DWJ18 v Minster for Immigration

[2019] FCCA 2659

FEDERAL CIRCUIT COURT OF AUSTRALIA

DWJ18 v MINSTER FOR IMMIGRATION & ANOR [2019] FCCA 2659

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a protection visa – whether the Authority failed to consider all the integers of the Applicant’s claims – whether the Authority failed to consider the Applicant’s fear of harm – whether the Authority unfairly rejected the Applicant’s core claims – whether the Authority rejected these claims in their entirety on the basis of speculation stating that they were implausible, a fabrication and lacked credibility – whether the Authority failed to consider the sibling evidence was true – whether the rejection of evidence was legally unreasonable – no jurisdictional error made out – application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 473DD, 478

Cases cited:

CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496

DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175

641

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR

220

Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230

WAGO of 2002 v Minister for Immigration and Multicultural and

 Indigenous Affairs (2002) 194 ALR 676

W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC

89

Applicant: DWJ18

First Respondent: MINSTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2075 of 2018

Judgment of: Judge Humphreys

Hearing date: 19 September 2019

Date of Last Submission: 19 September 2019

Delivered at: Sydney

Delivered on: 19 September 2019

REPRESENTATION

Counsel for the Applicant: Mr Jones

Solicitors for the Applicant: Turner Coulson Immigration Lawyers

Counsel for the Respondents: Mr Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. Leave is granted to rely upon the amended Grounds of Appeal filed 5 September 2019.

2. The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

3. The application is dismissed.

4. The Applicant pay the First Respondent’s costs fixed in the amount of $7,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2075 of 2018

DWJ18

Applicant

And

MINSTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR EX TEMPORE JUDGMENT

(Revised from transcript)

Introduction

1. The applicant is a citizen of Sri Lanka. The applicant applied for a Safe Haven Enterprise visa on 19 February 2016. A delegate of the Minister for Immigration (“the delegate”) refused the application on 3 February 2017. The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. On 15 August 2017, the Authority affirmed the Minister’s decision not to grant a protection visa. The matter was the subject of an application for judicial review to this Court.

2. On 1 December 2017, by consent, the Court remitted the matter back to the Authority for further consideration. On 6 July 2018, the Authority again affirmed the Minister’s decision. The matter is back before the Court for a second time, in relation to judicial review.

The Immigration Assessment Authority’s Decision

1. At paragraphs 3 to 10 of its decision, the Authority deals with new claims regarding the applicant’s older brother and sister. The applicant claimed that they were arrested by the Sri Lankan navy, as they attempted to flee Sri Lanka by boat. The applicant claimed his aunt contacted a Karuna, who was a former Liberation Tigers of Tamil Eelam (“LTTE”) commander and a member of the Tamil Makkal Viduthalai Pulikal (“TMVP”) as a political leader. The applicant claims that Karuna took custody of his siblings and told his aunt that his siblings would not be released, until a ransom of 25 lakhs for each sibling was paid. At this stage they were detained, it is claimed, in a secret camp run by Karuna for LTTE militants. When the applicant’s aunt made a complaint to police about Karuna, she was beaten and handed over to the Criminal Intelligence Division (“CID”).

2. At paragraph 6 of the Authority’s decision, it is reported that the applicant made additional claims about himself. The applicant stated that the Sri Lankan Army (“SLA”) and the CID abused the applicant and his father on many occasions, including being sexually abused. The applicant did not mention the latter to the delegate because he felt humiliated, immature and unaware of the consequences of not mentioning this incident. At paragraph 7 of its decision, the Authority notes the applicant claims he repeatedly mentioned that he was abused to the translator in his protection interview, but that the translator did not express the fact that he was sexually abused. The applicant claims that if he goes back, the CID and the SLA will know him very well. After the applicant’s siblings and aunt went missing, he does not have anyone to release him, should he be taken into custody upon his return as an illegal departee.

3. At paragraph 8 of its decision, the Authority accepts the applicant claims of personal credible information, which was previously not known, for the purposes of s 473DD of the Migration Act 1958 (Cth) (“the Act”). Whilst accepting the claims for the purpose of consideration, the Authority did not accept the claims themselves by admitting them. At paragraph 10 of its decision, the Authority rejects a number of pieces of country information that predates the delegate’s decision and did not admit them for consideration.

