DXW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 825
•3 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
DXW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 825
File number(s): SYG 2031 of 2020 Judgment of: JUDGE HUMPHREYS Date of judgment: 3 May 2021 Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise (protection) visa – application for extension of time – where the applicant raises a single ground of judicial review – whether the Authority fell into jurisdiction error – extension of time is granted – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth) s 477 Cases cited: AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205
Abebe v Commonwealth of Australia (1999) 197 CLR 510
ARG 15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Bala v Minister for Immigration and Border Protection [2019] FCA 600
BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41
CPE15 v Minister for Immigration and Border Protection [2017] FCA 591
GOT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1697
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Number of paragraphs: 57 Date of last submission/s: 19 April 2021 Date of hearing: 3 May 2021 Place: Parramatta Solicitor for the Applicant: The Applicant appeared in person via telephone. Solicitor for the Respondents: Mr Valliappan appeared on behalf of the First Respondent.
Table of Corrections 3 May 2021 Date of Judgment changed from 29 April 2021 to 3 May 2021 Date of Orders changed from 29 April 2021 to 3 May 2021 End Certification Date changed from 29 April 2021 to 3 May 2021 ORDERS
SYG 2031 of 2020 BETWEEN: DXW20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
3 MAY 2021
THE COURT ORDERS THAT:
1.An extension of time, pursuant to s 477(2) of the Migration Act 1958 (Cth) is granted.
2.The application is dismissed.
3.Order number 2 is stayed for a period of 28 days from today, to enable the applicant to be provided with a copy of the Court’s written reasons.
4.The Applicant is to pay the First Respondent’s costs fixed in the amount of $3737.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of Sri Lanka. The applicant arrived in Australia on 17 August 2012 as an unauthorised maritime arrival. At the time, the applicant was approximately 16 years old. On 11 April 2017, the applicant lodged an application for a Safe Haven Enterprise (Class XE) (subclass 790) (protection) visa.
On 13 May 2020, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a protection visa. The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 17 July 2020, the Authority affirmed the decision not to grant the applicant a protection visa
The applicant now seeks judicial review of the Authority’s decision.
The Court notes that the applicant is currently in NSW Corrective Services custody. The Court is not aware of why the applicant is in custody. The Court confirmed with the applicant that his current custodial situation is not a matter that the Court considers relevant to its consideration of this particular matter and it will not play any part in the Court’s determination of the matter.
SHOULD AN EXTENSION OF TIME BE GRANTED
It is to be noted that the application for judicial review made by the applicant was filed 6 days after the relevant period for lodging his application. Accordingly, an Extension of Time Order pursuant to s 477 of the Migration Act 1958 (“the Act”) needs to be initially considered.
The solicitor for the first respondent properly noted that the delay is relatively minor and that there is no actual prejudice, apart from costs, that will be suffered by the Minister. The question of whether an extension of time should be granted principally turns on the merits of the proposed substantive application.
In the Court’s view, it is in the interests of justice that an extension of time be granted. The delay is of a minor nature. The prejudice to the Minister is small. The matter can then properly be determined on its merits.
THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION
The Authority’s decision is both lengthy and comprehensive. It runs to some 20 typed pages and 75 paragraphs.
At paragraph 3 of its decision, the Authority noted that the report provided by the Secretary included material about the applicant’s conduct while in immigration detention. The Authority noted that “I do not consider such material has any bearing on the issues for consideration in this review”. Nevertheless, the Authority invited the applicant to comment on the material. The applicant strongly refuted the allegations. The Authority then stated “I cannot see how the material about his conduct in detention is relevant to the assessment of the applicant’s evidence and claims for protection”.
At paragraph 6 of its decision, the Authority summarised the applicant’s claims as follows:
•The applicant was born in Trincomalee in the Eastern Province of Sri Lanka in the mid 1990s;
•He will be harmed because he saw a person being kidnapped in front of his house on one occasion between 2002 and 2004;
•His father owned a business selling motorcycle parts. He gave motorbike parts to army officials on credit and was owed money by them;
•His father was killed by the army in a road traffic accident in 2011, when his motorbike was hit by an army bus. A court case has been bought against the bus driver and the case is still continuing. His mother has received threatening phone calls telling them to drop the case.
