Dwa17 v Minister for Immigration

[2019] FCCA 366

FEDERAL CIRCUIT COURT OF AUSTRALIA

DWA17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 366

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority misunderstood its statutory obligations – whether the Authority’s findings were illogical or unreasonable – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473DC, 476

Cases cited:

MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80

Northern Territory v the Minister for Aboriginal Affairs [1989] 23 FCR 536

Applicant: DWA17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 460 of 2017

Judgment of: Judge Street

Hearing date: 18 February 2019

Date of Last Submission: 18 February 2019

Delivered at: Perth

Delivered on: 18 February 2019

REPRESENTATION

Counsel for the Applicant: Mr M Guo

Solicitors for the Applicant: Estrin Saul Lawyers

Counsel for the Respondents: Ms A Ladhams

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The oral application under s 136 of the Evidence Act 1995 (Cth) in respect of the written record of interview is rejected.

2. The tender of the affidavit of the applicant that was admitted subject to relevance is rejected on the ground of it not being relevant.

3. The amended application is dismissed.

4. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 18 February 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 460 of 2017

DWA17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under section 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 2 August 2017, affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims assessed against that country. The applicant arrived in Australia on 21 August 2013 as an unauthorised maritime arrival. The applicant was found to be a Tamil from the Northern Province and had been detained by the Sri Lanka army (“SLA”) on one occasion.

3. The applicant claimed to fear harm for reasons of his ethnicity, his real or imputed political opinion, the Department’s data breach and for being a failed asylum seeker and his illegal departure. On 16 May 2017, the delegate found that the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

4. On 19 May 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction, giving the applicant an opportunity to put on new information and submissions.

5. It is apparent from the material before the Court that at the entry interview there were two parts of audio recording of the arrival interview which were the subject of the use of an interpreter. The first interview was on 16 June 2013 and the second on 23 August 2013, conducted by the interviewer for the irregular maritime arrivals. The Authority had before it a written record of the interview and the applicant agreed to have the interview recorded, and at the end of the written record both the applicant, the interviewer and the interpreter signed the same. It is apparent from the index to the Court Book that only part 2 of the arrival interview recording was provided to the Authority.

6. The Court Book at page 165 identifies that part 1 had not been able to be located. The Court finds that the part 1 recording was not provided to the Authority in relation to the material to which the Authority in its reasons identified having regard provided by the Secretary under s 473CB of the Act as the part 1 recording was lost. Mr Guo of counsel, on behalf of the applicant, alleges no error by reason of the failure to disclose the absence of part 1 of the audio recording that has been lost and accordingly not provided to the Authority either as a jurisdictional error arising under s 473CB of the Act or as a jurisdictional error arising under s 473DC of the Act.

7. The Authority in its reasons identified that there was a statement provided by the applicant on 5 June 2017 and had regard to the same so far as it engaged with the delegate’s. The Authority identified the new information but was not satisfied there were exceptional circumstances to justify considering the new information. The Authority also identified that there were articles that post-dated the delegate’s decision and the Authority was satisfied there were exceptional circumstances to justify considering that new information.

8. The Authority also identified taking into account new information, which the Authority noted referred to the delegate not having made an assessment of the applicant’s claims that he fears harm on the basis that the Sri Lankan government believes all former passengers of the Merak boat are Liberation Tigers of Tamil Eelam (“LTTE”). In those circumstances, the Authority found there were exceptional circumstances to justify considering the new information.

9. On 5 March 2017, the applicant provided to the delegate an assertion that according to the Sri Lankan government they suspect all Merak boat refugees are LTTE and the applicant referred to his time staying on a boat and there as a reference to a request by the Indonesian government to send the applicant back to Sri Lanka. It was in that context, that the Authority referred to the applicant’s claim, in paragraph 9, that he fears, on the basis of the material he has identified, that the Sri Lankan government believes all former passengers of the Merak boat are LTTE.

