DKA18 v Minister for Immigration

[2020] FCCA 8

FEDERAL CIRCUIT COURT OF AUSTRALIA

DKA18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 8

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in part and other fears found not to be well-founded – whether the Authority made an irrational finding or erred in considering whether to accept new information considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.46A, 65, 473DD

Cases cited:

AKK17 v Minister for Immigration (2017) 327 FLR 343

Appellant S395 v Minister for Immigration (2003) 216 CLR 473

AQU17 v Minister for Immigration (2018) 162 ALD 442

BVZ16 v Minister for Immigration (2017) 254 FCR 221

CED15 v Minister for Immigration [2018] FCA 451

CHF16 v Minister for Immigration (2017) 257 FCR 148

CQY16 v Minister for Immigration (2017) 326 FLR 263

Minister for Immigration v BBS16 (2017) 257 FCR 111

Minister for Immigration v WZARH (2015) 256 CLR 326

Plaintiff M174/2016 v Minister for Immigration (2018) 264 CLR 217

Applicant: DKA18

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1905 of 2018

Judgment of: Judge Driver

Hearing date: 6 December 2019

Delivered at: Sydney

Delivered on: 29 January 2020

REPRESENTATION

Solicitors for the Applicant: Mr S Tambimuttu of Hodges Legal

Solicitors for the Respondents: Mr J Pinder of Minter Ellison

ORDERS

1. The application as amended on 11 September 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1905 of 2018

DKA18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 22 June 2018.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  The following statement of background facts relating to this matter is derived from the submissions of the parties.

2. The applicant is a citizen of Sri Lanka, who arrived in Australia on 4 November 2012 and is an unauthorised maritime arrival. The Minister exercised his discretion under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) allowing the applicant to make a valid application for a specified visa. On 15 July 2016 the applicant applied for a SHEV.[1]

   [1] Safe Haven Enterprise Visa; court book (CB 52)

3. On 24 August 2017 the delegate of the Minister refused to grant the applicant a SHEV.[2]  The delegate's decision was a “fast track reviewable decision” and was referred by the Minister to the Authority for review. On 22 June 2018, the Authority affirmed the decision under review.[3]

   [2] CB 185

   [3] Supplementary Court Book (SCB 339)

Applicant’s claims

1. The applicant claimed that he was imputed with support of the LTTE[4] due to familial former association with that organisation and because he is a Tamil. The applicant claimed to fear that the authorities in Sri Lanka would capture, arrest or detain him, that he would be tortured. He also claimed to fear white vans.

   [4] Liberation Tigers of Tamil Eelam

2. The applicant is a Sri Lankan citizen, of Tamil ethnicity and Hindu faith.[5]

   [5] CB 7

3. The applicant’s claims include the following:[6]

   [6] SCB 343-344

   a)in 1990 or 1991, the applicant’s two older brothers joined the LTTE. They were both arrested in 1996 and imprisoned for three or four years. After being released, they moved to India;

   b)in December 1999, the SLA[7] searched the family home for weapons and the applicant’s brothers;

   c)after this search, the SLA members abducted and raped the applicant’s teenage sister. She was released after the applicant’s parents, village head and her school principal threated to report the officers to the Human Rights Commission;

   d)from May or June 2003 onwards, the SLA regularly came with informants to the applicant’s village to round up suspected LTTE members;

   e)on one occasion, the applicant was taken away to the SLA camp with 15 others. He was detained, tortured and interrogated for 24 hours. The applicant was required to report to this camp every morning, after his release. He stopped reporting six months later;

   f)the applicant moved to Thailand in 2004 because he feared war was about to break out;

   g)from September 2004 to December 2011, the applicant travelled in and out of Sri Lanka, but would stay at his aunt’s house because he was too afraid to return home;

   h)in December 2011, the CID[8] stopped the applicant at the airport and held him in an underground cell for two days. He was interrogated about his overseas travel, an airport bomb, LTTE networks in Africa and his family. The applicant was told “All Tamils are tigers,” fingerprinted then released; and

   i)in October 2012, as the applicant was attempting to leave Sri Lanka, the CID abducted him. They detained the applicant for five days at the CID’s fourth floor and interrogated him about the LTTE and bombs.

   [7] Sri Lankan Army

   [8] Criminal Investigation Department

4. The applicant claims to fear harm or persecution from the Sri Lankan authorities, for the following reasons:

   a)he is a Tamil;

   b)he will be imputed with LTTE connections; and

   c)he departed Sri Lanka illegally; and

   d)he applied for asylum in Australia.

