DYZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 379

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

DYZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 379

File number(s):	BRG 885 of 2019
Judgment of:	JUDGE VASTA
Date of judgment:	16 November 2021
Catchwords:	MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.
Legislation:	Migration Act 1958 (Cth), s.473DD
Division:	Division 2 General Federal Law
Number of paragraphs:	37
Date of last submission/s:	16 November 2021
Date of hearing:	16 November 2021
Place:	Brisbane
Solicitor for the Applicant:	Sydney West Legal And Migration
Counsel for the First Respondent:	Ms Hoiberg
Solicitor for the First Respondent:	Sparke Helmore

ORDERS

BRG 885 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

DYZ19

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	16 NOVEMBER 2021

THE COURT ORDERS THAT:

1.That the application filed on 11 October 2019 as amended on 8 November 2021 be dismissed.

2.That the Applicant pay the First Respondent’s costs fixed in the sum of $7,467.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
(Ex tempore)

JUDGE VASTA

1. On 19 September 2019, the Immigration Assessment Authority affirmed a decision not to grant the Applicant, DYZ19, a protection visa.  On 10 October 2019, the Applicant asked this Court to review that decision. 

2. The background to the matter is that the Applicant is a Tamil of Catholic faith.  He lives in the north of Sri Lanka.  He arrived by boat in Australia on 13 October 2012 as an unauthorised maritime arrival, but he was allowed to apply for a safe haven enterprise visa (SHEV). 

3. The delegate refused to grant that visa on 20 December 2016.  Because this was a fast‑track decision it needed to be referred to the Immigration Assessment Authority (“the IAA”).  The Immigration Assessment Authority affirmed the decision on 3 February 2017.  The matter then went to, eventually, the Federal Court of Australia.  On 8 July 2019, the Federal Court remitted the matter back to the IAA for reconsideration. 

4. The IAA reviewer was a different person to the one who had reviewed the decision on 3 February 2017. There were submissions that were made to the IAA following the remittal back to it. I will come to some of those submissions later, but they did involve the consideration under s 473DD of the Migration Act 1958 (Cth) (“the Act”).

5. The IAA summarised the Applicant’s claim as being that, during the conflict between the LTTE and the Sri Lankan Army, his family were displaced and the LTTE tried to forcibly recruit the brother of the Applicant, a person called J. 

6. J trained with the LTTE before being killed in a fishing accident in 2006. The older brother of the Applicant, a person called T, was harassed by the Sri Lankan authorities on suspicion of LTTE involvement. T fled Sri Lanka in about 2007 and travelled to India. He is currently in Australia.

7. The Applicant had said that, in 2007 when the fighting in their area intensified, he and his family were displaced initially at a school for three months and then in a nearby village where the Applicant lived until he left Sri Lanka in 2010. The Applicant said that whilst displaced he was harassed, detained, interrogated and severely mistreated by the Sri Lankan authorities on suspicion of his LTTE links, and several of his friends were also targeted, and some remain missing today.

8. The Applicant said that it became unbearable to remain in the village, and his family got some money together to allow him to flee the country in October 2010 and go to Malaysia.  He said that he had an obligation still to report to the CID office, and his fleeing the country was in breach of that obligation. 

9. The Applicant said that he is now in Australia, but his family are unable to return to their home and are living in difficult conditions and that the authorities continue to harass his family in relation to his whereabouts.  He said that his brother-in-law has been harassed on suspicion of LTTE links and that informers working for the authorities, who previously lived in his village, may tell the authorities that he was involved with the LTTE.  He will also be targeted because he is a failed asylum seeker. 

10. The IAA went through those claims. In short, the IAA accepted the Applicant’s connection to Sri Lanka and where he had lived. The IAA did not accept that the Applicant was wanted by authorities on account of his brother’s limited training with the LTTE in 2007. The IAA was not satisfied that his brother, T, was harassed by authorities, which led to T having to leave Sri Lanka.

11. The IAA did look at quite a deal of country information about the conflict.  The IAA was satisfied that young Tamil males were suspected to be LTTE members and were the subject of discrimination because of those suspicions from Sri Lankan authorities.  The IAA noted that there was information that persons were questioned and then compelled to report periodically to CID offices after their questioning or interrogation.

12. The IAA was not satisfied that the authorities had an ongoing interest in the Applicant nor that he had reporting obligations that would have meant that he could not leave Sri Lanka.  The IAA noted that the Applicant did leave Sri Lanka on a passport and through legitimate means to go to Malaysia. 

