DEQ19 v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 3281

Federal Circuit Court of Australia

DEQ19 v Minister For Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3281

File number(s):

PEG 323 of 2019

Judgment of:

JUDGE VASTA

Date of judgment:

30 November 2020

Catchwords:

MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed 

Legislation:

Migration Act 1958 (Cth)

Number of paragraphs:

48

Date of last submission/s:

30 November 2020

Date of hearing:

30 November 2020

Place:

Brisbane

Counsel for the Applicant:

Mr Jones

Counsel for the First Respondent:

Mr Hill

ORDERS

PEG 323 of 2019

BETWEEN:

DEQ19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:

JUDGE VASTA

DATE OF ORDER:

30 NOVEMBER 2020

THE COURT ORDERS ON A FINAL BASIS:

1.        That the Application filed 19 August 2019 and amended on 1 May 2020, and further amended on 16 November 2020 is dismissed.

2.        That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

IT IS NOTED:

A.       That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.

REASONS FOR JUDGMENT

(Ex Tempore)

JUDGE VASTA

On 15 July 2019, the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicant, DEQ19, a protection visa.  On 19 August 2019, the Applicant asked this Court to review that decision. 

The background to the decision is that the Applicant is a citizen of Sudan who arrived in Australia on 10 June 2013 as an unauthorised maritime arrival.  He underwent a two part entry interview in 2013.  He then made an application for this visa. That application was a written application.  He appeared before the delegate and gave evidence before the delegate, and he was represented by a migration representative who also made submissions, one assumes, based on instructions that had been given to the Applicant. 

From those four sources of information, as well as things that have been said in a submission to the Immigration Assessment Authority, it would seem that the Applicant’s claims can be summarised as follows. 

The Applicant is a Sudanese national.  He is from the Erenga tribe.  He was born and grew up in West Darfur.  Because of strife that was occurring there, at the hands of rebel soldiers, the family was somewhat dispersed.  He left the area in around 2003 and began living with his Aunt in Khartoum, the capital of Sudan.  After moving to Khartoum with his Aunt, he went to school and soon found that he was facing discrimination due to both his tribal origin and his dark complexion. 

He said that, after finishing school and beginning to be part of the workforce, he faced interrogation and harassment by Sudanese security.  He claimed, in 2012, he was detained and tortured by Sudanese security due to his having a suspected association to the Justice and Equality Movement (JEM).  He claimed that he decided then that he needed to leave Sudan. 

He was able to depart from Sudan by using a bribe to get certain documents but left Sudan through the airport legally.  He did claim that, prior to his departure from Sudan, he was briefly detained and assaulted at the airport.  He fears that if he returns to Sudan he will be harmed or killed due to either his profile as a young member of the Erenga tribe, his profile as a male from Darfur, his imputed political opinion, his physical appearance, and the facts surrounding his departure from Sudan.  So either those matters individually or in combination with each other are the aspects of his claim. 

The IAA went through those claims in quite a thorough manner.  The IAA accepted that the Applicant was a Sudanese national, that he was born in the year that he said that he was, that he originated from West Darfur, that he had not resided there since at least 2003, and, that he maintains no contact with family there.  The IAA was satisfied that if the Applicant were to return to Sudan he would be returning to Khartoum and to his Aunt. 

The IAA then went through the particulars in his claim and noted that he said that after he finished school he began working as a porter carrying goods in a market and that, because of his dialect and his complexion, he was interrogated and harassed by Sudanese security at check points. 

The Applicant said that in March 2012 – and this I should say is in his SHEV application – he said that security took him by force as they believed he belonged to JEM.  His wallet and watch were taken from him and he was severely tortured for two days.  When he was released he was told that he would be placed under surveillance.  In that same application, he said that his Aunt told him to be more cautious and aware, so he started going to the market only for a few hours and would run away if he sensed any possibility of again being intercepted.  He said the male Darfuris of the Erenga tribe face persecution, and live in fear, because of the president, President al-Bashir.  Due to this fear, the Applicant said that he decided to leave Sudan. 