4. At paragraph 11 of its decision, the Authority summarises the applicant’s claims as follows:

   ·The applicant fears harm from the Sri Lankan authorities, the SLA and/or police due to his ethnicity as a Tamil and imputed pro-LTTE political opinion from his father.

   ·He fears an additional profile as an illegal departee from Sri Lankan and a failed asylum seeker.

   ·He fears additional targeting because his father sought asylum overseas and was a target of the SLA prior to departure.

   ·He also fears harm due to his membership of a particular social group of family members of Tamil business owners.

5. At paragraph 14 of its decision, the Authority accepts that the applicant came from a village in the Batticaloa District that was known to be an LTTE stronghold. In mid-2007, the Authority accepts that the applicant’s family were in an internally displaced person’s camp for two and a half months.

6. At paragraphs 15 to 29 of its decision, the Authority deal with claims relating to the applicant’s siblings, which was raised with the Authority for the first time. The applicant’s father, mother and two younger siblings now all live in the United Kingdom. The applicant’s father obtained refugee status in 2014. The applicant’s older sister was born in 1993 and his older brother in 1994. They were adults when the applicant’s father obtained refugee status in 2014. The Authority accepts that the applicant’s older siblings were unable to obtain refugee status to enable them to join their father in the United Kingdom due to their age.

7. At paragraphs 18 to 21 of its decision, the Authority notes the applicant’s evidence at his visa interview about his older siblings had been vague. The applicant was unable to provide firm details about where they were living or what they were doing. At paragraphs 22 to 24 of its decision, the Authority notes the new claims that were raised by the applicant about his siblings. At the time the war ended in 2009, the Authority noted, they would have been aged about 14 and 15 respectively. Prior to the new claim, there was never any suggestion that the family or the applicant had an LTTE profile or the family had links to Karuna.

8. At paragraph 24 of its decision, the Authority finds the new claims inconsistent with the applicant’s evidence at his visa interview, written application and post‑interview submissions. The Authority found the applicant gave clear evidence that his father had no actual LTTE profile and, in fact, his father was a businessman, being a jeweller. At paragraph 25 of its decision, the Authority finds the age of the applicant’s older siblings strongly mitigates against the suggestion that they had an LTTE profile, let alone as a cadre or combatants. The Authority found there was never any suggestion that the applicant’s aunt or anyone else in the family had links to Karuna. At paragraphs 26 to 29 of its decision, the Authority finds the claims regarding the sister and brother to be fabrications, designed to increase the profile of the applicant and his family, as to their LTTE connections. These claims were rejected.

9. Paragraphs 30 to 42 of the Authority’s decision deal with claims relating to the applicant’s father’s profile. The Authority accepted that the applicant’s father may have been detained, questioned and beaten on at least two occasions. At paragraph 38 of its decision, the Authority finds the applicant’s father would not have been able to avoid extended detention and/or rehabilitation in a rehabilitation camp, if he was seriously considered by the authorities to have LTTE links. At paragraph 39 of its decision, the Authority notes that the applicant’s father left Sri Lanka on his own passport. Based on country information, the Authority finds that had the father had an adverse LTTE profile, he would have been stopped at the airport and/or unable to obtain a passport. The fact that the applicant’s mother and siblings also obtained passports and left unhindered reinforced that view.

10. At paragraph 40 of its decision, the Authority notes that:

    While the applicant’s father has been granted refugee status in the UK, no material has been provided as to his father’s claims or the basis upon which he was granted refugee status.

11. At paragraph 41 of its decision, the Authority finds that:

    The applicant’s father had no imputed LTTE profile or claims, but was subject to systemic and discriminatory conduct by being a Tamil male living in an area formerly controlled by the LTTE.

12. At paragraph 42 of its decision, the Authority states that:

    Based on the above findings, the Authority finds the applicant will not be imputed with an adverse LTTE profile as a result of his father or his siblings.

