DNT17 v Minister for Immigration
[2019] FCCA 173
•31 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DNT17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 173 |
| Catchwords: MIGRATION – Application in a Case to reinstate – substantive application seeking review of the decision of the Immigration Assessment authority – whether there is a satisfactory explanation for non-appearance –– whether the substantive application has an arguable case – whether it is in the interests of justice to warrant reinstatement – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 Federal Circuit Court Rules 2001 (Cth), r.16.05 |
| Cases cited: NAJN v Minister for Immigration [2003] FMCA 414 Minister for Immigration and Citizenship v SZQKB [2012] FCA 1189; (2012) 133 ALD 495 |
| Applicant: | DNT17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2498 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 6 September 2018 |
| Date of Last Submission: | 6 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 31 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Foster |
| Solicitors for the Applicant: | Sentil Solicitor & Barrister |
| Representative for the Respondents: | Ms C Saunders |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application made to the Court on 12 June 2018 to reinstate the substantive application made on 7 August 2017 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $4750.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2498 of 2017
| DNT17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application in a case (“AIC”) filed on 12 June 2018 seeking reinstatement of a substantive application made to the Court pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 7 August 2017. The substantive application was dismissed by orders made by a Registrar of the Court pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) on 31 May 2018, due to the failure of the applicant to appear at a callover on that date.
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”, “RE2”, and “RE3”), the applicant’s affidavit made on 12 June 2018 and filed with his AIC, and in his affidavit of 3 September 2018. ([5]-[7] was not pressed).
Background
The evidence reveals the following background. The applicant is a citizen of Sri Lanka (CB 40) of Tamil ethnicity and Hindu religion. He arrived in Australia as an “Unauthorised maritime arrival” on 26 September 2012 (CB 47). The applicant applied for a visa to remain in Australia. This was received by the Minster’s department on 20 July 2016 (CB 25 to CB 84). The applicant’s claims to fear harm were contained in a written statement attached to his Safe Haven Enterprise visa application (CB 72 to CB 76).
The applicant claimed to fear harm on the basis of his ethnicity and imputed political opinion. The applicant claimed that he had been working for the Red Cross from “about 2005 until October 2006”, and was required to work in a Liberation Tigers of Tamil Eelam (“LTTE”) controlled area ([9] at CB 72). The applicant claimed that in October 2006 he had been travelling to the Red Cross Office in Batticaloa when he was “stopped by two unknown individuals who disembarked from a white van” ([10] at CB 72). There were three other individuals in the van, and the applicant was then “forced” into the van and blindfolded.
The applicant claimed to have been taken to a house where there were seven individuals, three of whom were Tamil and “demanded that [he] join their group” ([11] at CB 72). They said they were part of the Criminal Investigation Unit (“CID”) and the Tamil Makkal Viduthalai Pulikal (“TMVP”). The applicant refused to join their group, and was questioned as to whether he was an LTTE supporter because he had worked in an LTTE controlled area. The applicant denied being an LTTE supporter, but the men “did not believe [him]”. The applicant claimed he “was then verbally abused, threatened and beaten…and suffered serious injuries” ([11] at CB 72 to CB 73).
The applicant “…stayed home from work after [the] incident” and “[a]bout three days later” two more individuals came to the applicant’s home and again demanded that he join their group ([14] at CB 73). The applicant again refused, and “[f]or the next few days, these individuals frequently came to [his] home harassing [him] to join them”, but he would “always refuse” ([14] at CB 73). The individuals would also come to his home when he was not there and told his parents that “if they found [him] they would shoot [him]” ([14] at CB 73).
The applicant claimed that due to his fear of harm, he obtained work in Dubai, and stayed there from July 2007, until March 2010, when he returned to Sri Lanka ([15] – [16] at CB 73 to CB 74). About ten days after he returned, the applicant claimed that CID and TMVP members came to his home and threatened him. The next day, they returned “armed with guns”, demanded money from the applicant, but left without harming him ([18] at CB 74). The applicant then applied for a visa to work in Qatar, which was granted in 2011. The applicant then worked in Qatar from November 2011, to July 2012 ([18] – [19] at CB 74).
The applicant claimed that after his return to Sri Lanka in July 2012, he was again threatened at his family home by CID and TMVP members, and “slapped” twice in front of his relatives. The applicant claimed that the CID and TMVP members then “frequently” came to his home, although the applicant had “frequently changed addresses” ([21] – [22] at CB 74 to CB 75). Due to his fear of harm, the applicant then left Sri Lanka for Australia.
The applicant attended an interview before the delegate on 31 January 2017, where he raised further claims to fear harm, in addition to his written claims (see CB 145.8). This included that the applicant had a cousin that was involved with the LTTE who was deceased, and that the applicant attended Martyr’s Day celebrations in Australia in 2015 and 2016 (CB 149), and had been active on social media with regards to
anti-government and pro-LTTE material.
The delegate refused the application for the visa on 10 February 2017 (CB 140 to CB 161). The delegate’s decision was then referred to the Immigration Assessment Authority (“IAA”) on 15 February 2017 (CB 162 to CB 168). The IAA affirmed the delegate’s decision on 12 July 2017 (CB 169 to CB 185).
The IAA accepted aspects of the applicant’s claims including that he had been “…abducted by men in a white van, interrogated, beaten, threatened, and his family threatened” and that the perpetrators “…were affiliated with the CID and the TMVP” ([15] at CB 174). Further, “[b]ased on the consistency of the applicant’s evidence and also country information” the IAA accepted that he had been extorted for money when he returned to Sri Lanka from Dubai in 2010, and that it was “plausible” that the men were from paramilitary groups, and that one of these men was one of the men that had previously threatened the applicant ([18] at CB 175).