The delegate then looked at a number of particulars of the claim that were not germane to all four pieces of information.  Firstly, the representative said that the Applicant had frequent persecutory encounters with the regime security officers who sought to supress protests.  That was not contained in the SHEV statement. 

The representative also said that all members of the Erenga tribe are suspected of involvement with JEM and are also suspected of being sympathetic to the Sudan People’s Liberation Army-North.  The representative also submitted that the Applicant “would be considered as a fugitive and that he would be arrested and face serious harm when he returned and that he would be imputed to be politically hostile to the regime due to his tribal links and due to the fact that he fled Sudan”. 

None of that information was given by the Applicant himself in his entry interview, written application or his SHEV interview.

In the SHEV interview, the Applicant told the delegate of some other events that had transpired in Sudan that he had not previously raised.  He said that when he departed Sudan, he and others were briefly detained and assaulted at the airport in Khartoum.  He advised that if he returned to Sudan, he might be killed at the airport due to his physical appearance, his place of origin, and his tribal identity.

The IAA considered that the country information they looked at corroborated the Applicant’s claims that he was discriminated against at school.  But the IAA did not find similarly with regard to the claimed mistreatment at the hands of Sudanese security.  The IAA said they found this claim to be unconvincing. 

They looked at the fact that, in the SHEV statement, he said that he was taken by force and tortured in March 2012.  In the SHEV interview, he said that these events transpired in October 2012 and that he was taken along with other youths and that the accusation was that he was funding groups like JEM.  The IAA said that they had considerable doubt that the Applicant was recalling a genuine personal experience and that the oral evidence given by the Applicant in the SHEV interview was vague. 

The IAA said that they considered that the Applicant’s claim of harassment and mistreatment by Sudanese security was not supported by his evidence in the entry interview.  In that interview, he had said that he had never been arrested and the security organisations had not impacted on his day to day life.  Notwithstanding that he said, in that entry interview, that he feared he would be killed due to government discrimination, he said that the government had not been looking for him and that he had never personally interacted with the government. 

During the SHEV interview, the delegate asked the Applicant about those statements in the entry interview and the failure to mention any arrest in 2012.  The Applicant said he didn’t mention what transpired in 2012 because he was afraid of the Sudanese government.  Later in the SHEV interview, when answering questions from the delegate, he advised the delegate that he couldn’t remember what he said at the entry interview. 

The Applicant’s representative, though, provided an oral submission about the general challenges faced by boat arrivals when they first arrived in Australia and why they may or may not disclose certain information in entry and protection interviews and why information may be inconsistent.

The IAA eventually found all of the Applicant’s evidence, in relation to his arrest and mistreatment in 2012, as being unconvincing.  The IAA noted that the Applicant said that he didn’t want to mention in the entry interview that he was mistreated for fear that the Sudanese government would find out what he had said about them, but within that same entry interview he said that he feared harm from the Sudanese government because it killed people of his tribe and ethnicity.

The IAA said that, because of the Applicant’s overall credibility, they had difficulty accepting the claim that he was assaulted at the airport.  This claim was made in the SHEV interview but not in the SHEV application, nor in the entry interview.  In the entry interview the IAA noted that the Applicant provided a detailed account of his departure from Sudan and his travel to Australia.  

The IAA accepted that the Applicant had paid a bribe to leave the country and that he left legally through the airport. 

The IAA then looked at what would happen if the Applicant were to return.  The IAA looked extensively through country information, both DFAT reports and UK Home Office reports.  The IAA said that they accepted, on return to Sudan, the Applicant may be identified as a non-Arab Darfuri and a young member of the Erenga tribe.

The IAA noted that the Applicant may be at risk of encountering a degree of discrimination and racism in Khartoum.  However, on balance the IAA was not satisfied that such would constitute serious harm.  The IAA noted that President al-Bashir had now been ousted, and it took into account news reports about the current political and security situation in Sudan. 

