DKZ17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 825

Federal Circuit and Family Court of Australia

(DIVISION 2)

DKZ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 825

File number(s):	SYG 2425 of 2017
Judgment of:	JUDGE VASTA
Date of judgment:	21 July 2022
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)
Division:	Division 2 General Federal Law
Number of paragraphs:	38
Date of last submission/s:	21 July 2022
Date of hearing:	21 July 2022
Place:	Brisbane
Counsel for the Applicant:	The Applicant appearing on their own behalf with the assistance of an interpreter
Solicitor for the First Respondent:	Clayton Utz

ORDERS

SYG 2425 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DKZ17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:	JUDGE VASTA
DATE OF ORDER:	21 JULY 2022

THE COURT ORDERS THAT:

1.The application filed on 31 July 2017 be dismissed.

2.The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,853.

3.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.

THE COURT NOTES THAT:

A.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.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
(Ex Tempore)

JUDGE VASTA

1. On 14 July 2017 the Immigration Assessment Authority (“the IAA”) affirmed a decision not to grant the Applicant, DKZ17, a Protection visa.  On 31 July 2017, the Applicant asked this Court to review that decision.  On 16 November 2017, the matter came before Registrar Morgan as the first court date.  The Registrar made the usual orders for filing of material and set the matter down for final hearing on 4 October 2019. The matter was not heard on that day and later became part of the National Migration docket. 

2. The matter was reviewed by Registrar Carney in March 2022.  In the end Registrar Carney set the matter down to be heard in Perth on 21 July 2022.  The matter was heard before me today on 21 July 2022.  This means that it has taken 10 days short of five years for the matter to have been heard and determined by this Court.  On behalf of the Court, I apologise to the Applicant for this Court taking such an inordinate amount of time to dispose of the application he filed in this Court.  It is this delay that is part of the reason that I am of the view that I need to determine the matter as quickly as possible and in such a way that the Applicant can hear and understand why it is that I am making the particular determination that I will be making.

3. The Applicant is a citizen of Sri Lanka.  He came from a town I will call J in the north part of the country.  He had experience working in a number of places, including overseas.  From 2009 the Applicant ran a hotel restaurant in the city of J.  He said that members of the Sri Lankan Army, the Criminal Investigation Department and the police would often visit the hotel and eat at his restaurant.  These people would not pay for the food that they consumed, and this meant that the Applicant started to struggle financially. 

4. On 31 March 2012, the Applicant said that two unknown men ambushed him on the way home from work.  These men threatened him with the gun and demanded that he pay them 20 lakh, which is about 2 million rupees.  These men said that the money needed to be ready for them when they returned.  The next day, 1 April, the Applicant went to the police and made a complaint.  That night, two men came to the home of the Applicant and they said that they knew about his complaint to the police and they assaulted him.  They blindfolded him and took him in a white van to a different location where he was kept in a room for three days.  The men beat the Applicant and told him that if he did not pay them the money they would tell the CID that he was an LTTE supporter. 

5. The Applicant understands that these men then visited his wife.  He said that his wife gave them 10 lakhs or 1 million rupees and said that she would pay the remainder after the Applicant was released.  On 4 April 2012, the men released the Applicant and his wife ended up taking him to the hospital at J with severe injuries.  On 9 April 2012, the Applicant left hospital and he also took his eldest son to stay with a priest in another town. After taking the child to the priest, the Applicant then went to Colombo. 

6. The reason he did these two things, he said, was because he feared that these men were going to kill him, whether or not he paid the outstanding 1 million rupees.  He claimed that the CID came to his house at night searching for him but no one was there because his wife and other children had relocated to somewhere else nearby.  The Applicant believed that the CID having come to his house meant that the Sri Lankan authorities had been told that the Applicant did have LTTE links.  The Applicant said he feared that the Colombo authorities, if they ran into him, might ask for his national identity card and discover that he was a person of interest to the CID in J.