However, the IAA found it “…improbable that this man came with the specific intent to harm the applicant or recruit him into the CID or the TMVP” ([18] at CB 175). The IAA considered it to be “in an opportunistic capacity to extort money from the applicant” and was “as a result of extortion and for no other reason” ([18] at CB 175). Based on the applicant’s “consistent testimony”, the IAA also accepted that individuals had come to the applicant’s home after he returned from Qatar in 2012, and tried to extort money from him.
However, the IAA considered that the “last serious instance of harm against the applicant was in 2006” ([21] at CB 176) and considered that “the incidents that occurred past 2006 to have been opportunistic attempts to extort money from the applicant with no adverse consequences” when the applicant was unable to pay ([21] at CB 176). The IAA also considered that it had been five years since the applicant left Sri Lanka, and found the chance that the applicant would be approached by the same men to extort money to be remote ([21] at CB 176).
The IAA also did not accept that CID and TMVP members had continued to ask about the applicant’s whereabouts since he left Sri Lanka for Australia, due to contradictions in his evidence, as between his written statement, and the interview ([22] at CB 176). The IAA found that there was no real chance of the applicant being harmed by Sri Lankan authorities, or any other group, “on the basis that he may be perceived to be a Sri Lankan with money”, or would be “extorted” in the reasonably foreseeable future. (See [23] at CB 177).
The IAA did not accept the applicant’s claim that his cousin or family was involved with the LTTE, as this claim only arose at the interview, and the IAA considered that it would have been a “vital pieces of information” ([24] at CB 177). The IAA considered that prior to his interview, the applicant had never claimed to be “part of the LTTE”, or imputed with such political opinion. The IAA then found that the applicant’s participation in Martyr’s Day celebrations in Australia, and “posting footage of himself on Facebook” to have been “for the sole purpose of strengthening his claim[s]” to protection and “disregarded” these activities pursuant to s.5J(6) of the Act ([26] at CB 178).
The IAA found that there was no real chance of the applicant being harmed on return to Sri Lanka on the basis of his Tamil ethnicity, or any political opinion, or imputed political opinion ([27] at CB 178). The IAA also considered the applicant as being a returned Tamil asylum seeker who departed Sri Lanka illegally, but found that the applicant was of no adverse interest to the Sri Lankan authorities, and would not be detained at the airport for more than a brief period, as a result of standard procedures that apply during processing at the airport for all returnees ([28] at CB 178 to [35] at CB 179).
The IAA found that the applicant did not meet either criteria for the grant of the visa (s.36(2)(a) or s.36(2)(aa) of the Act), and affirmed the delegate’s decision ([36] – [43] at CB 180 to CB 181).
Before the Court
As set out above, before the Court, the applicant applied for judicial review of the IAA’s decision on 7 August 2017, but that substantive application was dismissed by a Registrar of the Court on 31 May 2018, following the failure of the applicant to appear at a callover on that date.
The applicant filed his AIC, and accompanying affidavit, on 12 June 2018. The orders sought by the applicant in his AIC are as follows:
1. The Order made by registry on 31 May 2018 and on 31 May 2018 dismissing the case, be set aside pursuant to Reg. 6.05 (2)(a) of the Federal Circuit Court Rules.
2. Matters be listed for directions on ………………………
3. Any other Orders this Court deems fit.”
[Errors in the original]
The matter was listed for directions on 27 June 2018. On that date, the applicant appeared in person, and the Minister was represented by a solicitor. The applicant indicated that he had a “lawyer” who would appear at a “hearing”, but that he had not attended the Court event with him that day. The AIC was then set down for hearing on 28 August 2018. Orders were also made for the filing of written submissions. The applicant filed written submissions on 13 August 2018. The Minister filed written submissions on 21 August 2018.
On 28 August 2018, the matter was adjourned until 6 September 2018, due to the unavailability of an appropriate interpreter. In any event, at the hearing of the AIC on 6 September 2018, the applicant was represented by counsel. The Minister was represented by a solicitor.
The issue for consideration
The issue raised for consideration now, is whether the order dismissing the applicant’s substantive application should be set aside. I understood the AIC to invite the Court to proceed pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth), even though the AIC makes reference to “Reg. 6.05 (2)(a)”. The Minister opposed the making of such an order.
It is the case that the relief the applicant seeks is discretionary. “Such discretion must be exercised with caution having regard to the importance which the public interest has in the finality of litigation…”. However, this consideration must be balanced with the “obligation of the Court to ensure litigants have the opportunity to present a case where there is a real dispute” (see NAJN v Minister for Immigration [2003] FMCA 414 at [7] per Barnes FM (as she then was), and SZSNJ v Minister for Immigration & Anor (No.2) [2013] FCCA 260 at [23] – [25]).
The particular elements for consideration in the present case are, whether the applicant has provided a satisfactory explanation for the non-appearance at the previous Court occasion, and whether there is an arguable case, or such merit, in the substantive application calling for review, or the interests of justice require that the applicant should be given the opportunity to present his case.
The Explanation for the Non-Attendance at Court
The applicant’s explanation for his non-attendance before the Court on 31 May 2018, as derived from his affidavit evidence, is as follows.