13. As far as the Applicant’s family is concerned, the IAA considered that the family are former displaced persons who have been “re-homed” on land near their original home in the north and that the Applicant’s parents, two brothers and three sisters continue to live in the north of Sri Lanka.

14. The IAA did not consider that the Applicant met the criteria of being a refugee. 

15. The IAA was satisfied that the Applicant had no well-founded fear of persecution because of any perceived links to the LTTE because of his religion; because of his ethnicity; or, because of his being a failed asylum seeker. 

16. The IAA then looked at the complementary protection criteria and, for similar reasons, came to the view that the Applicant did not meet those criteria. 

17. Having made those two conclusions, the IAA affirmed the decision not to grant the Applicant a protection visa. 

18. This application proceeds upon a further amended originating application that was filed on 8 November 2021.  There are three grounds.  I will read the three grounds into the record: 

    1.The Authority’s task to review the decision under s.473CB of the Migration Act 1958 miscarried because the Authority applied the wrong test, or incorrectly applied the test of whether the new information provided by the applicant could constitute “credible personal information”; and/or unduly narrowed its consideration of whether there were "exceptional circumstances" for its consideration under s 473DD.

    2.The Authority’s task to review the decision under s.473CB of the Migration Act 1958 miscarried because the information about the other four persons with whom the applicant was arrested being tortured and two of them not being released but having disappeared was not new information, the information having been provided and basis of the claim having been raised in the protection visa interview.

    3.Further or in the alternative, the decision was affected by an interpreting error in that the information by the applicant about the other four detainees who were detained with him being tortured being the ones who were disappeared and not returning home, was not interpreted.

19. To understand those grounds one must go to the decision of the IAA, particularly at paragraph 9.  Paragraph 9, states this:

    In the 2017 and 2019 submissions the applicant states that he fears he could be seen as a potential witness to human rights abuses as some inmates who were with him when he was detained were mistreated and are now declared missing, presumed dead.  He also states that his brother “T” who was mistreated by authorities on suspicion of LTTE links and fled Sri Lanka has now been granted protection in Australia, and that his mother recently told him the authorities still ask them about the applicant’s whereabouts.  The applicant said in his SHEV interview that he was taken by the Criminal Investigation Department (CID) for investigation with four others.  He also said in his visa application that he was “aware” of several incidents of harm to young Tamils in the area, and that several had “also disappeared” and “it was clear” to “all of them” that the authorities were responsible.  He also said he had “heard of several horrific incidents of harm and torture that other Tamil males have experienced at the hands of the CID” and “several friends” who reported to and were targeted by the CID “disappeared and remain missing to this day”.  However, he had not claimed before the delegate’s decision was made to have personally witnessed such abuses while in detention and I consider this aspect, new information, as well as the statements that the two men remain missing and are presumed dead in 2019, that the authorities continue to look for the applicant in 2019 and his brother has been granted asylum in Australia (he told the delegate his brother had fled Sri Lanka and was in Australia but not that he had been granted asylum.)

20. That paragraph details that there was new information, and, for the purposes of this review, that new information was that the Applicant had personally witnessed such abuses whilst in detention.  The claims of the Applicant centre upon this main claim and that is that the Applicant, to use a colloquialism, was rounded-up with four others from his school, and they were taken to CID headquarters.  The Applicant was subjected to what could easily be described as torture.  In the SHEV interview, of which there is now a transcript, the Applicant was asked this question at line 381 where the case officer said:

    Case Officer: So, what do you think would happen to you if you were to return to Sri Lanka? 

    Interpreter: So the first of all, the reason why I left Sri Lanka originally, okay so we originally, we displaced from my village in 2007, and we relocated to a place called Murungan.  So, Murungan, so I was studying at, Murungan School.

    …

    Interpreter: Okay, so like yeah, so at that time in my village, there was lots of problems by the Sri Lankan Army. And, one of that is, like, anyone over eighteen were segregated from the community. So, then after that only, the Sri Lankan Army took all the villagers to the Murungan School.  They transport using the bus, like yes.  So, we were living in Murungan School as refugees for three months, and like at that time only we got these ration cards and everything.  Okay, while we were living in Murungan School, say like we are surrounded by navy, navy camp, army camp, and the CIDs.  Okay so, while we were at that Murungan School, say one day the CID came into the school, and like that they started interrogating all of the young adults, like, 18 – over 18.  So after the interrogation, like, they decided to take some of them to their camp.  Okay.  So when I was taken to their camp, like, they started assaulting me and harassing me, like, asking whether I’m involved in LTTE or involved in other activities.  Okay.  So while I was in the original village – living in the original village we were taken.  All youngsters were taken by the LTTE for training, self-protection training. 

