Egi17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 160

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EGI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 160

File number(s):	MLG 2040 of 2017
Judgment of:	DEPUTY CHIEF JUDGE MERCURI
Date of judgment:	11 March 2022
Catchwords:	MIGRATION – application for judicial review –protection (class XA visa) – whether the Immigration Assessment Authority unreasonably made credibility findings – whether the Authority failed to consider the applicant’s expectation that he would have an opportunity to explain inconsistencies in previous representations – finding that the Authority made findings reasonably open to it on the evidence before it – no jurisdictional error established – application dismissed with costs.
Legislation:	Migration Act 1958 (Cth) ss 5H, 36
Cases cited:	AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Division:	Division 2 General Federal Law
Number of paragraphs:	45
Date of last submission/s:	9 August 2021
Date of hearing:	9 August 2021
Place:	Melbourne
Solicitor for the Applicant:	Mr Bandara of Ravi James Lawyers
Solicitor for the Respondent:	Mr Rogers of Australian Government Solicitor

ORDERS

MLG 2040 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

EGI17
Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent

ORDER MADE BY:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	11 MARCH 2022

THE COURT ORDERS THAT:

1.The applicant’s application be dismissed.

2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.

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

DEPUTY CHIEF JUDGE MERCURI:

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (‘IAA’) dated 31 August 2017 affirming the decision of a delegate of the first respondent to refuse the applicant’s application for a protection visa.

   BACKGROUND

2. The applicant is a Sri Lankan national of Tamil and Hindu faith.  The applicant arrived in Australia by boat on 13 October 2012.[1]

   [1] Court book at page 137.

   Irregular Maritime Arrival Interview on 28 October 2012

3. The applicant participated in an irregular maritime arrival interview on 28 October 2012.[2]  In that interview, in response to a question as to why he left Sri Lanka, the applicant said that he had a problem with the Sri Lankan army and that after he returned from overseas, they took him into custody and hit him and asked for money.  He said that he was detained for three days in March 2012 and that they did this to get money from him.[3]

   [2] Court book at page 10.

   [3] Court book at page 22.

4. The applicant also said that in 1990, the army arrested him for 2 or 3 days on suspicion of being involved with the Liberation Tigers of Tamil Eelam (LTTE), beat him and let him go.[4]

   [4] Court book at page 22.

   Application for protection visa on 30 January 2017

5. On 30 January 2017, the applicant applied for a protection visa, and in support of that, filed a statutory declaration dated 24 January 2017.[5]

   [5] Court book at pages 98 to 102.

6. In the January 2017 statutory declaration, the applicant claimed:

   (a)he fled Sri Lanka in July 2012 as he had faced persecution throughout his life due to his ethnicity;

   (b)in 1990 he had been captured by the army, kept for a week and tortured;

   (c)the army took his identifying information and directed him to report to the army weekly;

   (d)in about October 1993, his father was beaten to death and he believes that this was by the army;

   (e)following his father’s death, he and his family moved from place to place out of fear from the army and he returned to Batticaloa around 1996 when he married;

   (f)he remained in Batticaloa for about two years during which time he continued to be harassed by the army and also by the LTTE;

   (g)he ultimately was forced to leave Batticaloa to avoid being forced to join the LTTE and to find work;

   (h)the applicant then lived in Colombo for a number of years where he was able to avoid harassment and find work as a jeweller;

   (i)in 2004 following the tsunami, he returned to Batticaloa with his family and again faced harassment from the LTTE who wanted him to join them or to provide money to the LTTE;

   (j)he was threatened that if he did not join the LTTE, he and his family would be killed;

   (k)in 2006, following further harassment from the LTTE, he moved to Qatar although his family remained in Batticaloa;

   (l)whilst in Qatar, he returned on occasion to see his wife and children and during these visits he was harassed by the Karuna group who demanded money. In particular, he referred to two trips when this occurred, one in 2010 and another in 2012;

   (m)in relation to the incident in 2012, the applicant claimed that he was kidnapped and beaten and kept in a room alone until he was able to escape and then he fled Sri Lanka; and

   (n)he fears harm on his return, in particular that:

   (i)he will be extorted for money and if he is unable to make the payments, that he will be beaten, tortured and/or killed;

   (ii)he will be targeted by the Karuna group who are active and thriving in his area; and

   (iii)he could not move to another area in Sri Lanka as he is of Tamil ethnicity and would be targeted on that basis.