He made his substantive application to the Court on 7 August 2017. At that time he had the assistance of a solicitor, and a barrister. He was unfamiliar with the Court processes and procedures because of his “Sri Lankan heritage”, and “limited English”.
He received a text message from his then counsel, and a subsequent telephone call from his solicitor (whom he referred to as “Mr Sivalogan”) on 26 May 2018. In effect, he was told that as he was unable to pay counsel’s fee, counsel “terminated his instructions”. The text message from counsel stated that he would have to attend at a “call over” at the Court on 31 May 2018 by himself. His solicitor told him to go to the barrister’s chambers to collect his file, and go to Court himself.
The applicant’s evidence was that he did not understand the text message to the effect that it made reference to a “call over”. He thought the reference to “31 May 2018” was the date by which he should go to the barrister’s chambers to retrieve his file.
He “collected” his file on 28 May 2018. He thought he had until 25 June 2018 to retain a “new Solicitor”.
He sought to “review” his Court file on 7 June 2018. He asked a friend to read the document entitled “Short Minutes of Order”. He then understood the significance of 31 May 2018. (See further below).
He attended at the Court (the Court’s Registry) to file his AIC. Although he was given the date of 28 August 2018, he thought that by filing his AIC the Court was satisfied as to his explanation for his non-attendance, and that his case was to proceed. He did not understand that 28 August 2018 was the date set for the hearing of the AIC.
The applicant was cross-examined on his affidavit evidence. The applicant gave evidence that he remembered seeing the short minutes of order at the time of the submission to the Court (16 November 2017).
The short minutes are in the following terms:
“The Court orders, by consent, that:
1 The first respondent file two hard copies and an electronic copy of a bundle of relevant documents (the Court Book) and serve a hard copy on the applicant by 14 December 2017.
2 The applicant have leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 25 January 2018.
3 The applicant must file and serve any affidavit containing additional evidence to be relied upon, including any transcript of a Departmental hearing, by 25 January 2018.
4 The first respondent must file and serve any affidavit containing additional evidence to be relied upon by 22 February 2018.
5 Other than the bundle of relevant documents, all evidence relied upon by the parties is to be presented by way of affidavit. Any transcript of a Departmental hearing must be verified by way of affidavit.
6 The applicant must file and serve written submissions and list of authorities 14 days before the hearing.
7 The first respondent must file and serve written submissions and list of authorities 7 days before the hearing.
8 All documents in the proceeding must be filed at the Registry of this Court.
NOTE A: The Registry of the Court is now located at Level 17, Law Courts Building, Queens Square, Sydney.
NOTE B: Any document which is filed within 7 days of the hearing or other listing is to be provided by email in Microsoft Word format to my Associate.
9 The applicant must serve upon the first respondent at the address identified by the first respondent in the Notice of Address for Service any document filed by the applicant with the Registry.
10 The matter is set down for mention at a callover on 31 May 2018 at 10.15 am at Law Courts Building, Queens Square, Sydney before a Registrar.
11 Liberty is granted to the parties to apply to the Court for further directions on three clear days' notice.”
He also gave evidence that he signed the short minutes of order in respect of which orders were subsequently made “by consent”.
The applicant’s evidence was that “previously, firstly” he was aware that his matter was listed for a callover on 31 May 2018 because of the order made by the Registrar on 16 November 2017. However: “…thereafter I could not remember that.”
The applicant also confirmed that the email address provided on his originating application was his email address. The Minister tendered into evidence a copy of a letter from the Minister’s solicitors dated 20 November 2017 sent by email (and by post) to the applicant’s email address. (“RE3”).
The terms of the letter make note that the matter had been listed for callover on 31 May 2018.
In answer to whether he received the letter, the applicant gave evidence that he did “not look” at his email, because he had given his case to his lawyer.
In cross examination, the applicant was taken to his affidavit of 3 September 2018. At “Annexure A” to his affidavit the applicant had annexed copies of email correspondence to his solicitor from a barrister.
The terms of that corresponding were put to him:
“Hi Sai
Can you please let [the applicant] know that I have left his papers at my reception desk for collection.
Unfortunately he has not come through with the bank cheque and I have to formally terminate my instructions.
He will need to go to the callover on 31 May 2018 himself and get a hearing date.
Regards
Richard Chia
Barrister”
In all, therefore, it was put to the applicant that he had been put on notice on three occasions of the callover date. The short minutes of order, the letter from the Minister’s solicitors, and the email from his former counsel. The applicant did not provide a satisfactory response. Nor did the applicant provide any satisfactory explanation in re-examination.
In all, I find that the applicant did not provide a satisfactory explanation for his failure to attend before the Registrar on 31 May 2018, which non-attendance resulted in the dismissal of the substantive application.
One, the applicant’s oral evidence that he knew of the callover date as at the time the relevant order was made, but then forgot it, is contrary to his affidavit evidence that he left everything to his lawyers and did not understand anything of relevance to the callover date.
Two, as the Minister submitted, the applicant was put on notice on three occasions of the callover date. He accepted in cross examination that he understood on the first occasion (when the orders were made) that the matter was set down for callover on 31 May 2018.
Three, I do not accept the applicant’s self-serving evidence that having left everything in the hands of his lawyers, he either forgot, or did not understand the relevance of the date of 31 May 2018.
The email from his counsel, which the applicant himself has put into evidence before the Court, is clear and unequivocal in its terms. It plainly states that he will have “to go to the callover on 31 May 2018 himself”.