    Okay.  So that’s a well-known training given by the LTTE, so everybody knows that.  Like, everybody goes through that training in Sri Lanka.  Okay.  So when I went for this interrogation by the CID they were, like, asking me questions, and they were suspecting me on that regard, like, whether I would have gone for this LTTE trainings.  Okay.  At that time – during that time it was very dangerous for young boys like me over 18 living in that area because, like, the Sri Lankan Army, CID they always suspected we were LTTE involved adults.  Okay.  Including myself, like, four others were taken from the Murungan School up to the CID camp for further investigations.  Okay.  So I’m one of the – one of the five, like, were taken by the CID for investigation. 

    Case Officer: Can you tell me when this happened? 

    Interpreter: So while I was at the Murungan School as refugees that happened in 2007. 

    Case Officer: Okay.  We can talk a little bit more about that time in the camp a little later.  What I want to focus on what would you think would happen if you went back to Sri Lanka today?

    Case Officer: Why would the CID be interested in you? 

    Interpreter: Okay.  So, like, yes, in – while I was in that Murungan School I was taken by the CID, and, like, the condition that they released me was, like, yes, every fortnight, like, yes, I have to go and report to them, and, like, yes, I was beaten heavily at that time, like, with the – when they interrogated me.  Like, I still have the scars on my thigh and in my body, so I escaped from that, like, all of a sudden from – to Malaysia.  So they know that I didn’t follow their rules – their instructions, so I will be – if – so if I go back they will definitely come to know that. 

    Case Officer: Why do you think they were interested in you at that particular time?

    Interpreter: Okay.  So their suspicion.  They had suspicion that I went through the LTTE training, and, like, yes, in spite of myself telling them that I didn’t have any training, I didn’t go through any training they didn’t believe me.  So they don’t normally believe anyone anything.  Like, yes, if you tell the truth they won’t believe. 

    Case Officer: Why did they have that suspicion? 

    Interpreter: By looking at me they said, “Yes, we know that definitely you’re involved in LTTE.  Come out with the truth.”  So that’s – they hurt me, like, yes, say, I got beaten heavily.  I had a severe injury on my thigh, like, yes, with their gun.  Like, yes, they hit me with their gun. 

    Case Officer: I’m just asking all these questions to get a better understanding, but when you said “by looking at me” what physical characteristics are about you?

21. The Applicant answered that question.  The case officer then asked:

    Case Officer: Did an informant say that you were involved in LTTE?

    Interpreter: Okay.  Say, like, yes, my point is, like, yes, because of this fear I don’t travel much, like, yes, because I know that I will be stopped by the checkpoint.  So once in a while if I go they will know that I’m not a regular person in the bus because they will know my face, the people who travel daily.  So if I go once in a while, like, yes, they will know that, yes, I’m some different person travelling in the bus, so they will immediately suspect me.  So I know a few incidents happened, like, yes, the people who travelled in that bus and they have taken from the bus, and they never came back. 

    Case Officer: Okay.  But just checking, this has never happened to you.

    Interpreter: No.  Yes, so all are, like, yes, that is a common fear that I had while I was there in my village. 

    Case Officer: Okay.  So you talked earlier about the LTTE training:  the self-protection training.  Did you undertake this training? 

    Interpreter: No.

    Case Officer: Did anyone in your family undertake this training?

    Interpreter: My brother – older brother went through this training but, like – and, like, but he is no more.  Like, yes, he died.  He is dead. 

    Case Officer: And how did your older brother die?

    Interpreter: Okay.  Say, we – about my older brother and myself we resembles, like, same, like, yes, we look alike.  Okay.  Say, he died of a, like, when he’s a fisherman.  Like, that particular day he went for fishing in the deep sea, and he accidentally fell on the ocean and died. 

    Case Officer: I’m sorry to hear this.  So what made you decide to make arrangements to go to Malaysia? 

    Interpreter: Okay.  Say, like, yes, the five people who were taken by the CID, like, yes, out of that some of them didn’t come back, so I didn’t know what happened to them.  So because of that reason I always – I told my mother, like, if you want me alive, like, can you please send me overseas, otherwise, like, if I live here then this is going to happen to me as well.  Like, yes, you won’t see me again, so that’s the reason, like, after that they pawned all their jewellery, collected the money and made arrangements. 