•The applicant was approached by people and told to drop the case and that his movements were monitored. He was abducted on one occasion.
•His father was a businessman who raised his voice in support of the Tamil people. The Sri Lankan Army suspected his father as being a supporter of the Liberation Tigers of Tamil Eelam (LTTE) and the applicant and his mother have links with the LTTE.
•The applicant will be arrested and detained by the CID if he returns to Sri Lanka because of the court case against the man from the army and because the applicant sought asylum in Australia.
•His personal information was disclosed on the Department’s website in early 2014.
At the applicant’s arrival interview, he also stated that his mother could not run the shop properly after his father’s death and that they faced financial problems in their day to day life.
At paragraph 11 of its decision, the Authority accepted that the applicant’s father died in a motorcycle accident in 2011 when he was hit by a bus. The Authority had significant concerns, at paragraph 12 of its decision, about the claims that the applicant’s father was deliberately killed by the Army.
The Authority noted that the applicant’s version of events was inconsistent, with reasons given for his father’s death ranging from army officers who owed him money, to his father’s involvement in humanitarian activities for the Tamil people. A letter provided by the applicant from a lawyer in Sri Lanka did not corroborate the applicant’s account. At the applicant’s arrival interview, he referred to the driver of the bus being in gaol due to speeding and being intoxicated at the time of the accident.
At the applicant’s SHEV interview, he provided what he said were witness statements to his father’s accident. The documents were in Tamil. The applicant was advised of the need for these documents to be translated by an accredited interpreter. The applicant said that he would do this. The translation of the witness statements had not been provided to the Department when the delegate made his decision, some seven months later, in May 2000. The Court notes that no translations have been provided since.
The Authority noted that there were discrepancies in the applicant’s evidence about when he began to receive threats. At paragraph 20 of its decision, the Authority noted that there was some supporting evidence presented of threats more generally. However, the lawyer’s letter, whilst confirming threats made to the applicant’s mother, raised claims about visits by authorities rather than phone calls to the applicant’s mother. The Authority did not consider the letter to be reliable information.
At paragraph 21 of its decision, the Authority noted that the applicant’s evidence about his own experiences in Sri Lanka changed noticeably over time. The applicant did not mention at his arrival interview that he had directly received any threats himself. In the applicant’s SHEV application, he stated that he was stopped by some people when he was walking along a path about two months after his father’s death, approached in a polite and non-threatening way, and told that his father’s death was an accident not a murder, and to tell his mother to drop the case. The applicant claimed that he noticed that people were watching him later. One day, the applicant claims that he was grabbed by two people when he was walking home. They took him to an “auto” and slapped him. While the applicant was with these two men, they rang his mother and told her to drop the case.
In the applicant’s SHEV interview, the applicant gave a vastly different account. The applicant claimed that he was kidnapped by two men on a motorbike and taken to house, where he was locked in a room for a number of hours. The applicant then claimed that he broke the window of the room and escaped. The applicant gave considerable detail as to the event.
The interviewing officer referred to the not insignificant differences between the applicant’s most recent account and the version he provided in his SHEV interview. The applicant responded that he did not tell it correctly in his statement and that he did not mention that he had been had taken him to an auto. The applicant said that a lawyer had assisted him with his SHEV application, and that whatever was in the application, he had not said it. At paragraph 25 of its decision, the Authority concluded that it did not find the applicant’s explanations about the discrepancies in his evidence convincing.
At paragraph 26 of its decision and onwards, the Authority concluded that there were inconsistencies in the applicant’s account regarding the Court case. The applicant’s account had varied over time. The Authority placed no weight on a letter purporting to be from a lawyer who assisted the applicant. The Authority found that the letter contained information about matters which were not raised by the applicant himself, and it does not refer to the applicant’s claims about what happened to him in Sri Lanka. The Authority, at paragraph 32 of its decision, considered the letter to be manufactured and placed no weight on it.
At paragraph 34 of its decision, the Authority was prepared to accept that the applicant’s father was killed in a motorcycle accident. It was willing to accept that the applicant’s father may have been hit by an army bus and that the driver may have been intoxicated. The Authority found the applicant’s evidence, that the death being deliberate, was simply not credible. The Authority noted that on the applicant’s evidence, notwithstanding evidence of ongoing threats made to his mother concerning the Court case, the business was still operating under their own name and that there was no reliable evidence before the Authority that the applicant’s mother had suffered the threatened consequences, despite claims of threats of imminent harm. The Authority concludes that neither the applicant, nor his mother, were of interest to the Army following the applicant’s father’s death and that neither the applicant, nor his mother, have been threatened or harmed as a result.