The IAA came to the conclusion that – taking into account the general security situation – any chance that the Applicant would be harmed as a bystander or inadvertently caught up in a similar incident, or otherwise harmed through generalised violence, is no more than remote.  The IAA was also satisfied that any harm the Applicant may possibly face in relation to generalised violence, would not be for the essential and significant reasons of race, religion, nationality, membership of a particular social group, or political opinion, but rather as a consequence of any ongoing insurgency or insecurity present in the country overall.

The IAA also looked at what consequences might fall from the Applicant returning as a failed asylum seeker, notwithstanding that the Applicant himself had not raised this aspect.  The IAA eventually, after looking at these circumstances, said that when they considered the Applicant’s profile and the country information about the treatment of those people who have returned as failed asylum seekers – especially those who had departed Sudan lawfully and had been to western countries – the IAA was not satisfied that the Applicant faced a real chance of harm on this basis.  The IAA said whilst they accepted the Applicant may be questioned on return to Khartoum International Airport, the IAA was not satisfied that this would amount to serious harm. 

Having regard to all of the aspects of the refugee criterion, the IAA did not find that the Applicant met those criteria. 

The IAA then looked at the complimentary protection criteria and after thoroughly looking at those matters – many or most of which overlapped with the refugee considerations – concluded that there weren’t substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to Sudan that there was a real risk that the Applicant would suffer significant harm. 

Having come to all those decisions, the IAA affirmed the earlier decision of the delegate not to grant the applicant a protection visa. 

There is one ground of application and that is that the IAA made a jurisdictional error by not giving proper, genuine and realistic consideration to the entry interviews. 

The gist of this ground arises from paragraphs 25 and 26 of the IAA’s decision.  These paragraphs read as follows:

25. I found the applicant’s claimed mistreatment at the hands of Sudanese security prior to his departure from Sudan unconvincing. In particular, his claim in his SHEV statement that he was taken by force and tortured in March 2012 as they believed he belonged to JEM differed from his evidence in the SHEV interview that these events transpired in October 2012, that he was taken along with a number of other youths, and that he was accused of funding groups like JEM. I have considerable doubt that the applicant was recalling a genuine personal experience. I also agree with the delegate’s assessment that the applicant’s oral evidence in the SHEV interview in respect of his claimed arrest and mistreatment in March or October 2012 was vague, and unlike his descriptions of his other experiences I found his evidence unpersuasive. Further, I consider the applicant’s claimed harassment and mistreatment by Sudanese security not supported by his evidence in the entry interview, where he stated that the police and security organisations in Sudan had never arrested him or impacted his day to day life. While the applicant did mention in the entry interview that he feared he would be killed due to government discrimination, I note he specifically advised the interviewing officer that the government had not been looking for him and that he had never personally interacted with the government. In the SHEV interview, the delegate asked the applicant why he failed to mention his claimed arrest in 2012 when asked in the entry interview. In response, he said he didn’t mention what transpired in 2012 as he was afraid of the Sudanese government. Later in the SHEV interview, he advised the delegate that he could not remember what he said at the entry interview. Following this, the applicant’s representative provided an oral submission about the general challenges faced by boat arrivals when they first arrive in Australia and why they may or may not disclose certain information in entry and protection interviews, or why information may be inconsistent. Rather than it being specific to the applicant, he indicated the oral submission was based on his own research and experience of talking with asylum seekers.