22. The Applicant has also put forward another interpretation by another interpreter, who, interpreting that last section that I have just read of the interview, interpreted this way.  The Applicant was asked:

    Case Officer: What was the reason for you to leave to Malaysia?

    Interpreter: Already 15 days.  Those that they took they hit them and tortured them, and two or three people were missing.  They didn’t come back to the school.

    Say, like, here the five – five people who were taken by the CID, like, yes, out of that some of them didn’t come back, so I didn’t know what happened to them.

    If they don’t come back what will the people there do?  They will be asking, “Where is my son?  He is missing.”  Due to this fear I told my mother and father – I said if they capture me you won’t back – I told them to please send me anywhere;  therefore, they pawned the jewellery and sent me to Malaysia.

    So that because of that reason I told my mother if you want me alive, like, can you please send me overseas, otherwise, like, if I live here then this is going to happen to me as well.  Like, yes, you won’t see me again, so that’s the reason, like, after they pawned all the jewellery and collected money and made arrangement. 

23. The Applicant’s submission here to me is that when one looks at what it was that the Applicant was claiming, it was that in 2007 he was taken with four others, and the Applicant was tortured and released, but some of those, whether that be two or three of those others who were taken with him, did not come back.  The Applicant says that when it is that the IAA is looking at the claims that the Applicant was making from the SHEV interview the IAA did not make the connection that the Applicant was stating that the people that he said that had also disappeared were people with whom he was rounded-up.  The Applicant says that the new interpretation that he relies upon is “Already 15 days.  Those that they took they hit them and tortured them, and two or three people were missing.  They didn’t come back”. 

24. The submission arising from that interpretation is that he witnessed the taking of these people, the hitting of these people and the torturing of those people and that one could easily interpret, using both interpretations, that he is talking about the other four people, of which he was one, which made a group of five people that were taken by the CID back in 2007.  Therefore, his claim was that he had a well-founded fear because he was one of a group of people, he was tortured, and some of those group, to use the Applicant’s phraseology, “were disappeared” and that his fear is that he would end up like them. 

25. The Applicant says that this was a claim that was not considered by the IAA because the IAA, as I have mentioned, did not connect the several persons that the Applicant knew that had also disappeared to the same people that he was rounded-up with.

1. Therefore, when the IAA says that later in paragraph 9 that “The Applicant had not claimed, before the delegate’s decision was made, to have personally witnessed such abuses whilst in detention.”  It may be that the IAA could well be mistaken depending on what one makes of the two interpretations; that is, the one of the official interpreter that was relayed to the delegate and the one of the new interpreter.  Whilst it may be said that the IAA did not make that connection, the claim of the Applicant is still the same.  That claim is that he fears that he will be rounded-up again and he will disappear like others have in the past.  It is that fear that the Applicant has said is a well-founded fear.

2. The question for me is whether the IAA has actually assessed the claim that was made.  The claim that was made is as I have just recorded.  The claim is that the CID would do exactly again to the Applicant what they did in 2007, but this time he would not be released.  This time he would not be able to leave.  This time this would mean that this is the last that anyone would see of him.  The IAA had to consider this claim.  What it is that the Applicant argues here, is that the claim has another aspect to it, that he genuinely believes or has fear because of those circumstances that the IAA have overlooked.  However, I do not see that this changes the claim.  Instead, all it does it add some colour to it and give a more subjective aspect to that claim. 

3. The IAA considered this claim, as it was, in paragraph of its reasons.  In paragraph 26 the IAA, relevantly, said this:

   26. The country information detailed above indicates that young Tamil men in circumstances such as the applicant’s at that time, were often targeted by authorities on suspicion of LTTE involvement.  In his arrival interview the applicant said he left because his life was in danger and that the military would pick him up and take him to the centre and beat him because he was over 18 and they suspected people over 18 to be LTTE members.  In his visa application he also mentioned he could not leave the village without permission from the army, although other older people were allowed to leave. He said the authorities perceived all young Tamils who had moved into the village from a formerly LTTE-controlled area to be members of the LTTE.  He was aware of instances of harm to young Tamils during this period, including disappearances.  He was interrogated and beaten on several occasions and had to report regularly and was physically harmed when he did.  He has a scar on his right thigh from being struck by a gun during one of these assaults.  He believes he was targeted because he was young, unmarried, well-built and from a former LTTE-controlled area.  The Applicant made generalised statements about his claimed harassment and mistreatment in the SHEV interview when questioned about this.  For example, he said that he “had lots of bad experiences” and he went “for this interrogation” without specifying any particular incidents.  On the evidence and in light of the country information detailed above, I am willing to accept the applicant’s movements were restricted, that he was harassed, briefly detained on occasion and mistreated by the authorities on suspicion of LTTE links at that time, as were other young Tamils in the village. 