13. Paragraphs 43 to 64 of the Authority’s decision deal with the applicant’s individual claims. It was noted by the Authority that the applicant has been inconsistent in a number of his claims, including his SLA profile. At paragraph 45 of its decision, the Authority found the applicant’s timeline was not consistent for the period he was in Colombo and Batticaloa. The applicant complained of being harassed, threatened and beaten by SLA members. The applicant complained at his visa interview, for the first time, of being detained by the SLA, taken to a camp, beaten and tortured for two or three days before escaping.

14. The Authority found that there was a significant shift in the applicant’s evidence in that he had previously complained of being detained for one to two hours. Before the Authority, the applicant claimed he and his father were abused by SLA and CID on many occasions. The applicant raised for the first time being sexually abused. The applicant blamed the interpreter at his visa interview for failing to express or interpret this sexual abuse and rape. At paragraph 51 and 52 of its decision, the Authority indicates that:

    Even taking into account the applicant’s age, memory failure, the passing of time and the trauma that may have been inflicted upon him, that these were not sufficient to overcome serious concerns with regards to the lack of consistency, credibility or plausibility of his claims.

15. At paragraph 53 of its decision, the Authority notes that the applicant did not raise any concerns about the interpreter, or the quality of the interpreting, until before the Authority. The Authority notes that the applicant did not raise the issue of sexual violence in an extensive post-interview submission. At paragraph 55 of its decision, the Authority is not satisfied the applicant faced violence at the hands of the SLA, Terrorist Investigations Department (“TID”) or CID and finds that his claims were fabricated. At paragraph 56 of its decision, the Authority found that it was not credible that the applicant was arrested, detained and tortured for two to three days and then escaped detention. It was materially inconsistent with the applicant’s other claims timeline. The Authority gives this claim negative weight. By the term “negative weight”, I interpret this to mean that it undermines the applicant’s overall credibility and reliability as a witness of truth.

16. At paragraph 57 of its decision, the Authority deals with the applicant’s claims to harm from the SLA in his home area. The Authority noted these claims have been consistently advanced. The Authority considered it plausible that the applicant was harassed, mistreated and made to provide SLA members with money or goods.

17. The Authority did not accept that the applicant was a particular target of the SLA. At paragraphs 58 to 64 of its decision, the Authority found the applicant’s only profile, should he be returned, was that of a young Tamil male from a former LTTE controlled area. The Authority accepted that a degree of discrimination, questioning and monitoring may occur, but there is no evidence that the applicant would be denied access to basic resources, services, or be able to subsist, such as to amount to serious harm. Any questioning or monitoring of the applicant or harassment, would not separately or cumulatively amount to serious harm, should he return home to the east of Sri Lanka. At paragraph 64 of its decision, the Authority found no risk that the applicant would be assessed by Sri Lankan authorities as being involved with Tamil separatism and being harmed as a result.

18. Paragraphs 65 to 72 of the Authority’s decision deal with claims related to the applicant’s father’s wealth. While the Authority accepts the applicant’s father was detained, interrogated and beaten by the SLA on two to three occasions, it found he was not considered by the SLA to have an adverse profile connected with the LTTE or otherwise. This mistreatment, however, does not relate to the applicant’s father’s status as a businessman, rather, it relates to him being a Tamil male in an LTTE formerly controlled area. The Authority was not satisfied that the applicant would have any harm as being perceived as coming from a wealthy family or that his father is a business owner. Any risks that the applicant may have had, have been reduced due to the effluxion of time since 2009.

19. Paragraphs 73 to 92 of the Authority’s decision deal with the claims related to asylum and illegal departure. The Authority accepted the applicant left Sri Lanka illegally. The Authority accepted that the applicant would be charged with leaving Sri Lanka illegally and would be detained and placed before a magistrate upon return and could be held in prison over the weekend. The Department of Foreign Affairs and Trade report advises the applicant would be subject to a fine if he pleaded guilty. There is no basis that the applicant would be assessed as having a profile as a people smuggler and given a custodial sentence. The Authority found there was no reason that the applicant would be unable to pay a fine, even if by instalment.

20. At paragraph 84 of its decision, the Authority accepted that the Sri Lankan authorities still act with impunity and there are credible risks of detention, torture and violence to persons with certain profiles. However, the Authority found the applicant had no adverse profile and there was no real chance of him being harmed for any profile reason on a sole or cumulative basis.

