Daq18 v Minister for Home Affairs

[2019] FCCA 1611

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAQ18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1611

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant not believed – general claims of error by the Authority – whether the Authority dealt lawfully with new information provided – no jurisdictional error where the information was not new but was not material to the outcome.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 473CA

Cases cited:

CQG15 v Minister for Immigration (2016) 253 FCR 496

NAHI v Minister for Immigration [2004] FCAFC 10

VZAVW v Minister for Immigration [2016] FCA 760

Applicant: DAQ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 307 of 2018

Judgment of: Judge Driver

Hearing date: 11 June 2019

Delivered at: Sydney

Delivered on: 11 June 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr H Gao of Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 307 of 2018

DAQ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority).  The decision was made on 16 May 2018.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims for protection and the Authority decision on them are set out in the Minister’s outline of submissions filed on 21 May 2019.   

2. The applicant is a citizen of Sri Lanka of Tamil ethnicity who arrived in Australia at Cocos (Keeling) Islands as an irregular maritime arrival on 2 October 2012. At the Irregular Maritime Arrival Induction Interview conducted on 1 July 2013, the applicant claimed that he was abducted three times in Sri Lanka and that UNICEF facilitated his release when he was first abducted “approximately 3 years ago”.[1]

   [1] Court Book (CB) 8

3. On 5 July 2017, the applicant applied for a SHEV,[2] in which he relevantly claimed that:[3]

   a)in 2006, he was abducted, assaulted and detained by two unknown people for five to six days. He was released after his mother went to the ICRC,[4] who rescued him. He has scars below his knees as a result. After his release the ICRC took guardianship of him and enrolled him in school;

   b)in 2011, he was abducted, assaulted and detained again. He was held for five to six days before escaping through a broken window. Upon escaping, his father took him to Colombo where he stayed for three to four months. When he returned home, his mother told him that people had come looking for him so he went to Ampara where he stayed with his father’s friend for six months;

   c)he was abducted for a third time when he was on his way home. He was detained for 10 days before the ICRC secured his release; and

   d)since his arrival in Australia, he had been told by his family that people were looking for him. His mother had been harassed by the people smuggler as she had not paid all the money for his travel to Australia and they were threatening to take the family home.

   [2] Safe Haven Enterprise Visa

   [3] CB 98-102

   [4] International Committee of the Red Cross

4. On 26 February 2018, the applicant attended an interview before the delegate (SHEV interview).[5]  On 19 March 2018, the delegate refused the SHEV. The delegate found that the applicant’s claims were vague and internally inconsistent. As such, the delegate was not satisfied that the applicant would be harmed in Sri Lanka for any reason.[6]

   [5] CB 135-136

   [6] CB 161-166

5. On 22 March 2018, the delegate’s decision was referred to the Authority pursuant to s.473CA of the Migration Act 1958 (Cth) (Migration Act).[7] On 4 April 2018, the applicant provided further documents to the Authority, including a purported letter from UNICEF.[8]

   [7] CB 174-175

   [8] United Nations Childrens Fund; CB 190-195

Authority decision

1. On 16 May 2018, the Authority affirmed the decision under review.[9]

   [9] CB 206

New information

1. The Authority found that the UNICEF letter was new information within the meaning of the Migration Act. It found that although the applicant referred to the letter at the SHEV interview, such letter was not in the Minister’s Department’s file. It accepted that the letter contains personal information that was provided to corroborate the applicant’s claims. However, the Authority found that there were issues with the reliability of the letter such that it had no real probative value. It found that had this evidence been known, it would not have affected the consideration of the applicant’s claims. As such, it was not satisfied that there were exceptional circumstances to justify considering the letter at [4].[10]  The Authority found that there were exceptional circumstances to consider the DFAT Country Information Report: Sri Lanka, published in 2017, as it was necessary to assess the applicant’s claims.[11]

   [10] CB 207

   [11] CB 207 at [5]

Findings

1. The Authority summarised the applicant’s claims, which it found to be vague, inconsistent and unconvincing.[12]  In particular, the Authority found that:[13]

   a)the applicant gave inconsistent evidence regarding the number of times he was abducted, when the first abduction occurred and the organisation that secured his release;

   b)his evidence regarding the events in which he was abducted and escaped through a window were vague, unconvincing, farfetched and implausible; and

   c)the applicant had been unable to provide any coherent reason as to why the unknown people had abducted him:.