   IAA decision on 31 August 2017

7. The IAA sets out the background to this matter at paragraphs [1] to [2] of the decision record, including, relevantly, that on 9 July 2017, a delegate of the minister refused the applicant’s application.  At paragraphs [3] to [4], the IAA referred to the information before it and at paragraph [5], summarised the applicant’s claims for protection.

8. The IAA then set out its factual findings at paragraphs [6] to [21], which I will come back to shortly.  At paragraphs [24] to [35], the IAA set out its findings in relation to the applicant’s claims to fear harm from the LTTE, the Army and the Karuna groups.  At paragraphs [36] to [38], the IAA set out its analysis and findings in relation to the applicant’s claims to fear harm as a result of being or being perceived to be ‘wealthy’.  At paragraphs [39] to [45], the IAA considered the applicant’s claims to fear harm as a result of being a failed asylum seeker if he were to return to Sri Lanka.

9. At paragraph [49] of its decision record, the IAA concluded that the applicant did not satisfy the requirements of a refugee in section 5H(1) and did not meet the requirements of section 36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’).

10. The IAA then went on to consider whether the applicant engaged Australia’s complementary protection obligations and concluded that he did not at paragraph [56]. On this basis, the IAA affirmed the delegate’s decision not to grant the applicant a protection visa.

    GROUNDS OF REVIEW

11. In his amended application filed on 7 December 2018, the applicant raises a single ground of review, namely:

    1.The Second Respondent’s decision is affected by jurisdictional error in that the Second Respondent constructively failed to exercise its jurisdiction, failed to act reasonably or failed to carry its statutory task by failing to consider relevant information in making adverse credibility findings against the Applicant.

    PARTICULARS

    a. The Second Respondent found that the Applicant lacked credibility due having given ‘inconsistent’ information in his entry interview, protection interview and his statutory declaration, without evaluating the significance of the inconsistencies or the weight to be attached to it.

    b. The Second Respondent failed to consider that the Applicant’s statutory declaration dated 24 January 2017 was subject to the qualification that it was only a summary of his claims and that he would be ‘happy to provide further detail at [his] interview’.

    c.The Second Respondent failed to obtain and consider explanations for the ‘inconsistency’ of information as between the entry interview, protection interview and his statutory declaration.

    d.The Second Respondent mischaracterised ‘omissions’ in the Applicant’s arrival interview as ‘inconsistencies’ when making findings adverse to the Applicant’s credibility.

    e.The Second Respondent failed to properly consider that the Applicant would expect to be able to explain aspects of the information that he has given prior to the interview.

12. In the applicant’s outline of submissions filed on 7 December 2018, it is submitted for the applicant that the IAA’s decision is affected by jurisdictional error in that:[6]

    (a)it unreasonably made credibility findings without a rational or probative basis or in misunderstanding its task on review; and

    (b)it failed to take into account a relevant matter, namely that the applicant expected, and ought to have had an opportunity to explain inconsistencies in previous representations.

    [6] Applicant’s Outline of Submissions filed on 7 December 2018 at paragraph [22].

13. The first submission in relation to the IAA’s purported error in unreasonably making credibility findings may be viewed as encompassing particulars (a) to (d) of the applicant’s amended application.  The second submission in relation to the IAA’s purported error in failing to properly consider the applicant’s expectation that he would have an opportunity to explain inconsistencies in previous representations may be viewed as relating to particular (e) of the applicant’s amended application.  I will now address each of these submissions in turn.