Four, it is important to note that the applicant’s AIC currently before the Court makes no reference to its having been prepared by any lawyer. The applicant gave no evidence as to who prepared this document. However, he gave clear evidence that he recalled attending at the Court in person to file this AIC, and the supporting affidavit.
There is nothing on the face of the substantive application, or the supporting affidavit which was filed at the same time, to indicate any involvement by any lawyer. In fact, the application is said to have been “prepared by” the applicant.
There is evidence before the Court of the involvement at some subsequent time of a solicitor, and a barrister (not necessarily those who previously represented him). However, at the same time, given what is set out above, there is also sufficient evidence to say that the applicant was not as “helpless” in his own cause as he now otherwise asserts before the Court. He attended Court on or at least one occasion on his own (16 November 2017), at which time, on his own evidence, he said he understood that the callover date was set for 31 May 2018.
Five, the applicant’s evidence before the Court is that at the time he collected his file from his counsel’s chambers (on 28 May 2018), he believed he had until 25 June 2018 to retain a “new Solicitor” for his case.
The applicant cannot now explain why he had that belief. In the absence of any explanation whatsoever, the applicant’s evidence, which can only be described as self-serving, cannot be accepted. There is nothing in the emails the applicant has annexed to his affidavit, or anywhere in the evidence before the Court, to explain why (even erroneously) he held this belief.
I find that the applicant had been given reasonable, and ample, notice of the callover on 31 May 2018. His own evidence was that he understood that that was the callover date (as at 16 November 2017).
The absence of any plausible explanation for his claimed subsequent memory loss means that that self-serving assertion must also be rejected.
The Substantive Application
In all, no satisfactory explanation for the non-attendance has been established. But of even greater importance in the refusal to reinstate the applicant’s substantive application, is the lack of merit in any of the proposed grounds.
The grounds of the substantive application are in the following terms:
“1. The Respondent misconstrued and misinterpreted the claim that the CID and TMVP men came to extort money from the applicant not for any other reason. The Respondents made a jurisdictional error by ignoring the fact that the CID and TMVP men accused him to have worked for the LTTE.
2. The finding by the Second Respondent on paragraph 19 of the Decision and Reasons,“The applicant did not indicate that these persons made any effort to locate him when he was hiding or harass his family about his whereabouts” is a misjudgement and erroneous as the applicant had repeatedly confessed in his statement of claims and during the interview that his family and he was constantly targeted by the CID and TMVP men
3. The Second Respondent’s finding on paragraph 21 of the Reasons and Decision, that “ “it has now been five years since the applicant has left Sri Lanka and I find that the chance that the applicant would be approached by the same men to extort money if he were to return to Sri Lanka is remote” is erroneous as the relevant claims that the applicant was repeatedly approached by the CID and TMVP men on his return back from Dubai and Qater was ignored and his fear of being framed as a LTTE member was also not taken into consideration
4. The Second Respondent decision is arbitrary when it decided in Paragraph 22 of the Reasons and Decisions that “I do not accept that persons, whether SLA, Sri Lankan authorities, paramilitary groups or anyone else had attended the applicant’s home since he has been in Australia trying to locate him”. The lack of knowledge on the part of the Second Respondent of present country information including latest world reports in relation to continuous Tamil persecution in Sri Lanka targeting young Tamils is a jurisdictional error made by the Respondent.
5. The Applicant’s family members and his cousins involvement in the LTTE was completely rejected without any grounds by the Second respondent in Paragraph 24 of the Reasons and Decision is arbitrary and misconstruction of the relevant claims and facts.”
[Errors in the original]
The applicant also filed written submissions prepared by counsel. These were prepared by the counsel who also appeared for the applicant at the hearing of the AIC. (A different counsel to the counsel referred to above). The written submissions make reference to another three grounds. No prior leave was sought to raise these grounds.
In any event, there was no claim of prejudice by the Minister and I therefore considered those proposed grounds. They are in the following terms:
“Ground 6: The IAA demonstrates bias against the Applicant contrary to S. 473BA, such bias amounting to jurisdictional error.
Particulars.
a. At paragraph 22 of the decision, the IAA considered material given by the applicant prior to his interview (ie., members of the CID and TMVP continued to question his mother) and what was said during the interview (ie., there had been no more visits to his family home). The IAA adopted without any articulated reasons the material given in the interview.
b. At paragraph 24, the IAA again considered what material was provided by the applicant prior to the interview (ie., there were no claims that he or his family were personally ever associated with the LTTE or were ever imputed to have been associated with the LTTE) and what was provided by the applicant at the interview (ie., the applicant's cousin was involved with the LTTE and was now deceased and his family were assaulted by the Sri Lankan authorities on account of their support for the LTTE while he was Dubai). The IAA adopted without any articulated reasons the material given prior to the interview.
c. The adoption by the IAA of the material given at interview (para 22) as opposed to the material given prior to the interview, and the rejection of the material given before the interview, was without any articulated reasoning or logical basis.
d. The adoption by the IAA of the material given prior to the interview (para 24) as opposed to the material given at the interview, and the rejection of the material given at the interview, was without any articulated reasoning or logical basis.
e. Indeed, the adoptions by the IAA were illogical and/or irrational in that in one case the IAA adopted material before the interview while in the other case it adopted the material given in the interview, without any proper basis. The explanation given by the applicant in re para 24 that the reason the applicant did not mention involvement with the LTTE was because 'they had asked him to talk about him' would explain why he did not raise same prior to the interview, lending support for the truthfulness of the version given in the interview. In light of this explanation, the adoption by the IAA of the material given prior to the interview highlights the bias.
f. Further, the versions adopted by the IAA were against the applicant's interests, were negative and supported findings that the applicant had no claim under the Migration Act, whereas the versions not accepted by the IAA would have enhanced the applicant's claims and were positive.
g. Accordingly, the IAA demonstrated bias against the applicant such that it referred inferences which were contrary to his interests without properly considering relevant facts in an independent manner.