4. The IAA, at paragraph 27, spoke of the reporting to the CID office and said:

   …While I am willing to accept the applicant may have been requested to report to the CID offices at times while in the village, given the lack of detail and material inconsistencies and the late mention of significant aspects of the claim, I do not accept he was required to report on an ongoing basis or that he escaped, in breach of reporting obligations, when he left Sri Lanka in 2010. 

5. At paragraph 28 the IAA said this:

   28. The country information before me indicates that in the wake of the conflict, which ended in May 2009, some 11,000 suspected of LTTE links were screened from the population and sent to government-run rehabilitation centres.  The Applicant left Sri Lanka in November 2010.  He has not claimed to have been sent to a rehabilitation centre in the aftermath of the conflict despite claiming to have been on the authorities’ radar during this period.  Moreover, he was able to obtain a passport and visa in 2010 to travel to Malaysia in his own name and legally leave Sri Lanka on that passport in 2010 without being questioned about any LTTE links at the airport. The country information before me indicates that that would not have been possible if he were genuinely wanted by authorities on suspicion of LTTE links at the time.  The Applicant said he was able to leave without questioning because his father paid an agent, and he moved quickly.  I do not accept this significant but belatedly raised and brief information only mentioned after the delegate indicated to the Applicant that his departure suggested that he was not of interest.  I also note that when asked if he had any problems leaving the airport, earlier in that interview, he said he did not have any problems because his passport was genuine. I do not accept the Applicant was of genuine and ongoing interest to the Sri Lankan authorities or that he had an adverse security profile when he left Sri Lanka in 2010.  I do not accept the authorities have harassed his family about his whereabouts since he has been in Australia. 

6. It seems to me, then, that the IAA have looked at the claim.  The fact that they may not have looked at the link between the persons who disappeared being the same ones that the Applicant was rounded-up with or whether they have looked at that and not found that that was a relevant circumstance is really not to the point.  All that detail does is add colour to the claim.  It does not enhance the claim.  It is not an integer of the claim.  It is not something that corroborates the claim.  The claim is as it is, and that claim has been well and truly considered by the IAA. 

7. The information that came about after the delegate had made the decision was that the Applicant feared that he would be of interest to the authorities because he was a witness to torture of other people is new information. 

8. I am not of the opinion that the Applicant’s claim, even accepting the last interpretation that has recently been given to the Court by the Applicant, is a claim that he personally witnessed other people being tortured. That is a new claim, and it seems to me that the IAA correctly dealt with that. It did not meet the criteria in s 473DD of the Act. What the IAA said about that, at paragraph 10, was a proper consideration and a finding that was open to them. The IAA said that:

   …I do not accept the information in relation to his witnessing human rights abuses and the authorities continuing to look for him, as credible in the circumstances.  I am not satisfied exceptional circumstances exist to justify considering that information. 

9. The way in which this matter has been argued today would seem that there is no real merit in ground 1, and it fails. 

10. Ground 2 - The IAA did not ever say that information about the other four persons with whom the Applicant was arrested, being tortured and two of them being released but having disappeared was “new information”.  In fact, the IAA did not even look at that as “information” itself because that aspect of the matter was never put to them.  This is something that has been submitted in this Court as being a matter that was raised upon the evidence that was before the IAA in the first place, not new evidence.  Therefore, the basis of ground 2, being that there had been a mischaracterisation of that information as being new information, does not arise.  Therefore, there is no merit either in ground 2, and it fails.

11. As far as ground 3 is concerned, I have accepted the combination of the two interpretations, as the Applicant has asked, but I do not see that there is anything in what the Applicant has claimed as being an interpreting error that has caused a jurisdictional error. As I have said already, even accepting what it is that the Applicant has said, only gives colour to the claim;  it does not change the claim, and it does not corroborate the claim or do anything other than maintain the same claim, and, therefore, there is no jurisdictional error that is illustrated by ground 3.

12. Having come to those conclusions, I dismiss the application with costs fixed in the sum of $7467.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated:       18 January 2022