    Error in making credibility findings (particulars (a) to (d))

14. In support of this ground, the applicant submits that the adverse credibility findings made by the IAA were material to its rejection of his claims to be a ‘refugee’.  Moreover, it is submitted for the applicant that the IAA, in coming to these adverse credibility findings, relied upon the ‘purported’ inconsistencies between the applicant’s arrival interview, his protection interview and his January 2017 statutory declaration.

15. The applicant relies upon the decision of the Full Court of the Federal Court in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 (‘AVQ15’), in which the court said that in making adverse credibility findings, the decision maker was required to act fairly and reasonably.

16. In particular, the applicant submits that AVQ15 stands for the proposition that:

    (a)care should be taken in making credibility findings, having regard to the particular position of an asylum seeker;

    (b)where an applicant is given an opportunity to attend an interview, the applicant ought reasonably expect that he or she will be given an opportunity to expand upon or explain information previously given; and

    (c)where it is reasonably open to the decision maker to find that a person has given inconsistent evidence, they should assess the significance of that inconsistency and the weight to be given to it, in particular by reference to the case as a whole, the particular challenges faced by asylum seekers and whether there is a reasonable explanation for the inconsistency.

17. Whilst the applicant conceded that ultimately it was a matter for the decision maker to weigh and evaluate these matters, if the decision maker acted unreasonably or unfairly or failed to appreciate the statutory task, this would amount to a jurisdictional error.

18. It is not in dispute that the IAA’s findings on credibility were critical to its conclusion that the applicant did not satisfy the definition of a refugee in section 5H(1) or meet the requirements of section 36(2)(a) of the Act. The applicant’s claims for protection arose from his claim to have a well-founded fear of persecution from the Karuna group, the Sri Lankan army and the LTTE and that this included extorting him for money. At paragraphs [8] to [18] of its decision record, the IAA considered these claims and made various factual findings.

19. Relevantly, whilst the IAA accepted certain aspects of his claims, in particular, in relation to his various moves both within Sri Lanka and also to Qatar, it did not accept that:

    ·he was forcibly recruited to the LTTE or Karuna;

    ·he or his family were harassed by the LTTE, Karuna or the army;

    ·he moved to Qatar to avoid LTTE or Karuna harassment or extortion;

    ·Karuna held a grudge against him since 2001;

    ·he had been abducted in 2012 by the Karuna group; and

    ·the applicant was occasionally beaten and the subject of threats of extortion by some Singhalese people as claimed in his protection interview.

20. At paragraph [18] of its decision record, the IAA relevantly said:

    I consider the applicant has given a number of different accounts about extortion of money which are not consistent.  Given these inconsistencies, I do not accept the applicant is a credible witness and do not accept that anyone has tried to extort money from him.  I do not accept that he was harassed, beaten, threatened or extorted by the LTTE or Karuna group, Singhalese people or army or authorities or anyone as claimed as I consider the applicant has fabricated these claims to enhance his protection claims.

21. In coming to these views on credibility, the IAA, contrary to the applicant’s assertion in particular (a), did assess the inconsistencies between the applicant’s entry interview, protection interview and his statutory declaration.  So much is evident from the IAA’s analysis of the evidence at paragraphs [8] to [17] of its decision.

22. In addition, at paragraph [19], the IAA went on to consider the applicant’s evidence about his alleged abduction in March 2012 and concluded that the evidence which he gave about this incident was not credible.  The fact that the applicant had not mentioned this incident in his entry interview was one, but not the only, reason for the IAA concluding that this claim was not credible.

23. Moreover, at paragraph [20], the IAA went on to consider the fact that the applicant had not mentioned this incident in his entry interview.  It concluded that had this incident occurred as alleged, ‘such an incident was crucial to his claims and was said to have recently occurred.  Given these circumstances, his failure to mention the incident at his arrival interview leads me to conclude that he was not recounting true events but making up his account as he went along.’

24. In relation to his claims about the Karuna targeting him, the IAA went on at paragraph [21] to say that it did not accept that the applicant had been hiding at his mother’s and sister’s homes as alleged, before going on to explain the basis of this finding.

