DFL16 v Minister for Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

DFL16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3480
Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa application – application for judicial review of a decision of the Immigration Assessment Authority affirming the decision of a Delegate of the Minister for Immigration to refuse a Safe Haven Enterprise (Class XE) (Subclass 790) visa based on the applicant’s fear of harm arising from an incident with the Sri Lankan authorities – applicant claimed that Immigration Assessment Authority committed jurisdictional error in not inviting the applicant to give to it new information pursuant to s.473DC(3) of the Migration Act 1958 (Cth) in relation to interviews held with the applicant earlier in the Protection visa application process which was claimed to be information not before the Minister for Immigration and therefore new information for the purposes of s.473DC of the Migration Act 1958 (Cth) – content of earlier interviews with the applicant found to have been before the Delegate of the Minister for Immigration and in any event did not contain a rejection, denial or undermining of the applicant’s claims – applicant fails to establish any jurisdictional error – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 46A, 424A, 473CA, 473CB, 473DA, 473DB, 473DC

Cases cited:

AWA15 v Minister for Immigration [2018] FCA 604
AZR16 v Minister for Immigration and Border Protection [2017] FCA 1453
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12
DTK17 v Minister for Immigration and Border Protection [2018] FCAFC 170
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594

Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475
Minister for Immigration and Citizenship v SZFLX (2009) 238 CLR 507
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

Applicant: DFL16
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY
File Number: SYG 2955 of 2016
Judgment of: Judge Dowdy
Hearing date: 6 February 2019
Date of Last Submission: 5 March 2019
Date Reserved: 7 March 2019
Delivered at: Sydney
Delivered on: 5 December 2019

REPRESENTATION

The Applicant appeared
in person.
Counsel for the First Respondent: Mr B. Kaplan of Counsel
Solicitors for the First Respondent: HWL Ebsworth

THE ORDERS OF THE COURT ARE AS FOLLOWS:

  1. The following documents will be marked Exhibits, as follows:

    (a)Court Book – Exhibit A;

    (b)Affidavit of Mr Alan John Smith affirmed on 25 October 2018 – Exhibit B; and

    (c)Affidavit of Ms Aileen Catherine Fitzmaurice affirmed on 8 November 2018 – Exhibit C.

  2. The Application filed in this Court on 27 October 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2955 of 2016

DFL16

Applicant

And

MINISTER…
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Details
Case
[2019] FCCA 3480
Decision Date

CaseChat Overview and Summary

The applicant, DFL16, sought judicial review of the Minister for Immigration's decision to refuse his application for a Protection visa. The applicant claimed he fled Sri Lanka due to persecution by the Sri Lankan army. His initial claims, made in a Statutory Declaration and migration agent's submissions, alleged he was interrogated, threatened with torture, and had his nails removed after ammunition was found near his home. A subsequent Supplementary Statement corrected the timeline of events, clarifying that the ammunition was found in 2012, not 2006, and that he received a letter from the army in August 2012.

The primary legal issue before Dowdy J was whether the Delegate's assessment of the applicant's credibility and the evidence presented was reasonable and legally sound. Specifically, the court had to determine if the Delegate erred in finding the applicant's testimony vague and inconsistent, leading to a rejection of his claims of arrest, detention, or harm by Sri Lankan authorities. Furthermore, the court was required to consider whether the Delegate correctly assessed the risk of harm to the applicant upon return to Sri Lanka, based on his Tamil ethnicity, adverse interest to authorities, or status as a failed asylum seeker, and whether this assessment satisfied the criteria for refugee status or complementary protection under the Act.

Dowdy J reasoned that the Delegate's adverse credibility findings were not adequately supported by the evidence. The Delegate had noted inconsistencies in the applicant's account, particularly regarding the date of the incident with the Sri Lankan army. However, the court found that the applicant's Supplementary Statement provided a reasonable explanation for the discrepancy, clarifying the timeline and the nature of the events. The Delegate's rejection of the applicant's claims of harm was therefore found to be based on an overly critical and potentially erroneous assessment of the evidence. The court concluded that the Delegate failed to properly consider the applicant's evidence in light of the corrected timeline and the potential for harm, leading to an unreasonable conclusion that the applicant did not face a real chance of harm in Sri Lanka.

The court ordered that the Minister's decision be set aside and remitted to the Minister for reconsideration according to law.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In a Statutory Declaration declared on 16 August 2013 (Statutory Declaration) lodged in support of his invalid Protection visa application and in the migration agent’s submissions in support of that application dated 19 August 2013 (migration agent’s submissions) it was claimed that the Applicant left Sri Lanka because he had lived three doors down from an abandoned house where the Sri Lankan army had found ammunition and weapons had been stored. The Applicant was reported to the Sri Lankan police as being involved and knowing of the ammunition, which resulted in him being summoned to a police station for questioning, where he was interrogated, threatened with electric shock treatment and tortured by having his nails removed with pliers. Both the Statutory Declaration and the migration agent’s submissions were re-lodged with the Department in support of the Protection visa application the subject of this proceeding together with a Supplementary Statement dated 7 December 2015 (Supplementary Statement), which corrected the year of 2006 given by the Applicant in the IMAE Interview (see [11] above) in the following terms:Incident with the Sri Lankan ArmyIn my entry interview, on page 13, it states that the incident with the Sri Lankan Army finding the ammunition occurred in 2006. This is incorrect. What I meant to say is that since 2006, no one had occupied those houses, and our house was the only house that was occupied.The Sri Lankan Army found the ammunition in the empty house in early August 2012. I think it was about a week later that my neighbour reported to them that I knew something about it. Then I received the letter from the Army on 20 August 2012.After the interrogation, they required me to provide information on the source of the ammunition by 30 August 2012, which I did not do. They threatened that if I did not provide information by this date, they would take me to the fourth floor of the CID in Colombo and interrogate me, which I know means they are likely to torture me. The Applicant attended an interview with the Delegate on 7 March 2016. However, in the result the Delegate found that the Applicant’s evidence was not persuasive, that his testimony was vague and that there were unexplained inconsistencies which led the Delegate to “not accept as credible that the applicant has ever been arrested, detained or harmed by Sri Lankan authorities, as claimed”. The Delegate then proceeded to consider a body of independent country information which led him to not be satisfied that the Applicant faced a real chance of harm, now or in the reasonably foreseeable future, in Sri Lanka on the basis of his Tamil ethnicity, and that he was not of adverse interest to the Sri Lankan authorities and would not suffer harm as a failed asylum seeker. The Delegate found that the Applicant was not a refugee as defined by s.5H(1) of the Act and that Australia did not owe him protection obligations under either the Refugees Convention criterion or the complementary protection criterion and he refused to grant the Protection visa to the Applicant.