DTF16 v Minister for Immigration

[2018] FCCA 2999

FEDERAL CIRCUIT COURT OF AUSTRALIA

DTF16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2999

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority considered all claims made by the applicant – whether the finding by the Immigration Assessment Authority that certain evidence before it was inconsistent was open to it – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

Cases cited:

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263

Applicant: DTF16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSSESSMENT AUTHORITY

File Number:   SYG 3471 of 2016

Judgment of: Judge Emmett

Hearing date: 23 October 2018

Date of Last Submission: 23 October 2018

Delivered at: Sydney

Delivered on: 23 October 2018

REPRESENTATION

Counsel for the Applicant: Penelope Abdiel

Solicitors for the Applicant: Tim Smith Lawyers

Counsel for the Respondents: Jonathan Kay-Hoyle

Solicitors for the Respondents: Clayton Utz

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3471 of 2016

DTF16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 11 November 2016 (“the Authority”), dismissing a review by the Authority of a decision of a delegate of the first respondent (“the Delegate”) made on 18 August 2016 refusing the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (“SHEV Visa”).

2. The applicant is a citizen of Sri Lanka and of Hindu faith and Tamil ethnicity, who fears harm from the Sri Lankan Army, the Criminal Investigation Division (“CID”) and Tamil paramilitary groups in Sri Lanka. The applicant claimed to fear harm from authorities and the military in Sri Lanka because of his imputed association with the Liberation Tigers of Tamil Eelam (“LTTE”).

3. The two issues in this matter are whether the Authority dealt with all claims made by the applicant; and, whether it was open to the Authority to find that certain evidence before it was inconsistent.

4. In his Entry Interview, the applicant stated that he was removing land mines for money and that the LTTE had the contract for landmine removal in the area in which the applicant was working as a de-miner in Sri Lanka. In a statement in support of his visa application, the applicant stated that authorities were aware he had worked previously in an LTTE controlled area as a mine clearer for a foreign Non-Government Organisation (“NGO”) and was paid for his work by the LTTE. The applicant stated that he was at risk of harm because authorities suspected he was a member of the LTTE in the past, that they believed his brother was a member of the LTTE, and that the applicant had worked for the LTTE as a mine clearer and hence was a member or supporter.

5. The applicant also claimed to fear harm because he had failed to report at the Sri Lankan Army (“SLA”) camp on a daily basis. The applicant claimed that he had been required to report daily at the SLA camp.

6. Following the SHEV interview, the Delegate accepted as genuine the applicant’s claim that he worked for the Humanitarian Demining Unit. The Delegate noted that the applicant had claimed at interview that his employment in de-mining was linked with the LTTE and that he was employed by the LTTE to perform de-mining tasks. The Delegate did not accept that the applicant was paid or employed by the LTTE based on an absence of country information to support such an allegation. However, the Delegate accepted that the LTTE allowed de-mining work to be undertaken in their areas and that the applicant was employed by the Humanitarian Demining Unit and Norwegian People’s Aid.

7. The Delegate noted the applicant’s expressed fear of persecution on the grounds of his family links to the LTTE as well as his employment with the Humanitarian Demining Unit and Norwegian People’s Aid. The Delegate found the applicant’s fear to arise out of the applicant’s imputed political opinion as an LTTE supporter.

8. The decision of the Delegate and the Authority was accurately summarised in the applicant’s submissions as follows:

   “20. Pursuant to section 36(2) of the Migration Act 1958 (the Act), in order to be granted a SHEV, the Minister must be satisfied Australia has protection obligations because the person is a refugee, or there is a real risk a person will suffer significant harm as a necessary and foreseeable consequence of the person being removed from Australia. A person is a refugee if they are outside of their country of nationality, and cannot avail themselves of the protection of that country, owing to a well-founded fear of persecution: s 5H(1) of the Act. A well-founded fear of persecution constitutes a fear of persecution owing to reasons of race, religion, nationality, membership of a particular social group or political opinion, the fact that there is a real risk that the person will be persecuted for those reasons, and the fact that such persecution would relate to all areas of a receiving country: s. 5J(1) of the Act.

   21. On 18 August 2018, the delegate determined that the applicant did not have a well-founded fear of persecution, and therefore was not a refugee pursuant to sections 5J(1) and 5H(1) of the of the Act. The delegate determined that the applicant was not entitled to complimentary protection pursuant to section 36(2)(aa) of the Act.

   22. The delegate accepted the applicant’s claims regarding the death of his brothers, J’s low-level involvement with the LTTE, the applicant’s employment with the Humanitarian Demining Unit and Norwegian Peoples aid, in an area under the control of the LTTE. The delegate also accepted that the applicant was questioned by the CID upon returning from India, and the applicant would be a failed asylum seeker if returned to Sri Lanka.”