   [12] CB 209 at [12]

   [13] CB 209-210 at [13]-[18]

2. The Authority was not satisfied that the applicant had been a truthful witness and comprehensively rejected his claims. It did not accept that since the applicant’s arrival in Australia unknown persons had sought his whereabouts.[14]

   [14] CB 210-211 at [19]-[22]

3. The Authority accepted that the applicant’s mother had been harassed by the people smuggler, who had threatened to take the family home if the outstanding debt was not repaid. However, it was not satisfied that this would have any repercussions for the applicant upon his return.[15]

   [15] CB 211 at [23]

4. The Authority noted country information and found that the applicant would not be harmed in Sri Lanka due to his Tamil ethnicity, as he was not of any adverse interest to the Sri Lankan authorities.[16]  The Authority accepted that the applicant left Sri Lanka illegally and that he would be charged under the Sri Lankan Immigrants and Emigrants Act upon his return. Nevertheless, it found that he would not be harmed in Sri Lanka for those reasons.[17]

   [16] CB211-212 at [25]-[28]

   [17] CB 212-214 at [29]-[37]

5. For these reasons, the Authority found that the applicant did not satisfy the refugee criterion under s.36(2)(a) of the Migration Act. For similar reasons, it also found that the applicant did not satisfy the complementary protection criterion under s.36(2)(aa) of the Migration Act.[18]

   [18] CB 214-215 at [39]-[44]

The present proceedings

1. These proceedings began with a show cause application filed on 11 June 2018.  The applicant continues to rely upon that application.  There are two grounds in it:

   I believe I need a review as I can’t return to my country as I am at risk and my life will be in danger.

   I was kidnapped in Sri Lanka and was in custody of UN. 5 BALAPOKUNA RD, COLOMBO.. Case #25197 REGISTERED on 28/02/2007

2. As is noted in the Minister’s submissions, the grounds are unhelpful in terms of identifying any potential jurisdictional error.  The application is supported by a short affidavit filed with it which I received. 

3. I also have before me as evidence the court book filed on 20 August 2018. 

4. The grounds in the application do not establish any jurisdictional by the Authority.  As is noted in the Minister’s submissions, the general nature of the grounds renders the application liable to dismissal on the authority of VZAVW v Minister for Immigration.[19] 

   [19] [2016] FCA 760 at [35]

5. In any event, I agree with the Minister’s submissions concerning the grounds. 

Ground 1

1. Insofar as Ground 1 can be considered as an assertion that the Authority erred in finding that the applicant would not be harmed in Sri Lanka, it cannot succeed.

2. The Authority thoroughly considered the applicant’s claims and evidence. It identified its concerns regarding the applicant’s claims and made adverse credibility findings. Although adverse credibility findings are not immune from judicial review, the inconsistencies identified by the Authority related to major aspects of the applicant’s claims, such as the number of times he was abducted and the agency that secured his release. In those circumstances, the Authority’s adverse credibility findings were open to it.[20]

   [20] cf CQG15 v Minister for Immigration (2016) 253 FCR 496 at [36]-[38]

3. The Authority also relied on country information in finding that the applicant would not be harmed in Sri Lanka by reasons of his Tamil ethnicity or his illegal departure from that country. It is well settled the weight that a decision-maker gives to country information is a matter for it as part of its fact-finding function.[21]

   [21] see NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13]

4. Ground 1 therefore amounts to an invitation to the Court to undertake impermissible merits review.

Ground 2

1. Ground 2 appears to cavil with the Authority’s factual finding that the applicant was not abducted in Sri Lanka. For the reasons given in relation to Ground 1, it cannot succeed.

2. To the extent that this ground can be construed as a contention that the Authority failed to take into account the applicant’s evidence regarding his claim that he was “in custody of UN. 5 Balapokuna Rd, Colombo. Case #25197 Registered on 28/02/2007”, such contention must be rejected.

3. This information is contained in the affidavit of the applicant’s father affirmed on 16 May 2013, which was plainly considered by the Authority.[22]  The Authority did not find the affidavit to be probative because it was affirmed by the applicant’s father, and that it reiterated the applicant’s claims. In those circumstances, the Authority found that the contents of the affidavit did not overcome the considerable concerns the Authority had about the applicant’s evidence regarding his alleged abductions. That finding was open to the Authority for the reasons it gave.