As regards the claim that his father raised his voice for the Tamil people, the Authority notes that this information was raised relatively late in the piece and is not credible. At paragraph 37 of its decision, the Authority was prepared to accept that the applicant witnessed a kidnapping in around 2002, when he was a small boy, but was not satisfied that anything happened to him as a result.
At paragraphs 38 and 39 of its decision, the Authority notes the claims made by the applicant that one of the reasons the applicant came to Australia was due to financial problems. The applicant referred to his statement in his SHEV application before saying that the primary reason he left Sri Lanka was because his life was threatened by the army.
According to the applicant, the family’s motorcycle parts business is still operating in Trincomalee and his mother is running the company, which he described as a “big shop”. As well as owning the shop, which has a home attached, the family own another property which is rented out. The applicant told the delegate that they were very wealthy people in his country. The Authority was willing to accept that his family may have had financial problems following his father’s death, but it was not satisfied that this continued to be the case.
At paragraph 40 of its decision, the Authority noted that there was a data breach by the Department in 2014. The applicant was advised that personal information relating to people in detention was accessible online for a short period, however, was not visible or easily accessible on the Department’s website. Whilst satisfied the applicant was affected by the Department’s data breach, there was no evidence that Sri Lankan authorities have accessed the applicant’s personal information.
At paragraph 41 of its decision, the Authority accepted that the applicant would be returning to Sri Lanka without a passport and may be identified by authorities as a returning asylum seeker who left Sri Lanka illegally.
Paragraphs 42 and onwards of the Authority’s decision deal with the assessment of the applicant’s claims as compared to the refugee criteria set out in the Act. Reference is also made to relevant country information. It was noted by the Authority that instances of discrimination against Tamils continues in certain circumstances, however, country information indicated that Tamils were not harassed unless they were involved in illegal activities. Former LTTE cadre may face surveillance, however Tamils, with links to the LTTE are generally able to live their lives in Sri Lanka without concern from security forces due to their past association with the LTTE. At paragraph 53 of its decision, the Authority was not satisfied that the applicant, being a Tamil from the Eastern province, would in itself give rise to adverse political opinion or profile now or in the foreseeable future. The applicant would not face any real chance of harm on account of his Tamil ethnicity or the fact that he was from the Eastern province
At paragraph 54 of its decision, the Authority was satisfied that the applicant would be able to find work, should he return to Sri Lanka.
At paragraphs 55 onwards of its decision, the Authority considered the issues that would arise as a result of the applicant being returned as an illegal departee from Sri Lanka. The Authority accepted that the applicant would be detained upon arrival in Sri Lanka and placed before a Magistrate, charged with illegally departing Sri Lanka. The Authority accepted that the applicant might remain in police custody at the airport for a period of up to 24 hours before being placed before a Magistrate. The Authority noted that it may be a longer period if the applicant arrived over a weekend. If the applicant pleaded guilty, he would receive a modest fine. If the applicant pleaded not guilty, he would be likely released on bail on the basis of personal surety or guarantee by a family member. The Authority was not satisfied that the detention and processing of the applicant for departing Sri Lanka illegally would amount to serious harm. The action taken against the applicant is not applied or enforced in a discriminatory manner.
The Authority was satisfied that the applicant would return home to live with his mother. The Authority was not satisfied the applicant would have difficulties in reintegrating into the community in Trincomalee. The Authority was not satisfied the unintentional publication of the applicant’s details would otherwise lead to a real chance of harm.
Paragraphs 69 through to 75 of the Authority’s decision deal with complimentary protection assessment issues. For the reasons set out above, the Authority was not satisfied that the applicant was at real risk he would suffer significant harm as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka. Accordingly, the Authority affirmed the decision to refuse the applicant his visa.