Ground 7.
In adopting the versions it did and as set out in paras 22 and 24 of the decision (see ground 6 above), the IAA did not provide any logical, articulable reasoning or probative basis/ rationale, nor did explain why it chose one version over the other, and was otherwise unreasonable, amounting to jurisdictional error. See principles as outlined in: CIC15 v Minister for Immigration and Border Protection [2018] FCA 795; Wingfoot Australia P/L Kocak [2013] HCA 43 comm at [43].
Ground 8.
Alternatively, any such reasoning given by the IAA as to why the IAA accepted one version over the other was trivial and minor, amounting to jurisdictional error. See principles as outlined in: CIC15 v Minister for Immigration and Border Protection [2018] FCA 795.
[Errors in the original]
Ground one of the substantive application asserts that the IAA misconstrued and misinterpreted the applicant’s claim that the CID and TMVP only came to extort money from the applicant, and not for any other reason. The assertion is that the IAA ignored that the CID and TMVP personnel accused the applicant of having worked for the LTTE.
Before the Court, the applicant’s counsel sought to explain the complaint as follows.
The issue was said to be whether the IAA was “right” in coming to the view that the CID or TMVP came to the applicant to extort money and for no other reason. The applicant sought to impugn the IAA’S “view” on the basis that it had also found that it was possible that these persons had come to harm the applicant, or to recruit him into the CID or the TMVP.
In short, the IAA’s finding that they came only to extort him, and for no other reason, was in contradiction to its finding that they had come to harm him, or recruit him.
The applicant’s complaint directs attention to [14] and [18] of the IAA’s decision record (CB 174 and CB 175):
“14. Country information indicates that under the previous Rajapaksa government, NGOs and their staff, especially those working on human rights issues, faced challenges, including arrest or abduction, while performing their duties. Sri Lanka’s state-run media regularly accused NGOs and civil society activists of being traitors, LTTE sympathisers or supporters, or being backed by ‘foreign’ or ‘western’ powers. NGO and civil society workers often reported threats (including death threats) and intimidation. Some NGO workers were detained and questioned by the authorities and reported having their offices searched and equipment and documents seized.1 DFAT also reports that many Tamils, particularly in the north and east, reported being monitored, harassed, arrested and/or detained by security forces during the conflict and the Rajapaksa Government. While this was primarily due to LTTE members and supporters being almost entirely Tamil, there were also likely instances of discrimination in the application of these laws, with LTTE support at times imputed on the basis of ethnicity.2 Country information also supports the claims regarding abductions in white vans and links those abductions to Sri Lankan authorities.3
…
18. The Danish Immigration Service reported that the Pillayan faction and TMVP cadres, due to a lack of funds, were resorting to extortion, even though they held political power in the Eastern
Province.4 Information also indicates that “many incidents related to the paramilitary groups are not reported as people keep quiet about them”.5 The applicant has been consistent throughout his arrival interview, application and interview recounting these events. Based on the consistency of the applicant’s evidence and also the country information, I accept that when he returned to Sri Lanka in 2010 from working in Dubai he was extorted for money and it is plausible that these men were from paramilitary groups. Considering that the applicant returned to his home village, it is also plausible that one of these men was one of the men that had previously threatened the applicant at some point from 2005 to 2007, however I consider that it is improbable that this man came with the specific intent to harm the applicant or recruit him into the CID or the TMVP. I consider it was in an opportunistic capacity to extort money from the applicant and his family following his return from overseas. Based on the applicant’s own evidence, the men went away without harming either himself or his family when they did not pay. At his interview the applicant said that three years after he had left Sri Lanka his situation was that he thought they wanted money and that he did not know what the intentions of the men were and I accept that the men returned to ask for money. I am of the view that the visits and threats that the applicant and his family encountered from these men were as a result of extortion and for no other reason.”[Errors in the original]
[Footnotes omitted]
Although not expressed as such, it appears that the essence of the complaint in ground one, as explained before the Court, was that it was inconsistent, or illogical, of the IAA to find that these persons had come with the intent to harm, or recruit the applicant, and then to find that they had only come to extort money from him and “for no other reason.”
Administrative decisions are meant to be read fairly. As was said in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 at [30]: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”. This means amongst other things, that the impugned parts of the decision record should be read holistically, and in context.
At [10] and [11] (CB 173) of its decision record, the IAA set out the applicant’s claims as they related to the fear of harm as a young Tamil male, from a formerly LTTE controlled area.
The IAA set out the applicant’s claims that in October 2006, while travelling as part of his work, “he was stopped by men in a white van” and taken to an “undisclosed location”. He was “blindfolded”, detained and “questioned”. He claimed they asked him to join the CID or the TMVP ([11] at CB 173). He also claimed further incidents occurred soon after, which lead him to obtain a passport and go and work in Dubai. (See [12] and [13] at CB 174).
The IAA had regard to country information available to it ([14] at CB 174). Based on that country information, and the “consistency” of the applicant’s evidence in this regard, the IAA accepted his account of what had occurred, including that they asked him to join them ([15] at CB 174).
