CZN19 v Minister for Immigration

[2020] FCCA 1936

FEDERAL CIRCUIT COURT OF AUSTRALIA

CZN19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1936

Catchwords:
MIGRATION – Immigration Assessment Authority – Protection visa – Class XE Safe Haven Enterprise (SHEV) – Whether the Authority erred when it was not satisfied with the applicant’s evidence – Whether the Authority failed to consider the applicant’s claim cumulatively and so committed a jurisdictional error – Legal unreasonableness – Whether jurisdictional error is made out – Jurisdictional error is made out – The application is upheld.

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

BZD17 v Minister for Border Protection (2018) 263 FCR 292

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86

FCR 547

Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188

Minister for Immigration and Border Protection v Li (2013) 297 ALR 225

NAHI v Minister for Immigration and Multicultural and Indigenous and Affairs

[2004] FCAFC 10

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

(1994) 52 FCR 437

Re Minister for Immigration and Multicultural Affairs; Ex parte

Durairajasingham (2000) 168 ALR 407

Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105

Applicant: CZN19

First Respondent: MINISTER FOR IMMIGRATION CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1992 of 2019

Judgment of: Judge Humphreys

Hearing date: 15 July 2020

Date of Last Submission: 6 August 2020

Delivered at: Parramatta

Delivered on: 14 August 2020

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Mr Valliappan, Minter Ellison Lawyers

ORDERS

1. An order that the decision of the Immigration Assessment Authority be quashed.

2. A writ of mandamus directed to the Immigration Assessment Authority, requiring them to determine the applicant’s application according to law.

3. No order as to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYG 1992 of 2019

CZN19

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a Sri Lankan national. The applicant arrived in Australia on 3 October 2012, as an unauthorised maritime arrival. The applicant applied for a Class XE Safe Haven Enterprise (Protection) visa (SHEV) on 3 March 2017.

2. On 22 May 2019, a delegate of the Minister for Immigration (“the delegate”), refused to grant the applicant a protection visa. The applicant sought merits review at the Immigration Assessment Authority (“the Authority”). In a decision dated 2 July 2019, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.

3. The applicant now seeks judicial review of the Authority’s decision.

4. An initial hearing in this Court took place on 15 July 2020. The applicant appeared before the Court unrepresented. The applicant was assisted by an interpreter. At the commencement of the hearing, the procedure to be followed by the Court in conducting the hearing, was explained to the applicant. The applicant was asked if he had any questions as to the procedure to be followed and he answered ‘No’.

5. Despite Court orders, no written submissions were provided in support of the applicant’s grounds of appeal. Prior to the commencement of the initial hearing, the Court ensured that the applicant was in possession of a copy of the Court books and that the first respondent’s submissions had been interpreted to him.

6. During the course of submissions on behalf of the first respondent, an adjournment was requested to enable the first respondent to provide additional written submissions. That adjournment application was not opposed by the applicant and was granted.

7. A subsequent hearing took place on 6 August 2020. Due to health restrictions, that hearing took place via telephone. The applicant was again unrepresented but was assisted by an interpreter. Prior to the hearing, the Court ensured that the first respondent’s further written submissions had been interpreted to the applicant.

The Immigration Assessment Authority’s Decision

1. After an introduction, the Authority recorded at paragraph 6 of its decision, each of the applicant’s claims. In the following paragraphs, each of those claims is discussed in detail.

2. At paragraphs 2 and 3 of its decision, the Authority accepts the applicant’s identity as claimed and his family relationships.

3. Paragraphs 10- 11 of the Authority’s decision deal with the applicant’s involvement with the Liberation Tigers of Tamil Eelam (“the LTTE”)  and his claim of having spent 6 months working for the LTTE, at a base located at Elephant Pass and being returned home after that period. The Authority noted that the applicant’s claims were broadly consistent with having worked for the LTTE, but it had concerns as to the credibility of his claims.

4. The Authority found that it had difficulty in believing that the applicant would not know basic information about the base leader who had made his placement possible and has a family connection to him. The Authority also found it difficult to accept that the applicant would have been sent home after six months at the end of the war, when LTTE troops were facing significant losses.

