CTH18 v Minister for Home Affairs

[2018] FCCA 3903

FEDERAL CIRCUIT COURT OF AUSTRALIA

CTH18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3903

Catchwords:
MIGRATION – Judicial review – safe haven enterprise visa – credibility – concerns about authenticity of documents – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: CTH18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: DNG 21 of 2018

Judgment of: Judge Young

Hearing date: 12 December 2018

Date of Last Submission: 12 December 2018

Delivered at: Darwin

Delivered on: 12 December 2018

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the First Respondent: Ms Newman

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application filed 30 May 2018 is dismissed.

2. The Applicant is to pay the Respondent’s costs in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNG 21 of 2018

CTH18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for a judicial review of a decision of the Immigration Assessment Authority made on 8 May 2018.  The applicant is a Sri Lankan citizen of Tamil ethnicity.  He left Sri Lanka in 1990 during the civil war when he was about 14 years old.  He left with his parents and his brother. 

3. The applicant says that because of his Tamil ethnicity, his family’s suspected links to the LTTE and as a failed asylum seeker being returned to Sri Lanka he has a well-founded fear of persecution or, invoking the complementary protection provisions, there is a real chance that he will suffer significant harm should he return.  The Authority carefully considered the applicant’s claims and concluded that the central claims by the applicant were fabricated. 

4. The aspect of the claims that was of particular concern to the Authority concerned the applicant’s brother and his father.  In his claims to the Authority the applicant said that his brother had been detained by the Sri Lankan Army on the basis of a suspected involvement with the LTTE.  The applicant said that his brother had been detained and had been held for six months by the army and beaten and tortured. 

5. He said the brother was released and the family subsequently fled to India. In assessing the applicant’s claims the Authority accepted that the family moved to India in 1990 because the brother had been detained and beaten by the Sri Lankan Army. However, the Authority pointed out that in the applicant’s arrival interview there was no claim or mention of any connection between the applicant’s brother and the LTTE and when he was asked in that interview whether he or his family were associated or involved with any political groups he responded that they were not.

6. In the statutory declaration made in support of his Safe Haven Enterprise Visa application made at a later time he claimed that his brother was suspected by the Sri Lankan Army of being involved with the LTTE as he was associated with LTTE members. At the Safe Haven Enterprise Visa interview the applicant claimed for the first time that his brother was actually in the LTTE and involved in purchasing, transporting and distributing food and fuel for LTTE fighters. He claimed also for the first time that his brother was armed.

7. The Authority did not find it credible that the applicant would fail to mention his brother’s LTTE membership or actual LTTE involvement in either his arrival interview or his Safe Haven Enterprise Visa statutory declaration or statement. When this was raised with the applicant he submitted that he had not mentioned those matters because he was afraid that they would negatively impact, particularly, on his security assessment.

8. The Authority said that it had difficulty accepting that fear as genuine given that any security assessment in Australia would take into account that he was only 14 when his family moved to India.  It was also noted by the Authority that the applicant had professional advice and assistance from a migration agent at the time he completed his Safe Haven Enterprise Visa statement.  The Authority did not accept that there was a misinterpretation through the use of a telephone interpreter because the Authority found that the Safe Haven Enterprise Visa interview statement was read back to the applicant. 

9. There is a detailed analysis of that issue in paragraph 22 of the Authority’s reasons.  It appears to me that given the very significant inconsistencies in the applicant’s statement about his brother and the apparent elaboration of the brother’s involvement with the LTTE over time it was open to the Authority to conclude that the applicant was not truthful in relation to that. 

10. A similar issue arose in relation to the applicant’s claims about his father that also relates to very significant inconsistencies over time and in various contexts in the information put forward by the applicant.  In his arrival interview he claimed that his father died of a heart attack two years before the applicant’s arrival in Australia in 2013, so that would produce a year of death of about 2011. 

11. His statement in support of his Safe Haven Enterprise Visa application is a statutory declaration prepared, it would appear, with professional assistance. I say that because I am not sure if the applicant was legally represented at that stage but the Authority believed he was and that is consistent with the fact that the statutory declaration is a typed document and is witnessed by a person from a firm of solicitors. 