   [22] CB 113, 193, 210 at [15]

4. I reject Ground 2.

5. I invited oral submissions from the applicant this afternoon.  He referred to his claims for protection and the evidence he had provided.  He referred, in particular, to his father’s affidavit reproduced at CB 113.  He indicated that he had provided his father’s contact details to the Authority, which could have checked the veracity of the contents of the affidavit. 

6. While that may be so, the Authority reasoned that the applicant’s father’s affidavit had no probative value because it was natural for him to wish to support his son and the claims made by him.  The Authority had other grave difficulties with the applicant’s claims of being abducted on multiple occasions, which are detailed in its reasons. 

7. The applicant also raised issues concerning the date of his birth and the timeliness of his protection visa application.  There was, however, ultimately, no issue concerning the applicant’s identity or date of birth and he was permitted to make a valid application for protection. 

8. In my view, the only legal issue in this case concerns [3] and [4] of the Authority’s reasons:[23]

   [23] CB 207

   The applicant emailed the IAA on two separate occasions on 4 April 2018. Attached to the emails were the same documents, that being:

   a.     Pupil Record Sheet dated 2013

   b.     Proof of Address Letter dated 13 May 2013

   c.      Affidavit of the TK (applicant's father) dated 16 May 2013

   d.     English translation of applicant's birth certificate dated 2016

   e.     "UNICEF Office" Letter undated

   Sources (a)·(d) were before the delegate. Source (e) was not before the delegate however it was referred to by the applicant at the protection visa interview. At which time he advised that he had sent the letter by email to the Department in 2013. The letter does not appear in the Departmental file, nor is there any mention of it being before the delegate in the delegate's decision. In these circumstances I am not satisfied it was before the delegate when the decision was made, and that it is new information. Source (e) is personal information that has been provided to corroborate the applicant's claims. There are however issues with its reliability. It states that the applicant was arrested by unknown persons in 2006 and that UNICEF officers took over from these persons and "kept [the applicant] in their custody" at their office in Colombo. Despite purporting to be from a large international organisation, source (e) bears no letterhead, signature and appears to replicate the information in the applicant's father's affidavit and other than some very general statements it provides no further context to the applicant's claims regarding this event. Considering these matters, I am not satisfied this letter has any real probative value. I am of the view, that had this evidence been known it would not have affected the consideration of the applicant's ·claims. Having regard to all the evidence, I am not satisfied that there are exceptional circumstances to justify considering this new information.

9. While the Authority correctly found that the applicant had provided four documents which were not new information, the authority found at [4][24]  that the fifth document described as the UNICEF office letter, undated, was new information. 

   [24] CB 2017

10. The applicant submitted to me, as he had to the Minister’s delegate, that this document had been provided in 2013 to the Minister’s Department.  It is possible that that is true.  It is possible that the document was somehow mislaid in the Minister’s Department.  Even if, however, the document was provided for the first time to the Authority, it is difficult to understand the basis upon which the Authority concluded that it contained new information. 

11. The document is reproduced at CB 194.  There is nothing on it to indicate, let alone, in my view, establish, that the document emanated from UNICEF.  It appears to have been typed on the same typewriter as the applicant’s father’s affidavit.  It appears to be a document either certified or authored or both by a Justice of the Peace, although it is unsigned. 

12. The information in it appears to be a simple recitation of the same claims the applicant had previously made.  On that basis, I conclude that the

    
    

    Authority was in error to treat the information in the document as new information.  The fact that the same information was provided in a different form to the authority did not make it new information.  The error, however, in my view, does not go to jurisdiction.  That is because the Authority made comprehensive adverse credibility findings against the applicant and rejected his claims. 

13. There is nothing new in the document rejected at [4] of the Authority’s reasons.  It logically follows that if the document had been considered and the information in it taken into account, it would not have made any difference. 

14. I conclude that the applicant is unable to establish that the decision of the Authority is affected by any jurisdictional error.  The decision is, therefore, a privative clause decision and the application must be dismissed.  I will so order.

15. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,000.  The applicant did not wish to be heard on costs.

16. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  13 June 2019