9. The Authority did accept that the applicant had been displaced at various times in his life due to a genuinely held fear of harm from the Sri Lankan authorities and fighting during the Sri Lankan civil war. However, the Authority found the applicant’s evidence at the SHEV interview to be “vague, general and not persuasive” about certain aspects of his claimed past harm. The Authority found that the applicant had greatly exaggerated his profile with the Sri Lankan authorities and the level of interest that the authorities or Tamil paramilitaries had in him.

10. Ultimately, the Authority found that the applicant did not meet the requirements or the criteria in s.36(2A) or s.36(2AA) of the Act.

The proceeding before this Court

1. The applicant was represented before this Court by Ms Abdiel, of counsel. At the outset of the hearing, Ms Abdiel confirmed that the applicant relied only on Ground 1 of the Amended Application filed on 1 June 2017. Ms Abdiel told the Court that the applicant no longer relied on Ground 2 of the Amended Application.

2. Ground 1 is as follows:

   “1. In making the decision dated 11 November 2016 (the Decision), the second respondent did not complete its jurisdiction or left its jurisdiction constructively unexercised by failing to correctly construe and consider the applicant's claims.

   Particulars

   a. In paragraph 22 of the Decision the second respondent incorrectly construed the applicant's claims that he made in his interview for a XE-790 Safe Haven Enterprise Visa (the Shev interview) as that "he worked for the LTTE as a de-miner".

   b. In paragraph 22 of the Decision the second respondent incorrectly construed the applicant's claims in his interview on arrival in Australia (the Entry interview) as that "he worked for the LTTE as a de-miner".

   c. In paragraph 22 of the Decision the second respondent incorrectly construed the applicant's claims in his statement accompanying his application for a XE-790 Safe Haven Enterprise Visa (the SHEV statement) as that he "was paid by the LTTE" for his work as a de-miner.

   d. In paragraph 25 of the Decision the second respondent incorrectly construed the applicant's claims in the SHEV interview as that the applicant "did not state he was required to report daily, rather stating he had to report whenever the Sri Lankan authorities came looking for him".

3. In relation to the applicant’s claim to have been a de-miner in Sri Lanka, I understood the contention by counsel to be that the applicant had made two claims. First, that he worked for a foreign NGO as a de-miner. Second, that he was paid by the LTTE for that de-mining work. Counsel for the applicant contended that the Authority had failed to consider the risk to the applicant as a de-miner of a foreign NGO; and, considered only his claim to have worked for a foreign NGO as a de-miner for which he was paid by the LTTE. The findings with which the applicant cavilled are found in [22] of the Authority’s decision, as follows:

   “22. Work as a de-miner: The applicant provided an employee card dated January 2005 to December 2006 issued from a named European country based NGO stating he worked as a de-miner. In his SHEV statement the applicant said he worked for a foreign NGO as a de-miner, but was paid by the LTTE. At the SHEV interview and in the entry interview the applicant said he worked for the LTTE as a de-miner. At the SHEV interview he made new claims people with whom he worked as a de-miner were now in detention. I note the country information quoted by the delegate indicates the NGO the applicant worked for cooperated with the Sri Lankan army, therefore I again consider the applicant has exaggerated his claim he worked for the LTTE as a de-miner and he has exaggerated the claim the Sri Lankan authorities would be have any the claimed level of interest in the applicant because he worked as a de-miner. I am not satisfied the applicant worked for the LTTE and for that reason, I am not persuaded by the submission of the former migration agent at the SHEV interview the applicant would be targeted for harm as someone who previously worked for the LTTE.”

4. Counsel for the applicant took the Court through the various iterations of the applicant’s claims, including exchanges between the Delegate and the applicant as reflected in a transcript of the SHEV interview annexed to the Affidavit of Timothy Smith, sworn 6 July 2017. The transcript, at pages 31 to 32, made clear that the applicant claimed that he was paid for his work as a de-miner by the LTTE who hired the Humanitarian Demining Organisation to carry out that work.

5. Counsel also took the Court to oral submissions made by the applicant’s representative at the SHEV interview at pages 68 to 69 of the transcript, as follows:

   “482 His work as a mine clearer on the basis of his testimony is, if it um if it should be accepted because there was no detailed questions asked about the kind of role he did, what kind of mine job he operated or what kind of tools he used, due to I mean, due to those kind of details could be obtained from the internet I understand, but that was not tested, but if you are basing all his responses with regard to timelines alone, that may not be correct in this situation. So, in regards to the application and previous interview, can you accept you had no problem with him having worked as a mine clearer.