10. The Authority summarised the applicant’s claims, including a reference to the applicant asking for permission to leave Jaffna in January 2007 and it being refused by the Commanding Officer and that in February 2007 there was a bomb blast in the applicant’s home area and the President of the Sports club was asked to attend the SLA camp for questioning and that at the camp the President was shot and the applicant was then asked to attend the SLA camp for questioning, but instead went in to hiding at his aunt’s house. The applicant also referred to an incident in November 2006, where he was taken to the SLA camp after the SLA attended his home. The applicant was taken to a SLA camp where he was detained, questioned, assaulted and allegedly forced to sign two documents before he was released three days later.

11. The Authority referred to certain events, including the applicant’s claim that while he was detained he was forced to sign a document in Sinhalese and told if the same thing happens again then he would be detained. The Authority accepted that the applicant was released three days later and returned to his family home. The Authority referred to the applicant’s evidence in that regard being consistent with the entry interview, the protection visa application, the interview with the delegate, and with country information

12. It was in that context that the Authority then referred to not accepting that while detained by the SLA the applicant was forced to sign a blank document and told that the two documents he had signed would be used as a confession for any future crimes committed by the LTTE. The Authority found those claims were not made at the applicant’s entry interview and that the applicant’s claims were that he signed a document written in Sinhalese and was told he would be arrested if the same thing happened again. The Authority referred to considering the written record of the entry interview and was satisfied that the applicant had been given the opportunity to include such claims and that he did not make the claims. The Authority was satisfied that the claims were not true and found that they had been provided in order to enhance the applicant’s claims for protection.

13. The Authority also referred to not accepting the applicant’s claims that in 2007 he sought permission to leave Jaffna and it was not given, that in February 2007 there was a bomb blast, that the applicant was requested to attend an SLA camp or that whilst staying in Colombo the applicant was approached for help by a particular person named R.

14. The Authority referred to the applicant’s claims regarding these events not having been made at the applicant’s entry interview. The Authority acknowledged that the entry interview was not for the purpose of an assessment of the person’s protection claims, but found that the applicant was asked why he had left Sri Lanka and in response the applicant made mention of his participation in the football tournament, the photograph with a LTTE member and the detention by the SLA after they discovered the photograph. In contrast the Authority found there was no mention of the events referred to above, which were said to have occurred shortly thereafter. The Authority did not accept the applicant would fail to mention these claims emerging from the bomb blast given that his later evidence was that it was this event which was the catalyst for him going in to hiding and his move to Colombo prior to his departure from the country.

15. The Authority referred to the protection visa interview, at which the delegate questioned the applicant further about the events which he claimed to have occurred from January 2007 onwards. The Authority found the details provided were generally consistent with the protection visa statement, but was not satisfied that the consistency alone was sufficient for a conclusion that these claims were true.

16. The Authority later asked the applicant whether the village or district officers from whom he sought permission to travel were connected to the authorities and the applicant said that they were the government officials. The delegate asked the applicant that if he believed the SLA was interested in him, why he registered with the government. The applicant asserted that after the incident in November 2006, he was let go and that is when he applied but it was not until after the bomb blast that he did not feel safe and decided to leave.

17. The Authority noted that the applicant stated that after his application for regional travel was denied, he sought help from the Eelam People’s Democratic Party (“EPDP”) and it was with EPDP protection he went by ship from Jaffna to Colombo. The Authority referred to having considered the applicant’s explanation, but remained unconvinced that the applicant was being targeted by the authorities at this time. The Authority found it was not plausible that had the applicant been of adverse interest to Sri Lankan authorities as claimed, that he would go to the government officials and advise them of his plans to travel to Jaffna.

18. The Authority also referred to the applicant being asked by the delegate if anything had happened to him while he was staying in Colombo and the applicant claimed to have received phone calls from a particular person, R. The Authority referenced the delegate had put to the applicant that the applicant’s statement regarding R had not been mentioned before, either in his entry interview or in his protection visa application. The applicant stated that the incident with R happened and it scared him and that had this incident not happened he would have stayed in Colombo longer. The Authority found the applicant’s claims regarding R to be convoluted and implausible.

19. The Authority found the applicant departed Sri Lanka legally using his own passport and travelled to Singapore by plane on a tourist visa in 2007. The Authority referred to country information and was satisfied that if the applicant had been of interest to the Sri Lankan authorities as claimed the applicant’s name would have been added to the database and he would have been stopped at the airport.