The Authority decision

1. On 22 June 2018 the Authority affirmed the delegate's decision.[9] In summary, the Authority:

   a)accepted that the involvement of the applicant's two older brothers in the LTTE was that they were supporters who sometimes delivered food and necessities to the LTTE; however, the Authority did not accept that either of the brothers was involved in the recruitment of other people to the LTTE or that their role was any of higher significance;[10]

   b)was willing to accept that both brothers remain living in India; however, the Authority did not accept that this evidenced that their LTTE involvement went beyond mere LTTE supporters[11] and did not accept that the authorities continued to search for them, nor that the authorities maintained any interest in them;[12]

   c)accepted that the applicant has never had any involvement in the LTTE[13] and did not accept that the applicant had been of adverse interest to the authorities, either in 2003, nor between 2004–2011;[14]

   d)did not accept that the applicant kept going overseas because the CID were looking for him because of his brothers; however, the Authority was willing to accept that the applicant shared the reported general community fear of abductions and the violence of a renewing civil war;[15]

   e)did not accept that any CID officers stole his identity documents,[16] that the applicant was in hiding and that the CID or any other authorities were looking for the applicant for any reason;[17]

   f)did not accept the claimed questioning of the applicant upon return from Africa in December 2011 was because of the applicant's relationship to his brothers;[18]

   g)did not accept that the applicant was detained, questioned or physically harmed by any authorities in Negombo in October 2012;[19] and

   h)accepted that the applicant left Sri Lanka in October 2012 illegally by boat, but did not accept after his departure the authorities have searched for him or asked his parents about him.[20]

   [9] SCB 339

   [10] SCB 344: [15]

   [11] SCB 345: [16]

   [12] SCB 346: [19]

   [13] SCB 346: [20]

   [14] SCB 345–347: [17], [21]

   [15] SCB 347–348: [22]

   [16] SCB 348: [23]

   [17] SCB 348: [24]

   [18] SCB 348–349: [25]

   [19] SCB 350: [27]

   [20] SCB 350: [28]–[29]

2. The Authority concluded that it was not satisfied that the applicant faced a real chance of harm upon return to Sri Lanka or in the reasonably foreseeable future on the basis of his ethnicity, his religion, being a male Tamil from the Northern Province, from any political opinion imputed to him from those factors or from his brothers or from his past interactions with the authorities, or his asylum application. The Authority did not accept that the applicant had a well-founded fear of persecution even when all his claims were considered cumulatively.[21]

   [21] SCB 357: [52]

3. For the same reasons, the Authority found that on account of his profile and circumstances the applicant did not satisfy the complementary protection criterion.[22] In this context, the Authority also found the applicant would not face significant harm on account of his illegal departure or social discrimination.[23]

   [22] SCB 358-359: [56], [59]

   [23] SCB 358: [56]–[57]

The current proceedings

1. These proceedings began with a show cause application filed on 10 July 2018.  The applicant now relies upon an amended application filed on 12 September 2019.  There were four grounds in that application but the second has been abandoned.  The remaining grounds are:

   1. The Authority committed jurisdictional error by making a finding that was illogical and irrational to the extent that no reasonable decision maker would come to that decision in the context of its assessment of new information provided by the applicant under s 473DD of the Migration Act 1958 (Cth).

   Particulars

   a.At paragraph 13, the Authority outlined the applicant's claim that his two older brothers joined the LTTE in 1990/1991.

   b.At paragraph 15, the Authority noted that the applicant's evidence in his SHEV application was that his brothers were LTTE members. In the SHEV interview, the applicant described his brothers as supporters who delivered food and necessities to the cadres and stated that he did not have any further information in relation to the nature and extent of their involvement. Later in the interview, the applicant also stated that his brother had been involved in recruitment for the LTTE.

   c.Although the Authority accepted that the applicant's brothers were 'supporters' of the LTTE and that they sometimes delivered food and necessities to LTTE cadres, it did not accept that the brothers were involved in recruitment or that they had any roles of higher significance.

   d.At paragraph 10, the Authority noted that it had received further information from the applicant on 14 September 2017. This included two letters dated 9 September 2017 which confirmed the involvement of the applicant's brothers in the LTTE and advanced the claim that the applicant had ‘helped them’ with surveillance activities for the LTTE intelligence unit.

   e.Although the Authority noted that the applicant had stated that his brothers provided information to the LTTE in his SHEV interview, the Authority considered the evidence in the letter to be a 'new and embellished description' of his brothers' roles in the LTTE.

   f.Moreover, the Authority noted that the applicant had provided no explanation for why he did not raise the claim of his own assistance to his brother's LTTE service earlier.

   g. This is inconsistent with the Authority’s note that the applicant had explained that he had not previously provided information relating to his brothers’ links to the LTTE due to the fear of indefinite detention in Australia and of being returned to Sri Lanka.

   h. The Authority failed to consider that the applicant could not have advanced his claim, that he had assisted his brothers with surveillance activities, independently of the claim that his brothers worked within the LTTE intelligence unit. It follows that the applicant's explanation in relation to his failure to outline the extent of his brothers' involvement in the LTTE is also an explanation for the lack of disclosure in relation to his supportive activities.