The IAA also considered the applicant’s claims in relation to what the applicant said had occurred in 2007, his travel to Dubai, and his return to Sri Lanka after three years ([16] at CB 175).
The IAA also considered the applicant’s evidence given at the interview with the delegate, as to what occurred on his return ([17] at CB 175):
“17. The applicant said that after his three year work visa ran out for Dubai, he returned to Sri Lanka in March 2010. When asked at his interview whether he experienced any problems when he returned, he responded that he came back to the airport and back to his home safely. I accept that the applicant returned to Sri Lanka after his work visa had expired for Dubai. The applicant claimed that around ten day after his return, around four men came to his home and demanded money. The applicant said that he recognised one of the men as the same man who had threatened him before he had left for Dubai. He claimed that the men threatened him and said that if he did not give him the money they would kill him. He said that he told them that he did not have any money and the men went away. He claimed that they returned the next day, this time with guns and demanded money from him and his family again. He said that they pointed a gun at him and said that they would shoot and when the applicant did not give them any money, they left. At his interview, the applicant said that these men were more interested in extorting money from him and he thought that they would want more money.”
[Errors in the original]
[Emphasis added]
The applicant’s ground, or perhaps, more relevantly, the explanation proffered for it, overlooks one important element in the IAA’s analysis. That is, the IAA considered the applicant’s claims as they related to events over a period of years.
While it accepted that the applicant had been subject to physical harm and the like in 2006, the temporal focus in the impugned [18] (at CB 175) was plainly on events in 2010, when the applicant returned from Dubai.
The IAA accepted that, on his return from Dubai in 2010 “…he was extorted for money”, probably by paramilitary groups. While the IAA considered it plausible that one of the men who came to extort him, it must be emphasised in 2010, may have been one of the men who threatened him in 2006 and 2007, in 2010, the IAA considered: “…that it is improbable that this man came with the specific intent to harm the applicant or recruit him into the CID or the TMVP” (see [18] at CB 175).
The IAA’s reasons for this were that the applicant had just returned from working overseas (and thereby was perceived to have money), and the applicant’s own evidence that neither he nor his family were harmed ([18] at CB 175).
After all, it was the applicant’s own evidence at the interview: “…that these men were more interested in extorting money from him and he thought that they would want more money.” (See [17] at CB 175).
When read fairly, as administrative decisions are meant to be read, the IAA’s reasoning was not illogical, or unreasonable, in the requisite sense. Its impugned finding in the last sentence of [18] was reasonably open to it, probative of the evidence, and flowed logically in the temporal context made clear by the IAA.
Ground one lacks merit such as to support the application for reinstatement of the substantive application.
Ground two directs attention to [19] of the IAA’s decision record (CB 176):
“19. After these incidents, the applicant said that he planned to go to Qatar however was unable to leave until November 2011 as preparations to obtain a work visa to Qatar took some time. During this time the applicant claimed that he did not stay with his parents and he kept a low profile before leaving for Qatar in November 2011 until July 2012 when he returned to Sri Lanka in July 2012 for the funeral of his father. When questioned at his interview whether he encountered problems with these people when he was in hiding he responded that the problem was more psychological tormenting. The applicant did not indicate that these persons made any effort to locate him when he was hiding or harass his family about his whereabouts.”
[Emphasis added]
The complaint is that the IAA’s finding that the applicant did not indicate the persons (from whom he otherwise said he feared harm) made any effort to locate him was an “error”, given that the applicant had repeatedly claimed that he and his family had been targeted by the CID and the TMVP men.
The applicant’s ground, again, misunderstands, or perhaps chooses to ignore, the actual reasoning of the IAA.
There was no misjudgement, error, or inconsistency in the IAA’s analysis at [19]. When plainly, let alone when read fairly, in context, the IAA’s impugned statement as set out above (see [77] of above) was the IAA’s report about what the applicant said at the interview with the delegate.
The applicant now has not brought any evidence to this Court, such as to say that it was not reasonably open to the IAA to report that the applicant gave no such indication as to the efforts made to locate him at the interview with the delegate.
Further, this ground suffers again from a misunderstanding of the IAA’s temporal, and subject, focus at [19].
The IAA’s impugned report (its report of what the applicant said, or did not say, at the interview with the delegate) was focused on the time when the applicant had claimed to have gone into hiding between November 2011 and July 2012.
It was reasonably open to the IAA to rely on the absence of evidence (if not a claim to that effect) from the applicant, as to any attempts to locate him by those whom he otherwise said sought to harm him.
Ground two is also without relevant merit.
Ground three directs attention to [21] of the IAA’s decision record (CB 176):
“21. The applicant claimed that as a result of these constant threats, he feared for his life and left Sri Lanka illegally in 5 September 2012. I accept that the applicant may have feared that he would be harmed from these men who attempted to extort money from him and his family. However, I have also taken into account that whenever these men harassed the applicant and his family for money from 2010 to 2012, they always left without an incident when the applicant or his family could not pay them. I accept that the applicant moved to different locations to in order to avoid harassment from these individuals and I accept that this level of harassment must have been daunting for the applicant however, the extortionists had not resort to physical violence aside from slapping the applicant or took any adverse action against the applicant’s family when they were unable to pay any sums of money. When asked at his interview whether his family experienced problems in their home he said that his family did not face problems from this particular group. His family remained in their home and did not indicate that they had to relocate or move from their house because of any problems they were facing. The last serious instance of harm against the applicant was in 2006 when I have accepted he was asked to join the TMVP or the CID or spy on the LTTE. I consider the incidents that occurred past 2006 to have been opportunistic attempts to extort money from the applicant with no adverse consequences when the applicant or his family were not able to pay the extortion demands. The applicant, when asked at his interview whether his family who still lived in the same village had faced any problems since he arrived in Australia said that they had not. This also indicates to me that the applicant is of no interest to the SLA or any other Sri Lankan authority, paramilitary group or anyone else for that matter. I have accepted that when the applicant returned from Dubai in 2010 and Qatar in 2012 he was approached by men in an attempt to extort him for money. However, it has now been five years since the applicant has left Sri Lanka and I find that the chance that the applicant would be approached by the same men to extort money if he were to return to Sri Lanka remote.”