21. At paragraph 85 of its decision, the Authority found that the fact that the applicant had lived outside Sri Lanka and/or applied for asylum in Australia, would not lead to authorities imputing the applicant with an adverse profile. At paragraph 92 of its decision, the Authority acknowledged it will be difficult for the applicant to return to Sri Lanka without his immediate family to support him, but the Authority found he would not be vulnerable or face a real chance of harm for any of the reasons claimed. Accordingly, the Authority concluded the applicant did not meet the requirements of s 36(2)(a) of the Act

22. Paragraphs 95 to 100 of the Authority’s decision deal with complementary protection considerations. For the same reasons as outlined above, the Authority concluded that the applicant would not be subject to any significant harm as a result of simply being returned to Sri Lanka.

Grounds of Appeal

1. The grounds of appeal the applicant relied upon are in an amended application filed on 5 September 2019. The first respondent did not object to the grounds being filed late and accordingly, leave was granted for them to be relied upon. I will not go through the grounds of appeal in specific detail, however, I will deal with them by way of summary.

Ground 1: Real doubt as to sibling evidence

1. This ground asserts that the Authority failed to consider the sibling evidence was true and that this would impact on the applicant’s claim. Counsel, on behalf of the applicant, submitted that if the Authority determined a claim is fabricated, but entertains any real doubt, the Authority was required to consider that the tests in s 36(2)(a) and

   
   

   s 36(2)(aa) of the Act are satisfied, on the assumption that if it is wrong to find the claim was fabricated, then it must then go on to consider the claim. Reliance was placed on DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at paragraph [36] per Perry, Kenny and Kerr JJ.

2. In this case, the Authority admitted the information under s 473DD of the Act as being capable of being believed because it was credible personal information. Counsel submitted that this was consistent with having a real doubt about whether or not the material was true. That being the case, the Authority was then obliged to consider the information on the basis that if it was wrong in its conclusion that the information was fabricated, it was then required to look at it on the basis that it might, in fact, be true.

Ground 2(a): Unreasonableness – Siblings

1. This ground asserts that the decision to reject evidence as it relates to the applicant’s siblings was legally unreasonable.

2. Where there is a purported reason for disbelieving a witness, there must be a foundation to base that evidence (see WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 676 at paragraphs [51] and [54] per Lee and Nicholson JJ). In the present case, there was criticism that the siblings’ claim, was only advanced after the Minister’s decision was known. Counsel for the Applicant submitted that the applicant should have been aware of it prior to 3 February 2017. The Authority assumed the siblings were taken into custody in or around June 2016. There was no evidence to assume that this was the case.

3. Further, the Authority assumed the siblings would not seriously be considered to have links to the LTTE due to their age and lack of any other links. The Authority’s assessment of this was taken from the siblings’ passports and Counsel submitted these passports were assumed to be with the siblings. There was no information to base this assessment on.

4. The Authority found it implausible that Karuna would personally intervene and arrange for the siblings’ release from the police and SLA. There was no evidence that the Karuna personally intervened. It was submitted that the better interpretation was that a person involved in the Karuna organisation, in fact, intervened.

Ground 2(b): Unreasonableness – Father

1. This ground asserts legal unreasonableness in respect of the applicant’s father, being that there was no risk, as result of the father’s treatment, that the applicant would be given an adverse profile. Counsel asserted there was no basis to reject the claim that the applicant’s father was “routinely” abducted and beaten.

Ground 2(c): Unreasonableness - Applicant

1. This ground asserts unreasonableness in rejecting the applicant’s evidence as to his own circumstances. The conclusion that the applicant should have raised complaints earlier, regarding the quality of the translation of the visa interview, was incoherent and perverse. Counsel for the Applicant submitted on a fair reading, that none of the supposed circumstances “stack up”.

2. It was put to the Court the reasoning was perverse because

   (1) The applicant was only 14 years at the time some of the events occurred. It was perverse to suggest he would have a clear memory of exact timeframes

   (2) The original inconsistency is not a real one. In the applicant’s statutory declaration, he said he had moved to Colombo “in or around 2011”

   (3) The discrepancy of the applicant’s return date, being the difference between March and April 2012, is not material.