25. In any event, it is clear from a fair reading of the IAA’s decision record that the IAA’s findings in relation to the applicant’s credibility were not simply based on inconsistencies or omissions between statements made in his entry interview and subsequent statements made in his protection interview and statutory declaration.

26. As submitted for the Minister, the IAA, in rejecting the applicant’s evidence, identified a series of concerns including:

    ·the applicant’s return to Batticaloa in 2004 was not consistent with him being fearful of the Karuna group;[7]

    ·the fact that his family remained in Batticaloa when he moved to Qatar, did not sit well with the applicant’s claim to fear harm from the Karuna group, the LTTE or the army. In considering this aspect of the applicant’s evidence, the IAA said that it did not make sense to leave his family behind alone in circumstances where they could be targeted;[8]

    ·the applicant’s claims about remaining at the jewellery shop in 2004 to avoid the LTTE did not make sense as the applicant said that the LTTE knew that he had a jewellery shop and could have easily found him there;[9]

    ·nor did it make sense that while the applicant lived elsewhere in Sri Lanka or abroad, his family remained living at home if they were continually harassed;[10]

    ·the applicant’s claim that he was the subject of a 12 year grudge held by the Karuna group was found not to be credible;[11] and

    ·the applicant’s claim about being abducted in 2012 and how he escaped was found not be credible having regard to the applicant’s description of what occurred.[12]

    [7] Paragraph [8] of the Authority’s decision record at page 174 of the court book.

    [8] Paragraph [10] of the Authority’s decision record at page 174 of the court book.

    [9] Paragraph [11] of the Authority’s decision record at page 174 of the court book.

    [10] Paragraph [12] of the Authority’s decision record at page 174 of the court book.

    [11] Paragraph [13] of the Authority’s decision record at page 174 of the court book.

    [12] Paragraph [19] of the Authority’s decision record at pages 175 to 176 of the court book.

27. These credibility findings were largely based on the IAA’s assessment of the totality of the evidence and the plausibility of the claims made by reference to that evidence. 

28. As noted in AVQ15, when discussing how a decision maker ought to address issues or concerns about credibility findings in protection visa application, the court said:[13]

    26.Consistently with its task on review, … appropriate attention has to be given by a decision-maker … to all relevant material in making a finding of inconsistency which then underpins an adverse credibility assessment.  …

    27.… adverse credibility findings might be based on a variety of matters, including inconsistencies between, for example, evidence or claims made at different stages of the decision-making process or differences between oral evidence and contemporaneous documents.  In some circumstances a visa applicant may raise a claim for the first time at an advanced stage of the decision-making process and the failure to raise the claim previously may well be relevant to credibility, but that is not to say that this is correctly described as an inconsistency.

    [13] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133 at [26] and following.

29. The court in AVQ15 went on to say that where there are inconsistencies in an applicant’s evidence, the decision maker must assess that inconsistency in the context of the applicant’s claims overall and whether the inconsistency is relevant to a central issue or is peripheral to the applicant’s overall claims.

30. Importantly, the court acknowledged at paragraph [28] that:

    28.… How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.

31. In the present case, when one reads the IAA’s decision fairly and in its entirety, it is clear that the IAA did appreciate the nature of the task before it and that it did consider the evidence given by the applicant and considered not only inconsistencies in that evidence, but also the implausibility of some of the evidence given and the relevance of the failure to make certain claims at an early stage.  The IAA’s reasoning and its findings were reasonably open to it.

32. Moreover, contrary to the applicant’s assertion at particular (c), the IAA did consider the applicant’s explanations for inconsistencies in the information provided at his entry interview, his protection interview and his statutory declaration.  Ultimately, it did not accept the applicant’s evidence.  The IAA’s findings in this regard were reasonably open to it.

1. There is no proper basis to find, as claimed by the applicant in particulars (b) and (d) that:

   ·the IAA failed to have regard to the fact that the applicant stated in his statutory declaration that he was ‘happy to provide further detail at [his] interview; or

   ·the IAA mischaracterised the applicant’s ‘omissions’ in his arrival interview as ‘inconsistencies.