20. The Authority referred to having regard to the whole of the evidence and the absence of claims from the applicant’s entry interview, implausibility of the claims and a consideration of the country information, by reason of which the Authority was not satisfied these claims were true. The Authority did not accept that in January 2007, the applicant’s application for permission to travel was ever denied. The Authority found that it was granted and that the applicant travelled from Jaffna to Colombo by ship.

21. The Authority did not accept that in February 2007 after a bomb blast that the Sports club President was killed and the applicant was requested by the SLA to go in to their camp. The Authority did not accept that the applicant went in to hiding in order to avoid being questioned by the SLA about the bomb blast. The Authority did not accept that the events involving R ever occurred. The Authority did not accept the applicant was of interest to the Sri Lankan authorities, any other groups or individuals for any reason at the time of his departure from Sri Lanka in 2007. The Authority was not satisfied that the applicant is now wanted by the Sri Lankan authorities.

22. The Authority referred to the United Nations High Commissioner for Refugees (“UNHCR”) country information no longer referred to a presumption of eligibility for protection on the ground of Tamil ethnicity. The Authority referred to the country information indicating that Sri Lankan authorities had visually identified a small number of Merak boat passengers as known LTTE combatants or supporters and referred to the information asserting the importance to the Sri Lankan government of containing illegal migration of such people in order to avoid the resurgence of the LTTE.

23. The Authority referred to country information, identified in paragraph 8 of the Authority’s reasons, as not alleging that all passengers were considered LTTE supporters because they were Tamil. The Authority accepted the evidence the applicant was a former passenger of the Merak boat, but did not accept that the Sri Lankan authorities had ever imputed an actual LTTE involvement to all or most of the people who travelled in Merak boats in 2009 or since.

24. The Authority referred to having found that the applicant was not of interest to the Sri Lankan authorities when he departed Sri Lanka in 2007 and was satisfied that the chance of the Sri Lankan authorities visually identifying the applicant as a known LTTE combatant or supporter from any visual media footage to be remote. The Authority did not accept that the possibility of the applicant’s name occurring on a list held by the Sri Lankan authorities regarding the Merak boat compounded the risk to the applicant.

25. The Authority took into account the applicant’s own statements that he does not have any links or involvement with the LTTE or political organisations and was satisfied that the applicant will not be imputed with any type of profile arising from his past circumstances on return to Sri Lanka.

26. The Authority was not satisfied the applicant has a profile of the kind identified in the country information to be of concern to the authorities and found that the applicant would not be imputed with such a profile on return. The Authority was not satisfied the applicant faces a real chance of serious harm as a Tamil male from the Northern Province, and as a former passenger on the Merak boat, who may be perceived to have links with the LTTE on his return to Sri Lanka now or in the reasonably foreseeable future.

27. The Authority was not satisfied that the applicant having now lived outside Sri Lanka for a number of years or having sought asylum in Australia, there was any basis for the applicant’s claims that on return the authorities would perceive him to have LTTE connections or other relevant profile.

28. The Authority found the applicant had no adverse profile and was satisfied that the brief detention and any relevant questioning would not constitute serious harm.

29. The Authority was satisfied there is not a real risk of the applicant being seriously harmed by the Sri Lankan authorities, or any other group or person on return to Sri Lanka on the basis of his ethnicity, as a male Tamil from the Northern Province of Sri Lanka, his past history or profile, on the basis of his actual or imputed political profile or opinion, the disclosure of his details on the Department website, or as a former passenger of the Merak boat, as a returning asylum seeker from Australia or for any of the reasons claimed.

30. The Authority found the applicant failed to meet the definition of refugee in s 5H(1) of the Act and found the applicant did not meet the criteria in a 36(2)(a) of the Act.

31. The Authority found there was not a substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant would suffer significant harm. The Authority found the applicant did not meet the criteria of s 36(2)(aa) of the Act and affirmed the decision under review.

The grounds

1. The grounds of the amended application are as follows:

   1. The Immigration Assessment Authority (IAA) misunderstood its statutory task by rejecting the Applicant’s claims solely on the basis that they were allegedly not raised in the entry interview.

