘4’.
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