   3. The Authority’s findings that the applicant’s multiple journeys into and out of Sri Lanka through the airport and immigration barriers using his Sri Lankan passport indicates that … “the applicant was not a person of any adverse interest to the authorities” was affected with jurisdictional error.

   PARTICULARS

   a.At [CB 346, 21] the Authority states "I consider that the facts of issue of a Sri Lankan passport to the applicant in April 2004 after his personal attendance at the Colombo Passports Office, and his multiple journeys into and out of Sri Lanka thereafter until December 2011, through the airport and immigration barriers with this passport and with not problems, further indicate that the applicant was not a person of any adverse interest to the authorities".

   b.At [CB 347, 21] the Authority further states "Although the applicant made some claims in the SHEV interview that a family friend made all the arrangements through "known" people to obtain the passport, and I accept that he may have provided some logistical and transport assistance, given that the applicant used the passport to successfully pass through customs barriers in several different countries on multiple occasions including that it was renewed in 2009 by the Sri Lankan Embassy in Qatar where the family friend was not present, I find that the passport was genuine and properly issued by the competent authorities"

   c.The 24 May 2018 DFAT report which was considered by the Authority states at paragraph 5.55

   5.55 Genuine identity documents can be obtained with fraudulent supporting documents, including birth certificates and NICs. Counterfeit documents are the  primary cause of fraud in the issue of NICs, passports and driver's licences. People seeking illegal passports include those on the 'stop' and 'watch ' lists, those wishing to falsify age to obtain employment, or those wishing to return to a country from which they have previously been deported

   d. The Applicant has consistently stated in his SHEV application [CB 64, 6] and the First Respondent’s department had accepted that the applicant’s

   Given name is – “…”

   Family name is – “…”

   e. The passport issued to the Applicant by the competent authorities in Sri Lanka however states that the applicant’s

   Other name is - "…"

   Surname is - "…"

   f.The Applicant's names have been swapped around in the Sri Lankan passport.

   g.The Authority failed to consider that the family friend who made all the arrangements through "known" people to obtain the passport may have caused the name swap in the passport which resulted in the applicant being able to exit and enter the airport multiple times without attracting adverse attention.

   4. The finding that the applicant did not satisfy the Authority that the new information provided by the applicant did not meet both limbs of s 473DD is affected with jurisdictional error.

   PARTICULARS

   a.At [CB 342, 10], the Authority identifies two new claims not raised before the delegate they are;

   i.      That the Applicant's brothers P and C "served in the L TTE intelligence unit"

   ii.     That the Applicant "helped his brothers serve the L TTE"

   b.The Applicant in his statement of claims stated "My brothers were members of the Liberation Tigers of Tamil Elam (LTTE). I am not sure when my brothers joined the LTTE, it could have been in 1990 or 1991" [CB 92, Q89].

   c.The Authority had regard to the review material which included the "Entry Interview".

   d.The Applicant's response as recorded in the Entry Interview record at [CB 14,1] to the Question put to him (i.e. Why did you leave your country of nationality (country of residence)?) has been "cut and pasted" as the Applicant's responses to two subsequent questions [CB 14, 2] and [CB 14,3].

   e.The two subsequent questions [CB 14, 2] and [CB 14,3] are,

   i.      "Have you or any members of your family been associated or involved with any political group or organisation?"

   ii.      “Were you or any members of your family involved in any activities or protests against the government?”

   f. The two subsequent questions essentially related to the applicant and or his family members’ involvement with any political groups (i.e. the LTTE) and required a specific response from the applicant.

   g. The officer who conducted the Entry Interview failed to put the subsequent two questions to the Applicant for comment.

   h. The Authority’s finding at [CB 342, 10] therefore is affected with legal error as questions concerning the Applicant and his or his family members’ involvement with the LTTE was not put to him at the Entry Interview.

2. The applicant technically required leave for the amended application as it was filed out of time.  The Minister did not oppose leave being granted and the matter was argued on the basis of the grounds as amended and I did not consider it necessary to make a formal order granting leave. 