7. He said that on 5 August 2012, he departed Colombo for Malaysia by plane using his genuine Sri Lankan passport.  He said that once in Malaysia he was able to get on a boat to come to Australia that had been organised by people smugglers.  The son, who had been left with the priest, left Sri Lanka in 2015 because the Applicant and his wife feared that the men may target their son instead of the Applicant.  He fears that if he goes back to Sri Lanka that the authorities would detain, interrogate, torture or kill him.

8. He says this is because he is a Tamil from a formerly LTTE controlled area, also because he is imputed to be a LTTE supporter, also because he is perceived as wealthy, also because he failed to pay the unknown men with connections to the authorities the whole of the 2 million rupees, and also because he sought asylum in Australia. 

9. The IAA very thoroughly assessed these claims.  The IAA accepted what it was that the Applicant had said about who he was and what business he was running in Sri Lanka.  The IAA accepted that the Applicant was threatened by men and he made a complaint to the police the next day.  The IAA accepted that he was assaulted by two unknown men in his house and abducted and taken away to an undisclosed location.  The IAA accepted that the Applicant’s wife gave the men 1 million rupees and that she said that the men would get the rest once the Applicant was released.  The IAA accepted that once he was released, he spent five days in hospital recovering from the injuries he suffered at the hands of these kidnappers.

10. The IAA accepted that after he left hospital he took his eldest son to stay with a priest in another town and then he, the Applicant, went to Colombo.  The IAA accepted that he stayed in Colombo until early August when he went back to his town of J for some medical treatment.  The IAA accepted that he then went back to Colombo immediately and soon boarded a plane, on 5 August 2012, to Malaysia and then an illegal boat, and he came to Australia. 

11. The IAA took notice of what the story of the Applicant was after this, considering that they had accepted everything that he had said up to this point.  The IAA noted that the delegate had asked the Applicant at the commencement of the interview who he believed was responsible for the abduction.

12. The Applicant responded that it may have been the Sri Lankan Army, it may have been the Eelam Peoples Democratic Party, or it may have been the police.  The Applicant had said that because the men knew that he had made a complaint to police and because they had threatened to tell the CID that the Applicant was an LTTE supporter, he concludes that these people must have been closely connected to Sri Lankan authorities.  During several points in the interview the Applicant admitted to the delegate that he “wasn’t sure” who was responsible for his abduction. 

13. The IAA had regard to country information that indicated in the immediate post-war period pro-government paramilitaries and criminal gangs regularly engaged in the abduction, robbery and extortion of Tamil civilians.  Given that the men at no point identified themselves, the IAA, using country information, accepted that these men may have been paramilitary or other criminals.

14. The IAA had concerns with the Applicant’s claim that the CID came to the house at night when no one was there.  The Applicant said he knew this had occurred because neighbours had told his wife that there were people who came to the house.  The delegate asked the Applicant who he believed had been coming to the house and he said, “I have no idea”.  The delegate referred the Applicant to his statement in which he claimed it was the CID and the Applicant responded that he was not sure whether it was the CID or someone else but because there was a curfew in place at that time it was maybe the CID.

15. The Applicant conceded that he did not know how long after he and his family had vacated the house that these men had come to the house.  The IAA said that they were prepared to accept that the same people who abducted the Applicant returned to the house looking for him but the IAA was not prepared to accept that these men were from the CID, nor were they satisfied that the visits to the Applicant’s house occurred on any more than the one occasion.

16. The IAA were not satisfied that these men were from the CID or that there was any other visit to the house other than this one event.  The IAA was not prepared to accept that these people were from the EPDP either.  The IAA was not prepared to accept that these persons were in any way connected to Sri Lankan authorities.  The IAA noted that the Applicant left Sri Lanka legally using his passport.  The IAA noted that if these people had been connected to the authorities and had told the CID that the Applicant was an LTTE supporter, it was extremely unlikely that the Applicant would have been allowed to leave Sri Lanka four months after the abduction.