GROUNDS OF JUDICIAL REVIEW
A sole ground of judicial review is set out in a Statutory Declaration annexed to the Initiating Application filed with the Court on 27 August 2020. The solitary ground is as follows verbatim:
Ground one
IAA refuse visa. Decision was wrong. Appealing decision Federal Circuit Court.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented by telephone. The applicant was assisted by an interpreter. Prior to the commencement of the hearing, the Court ensured that the applicant was in possession of the relevant court books and that a copy of the first respondent’s written submissions had been interpreted to him.
At the commencement of the hearing, the Court carefully explained that it was undertaking judicial review, not merits review and the difference between the two types of review. The Court also explained the procedure by which the Court hearing would be undertaken.
Despite Court Orders, no written submissions or other material was supplied by the applicant in support of his case. The applicant told the Court that if he was sent back to Sri Lanka he would be tortured, taken to the fourth floor of the building that housed the Criminal Investigation Department (“CID”) and lose his life.
At the conclusion of the first respondent’s oral submissions, the applicant was invited to say anything further he may wish to in reply. The applicant clarified that he only claimed he witnessed an abduction when he was a child at 4 or 5 years of age.
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent firstly submits that in the absence of further and better particulars, the ground of judicial review relied upon by the applicant is too broad to be capable of establishing jurisdictional error: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (“WZAVW”) at [35].
However, in circumstances where the applicant is unrepresented, the the first respondent has reviewed the Authority’s consideration of the applicant’s claims regarding his father, his family’s LTTE links, the risk of harm to Tamils in Sri Lanka, particularly with the return of the Rajapaksas and the information regarding his conduct in detention: see Bala v Minister for Immigration and Border Protection [2019] FCA 600 at [7].
In relation to the death of the applicant’s father, and LTTE links, the applicant provided the following documents:
•A letter from the applicant’s solicitor;
•A post mortem report
•A series of translated documents which the applicant claimed to include witness statements.
The Authority noted that the applicant consistently claimed that his father was deliberately killed by the army, but that it had significant concerns about a number of aspects of the claim. The Authority considered, noting the weight of the credible evidence, that it did not point to it being a deliberate act, or that there was any targeting of the applicant, or his mother, by the army.
The Authority’s concerns with the applicant’s evidence included that he did not mention at all, after his arrival interview, that his father was beaten a week before his death and the applicant did not know the bus driver’s association with his father. The applicant’s own statement indicated that the death was not deliberate and key parts of the solicitor’s letter did not corroborate his account. The applicant’s evidence that threats were being made by the army shifted considerably over time and, there that were also discrepancies about when the threats began.
Further, the applicant’s evidence about his own experiences in Sri Lanka changed noticeably and he was unable to provide any other documentary evidence on the Court case regarding his father’s death. In relation to the applicant’s claim that his family were suspected of having links with the LTTE, the Authority noted that the applicant did not know much about his father raising his voice for the Tamil people and that he had raised the claim relatively late in the proceedings.
It was submitted by the first respondent that the Authority was not required to accept, uncritically, any and all claims made by the applicant, nor does it have to possess rebutting evidence before holding that a particular assertion is not established: see AAJ17 v Minister for Immigration and Border Protection [2018] FCA 205 at [24]. It was submitted that it was open to the Authority not to accept those claims for the reasons it gave. There was no unreasonableness, in the sense of any want of illogicality, in the Authority’s reasoning or decision: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130]. Further, it was submitted that the Authority identified, objectively, relevant inconsistencies in the applicant’s evidence: ASB17 v Minister for Home Affairs [2019] FCAFC 38 at [44]-[45].
In relation to the untranslated documents provided by the applicant, the applicant was on notice from the decision of the delegate that he should provide translated versions if he wanted appropriate weight to be afforded to the witness statements.
In relation to the risk of harm to Tamils and the Rajapaksas, country information indicated the applicant would not face a real chance of harm for reason of his Tamil ethnicity or residing from the Eastern province. Whilst some country information highlights concerns about the way the Rajapaksa government may lead the country in the future, the concerns raised are fairly generalised, other than in relation to the pandemic. Recent reports state that the President is using the Corona-virus pandemic to rule in a more authoritarian way.
