DLT17 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 1158

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DLT17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1158

File number(s):	MLG 1671 of 2017
Judgment of:	JUDGE VASTA
Date of judgment:	14 November 2023
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 1985 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	67
Date of last submission/s:	14 November 2023
Date of hearing:	14 November 2023
Place:	Brisbane
Counsel for the Applicant:	The Applicant appearing on their own behalf with the assistance of an interpreter
Solicitor for the First Respondent:	Australian Government Solicitor

ORDERS

MLG 1671 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DLT17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	14 NOVEMBER 2023

THE COURT ORDERS THAT:

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

2.The application filed on 1 August 2017 be dismissed.

3.The Applicant pay the First Respondent’s costs of an incidental to the application fixed in the sum of $5,400.

IT IS NOTED 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 (IAA) affirmed a decision not to grant the applicant, DLT17, a protection visa.  On 1 August 2017, the applicant asked this Court to review that decision.

2. The matter has been the subject of an inordinate delay in this Court.  It was not until 4 April 2018, which was eight months after the filing of the application, that the matter came before a registrar.  On 4 April, the registrar gave directions for filing but listed the final hearing to 24 September 2020 before His Honour Judge McNab, as His Honour then was.  The matter was not heard on that date, and it seems that the matter was subsumed into the National Migration Docket.

3. On 6 April 2022, Registrar Carney vacated the order of Registrar Ryan and set the matter down for final hearing on 31 August 2022 before Her Honour Judge Symons.  For some reason, Her Honour was not able to hear the matter and the matter was sent back to the National Migration Docket where it ended up being docketed to His Honour Judge Kendall in Perth.  Judge Kendall was to hear the matter by video link on 7 March 2023 but was unable to do so.  I was to hear matters in Perth in the week of 28 August 2023 and so the matter was then re-docketed to me to hear during that week in Perth.

4. I was unable to complete the hearings that I was to undertake and so adjourned the matter, in my docket, to be heard by me in Brisbane on 14 November 2023.  I have today undertaken that hearing by telephone link. 

5. This means that it has been six years and three months since the applicant filed his application for review until the time that the Court could actually hear the application.  This has been an appalling delay, and, on behalf of the Court, I apologise to the applicant, DLT17, for this lengthy delay.  This is part of the reasons why I am delivering the decision today ex tempore.

6. The applicant is a citizen of Sri Lanka.  He arrived in Australia on 3 October 2012.  He was an unauthorised maritime arrival.  In December 2015, the Minister allowed the applicant to apply for a temporary protection visa or a safe haven enterprise visa (SHEV).  The applicant made his application in July 2016. 

7. His claims were that he is a Tamil from the northern province of Sri Lanka.  He said that, during the civil war, he and his family were displaced several times.  He said that some of his relatives were killed and injured during the skirmishes. 

8. He said that he had to cease his high school studies in 2008 because his school was located close to an army base.  He said that the Sri Lankan army would harass students.  He said that the Liberation Tigers of Tamil Eelam (LTTE) was actively recruiting students as fighters.  He said that the only link that his family had to the LTTE was that a cousin of his joined as a strategic planner of military operations, but he said that this cousin quit the LTTE in 2008 and left the country to work in Qatar for five years.

9. He said that after he left school, he worked with his father and that he and his father often have their identities checked by the Criminal Investigation Department (CID).  He said that, in May 2012, he and his friend, a person called Mr K, began work driving a passenger van between his hometown in the northern province and Columbo, the capital. 

10. He said that later that month, the Sri Lankan Army stopped him in his van at a checkpoint and all of the passengers were questioned and their luggage was searched.  Some of the items in the luggage were taken as “gifts” by the soldiers who said that, if they were not allowed to take those gifts, the persons would be taken back to the army camp.

11. The applicant said that in mid-July 2012, the van was again stopped at an army checkpoint.  Again, the soldiers demanded gifts which meant that the passengers had to wait while the applicant went to purchase alcohol and tobacco to give to the soldiers.  The applicant said that he was forcibly slapped, as was Mr K, with the soldiers telling them to bring more gifts next time. 

12. The applicant said that in August 2012, he and Mr K were both detained in a roundup of Tamil youths.  He said that he was accused of being an LTTE supporter and was assaulted at gunpoint.  He said that he was tied up and he was told to sign a document, in Sinhalese, that he was told was a confession that he had helped the LTTE and, he said, that he was trained to be an informer to identify Tamil families who had assisted the LTTE. But the applicant refused to sign this document or this confession.  He was assaulted and then released.