   Particulars

   The impugned claims are that the Applicant:

   i. was forced to sign documents that would be used as confession for future crimes committed by the Liberation Tigers of Tamil Eelam (LTTE);

   ii. was denied permission to leave Jaffna;

   iii. was questioned by Sri Lankan Army following a bomb explosion in February 2007.

   2(b). In respect of the articles referred to at paragraph 8 of its decision to the Applicant:

   It was not open for the IAA to conclude, on the basis of those articles, that there was no real risk that the Applicant would be identified as an LTTE supporter.

Ground 1

1. In relation to ground 1, Mr Guo of counsel drew attention to the caution identified by the Full Court in MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 (“MZZJO”), in particular at paragraphs 56 and 57. It was on that basis that Mr Guo took the Court to the reasoning of the Authority and in particular the reference to the written record of entry interview in paragraph 16 and the observation made in paragraph 18 e mentioning particular events.

2. Mr Guo sought to rely upon an affidavit by the applicant in which the applicant referred to the nature of what had occurred at the entry interview and referred to the applicant allegedly being forced to sign a document which was explained would be used against him as a confession of taking part in LTTE activity if the applicant was involved with any LTTE people in the future.

3. The applicant referred in his statement as to wanting to leave home in 2007 and that he had to seek permission from the army and it was refused. The applicant referred to a bomb blast and stated that the Sri Lankan authorities told him to go to the army camp for questioning and that he did not go and that he then was smuggled to Colombo where there was a person, R, who harassed him and that after R continued to harass him, he decided to get to Malaysia and that these were the reasons why the applicant left Sri Lanka and that the applicant told the interviewer about them. The applicant alleged that in the interview the applicant mentioned each of the matters above and that the applicant had mentioned the same things to the UNHCR in Malaysia and Indonesia.

4. The applicant in his affidavit also referred to the second interview in which the applicant identified he was not asked any questions about why he left Sri Lanka. The affidavit was admitted in to evidence subject to relevance.

1. Mr Guo took the Court to authorities in support of the proposition that evidence may be advanced in support of Wednesbury unreasonableness in the context of identifying that a natural state of facts did not exist or that the decision-maker based the decision of a finding of particular fact did not exist.

2. Mr Guo also referred to evidence being admissible in support of establishing a jurisdictional fact. Mr Guo further referred to the reasoning of the learned Lockhart J, Attorney-General for the Northern Territory v the Minister for Aboriginal Affairs [1989] 23 FCR 536 (“Northern Territory”) and in particular at page 540. In the context of the argument advanced under the application, Mr Guo expressly disavowed the argument being based on legal unreasonableness and contended, on the basis of MZZJO, that the Authority had misunderstood its statutory task by allegedly rejecting the applicant’s claims solely on the basis that they were not raised at the entry interview.

3. The Authority’s reasons are not be read with a keen eye for error. It is apparent from the Authority’s reasons, as summarised above, that the Authority did not reject the applicant’s claims solely on the basis that they were not raised at the entry interview. Mr Guo sought to limit the argument in respect of the claims to the particular matters identified in terms of being forced to sign a document that would be used as a confession, being denied permission to leave Jaffna and questioning by the Sri Lanka army following a bomb blast.

4. The Authority’s reasons as summarised above make clear that the Authority took into account more than just the applicant’s failure to identify matters in the written record of interview and that those matters included the questioning by the delegate as well as the applicant’s statement and implausibility. I do not accept that the Authority’s reasons should be read with a keen eye for error. The Authority expressly acknowledged in its reasons caution in relation to the use of an entry interview by reference to the proposition that its purpose was not for an assessment of an applicant’s protection claims.

5. Mr Guo sought to supplement the submission of misconstruction by reference to the existence of the recording at the time of the record of interview identified on the written record and the apparent loss of part 1 of the recording. It is apparent from the Authority’s reasons that the Authority was referring to the written record of interview and it was open to the Authority to do so. The reference to the lost recording, in respect of which the Court has made findings above, does not give rise to an of the kind alleged in MZZJO. No jurisdictional error as alleged in ground 1 is made out.

