DBP16 v Minister for Immigration

[2018] FCCA 3566

FEDERAL CIRCUIT COURT OF AUSTRALIA

DBP16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3566

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority engaged in irrational or illogical reasoning – whether the Authority failed to constructively exercise its jurisdiction – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 47CB, 476

Applicant: DBP16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 494 of 2016

Judgment of: Judge Street

Hearing date: 4 December 2018

Date of Last Submission: 4 December 2018

Delivered at: Perth

Delivered on: 4 December 2018

REPRESENTATION

Counsel for the Applicant: Mr M Guo

Solicitors for the Applicant: Estrin Saul Lawyers

Counsel for the Respondents: Ms C Walsh

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.

DATE OF ORDER: 4 December 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 494 of 2016

DBP16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA, made on 12 September 2016, affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant was found to be a Tamil of Hindu faith from the Kilinochchi Northern Provence. The applicant arrived in Australia as an unauthorised maritime arrival on 17 August 2012.

3. The applicant claimed to fear harm from the Sri Lankan authorities, in particular the Criminal Investigation Division (CID) on account of his perceived association with the Liberation Tigers of Tamil Eelam (LTTE) and his Tamil ethnicity. The applicant alleged that his sister was in the LTTE, but that he told the LTTE that he was in the LTTE to allow his sister to continue her university studies. The applicant alleged he was detained by the CID for five days or so in March 2012 and subject to ongoing reporting.

4. On 26 July 2016, the delegate found the applicant failed to meet the criteria for the grant of Safe Haven Enterprise visa.

5. On 1 August 2016, the Authority wrote to the applicant explaining that the application for the Safe Haven Enterprise visa had been referred to the Authority for review. The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions. No such material was put on.

6. The Authority, in its reasons, identified the background to the visa application and had regard to the material referred by the Secretary under s 473CB of the Act. The Authority summarised the applicant’s claims including the proposition that he told the LTTE he was in the LTTE to allow his sister to continue her university studies. The Authority referred to the fact that the applicant alleged in 2007 to 2008 while the family was living in a particular area, the LTTE came and took his oldest sister to join the LTT. The applicant alleged the family fought with the LTTE officers but did not prevent his sister being taken away. The applicant alleged that because they fought the LTTE, the chief of the LTTE gave permission for the LTTE to shoot his family. The applicant alleged his sister did clerical work for the LTTE as she was educated. The applicant alleged that she was with the LTTE for a week before she ran away and that the LTTE came looking for her and took his second eldest sister in the other sister’s place. The applicant alleges the second eldest sister ran away as well one day after and that the LTTE came at night and dragged the eldest sister away, and that the next day, the LTTE chief, gave the shoot order so the family decided to move from the area. The applicant alleges his eldest sister stayed with the LTTE two to three weeks overall.

7. The Authority referred to the applicant claiming that his family decided they could not reveal to the Sri Lankan authorities that his eldest sister was in the LTTE because it would affect her university studies, so they agreed he would tell the CID that he was in the LTTE. The applicant alleged he told the CID that he was in the LTTE and the CID made him sign a form confessing to being involved with the LTTE. The applicant alleges his eldest sister was also interrogated when she told the CID she was a student and had not been a member of the LTTE, and gave his name instead.

8. The Authority referred to the applicant’s claim that after he left Sri Lanka, his father told him he was arrested by the CID because he stopped reporting to the CID office. The applicant alleged his father told the CID the applicant was in Australia and was involved in the LTTE movement but had not received any training. The applicant alleged the CID held his father five or six days and that his father alleged he was arrested two weeks later and held for two days and made to do forced labour.

9. The Authority referred to country information indicating a large numbers of IDPs were sent to Menik Farm in the final stages and immediate aftermath of the war and  that there were often delays before IDPs could return to their actual homes because of the conditions existing at that time. The authority referred to the IDPs, particularly those at Menik Farm being subject to screening by the Sri Lankan Army (“SLA”), the CID and Terrorist Investigation Department and identified a significant number of people being arrested and detained, even for minor alleged association with the LTTE and that they were subject to rehabilitation or criminal prosecution in the more serious cases.