12. Whether or not that statutory declaration was prepared by a lawyer, it unequivocally states that the applicant’s father returned to Sri Lanka in 1992. It said that he was immediately taken to a camp for Tamils. It says that the applicant was not aware of what happened to his father in that camp but a few weeks later the family received word that he had died.

13. The applicant said that he believes the Sri Lankan authorities had arranged for the murder of his father because he was a Tamil with suspected ties to the LTTE.  That is to be contrasted with the applicant’s statement in his Safe Haven Enterprise Visa interview where he said that he believed his father had been beaten and killed in a camp by the Sri Lankan Army in 2011.

14. There is another aspect to this. The Authority referred to a death certificate, or what purports to be a death certificate, from Sri Lanka which purports to be a certificate for the death of the applicant’s father on 5 June 2012.  The translation, at least, reads in the box for cause of death:  “Reason for the death was due to wound and bleeding & kick in an unwanted place.”

15. The Authority clearly had doubts about the authenticity of that document and addressed some of its concerns.  At paragraph 6, ignoring the claims about 1992, it referred to the applicant’s claim that his father died in 2011.  The death certificate gives the date of death as 2012.  The death certificate provides that the father died aged 72 but the applicant consistently gave his father’s date of birth during the visa application process as May 1936 which would have made his father 76 if he had died in 2012.

16. So that is an apparent inconsistency between the date of birth given by the applicant consistently as 1936 but that date of birth does not appear in the death certificate. The Authority also points out that, curiously, the logo giving the English translation an official appearance does not occur on the purported original document and points also to the fact that the English translation has a certification from a “District Registrar” that does not appear on the original document. The Authority observed that country information suggests that document fraud is prevalent in Sri Lanka.

17. It’s clear that the Authority was not satisfied that the death certificate was a genuine document and it refused to give any weight to that document. As I have mentioned, the Authority concluded that the applicant’s narrative was exaggerated and embellished and has pointed to the inconsistencies that I have already mentioned.  I am satisfied that there was abundant material on which the Authority could reach that conclusion.

18. The Authority also addressed the Convention grounds and, in particular, the fact that the applicant was a Tamil male from the north of Sri Lanka with asserted LTTE links and imputed political opinion. Essentially the Authority concluded on the basis of the country information it surveyed that under the Sirisena Government there had been significant human rights progress in Sri Lanka. It also referred to information from the UK Home Office which suggested that simply because a person was of Tamil ethnicity did not give rise to protection concerns in Sri Lanka.

19. The Authority acknowledged that there were reports of torture, abduction and killing in Sri Lanka but that those reports related to people with a profile, a particular profile presumably suggestive of LTTE links.  It concluded on the basis of that country information that the applicant did not have any profile suggesting that he was at risk of harm should he be returned to Sri Lanka. 

20. It also considered the risk he might face as a returning asylum seeker and then referred to the Immigrants and Emigrants Act of Sri Lanka which would probably, the Authority concluded, result in the applicant being arrested and interviewed on his return from Sri Lanka as he had left Sri Lanka illegally. It concluded that he would be at risk of, at most, being arrested for a short time, that being 24 hours, and that did not give rise to a protection claim or a need for protection and, in any event, was a law of general application.

21. I have read the decision and I have invited submissions from the applicant who is unrepresented but assisted by an interpreter. I have not been able to identify any error as I read that material resting essentially, as it does, on an adverse assessment of the applicant’s credibility. The applicant’s application for review does not identify a ground of jurisdictional error and simply says: “The final decision made by the IAA is unsatisfactory.”

22. That does not, as I have mentioned, identify a ground of review but, nevertheless, the court has an obligation in these circumstances to read the decision and consider any other relevant materials and if some error is apparent to a court then it must respond to that error. As I have said, I have read the materials and I have not seen any error so I dismiss the application.

23. I will make an order for costs. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  9 January 2019