26. The delegate accepted that the applicant was arrested and detained in 2012 and appears to have given weight to country information that reported ‘civil unrest’ at that time. However, in light of the evidence discussed, I have come to a different conclusion. As noted above, there were inconsistencies in the applicant’s evidence as to whether he had interactions with the security organisations in Sudan, as to when he was detained, and as to the reasons for his detention. I also found the applicant’s oral evidence in respect of his claimed arrest and mistreatment in 2012 unconvincing, and his and his representative’s reasons for not disclosing the claimed mistreatment in the entry interview unpersuasive. For example, the applicant claimed he did not want to mention in the entry interview that he was mistreated for fear that the Sudanese government would find out what he had said about them, thereby indicating he did not want to speak out against the government. However, I note he also stated in the entry interview that he feared harm from the Sudanese government because it killed persons of his tribe and ethnicity. Having considered the above, I do not accept that the applicant was interrogated and/or harassed by Sudanese security at checkpoints, or that he was detained in 2012 due to suspected links to groups like JEM. It follows that I reject hiss associated claim that he was told that he would be placed under surveillance and that he avoided Sudanese security by running away. Given my concerns in respect of the applicant’s overall credibility, I also have difficulty accepting his claim, first raised in the SHEV interview, that at the airport, prior to his departure from Sudan, he and other persons unknown to him were briefly detained and hit. I note the applicant made no mention of being mistreated at the airport in his SHEV statement or in the entry interview where he provided a detailed account of his departure from Sudan and travel to Australia. I do not accept these claims. Nor do I accept the claim by the representative in the SHEV submission that the applicant had ‘frequent persecutory encounters’ in relation to protest activity in Sudan. The applicant made no reference to these claimed encounters with security officers in his SHEV statement and I note his evidence in the SHEV interview that he had never been involved in anti-government activities in Sudan. I prefer the applicant’s evidence in the entry interview that he had never been involved in any protests against the government.

What the IAA have done is to look at aspects of the entry interview so as to, in part, justify their reasons as to various conclusions that they eventually made.  The complaint made by the Applicant is that, before the IAA could comment upon those interviews, the IAA had to give proper consideration to them.  There are a number of authorities that talk of the manner in which one can look at entry interviews and the fact that caution must be exercised. 

In this particular case, what the Applicant said, that was of interest, is contained in an affidavit of Alison Pooley that was filed in this Court on 5 November 2020.  Ms Pooley annexes a transcript of the interview.  At page 17 of that interview, at about line 548, the interviewer asks the Applicant what would happen to him if he were to return to his country.  The interview continues to about – in this particular topic –line 623.  That is to put it all in context. 

When one looks at the interview as a whole and reads the transcript, it may be said that there were some difficulties at different times regarding the Applicant’s understanding of what was said.  There are times where there is some confusion in the answers that the Applicant gives, such that the interpreter has to reinterpret and ask questions again. 

It is also clear that this interview is soon after the Applicant has landed in Australia by boat, after – if one accepts what the Applicant has said – fleeing a jurisdiction where he had subjectively feared for his wellbeing.  Generally and specifically, in this case, those are the sorts of matters as to why it is that there does have to be some caution in treating the entry interview in the same way that one would treat the SHEV interview or the SHEV statement, and that is why the authorities have spoken as they have.

The Applicant submits that there is nothing that shows that those sorts of considerations played a part in the analysis of the material that the IAA conducted.  The Applicant submits that there is more required than simply looking at the interview and seeing that the Applicant did not give a certain bit of information and making something of that.  The Applicant submits that the IAA should have hesitated from reliance upon anything that happened in the interview because of those concerns. 

Whilst those statements are of both general and specific application, one has to put into context what it was that the IAA was doing in this respect.  If one follows the reasoning of the IAA, the IAA was looking at the claims that the Applicant had made; that being that he was discriminated generally over his time in Khartoum, and that specifically he had been the victim of an assault in 2012 by the authorities.  The IAA was duty bound to consider the history of that matter.  What had occurred was that the Applicant had talked about his general discrimination in his entry interview.  That aspect was consistent throughout the four pieces of information.

The assault allegation in 2012 was first made in the SHEV application.  In that application, it was said that the assault occurred in March 2012.  At the interview, it was said that that assault occurred in October 2012.  At the interview, the Applicant made another claim that he was assaulted at the airport as he was about to leave Khartoum.  That allegation was not spoken of in the entry interview and it was not spoken of in the SHEV application. 