The weight to be afforded to evidence and country information is a matter for the Authority as part of its fact-finding function: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. The Authority considered the most recent information available to it. In relation to the return of the Rajapaksas, the task of the Authority was to engage in reasonable speculation about what might occur in the future. The relevant assessment is one which can be made on the basis of probative material, without extending into guesswork: see CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [60]. The Authority considered that the reports were merely speculative and that there was no evidence that Tamils have been, or would be in the reasonably foreseeable future, at risk of harm on the basis of ethnicity.
In relation to prejudicial information that was provided to the Authority by the Secretary with regards to alleged misconduct by the applicant while in detention, the Authority invited the applicant to respond to information with new information. However, The Authority clearly indicated that it did not consider this information relevant to the case and would ignore it.
It was submitted by the first respondent that circumstances where the Authority expressly disavowed, in both its invitation to comment and reasons for its decision, that a fair minded lay observer would not reasonably apprehend that the Authority might bring an impartial mind to its task as a result of its knowledge of those allegations See BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41 (“BYX17”) at [35]-[38].
CONSIDERATION
In terms of the single substantive ground of judicial review, the Court is of the view that it is too broad, and without particulars, and is not capable if disclosing jurisdictional error: see WZAVW cited above. If anything, it simply invites the Court to undertake impermissible merits review in that it appears to be more a disagreement with the findings and conclusions of the Authority: see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54].
Each of the matters raised by the applicant, including the death of the applicant’s father, purported LTTE links, the Court case and fears upon return as a Tamil failed asylum seeker were considered by the Authority. Each of the matters raised by the applicant were considered in terms of the strength of the claims, and the evidence provided by the applicant and were rejected in terms of whether or not they gave rise to a real risk of serious harm or significant harm. The Authority properly considered the country information before it and gave weight to that information as it felt appropriate.
There is nothing legally unreasonable, illogical or irrational in the Authority’s findings as to the credit of the applicant in relation to his claims. The Authority properly set out the varying accounts of the applicant and gave proper reasons for disbelieving the applicant. The Court is satisfied the Authority’s factual findings were open to it on the evidence and materials before it and for the reasons it gave, including the adverse credibility findings. Those findings were not tainted by any failure to afford procedural fairness, or reaching finding without a logical or probative basis or unreasonableness: see ARG 15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83].
The Authority specifically considered the risk of harm to Tamils in relation to the Rajapaksas. While the information raised some concerns about where the current government may lead the country in the future, country information did not point to specific actions being taken and did not provide any specific details of harm relating to Tamils. The weight to be afforded to this evidence and country information is, of course, a matter for the Authority. It is clear that the Authority considered the most recent country information in coming to a determination. The Authority considered that the reports of issues relating to the current government and Tamils were speculative, and, in this situation, the conclusion that the applicant would not be at risk of harm in the reasonably foreseeable future on the basis of his ethnicity was open to the Authority: see GOT18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 1697 at [58]-[63].
Although not specifically raised by the applicant, the Court is conscious of the information provided to the Authority by the Secretary as regards to the alleged behaviour by the applicant whilst in immigration detention, and is satisfied it was dealt with properly by the Authority. Firstly, the material was drawn to the attention of the applicant and he was invited to comment on it. The applicant was thus provided procedural fairness in relation to that material. The applicant expressly rejected the allegations, and claimed that he was acting in self-defence. The Authority twice concluded that the material had no impact on the consideration of the applicant’s claims for a protection visa.
Nowhere in the reasons of the Authority, other than the initial reference to it, is it relied upon in any way in order to reach an adverse conclusion against the applicant. In these circumstances, the Court is satisfied that a fair minded, lay observer would not reasonably apprehend that the Authority would likely be biased: see BYX17. The Court is satisfied that the material in and of itself was not so shocking or appalling such that a fair minded observer might think it had irreversibly tainted the Authority’s consideration of the matter.
It is of considerable concern that the Secretary thought it proper to bring such material to the attention of the Authority. It could serve no purpose other than to paint the applicant in a poor light. It had no bearing on the applicant’s claims for protection. It should not have occurred. It should not occur in the future in any other matter.
In these circumstances, while an extension of time is appropriate, the ground of judicial review relied upon by the applicant has no merit.
As the applicant is unrepresented, the Court has perused the decision of the Authority but is unable to detect any jurisdictional error that has not been articulated by the applicant.
CONCLUSION
The application is dismissed.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 3 May 2021
1
11
1