10. The authority, having considered the applicant’s two written statements from 2013 and 2015 and his evidence from the Safe Haven Enterprise visa interview (“the SHEV interview”) and the available country information, identified having serious concerns about the credibility of the applicant and the truthfulness of his evidence. The Authority referred to the applicant having maintained that his family did not want to jeopardise his sister’s university studies and that they agreed he would say he was in the LTTE instead of his sister, and both he and his sister told the authorities he was the one in the LTTE. The Authority found the applicant was not consistent in his evidence as to when he and his sister told the authorities. The Authority observed in that regard it was either when his sister was arrested by the CID after the family’s return to Paranthan or at Menik Farm, but with no further mention of his sister being arrested.

11. The Authority noted that the applicant, having revealed to the CID at Menik Farm that he was in the LTTE, alleged he was made to sign a confession and was then effectively ignored until March 2012 when the CID decided to question the applicant further about the LTTE involvement. The Authority found it implausible, given the country information, that the authorities would not have arrested and detained the applicant if he confessed when he was at Menik Farm that he was involved in the LTTE.

12. The Authority also identified that the applicant had claimed his sister was in the LTTE but had not been consistent about when she was in the LTTE. The Authority noted it was not specified in the 2013 statement and that it was said to be around 2008 in the 2015 statement and it was said to be 2007 in the SHEV interview. The Authority noted the applicant did not mention any confrontation with the LTTE and the LTTE ordering his family to be shot in his 2013 statement. The Authority noted the applicant says the shoot to kill order came from the LTTE when his sister was recruited, which was in around 2007 to 2008, but that the applicant and his family did not leave for the SLA controlled area to escape the LTTE until January 2009.

13. The Authority found in the Safe Haven Enterprise visa, the applicant mentioned for the first time that his eldest sister escaped from the LTTE after being with them for a week and also that his second eldest sister was taken by the LTTE in his sister’s place, but also escaped one day after. The authority referred to the applicant’s 2013 statement stating that when arrested by the CID in 2015 he was not beaten or harmed, but then in his 2015 statement he was punched in the head and had his ears twisted. The Authority noted that what was said at the SHEV interview was that he had his ears twisted and was asked about, when asked about his statement, about being punched in the head, said it was all the same.

14. The extract from the SHEV interview records the applicant asserting that, “they always targeting me.” The applicant was asked, “What makes you think they were targeting you?”

15. The applicant responded, “Someone had been detained and they assumed we were LLTE, so they are targeting us.”

16. The delegate asked, “When you were detained by the CID, did they do anything else to you apart from twisting your ears?” The applicant answered “no.” The delegate asked “Because in your statement you said they punched your head.” The applicant responded, “They just punch like that and they twisted me.”

17. The delegate asked, “So why did you say they didn’t do anything else?” to which the applicant responded, “It’s all the same.” The delegate then asked, “So they didn’t do you any serious injury to you?” and the applicant responded “no”.

18. The Authority also referred to the applicant saying in his written statements, after he left Sri Lanka, his father was arrested twice, once for five days, and a couple of weeks after that, for two days and questioned about the applicant. The Authority noted in the SHEV interview, the applicant said variously that the first time the CID questioned his father they just came to the house and he was only arrested the second time he was questioned. The Authority made reference to the applicant saying that his father was detained two days and on the first occasion they captured him and questioned him for one day and that on the second occasion he was arrested and held for five days.

19. The Authority, considering the overall differences in the applicant’s evidence including a number of more than minor inconsistencies and changes in his evidence, together with some implausible evidence, that on the key facts, the applicant was found not be a credible witness. The Authority rejected as fabrication his claims that he was subject to the adverse interests of the Sri Lankan authorities, including that his sisters were forcibly recruited into the LTTE, that he confessed to the authorities, that he was involved in the LTTE, that he was arrested and detained by the CID in March 2012, that he was required to report to the CID on a fortnightly basis, that he was arrested by the police in June 2012 and that his father was arrested or questioned by the CID on his whereabouts after he left Sri Lanka.

20. The Authority accepted the applicant lived most of his life in a particular location and then moved to Kandivali in 2007, then was displaced in Menik Farm in January 2009 and was released from Menik Farm in June 2010 and moved to Jaffna, and a year after Jaffna returned to his home legion.

21. The Authority accepted the applicant would be identified as a failed asylum seeker who departed Sri Lanka illegally. The Authority found there is not a real chance the applicant, as a Tamil male from the north would face serious harm if he were to return to Sri Lanka now or in the reasonably foreseeable future. The Authority was satisfied the applicant would not face the real chance of persecution of Sri Lankan authorities due to his imputed political opinion on return to Sri Lanka now or in the reasonably foreseeable future.

