DTP18 v Minister for Immigration

[2020] FCCA 416

FEDERAL CIRCUIT COURT OF AUSTRALIA

DTP18 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 416

Catchwords:
MIGRATION – Judicial review – decision of Immigration Assessment Authority – application for adjournment – where generalised or inconsistent claims – where failure to particularise any alleged jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

WZATH v Minister for Immigration and Border Protection [2014] FCA 969

Applicant: DTP18

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 283 of 2018

Judgment of: Judge Young

Hearing date: 12 February 2020

Date of Last Submission: 12 February 2020

Delivered at: Darwin

Delivered on: 12 February 2020

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: In person

Counsel for the First Respondent: Mr Cummings

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

3. The applicant to pay the first respondent costs of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 283 of 2018

DTP18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Adjournment  

1. This is an application for an adjournment of an application for judicial review, made by the applicant.  The applicant filed his application on 20 July 2018.  Orders were made in August 2018 for the filing of any amended application and submissions.  None of that has happened. 

2. The applicant told me a short time ago, after the hearing had commenced that, in substance, he didn’t know what the errors were in the decision and he would need a lawyer to help him explain that or identify the errors. 

3. He was unable to explain to me, in any way, what steps he had taken to obtain legal advice over the past 18 months. He did mention that he had had a meeting with JusticeNet which is an organisation or a clearing house, as I understand it, for pro bono legal assistance in Adelaide. He was unable to explain to me what had happened there beyond saying that he had a meeting with JusticeNet in July or August 2019, but nothing had come of that.

4. I am not satisfied that the applicant has taken real steps to obtain legal advice or having been refused legal assistance by JusticeNet, has taken any other steps to obtain legal advice.  In my view, the application has no merit and I dismiss it.

Judicial Review

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) made on 25 June 2018.  The single ground of review in the application is that:

   “The Immigration Assessment Authority made a jurisdictional error in the determination of my case.”

2. No particulars were provided. The applicant has not complied with the directions for hearing made on 15 August 2018 giving him leave to file and serve any amended application by 12 October 2018, and to file any written submissions 14 days prior to the hearing. That has not happened either.

3. I attempted to explain to the applicant the nature of jurisdictional error.  I explained to him that it may consist of him not being given a fair hearing, the Authority not considering one of his claims or, for example, reaching a wrong conclusion on the evidence before it.

4. The applicant, frankly told me, that he had not understood the decision of the Authority.  He said that, “he reads some English, but not very well”, and he had asked some of his friends to explain some of the more difficult words.  The substance of what he told me was that despite his application for review, he did not fully understand the decision. 

5. Midway through his submissions, he sought an adjournment, in order to obtain legal advice.    In the circumstances, I did not consider there was merit to any application for an adjournment and I refused it.

6. The applicant was unable to identify any error in the decision of the Authority.  He did, in oral submissions, say that the Authority wrongly found that certain documents he had proffered were “fake”.  As Mr Cummings for the Minister points out that, in fact, was not a finding of the Authority.  The Authority refused to consider some documents that were proffered to it as new information, or at least was not satisfied there were exceptional circumstances, and refused to consider those documents.  I accept Mr Cumming’s description that there was no finding by the Authority that the documents were “fake”, or bogus.

7. The Authority also accepted that the applicant’s brother had been kidnapped and disappeared in about 2001, some 11 years before the applicant left Sri Lanka for Australia. 

8. The gist of the Authority’s findings were that they were not satisfied that the applicant was credible.  The Authority pointed to a variety or a number of inconsistencies in the narrative given by the applicant at the various stages of his involvement with the Australian authorities. 

9. To take one example, it was asserted before the delegate that his father had been a wealthy businessman who was threatened by various groups and had died of a heart attack.

10. Before the Authority, the applicant claimed that his father had been killed by the Sri Lankan Army.  He also made a new claim that he would be imputed with supporting the LTTE. 

11. There were some other new claims, particularly that there is a risk of harm at the airport if he were to return to Sri Lanka, in addition to a risk of harm from radical Buddhists because of attacks on Rohingya refugees in Sri Lanka. 

12. While they were new claims, the latter two were not inconsistent claims.  I have given those as examples.  I do not propose to go into the detail of all of the inconsistencies identified by the Authority.

13. One of the significant inconsistencies was the applicant’s claim that he was closely involved in political activity in Sri Lanka, particularly in supporting his uncle who he said was an election candidate.  The Authority concluded that the applicant was a person who participated to the extent of helping his uncle put up posters and the like.  That is, his political activity was at a low level and that he wasn’t likely to suffer harm as a result of such political activity conducted some years ago. 

14. The Authority accepted that the uncle was involved in political activity and that it appears his father had died of a heart attack. The Authority did not accept the applicant’s claims that his father had been hounded to death because of business enemies or that the father was a wealthy Muslim businessman, although it accepted he was a Muslim businessman.

15. The Authority accepted that the applicant’s brother was kidnapped and disappeared in 2001 but otherwise did not accept that the applicant was targeted as a Muslim for kidnapping by the Sinhalese Buddhists, relying on country information to arrive at this conclusion.  The Authority did not accept various other claims made by the applicant, for example that he was assaulted in 2012 before he departed for Australia.  The Authority did so on the basis of what it considered to be inconsistencies in the claims of assault and the medical evidence provided by the applicant.

16. The Authority also did not accept that the applicant was related to a Tamil man who was murdered in South Australia in 2017 or thereabouts.  The relevance of that is not obviously clear to me but it was an issue that was raised and considered. 

17. I have read the entirety of the decision.  I do not see any error.  In circumstances where an applicant is unable to identify any error it is not for the court to pore over a decision and identify any error, even if I could identify error.  As I said, I have been unable to identify any error and the applicant has not, in my view, identified any error.

18. The applicant’s failure to particularise the alleged error is in itself a basis for dismissal of the application, on the basis of one of the many decisions on that point. Counsel for the Minister referred to the decision in WZATH v Minister for Immigration and Border Protection [2014] FCA 969.

19. I am not satisfied there is any error in the decision.  I propose to dismiss the application. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  26 February 2020