2. The IAA clearly considered the further information provided by the applicant at his protection interview.  It is apparent fair reading of the IAA’s reasoning at paragraphs [8] to [21] that the IAA assessed the applicant’s evidence in its entirety, but ultimately did not find him to be a credible witness.

3. For example at paragraph [15], the IAA said:

   [15]… At (his arrival) interview the applicant claimed his problem was with the Sri Lankan army who took him into custody and hit him and asked for money when he returned from overseas.  He claimed that they held him in March 2012 for 3 days.  I consider that if the applicant had been harassed or extorted for money by the LTTE or Karuna group or that he left Sri Lanka because of this harassment, that he would have mentioned this in his arrival interview.  … I consider that if he had been kidnapped by Karuna in 2012 he would have mentioned that rather than mentioning the army incident, which occurred in 1990. … This is particularly so given his claims of abduction by the Karuna group occurred a few months before he left.  I consider the applicant’s failure to mention extortion or abduction by the Karuna group at his arrival interview is because the applicant was not recounting true events but adding to his account to enhance his protection claims.

4. The IAA’s analysis in reaching this conclusion demonstrates that it fully appreciated its statutory task and moreover, made findings which were reasonably open on the evidence before it.  The IAA’s reasoning therefore does not disclose any jurisdictional error.

   Error in failing to properly consider the applicant’s expectation that he would have an opportunity to explain inconsistencies in previous representations (particular (e))

5. Nor do I consider that there is any proper basis for the applicant’s claim in particular (e) that the IAA failed to properly consider that the applicant had an expectation that he would be able to explain aspects of the information that he had given prior to the interview.

6. It is submitted for the applicant that there is nothing in the decision record which suggests that the IAA considered the applicant’s expectation that he would be able to expand upon or explain information provided during his entry interview or his statutory declaration.  This is particularly so where his statutory declaration expressly provides that it is a summary of his claims and that he was happy to provide further details at interview.

7. The applicant further refers to an information sheet that he received which expressly states that he would be given an opportunity to ‘clarify the written claims you made in your Protection visa application.’[14]

   [14] Applicant’s Outline of Submissions filed on 7 December 2018 at paragraph [45].

8. It is submitted that if there were inconsistencies between the statutory declaration and the entry interview, these ought to have been raised with the applicant.  Moreover, it is submitted that on the face of the decision record, the only issue raised with the applicant in the protection visa hearing was the applicant’s omission about the Karuna Group or the LTTE. 

9. It is submitted for the applicant that in the absence of a transcript of the protection visa hearing, the court ought to conclude that the IAA did not consider the applicant’s expectation that he would be able to expand upon or explain his earlier claims.  A failure to do so, it is argued, renders the IAA’s decision legally unreasonable, or alternatively, a decision made without taking into account a relevant consideration.

10. In response to this aspect of the claim, it is submitted for the Minister that to the extent that the reasoning in AVQ15 applies to this case, it is clear that the applicant did have the opportunity to expand upon or explain his claims at the protection visa hearing and it is also clear that IAA had regard to what he said at that time.

11. I agree with this submission.  Moreover, it is clear from the decision record that the IAA had regard to those matters raised by the applicant in his protection visa interview.  It goes without saying that the fact that an applicant has an opportunity to expand upon and give further evidence to clarify his earlier claims does not detract from the decision maker’s obligation to weigh that further evidence in determining and assessing the applicant’s claims.

12. That is precisely what the IAA did in this instance.  In doing so, and for reasons earlier discussed, it was open to the IAA, when viewing the totality of the evidence given by the applicant, to make the adverse credibility findings it made.  Those findings were open on the evidence and, as stated above, were not only based on inconsistencies or omissions, but also on the basis of the weighing of the evidence given.

    CONCLUSION

13. For each of these reasons, the applicant’s ground of review is not made out.  I therefore order that the applicant’s application be dismissed with costs to be fixed if not agreed.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

Deputy Associate:

Dated:       11 March 2022