17. The IAA then looked at quite a deal of country information.  The IAA noted that simply being a Tamil was not a reason that any person required protection in Sri Lanka any longer.  The IAA said that the Applicant has not been in Sri Lanka since the current government came to power and that there was a lack of credible evidence to indicate that the Applicant was or even will be of any interest to the Sri Lankan authorities.  The IAA was not satisfied that the Applicant faced a real chance of harm from the authorities if he were to return to Sri Lanka.  The IAA was not satisfied that the Applicant faced a real chance of harm from those who had previously targeted him.  The Applicant had said that his wife, his daughter and his twin sons moved a few yards away and were still in the town of J.

18. The delegate asked the Applicant if the wife had experienced any problems after his abduction and he responded that she had not.  The IAA considered that if the abductors were still interested in targeting the Applicant that his twin sons would have been seen as plausible targets if those men still had an interest in obtaining the money.  The IAA said that on the evidence before them they were satisfied that these men are not interested in the Applicant and his whereabouts, nor are they interested in extorting more money from the Applicant and his family.

19. The IAA looked at country information that indicated that the situation for Tamils has improved significantly since the Applicant had been in Australia.  The IAA was not satisfied that the Applicant met the profile of being wealthy, and was not satisfied that he would be perceived as being wealthy.  The IAA looked at the Applicant’s return to Sri Lanka and noted that he had left the country legally.  If the Applicant were returned involuntarily to Sri Lanka, the IAA noted that he may be subject to questioning at the airport, which may take several hours, but this would not constitute serious or significant harm.  There may be checks on his identity because he would be returning on temporary travel documents, but given his actual profile there would be nothing of any interest to the Sri Lankan authorities.

20. Having gone through the claim thoroughly, the IAA was not satisfied the Applicant met the requirements of the refugee criteria. 

21. The IAA then looked at whether the Applicant met the requirements for complementary protection.  After an examination of that evidence, the IAA considered that there were no substantial grounds for believing that there was a real risk that the Applicant would suffer significant harm upon return to Sri Lanka. 

22. The IAA having come to those two conclusions affirmed the decision not to give the Applicant a Protection visa.

23. There were two grounds in the application that was filed in this Court.  The first ground is:

    1. The IAA made jurisdictional error in that it was unreasonable in affirming the refusal decision without considering all the information on record available at the time of review before it. 

24. The Applicant gave quite a deal of particulars, but he did not identify what information it was that he said was not considered by the IAA.  The ground seems to argue that if the Applicant was found to be credible on all of the occurrences he said had occurred that he should have been found to be credible when he says that his life is still in danger. 

25. The ground seems to suggest that because the IAA found that the Applicant was generally a credible witness, that it should have accepted everything that he said.  In other words, because the Applicant was believed about everything he said that had happened to him, he should have been believed about everything he said would happen to him in the future.  The argument seems to be that if the IAA accepted him on the past events but not the future events, it must have ignored the evidence before it.  This is a claim that cannot be sustained.  The question is not whether the Applicant has a subjective fear of what would happen when he returns.  The question is whether this fear is objective.  The fear must be well-founded.  The IAA has looked at all of the evidence as well as the country information.  It has clearly considered all of the information available to it.  Because it has considered all of that information, there is no jurisdictional error that has been identified in ground one.  For this reason, ground one fails.

26. The second ground is that

    2. The IAA and the delegate failed to consider the correct social group to which I belong being (i) ethnic Tamil, middle aged male, (ii) lived in an LTTE controlled area (iii) a person of interest to the Sri Lankan Government authorities (SLA) as the applicant… was abducted by SLA affiliated armed forces (viii) failed asylum seeker, who illegally departed the country (ix) possibility of applying the Prevention of Terrorism Act upon return to Sri Lanka. 