6. In respect of the admissibility of the evidence, the Court made an order that the affidavit was not relevant and rejected the tender of the affidavit, which in substance sought to contradict findings by the Authority and was not material that was before the Authority. The material is not admissible to prove the applicant was denied procedural fairness, as no such denial was alleged. Nor was the material admissible to prove legal unreasonableness because no legal unreasonableness was alleged.

7. Mr Guo sought to characterise the evidence as admissible as proof of the jurisdictional fact. The Authority’s finding in relation to what was or was not identified in the written record of interview was open to the Authority and it was not a jurisdictional fact of the kind identified by the learned Lockhart J in Northern Territory that could be the subject of the receipt of evidence. Mr Guo also sought to assert that the affidavit was admissible as secondary evidence of a destroyed record. The affidavit does not identify having listened to the lost recording nor does the documents in its terms purport to be secondary evidence of the destroyed document. The evidence was not admissible on that basis either.

8. Mr Guo submitted that the document was admissible because it was relevant to an alleged jurisdictional issue which Mr Guo, in substance, submitted was what the applicant had in fact said to the delegate at the time of the entry interview. This is in substance an endeavour to adduce evidence on the merits of the application. The applicant had the opportunity to put on new information and submissions. No issue has been raised of alleged error in the circumstances of the present case in respect of the lost recording and I do not accept that the lost recording advances the ground identified. Accordingly, no jurisdictional error in relation to ground 1 is made out.

Ground 2(b)

1. In relation to ground 2(b), Mr Guo took the Court to the Authority’s reasons in paragraph 8, referring to new information that the Authority had taken into account and, in particular, the reference by the Authority to the contention and the fear of the applicant identified in paragraph 8 and the Authority’s reasoning in paragraph 34. Mr Guo submitted that as a matter of law and fact, not all passengers aboard the Merak boat needed to be considered LTTE supporters for there to be an objective basis to fear that the applicant might be imputed to be one of the subset and that even if only some of the passengers were LTTE supporters, the relevant question is whether the applicant faced a real chance of being imputed with an opinion that might be said to have been held by just some of his fellow passengers and that accordingly, the Authority had not answered the question by seizing upon the article’s failure to claim that all passengers were considered to be LTTE supporters.

2. The submission by Mr Guo in that regard travelled beyond the assertion identified in ground 2(b) that it was not open to the Authority to conclude on the basis of those articles, that there was no real risk that the applicant would be identified as an LTTE supporter. Mr Guo accepted that the submission he was advancing in this regard was not the proposition that there was no evidence in respect of the Authority’s finding, but rather the illogicality of the reasoning said to be disclosed by reference to paragraph 8 and paragraph 34.

3. The Authority’s reasons in paragraph 8 and paragraph 34 must be informed by the applicant’s claimed fear in respect of all persons on the boat that the applicant was accepted as having been on, being imputed as being involved with the LTTE. There was nothing illogical in the Authority identifying that the country information did not support the contention that all passengers were considered LTTE supporters because they were Tamil. The Authority, in paragraph 35, did not accept that the Sri Lankan government has ever imputed actual LTTE involvement to most or many Merak boats in 2009 or since.

4. The Authority took into account the finding that the applicant was not of interest to the Sri Lankan authorities. The Authority also took into account the likelihood of the applicant being identified by a photograph as being remote. The Authority also took into account the applicant’s own statements that he did not mention involvements with the LTTE or political organisations. The Authority in paragraph 27 correctly identified the relevant test and revealed no misunderstanding in the application of the relevant test on the face of the Authority’s reasons.

5. The Authority’s reasoning in relation to the applicant’s claims was not illogical given the applicant’s express reference to the assertion identified above in respect of all persons on the boat being imputed as LTTE. The reasoning of the Authority as referred to above, was open to a reasonable decision-maker and does not support any illogicality in the context of the Authority making dispositive findings of the applicant’s claims under the Refugee’s Convention. It was both logical and open to the Authority to make the adverse finding identified by the Authority in paragraph 37 and paragraph 46.

6. For the reasons given by the Authority as summarised above, those findings were dispositive of the applicant’s claim, including the applicant having been a former passenger on the Merak boat. No jurisdictional error is alleged in ground 2 that is made out.

Conclusion

1. Accordingly, the application is dismissed.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 11 March 2019