[Errors in the original]
In short, the complaint is directed to the IAA’s finding that the chance of being approached for extortion from the same men, if the applicant were to return to Sri Lanka, was remote. This finding is said to be “erroneous” because the applicant claimed to have been repeatedly approached by these men on return to Sri Lanka from Dubai. Nor did the IAA take into account his fear of being “framed” as an LTTE member.
Again, the applicant’s ground seems not to understand that the focus of the IAA must be on the reasonably foreseeable future. (Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy [1994] FCA 1035; (1994) 127 ALR 223 at [66], Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 at 279, or [47], and Minister for Immigration and Citizenship v SZQKB [2012] FCA 1189; (2012) 133 ALD 495 at [42]).
The IAA did not fail to consider the applicant’s claims of past harm. To the contrary, it accepted that he had been approached by the CID and the TMVP men in the past.
What the IAA considered at [21] (CB 176), appropriately, was the real chance of harm in the foreseeable future. What the IAA found “remote” was the chance of being approached by the same men to extort money from him, given the passage of five years since he had left Sri Lanka.
Although not entirely clear, it appeared that in submissions, the applicant suggested that that the IAA did not provide reasons for its findings. This also has no merit, given what is set out in the decision record at [19], and what precedes it.
While the IAA accepted some of the past events, it had regard to the applicant’s own evidence that his family, who continued to live in the same village (and whom he claimed had also been the subject of past harm), had not faced any problems in the time since he had come to Australia (five years). This, and the other matters referred to above, provide the probative basis for the IAA’s finding.
I note that the reference in ground three to being “framed” as an LTTE member, was not the subject of written or oral submissions, and it can only be assumed to have been abandoned. In all, yet again there is no requisite merit in ground three.
Ground four directs attention to [22] of the IAA’s decision (CB 176):
“22. In his statement the applicant said that since leaving Sri Lanka the CID and TMVP members continue to question his mother about his whereabouts and threaten to kill him if they find him. This contradicts his evidence at his interview where it was put to the applicant that since he arrived in Australia there had been no more visits to his family home. I do not accept that persons, whether SLA, Sri Lankan authorities, paramilitary groups or anyone else had attended the applicant’s home since he has been in Australia trying to locate him.”
The complaint appears to be that the IAA did not explain the basis for its finding that paramilitary groups had not attended at the applicant’s house since he left for Australia.
Notwithstanding this complaint, the applicant’s grievance as expressed before the Court, appeared to be that in making this finding, the IAA did not explain why it preferred the applicant’s evidence at the interview, over the written statement of claims he had provided.
The actual reasoning, and relevant finding of the IAA, was that on the matter of the paramilitaries, and their interest in the applicant after he left Sri Lanka, the applicant gave contradictory accounts between his evidence at the interview, and what he had put in his written statement.
The applicant’s complaint is that the IAA went from the identification of the contradiction, to then accepting one version (the interview) without explaining why.
The answer to this complaint, again, is to be found in a contextual and holistic reading of [22] (see CB 176), and in light of what precedes it.
As set out above, the IAA had found, for reasons given, that, notwithstanding their earlier interest, the passage of time (and other evidence given by the applicant) meant that he would not be of interest to the paramilitaries on return.
At [22] (see CB 176) the IAA, properly, considered the information in the applicant’s written statement, that his mother had been approached by CID and TMVP members since he had left. Given its earlier finding, the IAA preferred the evidence given by the applicant at the interview, which was consistent with its finding that his family had not been approached, to that which was in his written statement provided at an earlier time.
Again, this was reasonably open to the IAA. There is not sufficient merit in the ground to support the reinstatement of the substantive application.
Ground five directs attention to [24] of the IAA’s decision record (CB 177):
“24. Regarding the applicant’s claims that he would be systematically targeted because of his ethnicity and his alleged involvement with the LTTE, at his interview, the applicant claimed for the first time that his cousin was involved with the LTTE and was now deceased and that when he was in Dubai, his family were assaulted by the Sri Lankan authorities on account of their support for the LTTE. Prior to his interview, the applicant had not made any claims that he or his family were personally ever associated with the LTTE or were ever imputed to have been associated with the LTTE. At his interview when questioned by the delegate by what he meant by supported the applicant responded that “when they needed food we prepared food for them”. When asked why he did not mention this in his application he said that it was because they had asked him to talk about him. I am of the view that his family being supporters of the LTTE and his cousin being involved with the LTTE are vital pieces of information and would form a significant reason why the applicant left Sri Lanka if the account was true. I am not swayed by the applicant’s reasons for why he did not mention that his cousin was involved with the LTTE or that his family had assisted the LTTE earlier than his interview and I do not accept this claim.”