5. Paragraph 13 of the Authority’s decision deals with the applicant’s claim of the familial LTTE connection. The Authority accepted that it would be unlikely that the applicant would have a personal recollection given his age at the time that his uncle, STK, died in fighting during the war. The Authority found however, that it would have expected that the applicant would have at least been told information from family members about STK and been able to provide evidence regarding his claim that STK was a high profile LTTE leader.

6. Paragraph 14 of the Authority’s decision deals with evidence regarding the applicant’s other uncle SVK. The Authority found that the applicant’s evidence was more detailed, but at times shifting and confusing. The applicant made specific claims that he was targeted on account of his relationship to SVK and that this treatment only began after SVK returned to Killinochchi in 2002. The applicant claimed he was stopped in the street by the Criminal Investigation Division (“the CID”) officials. They were interested in knowing about both the applicant’s own LTTE involvement and information about SVK. The applicant claimed authorities knew of the letter he said existed, which excused his elder brother from LTTE the service. The applicant’s evidence as to how the CID obtained a copy of this letter, in the Authority’s view, lacked credibility.

7. At paragraph 18 of its decision, the Authority discussed issues relating to the applicant’s evidence that his uncle had been abducted for four years and they had problems with the CID. The Authority noted that when given the opportunity to provide further evidence, the applicant was unable to provide meaningful responses to the delegate beyond some very basic assertions.

8. At paragraph 19 of its decision, the Authority was not satisfied that the applicant worked for the LTTE for six months in 2008. The Authority was not satisfied with the applicant’s evidence that he had two uncles involved in the LTTE, but did not accept that he was personally targeted because of the familial association to the LTTE, prior to departing Sri Lanka in 2012.

9. Significantly in the Authority’s view, the applicant claimed to have obtained a genuine passport from Sri Lankan authorities in January 2011. The Authority considered that the issuance of a passport to the applicant in 2011, strongly indicates that he was not a person of concern to authorities at that time.

10. Paragraphs 22 and 23 of the Authority’s decision discuss claims that the applicant’s family have been asked about his whereabouts by CID officers, following his departure to Australia. The applicant was unable to provide meaningful detail such as to when this occurred, or the frequency upon which it occurred. The Authority did not accept that the applicant’s brothers had been stopped by the CID, or that his mother was told that the applicant was required to attend a Terrorist Investigation Department (“TID”) office in Colombo, in July 2017.

11. At paragraph 24 of its decision, the Authority considered the attendance of the applicant at Heroes Day ceremonies in Australia. The Authority was not satisfied that there were any publicly available photographs of the applicant at these events and his attendance, would not give him an adverse profile.

12. The balance of the decision deals with complimentary protection requirements. Whilst the Authority concludes that the applicant may be charged under Sri Lankan law, with illegally leaving Sri Lanka upon return, this would not involve a real chance of persecution given that country information indicates that if he pleads guilty, he would receive a fine. If the applicant were to plead not guilty, he would be released on either his own recognisance, or on the basis of a personal surety.

13. Accordingly, the Authority concluded that the applicant did not meet the criteria under the refugee protection provisions or the complimentary protection provisions of the Migration Act 1958 (Cth) (“the Act”).

Grounds of Judicial Review

1. In the applicant’s application to the Court, he relies upon two grounds of appeal. They are as follows:

   Ground One:

   The IAA erred when it was not satisfied with the applicant’s evidence or that he was a person of interest to Sri Lankan authorities in 2012 (paragraph 22), or that the IAA was not satisfied with the applicants evidence regarding his LTTE involvement for six months in 2008, or that he had two uncles involved in the LTTE or that he was personally targeted because of the familial connection to the LTTE by the CID prior to departing Sri Lanka in 2012 (paragraph 19), such state of non-satisfaction or difficulty in believing being unreasonable and based on illogical grounds and a misunderstanding of the evidence:

   a.   The IAA had difficulty in believing that the applicant would not know the basic information about the base leader, when the IAA had no basis or evidence to suggest the applicant would or should know the ‘basic information’ (para 11); nor was it clear what ‘basic information’ he did not know;