3. I have before me as evidence the court book in two volumes filed on 12 September 2018 and 20 September 2018 and two affidavits read by the applicant.  The first affidavit made by the applicant’s solicitor on 28 August 2019 annexes the DFAT[24] country information report on Sri Lanka dated 23 May 2018 which was relied upon by the Authority.  The second affidavit made by the applicant on 10 September 2019 deals with the applicant’s knowledge of the circumstances in which his given and family names were apparently reversed on his Sri Lankan passport. 

   [24] Department of Foreign Affairs and Trade

4. Both the applicant and the Minister filed pre-hearing submissions and made oral submissions through their representatives at the trial on 6 December 2019. 

Consideration

Ground 1 - did the Authority err in applying s.473DD of the Migration Act?

1. The first ground contends that the Authority “committed jurisdictional error in its assessment of the applicant's new information under s 473DD of the Migration Act”. Specifically, this ground takes issue with the Authority's reasoning at [10].

2. In my view, the Authority did not fall into error in applying s.473DD and, in that regard, I agree with the submissions put on behalf of the Minister.

3. At [10], the Authority considered the further information provided by the applicant on 14 September 2017, which included a letter written by the applicant dated 9 September 2017. The new information relevant to this ground was that the applicant's brothers both served in the LTTE intelligence unit and that the applicant “helped them in this matter”. The Authority considered this to be a “new claim that was not previously raised before the delegate” and considered that it constituted new information.

4. The Authority reasoned at [10] that this claim was “embellished” and contradicted the applicant's prior evidence in his SHEV interview. The Authority was not satisfied that the requirements of either ss.473DD(b)(i) or (ii) of the Migration Act were met in relation to this information and found that there were no exceptional circumstances to justify considering the new information.

5. This ground appears to contain two allegations of error:

   a)first, that the Authority wrongly characterised the information with respect to the brothers as new information; and

   b)secondly, that the Authority failed to consider that the applicant could not have advanced the claim that he had assisted his brothers with surveillance activities, “independently of the claim that his brothers worked within the LTTE intelligence unit”. Thus, his explanation for the new claim as to his brothers' involvement was equally applicable to the new claim as to the applicant's involvement.

6. In relation to the first allegation, whether material is new information is a jurisdictional fact that can be determined by the Court.[25]  Further, new information can include new claims made by an applicant.[26]

   [25] CQY16 v Minister for Immigration (2017) 326 FLR 263 at [102]

   [26] AKK17 v Minister for Immigration (2017) 327 FLR 343 at [45] (and see also [48])

1. I accept that the Authority was correct in determining that the claim identified above was new information. The applicant claimed to the delegate that he did not know anything about his brothers' involvement in the LTTE, or whether they held a rank and stated that they did “stuff for the fighters”. Further, the applicant had not previously claimed that he had helped his brothers in their involvement in the LTTE. Therefore, the Authority correctly determined that the applicant's “new claim” was new information as defined in s.473DC of the Migration Act. This claim was not before the delegate when the delegate's decision (under s.65 of the Migration Act) was made and the Authority considered that it was relevant to the review.

2. The applicant's second argument is, essentially, that the explanation he expressly advanced as to the late provision of the new information as to his brothers' links was equally applicable to the new information as to the applicant's own LTTE assistance.  I agree with the Minister that this is an attempt to review the merits of the Authority’s findings by reference to an assertion not made to the Authority. The applicant's representative's submission stated:

   The applicant has informed me that he did not provide the new information relating to his brothers' links to the LTTE due to fear (i.e. fear of being detained indefinitely in Australia, fear of being returned to Sri Lanka and fear that the Sri Lankan authorities would get to know).

3. The Authority addressed the claimed exceptional circumstances as put to it. The Authority was not required to consider an explanation not made to it, but rather advanced for the first time on judicial review. Further, the Authority had regard to the cumulative requirements of s.473DD of the Migration Act, gave cogent reasons for its findings and did not otherwise err in its consideration of s.473DD of the Migration Act.[27]

Ground 3 – did the Authority err in considering the applicant’s ability to make multiple journeys in and out of Sri Lanka using his Sri Lankan passport?

[27] cf. BVZ16 v Minister for Immigration (2017) 254 FCR 221; Minister for Immigration v BBS16 (2017) 257 FCR 111; CHF16 v Minister for Immigration (2017) 257 FCR 148; Plaintiff M174/2016 v Minister for Immigration (2018) 264 CLR 217 at [31] per Gageler, Keane and Nettle JJ; AQU17 v Minister for Immigration (2018) 162 ALD 442 at [13] per McKerracher, Murphy and Davies JJ

1. The third ground alleges that the Authority’s finding, that the applicant's ability to make multiple journeys into and out of Sri Lanka using his Sri Lankan passport suggested that he was not a person of adverse interest to the authorities, was affected by error.