The assertion is that the IAA’s finding was arbitrary, and demonstrated a lack of understanding of relevant country information.
The focus of the IAA at [24] (see CB 177) was the applicant’s claim, raised at the interview, that he would be targeted because of his Tamil ethnicity and alleged involvement with the LTTE.
The IAA reasoned that prior to the interview, the applicant had not made claims to this effect, and only raised the matter of preparing food for the LTTE when questioned at the interview by the delegate.
The IAA did not accept the applicant’s explanation for not having raised this earlier (“they had asked him to talk about him.”)
The IAA findings were all reasonably open to it on what was before it, and the findings, contrary to the complaint now, were explained with reference to the circumstances presented.
It must be said with reference also to some of the other grounds of the substantive application, that this, yet again, is another example of impermissible merits review. There is insufficient merit to support the granting of the reinstatement of the substantive application.
As set out above, what are described as grounds 6, 7 and 8 in the written submissions, were not part of the application which the applicant now seeks to resurrect before this Court.
No explanation was proffered as to why the applicant sought to raise these “grounds”, which were not the subject of the application to reinstate. However, given that the applicant does not have a competent application before the Court, I considered these “grounds” as further arguments as to why the application should be reinstated.
“Ground six” asserts bias on the part of the IAA reviewer. Ground six refers to s.473BA of the Act. The reference to this section was not explained, nor is it immediately apparent. Further, this may, possibly, have been an attempt to also assert that the IAA’s reasoning was illogical and unreasonable.
In any event, the allegation of bias is said to be made out because the IAA (with reference to [22] and [24] of its decision record) exhibited a “pattern” of reasoning, and findings, which were not reasonably open to it. That “pattern” was said to be exhibited as explained in the applicant’s grounds four and five.
The applicant made no reference to any relevant authorities in his submissions on this “ground”. Had he done so he may have discovered that an allegation of bias against an administrative decision maker is a serious matter, attacking the very integrity of the decision maker.
For that reason, such allegations must be distinctly made and clearly proven (Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1 at [69]). The test for bias was explained in Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 (2001); 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421; (2001) 65 ALD 1.
The applicant’s allegation of bias is not clearly made, and certainly not capable of being distinctly proven on the basis of what is before the Court. In essence, the basis for the allegation is that the IAA preferred certain pieces of evidence over others, and should have found in the applicant’s favour. Further, the applicant relied solely on the IAA’s decision record to make out this ground. It is a “rare” case in which bias can be revealed simply on this basis alone. (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] and SBBF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 358 at [16]).
As set out above, the IAA made findings that were reasonably open, and for which it gave logical and intelligible reasons with reference to the material before it.
In essence, the applicant’s complaint is that the Tribunal rejected certain aspects of his claims. The mere rejection of claims does not of itself indicate bias, let alone provide a basis to assert it.
Further, it was not illogical, or for that matter irrational, for the IAA to prefer some evidence over other evidence. The IAA’s subjective, but reasonable, views which informed its findings, in circumstances where the findings are explained, are not susceptible to an attack of bias.
In essence, “Ground 6” is yet another attempt to express grievance with the IAA’s findings. Given that the IAA’s findings were reasonably open on what was before it and explained, no irrationality or unreasonableness is revealed. (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369, (2010) 266 ALR 367; (2010) 115 ALD 248 at [131]).
Proposed “Ground 7”, again, is focused on [22] and [24]. The assertion is that in adopting the “versions” (of the applicant’s various accounts of claimed events), it did in those paragraphs reveal illogicality in preferring one “version” of the applicant’s evidence, over another. The applicant relies on CIC15 v Minister for Immigration and Border Protection [2018] FCA 795 (“CIC15”) for this proposition.
Proposed “Ground 8” again refers to the same paragraphs in the IAA’s decision record, but asserts that the IAA fell into jurisdictional error because its acceptance of one version over another was based on matters which were “trivial” or “minor”. Again he relies on CIC15.
Before the Court, the applicant did not explain how CIC15 assists him in the circumstances of this case. In my respectful view, what was found in CIC15 was that in certain circumstances, it may be illogical for a decision maker to find adversely in respect of an applicant’s credit based on what, on an objective basis, could be said to be minor or trivial matters.
In the current case, the IAA did not make an adverse credibility finding in the way explained and found in CIC15. Here the IAA, for the reasons it gave, simply preferred one “version” of the evidence over another.
Nor can it be said that the reasons for these preferences arose out of trivial or minor matters. What the IAA relied on were inconsistencies in the applicant’s own evidence (both written and oral).
The inconsistencies involve such key matters as whether the applicant was of continuing interest to those from whom he said he feared harm, or whether he and his family were personally associated with the LTTE.
It was reasonably open for the IAA to take the view that the applicant’s family support, or links, “with the LTTE are vital pieces of information and would form a significant reason why the applicant left Sri Lanka if the account was true” ([24] at CB 177).
Again, proposed grounds 7, and 8, are poorly disguised attempts at seeking to express grievance with the IAA’s decision. That is, they seek impermissible merits review. They also lack relevant merit to support the reinstatement of the substantive application.
Conclusion
No reasonable explanation as to why the applicant failed to attend before the Court when the substantive application was dismissed has been provided. Further, and of greater importance, there is insufficient, if in fact any merit, in the grounds of the substantive application, and the proposed grounds, to argue for reinstatement in the interests of justice.
It is appropriate that the application to the Court to reinstate the substantive application be dismissed. I will make the appropriate order.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 31 January 2019
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