   b.   The IAA considered it difficult to believe that an LTTE leader send a male of fighting age home to await the arrangements to attend training (para 11), when the IAA had no basis or evidence to suggest that it was unusual for such direction to be made and when the evidence given by the applicant was that he was untrained (para 10) and was compelled to enter into service because his elder brother was excused (para 10), such evidence unchallenged;

   c.    The IAA considered evidence his mother took serious steps to ensure her elder son was spared from joining the LTTE yet around the same time also made arrangements for the applicant to work for the LTTE “to be at odds” (para 11). The IAA failed to provide any reasons why such a claim was at odds, nor is apparent why such a claim was “at odds” when the unchallenged evidence is that the elder son was exempted from the LTTE because he was the eldest male and they were poor family, and that the duty fell upon the applicant, as the next eldest son, to join the LTTE (para 10);

   d.   The IAA considered the applicants evidence regarding his uncle’s (SVK) involvement with the LTTE to be ‘shifting and confusing’ (para 14). The IAA referred to his written statement, citing portions in which the applicant stated SVK was forcefully recruited, when he was working as a carpenter, and was detained by the CID in 2005 on LTTE suspicion, his family did not know the whereabouts of the uncle for about five months after the arrest and they attended court to discover he was being held in prison in Colombo (para 14). The IAA then commented upon his SHEV interview, noting his failure to mention he was a carpenter, the family in Killinochchi found out about the news of arrest one month after he had gone missing and the IAA asserted this ‘differed’ from the evidence the family had sought assistance from the Sri Lanka legal system and attended court to find out the information regarding SVK’s whereabouts (para 14). The IAA misunderstood that the fact of seeking assistance of the Sri Lanka legal system did not mean that the family was advised of SVK’s whereabouts earlier than five months after the arrest even though they become aware of the arrest itself after only 1 month afterwards, and accordingly the applicant’s evidence regarding his uncle’s (SVK) involvement with the LTTE was not ‘shifting and confusing’, nor did it ‘differ’.

   e.    The IAA had ‘difficulty’ in accepting that the applicant had been related to a ‘high profile LTTE member’ he would have at the very least been told information from family members about him and been able to provide more meaningful evidence regarding his claim that STK was a high profile LTTE leader. The evidence as recounted by the IAA noted the applicant was ‘very young’ when the uncle died, but the IAA did not disclose any reason nor was there any evidence as to why the applicant ought to have been told much about the deceased uncle. Nor was it clear what the applicant may have meant by the phrase ‘high profile LTTE member’, so that the criticism by the IAA was misplaced.

   Accordingly and for the above reasons, the conclusions and doubts held by the IAA without foundation and unreasonable.

   Ground 2:

   The IAA failed to consider the applicant’s claim cumulatively and so committed a jurisdictional error (paras 39 and para 45).

The Applicant’s Submissions

1. The applicant told the Court at the first hearing, that he had nothing initially to say. At the commencement of the second hearing the applicant was again invited to make any oral submissions he wished to. The applicant stated that he wished to emphasise that he was required to serve with the LTTE as his mother did want his older brother to serve. The applicant was only 16 at the time. It was explained to the applicant that the Court could not engage in merits review and that he needed to focus on legal errors in the decision.

2. Following the conclusion of the first respondent’s oral submissions, the applicant was again invited to make any further submissions. The applicant repeated his assertions as to why it was that he, as compared to his brother, was required to serve with the LTTE.

The First Respondent’s Submissions

1. It was submitted on behalf of the first respondent that the Authority rejected the applicant’s claims on the basis of adverse credibility findings and because his claims did not give rise to a real chance of serious harm, or a real risk of significant harm. It was submitted on behalf of the first respondent that the Authority properly considered the applicant’s claims and evidence and made findings that were open to it on that evidence.

2. The Authority identified in its decision, deficiencies in the applicant’s evidence about his involvement with the LTTE at paragraph 11, his account about his uncle’s involvement at paragraphs 13 to 15 and his interactions with the CID at paragraphs 16 to 17. For these reasons, the Authority was not satisfied that the applicant and his family had any involvement with the LTTE, or that he was a target for this reason.