22. The Authority did not accept that the applicant is a Tamil male from the north who left Sri Lanka illegally will be at risk of adverse attention from the current Sri Lankan authorities when scrutinised on arrival in Sri Lanka. The Authority found the investigation, persecution and punishment of the applicant under the Immigrants and Emigrants Act 1949 (Sri Lanka) would be the result of a law of general application and does not amount to persecution for the purpose of s 5H(1) and s 5J(1) of the Act.

23. The Authority was not satisfied the applicant faces a real chance of persecution on the basis of being a failed Tamil asylum seeker who departed Sri Lanka illegally now or in the reasonably foreseeable future.

24. The Authority found the applicant does not have a well-founded fear of persecution within the meaning of s 5J of the Act. The Authority found the applicant did not meet the requirements of the definition of s 5H(1) of the Act. The Authority found the applicant did not meet the criteria under s 36(2)(a) of the Act. The Authority found there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant returning to Sri Lanka from Australia there is a real risk the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

The ground

1. Ground 1 in the amended application is as follows:

   The Second Respondent engaged in irrational or illogical reasoning, or constructively failed to exercise its jurisdiction, in rejecting the Applicant as a credible witness by relying on inconsistencies that were either objectively minor or not inconsistencies at all, and making a finding of implausibility that was not open on the evidence.

2. Mr Guo of Counsel on behalf of the applicant, contended that the Authority’s findings in relation to the credibility of the applicant were not in fact inconsistencies on a careful analysis of the applicant’s statements and what was said by the Authority. Mr Guo submitted that the inconsistencies were trivial and minor and not of a kind that justified proportionately the wholesale rejection of the applicant’s claims. Mr Guo submitted that the Authority had constructively failed to exercise its review jurisdiction and that the adverse findings in respect of the applicant’s credibility were legally unreasonable.

3. The Authority’s reasons are not to be read with a keen eye for error. The Authority clearly identified in paragraphs 15 to 18 a combination of inconsistencies that arose on the material before the Authority. The proposition advanced by Mr Guo that there was no inconsistency is without substance. There are differences as identified by the Authority in its reasons as summarised above in the assertions by the applicant. On no view could it be said that the assertions in relation to his sister, and in particular the proposition that he and his sister identified him as being in the LTTE could be described as a trivial or insignificant matter. The finding of implausibility was logical, rational and open to the Authority in respect of the proposition that the applicant would have informed the authorities and his sister would have informed the authorities if he was in the LTTE and that he would not have been arrested, detained or subject to rehabilitation as identified in the country information referred to by the Authority.

4. The authority’s finding in that regard was open to the Authority on the evidence before the Authority from the country information referred to as summarised above. The adverse finding in relation to the applicant’s claims in respect of his sisters’ involvement in the LTTE was at the core of the applicant’s claim for protection and cannot be said to be trivial or insignificant. Mr Guo contended that when one went to the statement, the Authority had not correctly identified what the applicant had said in paragraph 15 in his statement. There is no substance in that contention. Mr Guo further submitted that the reference to the timing in respect of the sister’s involvement in the LTTE was, on close analysis, not inconsistent. There is a clear difference between saying something occurred in around 2008 and saying that it occurred in 2007. The two are not the same. They are inconsistent and illogical. The adverse finding of inconsistency was open to the Authority for the reasons it gave.

5. Mr Guo submitted that there was no inconsistency in relation to the applicant’s assertion in respect of not having been beaten by reason of the reference to the proposition that having been punched in the head and his ears twisted was not identified by the applicant as serious harm. Again, the incidents are patently inconsistent. The finding by the Authority that they were inconsistent was logical, rational and reasonable. Nor is this a minor or significant or trivial matter in the context of the applicant’s claims to fear harm.

6. Mr Guo submitted that the inconsistencies in respect of the father’s arrest were also matters that were trivial or insignificant. Again, the Authority identified direct inconsistencies in respect of the assertions concerning the father’s arrest. Given the nature of the applicant’s claims in the present case, they cannot be said to be trivial or insignificant. It was not disproportionate for the Authority in the present case to reject as a fabrication the applicant’s claims as identified in the Authority’s reasons summarised above. That finding was open, logical and reasonable for the reasons given by the Authority.

7. The Authority’s adverse credibility findings cannot be said to lack an evident or intelligible justification. There is no constructive failure by the Authority to conduct the review required under Part 7AA. No jurisdictional error, as alleged in ground 1, is made out. Accordingly, the amended application is dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 1 February 2019