13. The applicant claimed that in mid-July, Mr K disappeared and that Mr K’s family told the applicant that the army arrested and detained Mr K.  He said that Mr K was tortured and sexually abused and released when his family paid a large bribe.  Mr K then left Sri Lanka and the applicant feared that what happened to Mr K, would also eventually happen to him. 

14. The applicant said that in mid-August 2012 four men with wooden rods came to his home looking for him.  He said when he heard their knock at the door, he escaped through the back door and he hid in a goat pen.  He said that his father told these men that he did not know where the applicant was and they assaulted his father and kept searching the house.

15. He said that one of the men found him and assaulted him and then he was taken, at gunpoint, to an army camp.  He was questioned by the CID who wanted him to sign a confession that he used the passenger van to transport weapons and ammunition for the LTTE.  The applicant refused to sign the document and was assaulted. 

16. The applicant said that one of those captors telephoned the applicant’s father who agreed to pay a bribe to secure the release.  He said that he was warned not to report what happened to either the police or to NGOs or to any journalist.  The applicant said that, on the advice of his father, he departed Sri Lanka illegally and came to Australia. 

17. He said in May 2014 the CID asked his parents where the applicant was and the mother told them that the applicant was in Australia.

18. The IAA had before them what the applicant had said in his screening interview, what the applicant had written in his application and what the applicant had said to the delegate of the Department when he was interviewed.

19. The IAA looked at many inconsistencies, especially the statement made in his application and what the applicant said in his interview.  The IAA noted that, when the applicant was interviewed, he said that when he was stopped at the checkpoint on the second occasion, the soldiers beat him unconscious and he awoke the next day to the sound of his parents crying.  The applicant had said in his statement that Mr K was with him on the two times that the army stopped the van, but when interviewed, he said that Mr K was not present.

20. The IAA noted that, in the interview, the applicant told the delegate that he was not close to Mr K and he only learnt about Mr K’s disappearance from hearing other people in his hometown talk about that.  This was inconsistent with what was in the statement where the applicant said that he had attempted to call Mr K many times.  In the statement, there was also an inconsistency where the applicant said that Mr K disappeared in mid-July 2012 and then went overseas after being released, but also stated that Mr K was present at the time that the army assaulted the applicant in August 2012 at the checkpoint.

21. The delegate said to the applicant that, in his statements, he had made no claim that he was harmed by Sri Lankan authorities but when interviewed said that he had been harmed by the Sri Lankan authorities. 

22. The migration agent proffered the excuse that the applicant did not make any detailed claims in his statements because others had told him not to do so.  The IAA noted that, because the applicant was not represented and that the entry interview was soon afterwards, the IAA would put lesser weight on the fact that the applicant had not disclosed these personal experiences earlier. 

23. The IAA was able to look at country information about the methods that the army used at checkpoints.

24. In the end, with regard to this aspect, the IAA accepted that the applicant drove a passenger van and that he encountered harassment and discrimination from the soldiers on two occasions at a checkpoint.  The IAA did not accept that the applicant was beaten unconscious on the second occasion.  The IAA noted that the applicant was not arrested or detained during either of those incidents which suggested that he was not considered to be someone of interest to the authorities. 

25. The IAA said that they accepted that the applicant was subject to the regular security screening that was in place and that the discrimination and harassment that he suffered was prevalent against young Tamil males.

26. However, taking into account the applicant’s age and the submissions made about the applicant’s psychological state, the IAA was not persuaded that the inconsistencies in the evidence, that the applicant gave, could be explained by those aspects. 

27. The IAA looked at the claim about roundups and forced confessions.  When interviewed, the applicant could not recall ever being questioned or detained in any roundup, let alone being asked to sign a confession of assisting the LTTE. 

28. When interviewed about the claim that the men came to his house with wooden batons, the applicant said that what happened was that the men came to his home and accused him of transporting arms for the LTTE.  He told the delegate, when interviewed, that his parents persuaded the men not to take the applicant to the camp and that the applicant would voluntarily go to the camp the next day.

29. When interviewed, the applicant made no reference to being found hiding in a goat pen and no reference about being asked to sign a confession.  The applicant did not make any reference to his parents having to pay a bribe to secure his release.  The IAA took into account the applicant’s age and his psychological state, but came to the view that they did not accept that he was rounded up in August 2012 or that men came to his home in mid-2012. 