3. The Authority found at paragraph 20 of its decision, that the applicant was able to obtain a passport which indicated that he was not a person of concern. The Authority rejected the applicant’s claims that the CID pursued him after his departure and rejected his corroborative evidence at paragraphs 22 to 23 of its decision.

4. In relation to ground one, it was submitted on behalf of the first respondent that this ground plainly seeks merits review and should be dismissed. In relation to the particulars contained within the ground as to:

   a)   Particular (a): it was open to the IAA to find that the applicant’s credibility was undermined by his limited knowledge of the ‘base leader’ having regard to his claimed family connections and time at the camp (CB 189: [11]).

   b)   Particular (b): it was open to the IAA to find that it was ‘difficult to believe’ the applicant would be sent home to await training given his fighting age and the context of the conflict (CB 189 [11]).

   c)   Particular (c): it was open to the IAA to find that the applicant’s evidence about his mother’s differing approach to him and his brother was ‘at odds’ (CB 189: [11]).

   d)   Particular (d): it was open to the IAA to find the applicant’s evidence about his uncle interactions with the LTTE, his arrest and his detention was ‘at times shifting and confusing’ (CB 189: [14]). In particular, the IAA identified discrepancies in the applicant’s evidence about his uncle’s occupation and the circumstances in which he became involved with the LTTE. The IAA Also identified discrepancies in the applicant’s evidence about his uncle’s arrest and detention and his family’s subsequent response (CB 189: [14]).

   e)   Particular (e): it was open to the IAA to find it had ‘difficulty in accepting’ the applicant had been related to a high profile LTTE member given the quality of his evidence despite accepting he was ‘unlikely to have a personal recollection’ (CB 189: [13]).

5. It was submitted on behalf of the first respondent that the Authority’s conclusions that the applicant was not credible, was a finding of fact for the Authority to determine: (see ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]). There is nothing apparent in the Authority’s reasoning in relation to the applicant’s credibility that would suggest any error in its approach. The Authority was not required to accept uncritically the applicant’s claims: (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (“Randhawa”) at [21]). The Authority does not require rebutting evidence, before rejecting an applicant’s factual assertions; (see Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105 (“Selvadurai”) at [7]).

6. Given the above, there is no basis for the applicant to contend that the Authority’s findings were illogical, irrational or unreasonable in the legal sense; (see Minister for Immigration and Border Protection v Li (2013) 297 ALR 225 at [76]).

7. In relation to ground two, it was submitted on behalf of the first respondent that this ground contends that the Authority failed to consider the applicants claims cumulatively. The Authority considered and dismissed all integers of the applicant’s claims, in the context of the refugee complimentary protection criteria. In these circumstances no amount of cumulative consideration of the rejected claims was capable of producing a different result: (see Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [33]-[34]).

8. In the first respondent’s second set of submissions, reliance was placed on BZD17 v Minister for Border Protection (2018) 263 FCR 292 at [31]-[38] per Perram, Perry and O’Callaghan. In particular at [37], a high degree of caution must be exercised before finding that adverse credit findings expose jurisdictional error, in order to ensure that the Court does not embark on impermissible merits review.

9. It was further submitted on behalf of the first respondent, that there was an adequate basis to make adverse credit findings and the outcome arrived at by the Authority, even excising the finding that the applicant served in lieu of his brother. There was nothing approaching legal unreasonableness in the credit findings.

Consideration

1. In Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187], Gummow and Hayne JJ stated:

   … The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out..

2. The Court accepts the first respondent’s submissions that the Authority is not required to accept uncritically, the applicants claims; (see Randhawa) nor does it require rebutting evidence before rejecting applicants factual assertions; (see Selvadurai).

3. A credit finding is sound, if it is: “open to {the Tribunal} on the material, was based on rational grounds and was arrived at on consideration of matters that the logically probative of the issue of credibility’ (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) FCR 547).