3. Counsel submitted the above cannot form a proper basis for finding that the applicant was not credible. Counsel for the Applicant submitted the Authority also found it was not credible for the applicant to suggest that he was detained by the SLA for two to three days but escaped. The Authority found the applicant should have raised this claim at least in a summary way but, in the light of the obvious trauma, it was an unfair criticism (see W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89 (“W375/01A”) at paragraph [17]).

4. Counsel for the Applicant submitted that the Authority criticised the applicant for not giving any reasons as to why he avoided scrutiny when leaving Sri Lanka, however, advanced no reasons as to why this was implausible. Counsel submitted that the Authority gave negative weight to the “shifting timetable” to accommodate these new claims. Counsel submitted that this shift is immaterial, but if there was a shift, it was to reflect real events, not ones that were fabricated. Counsel finally submitted that the decision is incoherent, perverse and amounted to jurisdictional error for the reasons I have outlined above.

The First Respondent’s Submissions

1. Counsel on behalf of the first respondent submitted that in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 (“Rajalingam”) at paragraph [67], per Sackville and North JJ, found the Authority would only need to consider claims if its reasons indicated that it had “a real doubt” about the correctness of its findings. This is not the case in this matter and it was not the case in Rajalingam. By admitting the material for consideration within s 473DD(b)(ii) of the Act as credible personal information, this did not mean that the claims had to be accepted. It also did not require that the Authority was bound to consider if it found the claims were not correct, to then go on and consider whether or not what the result would be, if in fact, the claims were correct and its findings were wrong.

2. In relation to Ground 2(a), Counsel for the first respondent submitted that the Authority’s findings are, in fact, quite legally reasonable. Counsel submitted that none of the findings reached the bar of extreme illogicality as set out in CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 (“CQG15”) at paragraphs [59] to [61]. In fact, it was suggested that all of the issues raised in Ground 2(a), were an emphatic disagreement with the findings of the Authority and this was simply insufficient (see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at paragraph [124]). If reasonable minds can disagree, then this is insufficient for legal unreasonableness and the assessment cannot be said to be illogical or irrational (see SZMDS at paragraph [131]).

3. Counsel on behalf of the first respondent submitted that there was nothing that was an extreme illogicality in rejecting the claims concerning the older siblings. Essentially, the Authority found the claims were implausible as there was never a suggestion that the family had LTTE links or links to Karuna. These claims were only raised by the applicant after the delegate’s unfavourable decision. The reasoning may or may not be correct, but does not demonstrate extreme illogicality to the standard required. Speculation is not sufficient to establish extreme illogicality.

4. Counsel submitted it was open to the Authority to find, given the siblings’ age, description and history as students, that it was implausible that the siblings would have LTTE links.

5. Ground 2(b) concerned the claims regarding the Authority and the applicant’s father. The Authority found that the applicant’s father did not have LTTE links but accepted he was detained, questioned and beaten on two occasions. The fact that the applicant’s father remained working as a jeweller and was able to obtain a passport and leave Sri Lanka legally from a former LTTE area, was inconsistent with the concept that he would have an LTTE profile. The conclusion that the applicant’s father did not have an LTTE profile, is not legally unreasonable.

6. In relation to Ground 2(c), Counsel asserted that it is no more than arguing with the Authority’s reasoning and asks the Court to undertake a merits review. It was not illogical to reject the claims of violence at the hands of the SLA. As to the issues of interpreting, there is nothing to suggest that the errors which are not admitted by the First Respondent were critical to the applicant putting forward his case. Counsel submitted there was no legal unreasonableness in rejecting the new claims as to sexual violence at the hands of the SLA.

Consideration

1. I have outlined in detail the reasoning of the Authority because I think it is important, when looking at the matter that the Court does not engage in a process of considering the reasons with too fine an eye for error. This was a quite long decision. The Authority gave quite consistent and detailed reasons. I consider that the Authority was entitled to admit the material of the new claims under s 478DD(b)(ii) of the Act into evidence and it gave reasons why it did so. In fact, it was being advantageous to the applicant to actually admit that material into evidence.