   483 If that was the case, then I go to the more recent different report of 2015 October, which talks about low profile members. It talks about those who have high level of non-willing material support of LTTE would under this category of low profile members. My client is definitely one because he said that he was paid or paid by the LTTE, directed by the LTTE, he performed his role in an LTTE area…”

6. I do not accept that the applicant’s representative was identifying a separate and distinct claim by the applicant that he feared harm simply by reason of his de-mining work with an NGO, unrelated to any LTTE claim. Those submissions were directed more to having the Authority accept that the applicant worked as a de-miner because he was paid by the LTTE. Ultimately, the Authority accepted that the applicant worked as a de-miner for an NGO (consistent with an employment certificate provided by the applicant) but rejected the applicant’s claim to have been paid by the LTTE.

7. Counsel for the applicant contended that the Authority over-simplified and incorrectly construed the applicant’s claims as a claim only to fear harm because he worked for the LTTE as a de-miner and was paid by the LTTE. Counsel contended that the applicant’s actual claim was that he worked for a foreign NGO and, secondly, for or with the LTTE as a de-miner. Counsel contended that the Authority considered only the applicant’s claim to have worked with the foreign NGO insofar as it had LTTE connections.

8. I asked counsel for the applicant on several occasions what was the harm the applicant claimed to fear by reason only of his work as a de-miner with a foreign NGO in the absence of any LTTE connection; and, where the applicant had made such a claim.

9. Counsel for the applicant took the Court to the material referred to above in support of her contention that the applicant made a distinct and separate claim to fear harm by reason of his work as a de-miner with a foreign NGO, unconnected to any LTTE claims.

10. A fair reading of the applicant’s claims, both written and at the SHEV interview, do not support that contention. The applicant’s claims were at all times linked to his connection or imputed connection with the LTTE. Counsel was unable to identify with any clarity at all where and how such a distinct claim was made. I do not accept that any such claim squarely arose on the evidence and material before the Delegate or the Authority of a separate and distinct claim in those terms (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]-[60] per Black CJ, French and Selway JJ).

11. In the circumstances the Authority’s conclusions in [22] address the applicant’s claims and were open to it on the evidence and material before it and for the reasons it gave.

12. Accordingly, Ground 1(a)-(c) is not made out.

13. In Ground 1(d), counsel for the applicant contended that the Authority’s finding that the applicant had given inconsistent evidence about daily reporting to an SLA camp was not open to it because the applicant’s evidence was not inconsistent.

14. In his statement in support of his SHEV application, the applicant stated as follows:

    “I was also required to report daily at the army camp situated in Vila Thikulam. I reported daily and was required to report daily at the army camp.”

15. At interview, the following exchange took place at [41] of the transcript:

    “[Delegate] And how often did you have to go and sign?

    [Applicant] I had to go before 10am and sign.

    [Delegate] And how often was that, daily, weekly, monthly?

    [Applicant] Normally every day they would come and ask me to accompany them.

    [Delegate] Where would they, you said they came to get you to come with them, where were they getting you from?

    [Applicant] They came to my house or they would ask me to come to the camp.”

16. In considering that information, the Authority stated as follows:

    “25. …In the SHEV statement, the applicant claims between 2010 and 2012, he was required to report daily to an army camp, yet, at the SHEV interview, although the delegate asked several times the applicant did not state he was required to report daily, rather stating he had to report whenever the Sri Lankan authorities came looking for him. This undermines the applicant's claims the daily reporting led him to go into hiding, which led to his failing to report, which led to the Sri Lankan authorities coming to look for him, which was his reason for leaving Sri Lanka. This is yet another example of the applicant exaggerating his evidence and his level of interest to the Sri Lankan authorities and Tamil paramilitaries. Due to these inconsistencies in his evidence, I do not accept the applicant was required to report daily to an army camp and it follows I do not accept he went into hiding, failed to report or that Sri Lanka authorities came looking for him.”

17. As reflected above, the Authority referred to the applicant’s SHEV statement that he was required to report daily to an army camp. However, at the SHEV interview, the Authority referred to the questions by the Delegate to the applicant about his reporting and found that the applicant stated he had to report whenever the Sri Lankan authorities came looking for him.

18. The evidence giving by the applicant at the SHEV interview was not the same as his statement that he was required to report daily. In the circumstances, it was open to the Authority to find the applicant’s statement and evidence to the Delegate to be inconsistent; and, it was open to the Authority not to accept that the applicant was required to report daily to an army camp or that the applicant went into hiding when he failed to report or that Sri Lankan authorities came looking for him.

19. Accordingly, Ground 1(d) is not made out.

20. Otherwise, there was no challenge by the applicant to the reasons of the Authority or the conduct of the review alleging any other jurisdictional error.

21. The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.

22. The proceeding before this Court should be dismissed with costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 23 October 2018