4. The applicant asserts that the Authority had difficulty in believing that he did not know basic information about the base leader and that he was sent home just prior to the end of the war. The applicant states the Authority had no basis or evidence to suggest that he would, or should know basic information, nor what it was that constituted basic information. In the Court’s view, this understates the basis of the credibility finding.

5. The applicant claimed that his family connections resulted in him being placed in a non-combat role. Given that there was a family connection and the fact that the applicant alleges he spent six months in a camp, the Authority considered the lack of detail in the applicant’s claims raised issues as to his credibility. The Authority also found it was difficult to believe that at the end of the war, an LTTE leader would send a male of fighting age home to his family.

6. No reference is made to any country information or other material used by the Authority to support this finding. Further, no country information or other evidence is cited by the Authority to support its conclusion that the applicant’s evidence is at odds, in relation to his mother arranging for the older son to be exempted from service and the applicant to serve in the LTTE, albeit a non-combat role.

7. This lack of reference to such material is troubling. In ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] Griffiths, Bromwich and Perry JJ held inter alia, that a credit finding might be susceptible to jurisdictional error if it:

   i.is subject to a failure to afford procedural fairness

   ii.reaches a finding without a logical or probative basis

   iii.is subject to unreasonableness

8. A perusal of the information contained within the Court book does not indicate the basis upon which the Authority claims that the applicant was unable to provide the basic information it says was lacking. There is also no reference to country information or other information which forms the basis for the Authority finding it was difficult to believe that an LTTE leader would send a male of fighting age home to his family at the end of the war, or that the applicant would be required to serve in lieu of his older brother. Whilst it is a matter for the Authority as to what country information is used and what weight it gives it (see NAHI v Minister for Immigration and Multicultural and Indigenous and Affairs [2004] FCAFC 10 at [11]), in this case there is no reference to any country information to support these findings.

9. As noted by the first respondent at page 138 of the Court Book, the delegate considered country information that supported the claim of a requirement of forced recruitment of ‘one person per family’, but noted that this sometimes had been exceeded depending on the size of the family. This country information supports the claim of the applicant that he was required to serve in lieu of his older brother, who suffered from asthma. This country information was not averred to by the Authority, who instead rejected the claim as not credible.

10. In coming to these conclusions, it is not a situation where the Authority had the opportunity to personally interview the applicant and tease out these matters. This would provide a far greater basis for making sound adverse credit findings. As is the usual case in reviews by the Authority, the review was carried out on the papers only. No reference is made by the Authority to any protection visa interview showing the lack of information provided, or indeed how the applicant was pressed in relation to this information and was unable to provide “basic details”. In the Court’s view, where the applicant is not interviewed, greater care needs to be taken before adverse credit findings not supported by other information can be made. There needs to be something more than just the view of the decision maker.

11. The Court agrees with the applicant that it is difficult to see the reasoning process behind the conclusions of the Authority. An incapacity by a reviewing Court to follow the reasoning process of the decision maker, amounts to jurisdictional error. These conclusions, in the Court’s view, had a material impact on the decision of the Authority, in that it is possible without them, the Authority may have come to a differing conclusion. In these circumstances, the Court is satisfied that jurisdictional error is made out.

12. Ground two can be dealt with briefly. The Court is satisfied that each of the applicant’s claims was dealt with and rejected. In these circumstances, there is no requirement for the Authority to look at them in a cumulative sense. This is not a matter where the Authority made findings of greater generality and that in so doing, subsumed a particular matter or integer in its findings. The Court is not satisfied that the Authority failed to avert to evidence, which if accepted, might have led it to make a different finding of fact: (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593) at [47]. No jurisdictional error arises in relation to ground two.

Conclusion

1. Accordingly, the application is upheld and the Court makes the orders sought in the application.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 14 August 2020

CORRECTIONS

Pursuant to r 16.05(2)(g) of the Federal Circuit Court Rules 2001 (Cth), the orders entered 14 August 2020 are varied as follows:

1. An order that the decision of the Immigration Assessment Authority be quashed.

2. A writ of mandamus directed to the Immigration Assessment Authority, requiring them to determine the applicant’s application according to law.

3. No order as to costs.