2. I do not accept, however, the proposition that having admitted that material into evidence, it was then bound to consider that evidence further, if it found it was untrue on the basis that it might be true. The admission of the information was a gateway and was for a different purpose. It was a procedural issue and it did not bind the Authority, as to its consideration of the evidence, in its totality as to its truthfulness. Having initially admitted the evidence under s 473DD(b)(ii) of the Act, this in my view, did not require the Authority to consider the matter further and Rajalingam is the authority for the proposition that I have put. The Authority was not bound to consider it on the basis that its factual findings are wrong. I do not consider this matter raises legal unreasonableness and Ground 1 is rejected.

3. As to Ground 2, I think it is important that the reasons not be read with two fine an eye for error. Counsel on behalf of the applicant has carefully gone through the reasons of the Authority and has suggested the Authority could have done this, or it could have done that, or it did not give reasons for this, which it may have been able to do so. Such a process, in my view, is to do precisely what the Court is not to do and that is read the reasons with too fine an eye for error. The test for legal unreasonableness is stringent and will only arise in a few cases. I am not satisfied that the findings of the Authority meet the extreme illogicality bar in CQG15.

4. In my view, the arguments put forward are more in the fact of emphatic disagreement with the outcomes of the Authority (see SZMDS). Having said that, in generality, I think it is important that I go through the actual evidence itself and deal with it because it was put on three separate bases.

5. A holistic view of the evidence indicates that it was open to the Authority to find that the father did not have LTTE links and it was implausible to assert that either Karuna or Karuna associates would intervene in relation to the suggestion that the siblings had been arrested and held.

6. I do not consider that the balance of the claims can be made out. It is for the applicant to prove the claims for refugee status. I am satisfied that the reasoning of the Authority is sound in relation to the siblings, particularly given that they were very young, that it was not suggested and there was no basis to suggest that they had LTTE profile, or because of their age, that they could have been either cadres or combatants. I am satisfied that the reasoning is not so extreme as to meet the test for legal unreasonableness. The findings in relation to the siblings were open to the Authority based on the evidence before it.

7. As to the claims regarding the father, I note no evidence has been put forward by the applicant as the basis upon which the father was granted refugee status in the UK. The only evidence is that the father remained working as a jeweller, obtained a passport and legally left Sri Lanka. On this evidence, I am satisfied the conclusion arrived at by the Authority that the father did not have a LTTE profile is far from being legally unreasonable. It was a conclusion that was open on the available evidence.

8. Some import has been placed upon the findings of the Authority that it did not address the use of the words “routinely abducted” and/or “beaten” by the SLA. I consider the distinction between the claim, as found by the Authority, that the father was abducted and beaten on two to three occasions, to be sufficient and that the suggestion that they did not consider the “routinely” claim to be a step too far. It invites minute consideration of the Authority’s findings.

9. I am not satisfied that the findings regarding the applicant’s own evidence are perverse or are legally unreasonable. I am not satisfied that the criticism by the Authority that the applicant should have raised the claim that he was detained by the SLA for two to three days and escaped was an unfair criticism, as defined in W375/01A. It was reasonable to expect some mention of what was a serious and critical issue in the applicant’s claims at an earlier point in time, even accepting that the applicant was traumatised. I do not accept, when read as a whole and without too fine an eye for error, that this decision can be characterised as incoherent and perverse.

10. That is a very strong language. I do not believe that the decision meets that standard. It was for the applicant to advance his case and the onus lay on the applicant. This applies in particular in relation to the allegation that the standard of interpreting was insufficient and the claims that were put forward that the applicant was sexually abused, were not translated by the interpreter at his protection visa interview. It was a bare assertion that was made. A CD of the interview was, in fact, provided to the applicant.

11. Notwithstanding the fact that the applicant has that in his possession and it is reasonably open to him to have provided evidence which would indicate and support the claim that he was sexually assaulted, no such evidence has been put before the Court. There is no evidence other than an assertion that the translation was not real and meaningful within the terms of Appellant P119/2002 v The Minister for Immigration [2003] FCAFC 230 at paragraph [16] per Mansfield J.

12. There is no evidence before the Court to say that the interpretation was deficient. I cannot find that the ground is made out.

Conclusion

1. I find that none of the grounds have been made out.

2. Accordingly, the application is dismissed.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Deputy Associate:

Date: 7 November 2019