27. When one goes through the reasons of the IAA as I have done in these reasons, it is clear that the IAA considered the correct social group to which the Applicant belonged.

28. In the list that was alleged by the Applicant, there were a few of those categories that the IAA did not find the Applicant belonged.  The IAA was not satisfied the Applicant was a person of interest to the Sri Lankan Government authorities.  While the IAA was satisfied the Applicant had been abducted, it was not satisfied that those persons were affiliated with Sri Lankan Government authorities.  Whilst the Applicant may be a failed asylum seeker, he did not illegally depart the country.  The Applicant had not mentioned that the Prevention of Terrorism Act may have applied to him.

29. The IAA cannot make an error in assessing the Applicant as belonging to a specific social group unless the IAA finds that all of the requirements to belong in that social group have been satisfied.  On the factors that the IAA found applied to the Applicant, the IAA did consider his claims as a member of that social group.  The basic premise of ground two does not exist.  For this reason, ground two fails.

30. The Minister quite properly brought to the Court’s attention that on a reading of the Authority’s reasons it may be suggested that it did not apply the legislation properly.  This is in relation to how the IAA treated new information. The way in which the IAA must assess the new information is to consider whether it is credible personal information.

31. The IAA must decide whether the new information is credible personal information and must consider if that information was information that could have been available at the time that the delegate looked at the matter, and then even if it has considered that the new information has met those two criteria it must decide whether there are exceptional circumstances to justify considering that new information.

32. In reading how the IAA has approached the new information at paragraphs 4, 5, 6 and 7 of their reasons, it is unclear whether they have done the assessment in the proper order.

33. The IAA spoke of the new information at paragraphs 4, 5, 6 and 7 of their reasons.  In doing what they did it is unclear that they assessed the matter in the proper order; however, looking at the new information itself, there was only a very limited relevance in that information to what the Applicant was arguing.  While I have not gone through and definitively decided that there had been an error in how the IAA approached the new information, I consider that if there were such an error, it would not be a jurisdictional error.  This is because the information could not possibly have led to a different conclusion to that which was reached by the IAA.  I commend the Minister’s representatives for bringing this matter to the Court’s attention because this is an example of how they have fulfilled their duties as a model litigant. 

34. The Applicant appeared before me today unrepresented but assisted by an interpreter.  The Applicant told me today that whilst the delegate had asked him who he thought had engineered his abduction he did not tell the delegate definitively who it was because he was scared of retaliation.  He told me today that he knows that it was the Sri Lankan Army that was behind his abduction.  He said that he wants the opportunity to go back to the delegate and to explain what it was or why it is that he believes now that it was definitely the Sri Lankan Army who had kidnapped him.  He repeated a number of times that because he believed that there was still a possibility that he would be sent back to Sri Lanka he did not want to decisively say that it was the Sri Lankan Army who had kidnapped him.

35. While I have some misgivings about the credibility of this claim, in the end it is an irrelevant matter.  This is because I can only review the evidence that was before the IAA and not anything apart from that.  It was the Applicant’s own decision not to have this matter put before the IAA and, unfortunately, he must now live with those consequences.  This new information given to me could never amount to a jurisdictional error being committed by the IAA. 

1. The Applicant said a number of times that it has now been 10 years since he came to Australia.  He said that he has not done anything wrong in these 10 years and that he works hard and he pays taxes.  He said it has been 10 years since he has seen his wife and children but he cannot go back because there is still a military presence and if he is returned he will face harm.  He said that he wanted me to make a ruling that he could remain in Australia.  As I said to the Applicant during the hearing, and I reiterate now, however sympathetic I may be to his predicament, I have no power to do anything but review the decision of the IAA.

2. Having looked at the grounds that have been advanced, and having thoroughly looked at the IAA decision, there simply has not been any jurisdictional error that has been illustrated. 

3. I dismiss the application with costs. The costs will be in that sum, $7853.00.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Associate:

Dated:       1 November 2022