2. The applicant appears to allege that the reason that the applicant was able to travel into and out of Sri Lanka without difficulty was that his given name and his family name were switched around in the passport, and that the Authority failed to consider this potential explanation.

3. This contention must fail because:

   a)first, the applicant never gave this explanation, either to the delegate or to the Authority. Indeed, the matter of the applicant's travel was raised with the applicant by the delegate[28] and he gave a completely different explanation (which the Authority considered[29]). The applicant never sought to change or to “correct” this explanation, such as by making a submission to the Authority (despite being represented by the same lawyer as on judicial review). The Authority was not required to consider an explanation that was not made to it,[30] and that is especially so where an applicant is represented on the review;[31] and

   b)secondly, the Authority’s reasoning was otherwise logical, rational, and reasonably open to it on the evidence (including the applicant's own evidence). That is to say, it was logically and reasonably open to the Authority to reason on the evidence before it that the passport was “genuine” given that the applicant had been able to use it on multiple occasions without issue (and in circumstances where the applicant never claimed it not to be a genuine passport), and that the authorities would have been able to identify the applicant by his “properly issued” passport had he been of interest to them.

   [28] CB 188–189

   [29] SCB 346–347: [21]

   [30] cf. Appellant S395 v Minister for Immigration (2003) 216 CLR 473 at [1] per Gleeson CJ

   [31] CED15 v Minister for Immigration [2018] FCA 451 at [75] per Thawley J

4. It is noteworthy, in addition, that in his affidavit at [2], the applicant deposes that the transposition of his given and family names in his affidavit was drawn to his attention by his legal representative in these proceedings.  This would explain why the applicant did not raise this issue either before the delegate or before the Authority.  In my view, this is an example of creative activity after the event in order to attempt to construct an argument of jurisdictional error.

Ground 4 – did the Authority err in its consideration of the augmentation of the applicant’s claims concerning the activities of his brothers?

1. The fourth ground challenges the Authority’s finding that the new information (being the two new claims, regarding the applicant's brothers' involvement with the LTTE intelligence unit, and the help that the applicant gave his brothers with the LTTE) did not satisfy the requirements of s.473DD of the Migration Act.

2. However, as developed by the particulars, the applicant really contends that the Authority somehow committed a jurisdictional error because an officer of the Minister's Department at the entry interview did not properly pose the questions to the applicant as set out in the entry interview record form, or alternatively did not give the applicant sufficient opportunity to provide further details at the entry interview.

3. I also agree with the Minister’s submissions concerning this ground.

4. To the extent that the applicant relies on Minister for Immigration v WZARH[32] to allege that the applicant was denied an adequate opportunity to make claims, this reliance is misplaced.

   [32] (2015) 256 CLR 326

5. First, it is not apparent that there was any error in the questioning of the applicant by the officer of the Minister’s Department at the entry interview.[33]

   [33] CB 1–19

6. However, in any event, and more importantly, the applicant was given multiple opportunities to present claims and evidence, and to make submissions, to the Minister’s Department, and availed himself of those opportunities:

   a)in documents submitted to the Minister’s Department prior to the applicant's lodgement of a SHEV application;[34]

   b)in the SHEV application itself;[35] and

   c)at the protection visa interview on 17 July 2017.[36]

   [34] CB 20–37

   [35] CB 50–134

   [36] CB 146–179; cf. CB 186

Changed circumstances in Sri Lanka

1. The decision of the Authority relies significantly on changed circumstances in Sri Lanka following the election of the Sirisena government and the replacement of the former Rajapaksa government.[37]  Following the recent elections in Sri Lanka, the political environment has changed once again with the fresh election of the Rajapaksa government.  There are, I understand, some thousands of judicial review applications by Sri Lankan asylum seekers remaining to be heard by this Court.  They will take years to resolve.  There is a significant possibility of substantial further changed circumstances in Sri Lanka over that period.  There is a risk that the basis for the Authority’s decisions in some of these cases will become unreliable over time and the utility of judicial review in such circumstances is questionable.  It could save the Court and the Minister substantial time and money if these cases awaiting judicial determination were progressively reviewed by the Minister’s Department in the light of developments in Sri Lanka. 

   [37] see for example SCB 351-353:[32], [35] and [38]

Conclusion

1. The applicant has failed 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.

2. I will hear the parties as to costs.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  29 January 2020