30. The IAA did not accept that the applicant was taken to the army camp at gunpoint or threatened to sign a false confession, nor did the IAA accept that the applicant was assaulted. The IAA did not accept that the applicant was released because his family paid a bribe, nor did they accept that the applicant was told not to tell police, NGOs or journalists about that incident.

31. The IAA accepted that the applicant did have a distant relative who had been in the LTTE but that was as far as the links to the LTTE went.  The IAA accepted that the applicant was a Tamil from the northern province.  The IAA had regard to the country information as to how the persons of Tamil ethnicity have been treated, both during the war and since the war concluded. 

32. The IAA said that, at paragraph 25, they were not satisfied that the applicant “faces a real chance of serious harm from the Sri Lankan authorities or any other armed groups because of an imputed pro LTTE opinion”.

33. Also, the IAA found that they were not satisfied that the applicant faces a real chance of serious harm because of his age, because he is a Tamil, because he was born in northern province, because he worked as a passenger driver, because he had a relative in the LTTE, because he knew Mr K or because he was questioned at security checkpoints. 

34. The IAA then looked at the fact that the applicant would be a failed asylum seeker.  The country information was that thousands of Tamils have been returned to Sri Lanka since the end of the civil war, including from Australia.  The IAA noted that there had been reported instances of returnees being harmed but the information was that those persons were persons with substantial links to the LTTE or outstanding warrants.

35. Because the information, before the IAA, did not suggest that the applicant had that sort of profile, the IAA was not satisfied that he faced a chance of serious harm from being a failed asylum seeker. 

36. The IAA then looked at the fact that the applicant had illegally departed Sri Lanka.  The IAA looked at country information that said that no returnee who left Sri Lanka unlawfully, as a “simple” passenger, had been given a custodial sentence for leaving illegally.  The applicant’s former migration agent said to the delegate that there was a police officer on a YouTube video who said that returnees would face a two to three year jail sentence. 

37. The IAA considered all these possibilities but looked at the country information and was of the view that there was not a real chance that the applicant would face a period of detention or imprisonment for illegally leaving the country.

38. The IAA said, at paragraph 37, that they had regard to all of the evidence and considered the applicant’s claims individually and cumulatively as well as his personal circumstances.  The IAA said they were not satisfied that the applicant had met the requirements of the definition of refugee in the Migration Act. 

39. The IAA then looked at the complementary protection criteria.  The IAA again looked at the fact that the applicant illegally departed Sri Lanka but came to the same conclusion that they had earlier come to about what would happen to him upon return to Sri Lanka.  The IAA looked at the discrimination of Tamils in Sri Lankan society but came to the view that such discrimination and harassment did not come to the level of being significant harm. 

40. The IAA looked at the balance of the claims and came to the view that there was nothing in the balance of the claims that satisfied them that the applicant would face a real risk of significant harm if he was removed to Sri Lanka. 

41. For those reasons, the applicant did not meet the criteria for complementary protection.  Having not met the criteria for either refugee status or complementary protection, the IAA affirmed the decision not to give DLT17 a protection visa.

42. The applicant appeared before me today unrepresented but assisted by an interpreter in the Tamil language. I took the applicant through his application to determine whether he understood what was in that application.  He candidly admitted to me that he had a lawyer prepare the application and had paid him something in the order of $15,000 only to later find that the lawyer said that he could not continue to represent the applicant without having further money paid to him.  As such, he could not add anything to the grounds that were in his application. 

43. The sole ground of the application was that the decision of the IAA was infected by jurisdictional error. The particulars in the application were, in effect, that the decision maker misunderstood or failed to deal with all of the applicant’s claims, the decision maker made no reference to the applicant not having a national identity card (NIC), and the possible consequences of not having one.  The author of these particulars then went through what occurs to someone who does not have an identity card. 

44. The other aspect to the jurisdictional error alleged is the claim that the IAA have not given proper consideration to the complementary protection criteria.

45. In dealing with the first aspect first, it is clear in looking at the whole of the material that there was never a claim that the applicant did not have an NIC.  Not only was this claim never made in any of the times that the applicant put his case to the authorities or to the IAA, but his original application makes it clear that he did have an identity card.

46. In his original application, given to the Department in 2016 (at page 14 of the Court Book), the application discloses that the Department asked for identity documentation details.  The applicant said that he had a document/card type of national ID card.  He gave the number of that national ID card (which I will not read into the record because it would tend to identify DLT17).  He said that that card was issued on 19 January 2010, in Columbo. 

47. So, this means that, not only was there no claim made as to the danger faced of not having an ID card, but a positive assertion was made that the applicant did have such an ID card. 