Then there was the submission by the representative that the Applicant had been a subject to frequent persecutory encounters with the regime’s security officers who sought to supress protests.  That information was not in the SHEV statement, was not in the SHEV interview, and was not in the entry interview. 

The Applicant was attempting to show that he had been so badly treated before he left Sudan, that his fear, of what would happen if he were to be returned to Sudan, is therefore well founded.  In doing its duty, the IAA needed to assess this particular claim to see whether it did, in fact, have merit. 

The entry interview was but one of the pieces of this puzzle.  The IAA’s eventual findings did not rely solely on the entry interview but they also did not rely solely on the SHEV interview or the SHEV submission or the representative’s submission.  It was by a comparing and a contrasting these four sources of information. 

The entry interview did provide information from which the IAA was able to make some factual findings; that is, that the Applicant had been subjected to discrimination at school and when he joined the workforce, that the Applicant did claim he had a subjective fear, that the Applicant did leave Khartoum airport legally, that the Applicant did pay a bribe to ensure that he had some proper paperwork, that the Applicant did use flights – more than one – to get to Indonesia, that the Applicant had his passport taken by people smugglers in Indonesia, and, that he then boarded a boat and came to Australia.

The Applicant did say that he feared what the government would do to him, that he feared discrimination and that he feared that he could even be killed. But he did also say that he had no actual interaction with government forces or authorities.  He may have had some difficulties, at various times and places, in the interview.  It may be that he had only just come to Australia after fleeing. But many matters that he spoke about to the interviewer at that time were matters that the Applicant still relied upon before the IAA. And a great deal of those matters were accepted by the IAA. 

The omission about the assaults in 2012, whether they be in March or whether they be in October, is significant.  It is significant for this reason; that the Applicant himself said that the explanation for why he did not tell the interviewer about these assaults, was that he was scared of the government.  Whilst it may be that the authorities tell the decision-makers to use caution before relying upon omissions in interviews, it is the Applicant himself who gave the reason for the omission; and that reason was that he was scared of the government.  It was open to the IAA to look at this reason given by the Applicant and to reject it because of what else he said in that interview. 

I am not satisfied or convinced that this meant that there had been no proper consideration of the interview by the IAA.  There is nothing in what the IAA has done in how it has treated this particular interview that would show that it had not properly considered the interview.  It may well be that the IAA did not refer to all of the authorities (as has been done by the Applicant in this case), but what the IAA did have before it was the submission of the Applicant’s representative who said – and it is found at the bottom of paragraph 25 – that there are general challenges faced by boat arrivals when they first arrive in Australia and why they may or may not disclose certain information in entry and protection interviews, or why information may be inconsistent. 

Now, it may be that, as the IAA have said, the representative’s submission was not specific to the Applicant, but rather a general submission based on the representative’s own experience and research.  Nevertheless, it is exactly what the authorities talk of; that there is to be some caution.  However, one has to look at each interview under its own circumstances and according to its own facts, and there was nothing that indicated here, that the IAA needed to go any further than what they did in their consideration of that interview. 

The other aspect of that interview – in that the applicant had not spoken about being assaulted at the airport – is significant, not just because it was not said in the entry interview, but it was also not said in the SHEV submission; and that also is telling.  When one considers that the Applicant gave a very thorough and detailed recitation of how it is he left Sudan through Khartoum airport, it would seem to me that it was open to the IAA to criticise the omission not only in the entry interview, but also in the SHEV application. 

All of those aspects were matters that the Tribunal used in coming to the decision that it had and it was open for the Tribunal to do so.  The complaint of the Applicant that there was not a proper consideration, to my mind, fails because the consideration that the Tribunal gave was a consideration of the interview in its context.  Having heard also the submission of the Applicant’s own representative as to the need for some caution, it would also seem to me that the authority was cautious and did apply what was said in that interview, or what wasn’t said in that interview, properly when one considers all of the circumstances. 

For that reason I am not satisfied that there has been a jurisdictional error established.  I dismiss the application with costs in the sum of $7,467.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated: 4 December 2020