48. The IAA can only deal with actual claims that are made or claims that are obviously inferred on the evidence.  In this case, there has been no such claim made and, therefore, this aspect of the ground cannot illustrate a jurisdictional error.

49. The second aspect of this ground was that the IAA had not given proper consideration to the complementary protection criteria.  Having gone through the reasons of the IAA in some detail, it is clear that the IAA did give proper consideration to this aspect. 

50. Having rejected the claim that the applicant was a refugee, the IAA then went through all of the aspects that may tend to satisfy a claim of complementary protection.  These were the illegal departure, which had earlier already been dealt with when looking at the refugee aspect.  This also included discrimination because of the fact of the applicant’s Tamil ethnicity.  And this had also included the balance of all the claims that the applicant had made.  There has been no further detail or submission as to how else the IAA could be said to have failed to properly consider these criteria.  No jurisdictional error is illustrated in this part of the ground.

51. For these reasons, the only ground in the application fails. 

52. On 6 April 2022, when Registrar Carney made filing orders, he asked the applicant to file any submissions by a certain date.  On 22 December 2022, a document called Submissions was filed on behalf of the applicant.  This document goes for about four pages.  I read to the applicant, through the interpreter, the first four paragraphs of the document to see if he remembered whether or not he was responsible for the document.

1. The document itself seemed to be a whole new ground because, for the first time, there was information about the applicant’s status which had not been the subject of any claims previously.  The first sentence reads:

   Being a former LTTE member and an illegal migrator to Australia, I do not feel safe to return to Sri Lanka.

2. The rest of the document is, in effect, a submission as to what the country is like now and why the applicant does not feel he can go back to the situation that now exists in Sri Lanka. 

3. I asked the applicant whether he had anything more to say beyond what was in the application and what was in his document called Submissions.  He said to me that, “I don’t know what errors that were made.  I know I told my story to the lawyer.  I told all about myself.  I have a lack of English.  I don’t know what else to say.”

4. I then said to the applicant that what is in the written submissions is quite different to what the material was before the IAA.  I explained that I am dealing with whether the IAA made any errors so I did not look at any material that they did not have before them. 

5. I asked him whether it was true as to what was written in this submission (that the applicant was a member of the LTTE).  The applicant said to me that, in the detention camp, he was told by others not to tell the truth and to not let the authorities know that he was LTTE. 

6. I pointed out to the applicant that the explanation he just gave me was eerily similar to the explanation that his migration agent gave to the delegate when a big inconsistency was made as to whether he had been harmed by the Sri Lankan authorities.

7. I said, “Given that that explanation was given to the delegate, why did not he then tell the delegate that he was a member of the LTTE then and there?”  The applicant said to me that, “I was really scared and panicked.”  He said that he did not tell the truth to the delegate but he did tell the truth to his migration agent.  

8. I said to him, “It was very difficult for me to find that the IAA had made an error in how they dealt with the information that he gave them if he did not give them true information.”  He then asked me what could he do now.  I did not answer this question as my role is not to give the applicant legal advice, but I said to him that I had to assess everything that had been said and to decide whether or not there had been any error committed by the IAA.

9. I asked the applicant whether there was anything more he wished to say and he told me, “I was a member of the LTTE but was too scared to tell the truth.” 

10. When one looks through the Court Book, especially at page 26 which is a transcript of the enhanced screening interview, the applicant was asked, “Have you ever been involved with the LTTE.”  He said, “No.”  “Have you ever fought with them?”  He said, “No.” 

11. In the statement given to the Department, when the applicant made his application for the visa, he did not say that he was a member of the LTTE but simply that he would be imputed with being an LTTE sympathiser. 

12. In the interview with the delegate, the applicant still maintained that his fear was that he would be imputed with LTTE leanings.

13. The IAA cannot be said to have made any form of error if the information before them did not allow the IAA to come to any form of conclusion that the applicant was a member of the LTTE. To the point that the submissions has inferred another ground of application that there was a jurisdictional error because the applicant was actually a member of the LTTE, such a ground must fail for the reasons of which I have already spoken.

14. As far as the submissions speak of what the applicant perceives to be the situation in current day Sri Lanka, again, that information was not before the IAA and could never have been before the IAA.  To the point that the submission seems to make a ground that the IAA did not take into account the situation in Sri Lanka that obtained in December 2022, that ground does not illustrate a jurisdictional error for the reasons I have just espoused. 

15. For all of these reasons, I dismiss the application with costs fixed in the sum of $5400.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Vasta.

Associate:

Dated:       7 December 2023