Eid17 v Minister for Immigration

[2020] FCCA 2228

FEDERAL CIRCUIT COURT OF AUSTRALIA

EID17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2228

Catchwords:
MIGRATION – Review of the Immigration Assessment Authority decision – refusal of a protection visa application claiming a fear of harm in Sri Lanka – applicant disbelieved in part and other fears found not to be well founded – whether the Authority acted unreasonably or failed to consider integers of the applicant’s claims considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5AA, 36, 46A, 473CA

Cases cited:

ARG15 v Minister for Immigration [2016] FCAFC 174

AYY17 v Minister for Immigration [2018] FCAFC 89

Htun v Minister for Immigration (2001) 233 FCR 136

Minister for Immigration v SZMDS (2010) 240 CLR 611

NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

Applicant: EID17

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORIY

File Number: SYG 2987 of 2017

Judgment of: Judge Driver

Hearing date: 12 August 2020

Delivered at: Sydney

Delivered on: 12 August 2020

REPRESENTATION

Solicitors for the Applicant: The applicant appeared in person

Solicitors for the Respondents: Ms A. Ladhams

ORDERS

1. The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application as amended on 11 January 2019 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2987 of 2017

EID17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 6 September 2017.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims for protection and the decision of the Authority on them are set out in the Minister’s outline of submissions filed on 5 August 2020.   

Background

1. The applicant is a national of Sri Lanka, who entered Australia by sea at Cocos (Keeling) Island on 21 October 2012. He is an unauthorised maritime arrival within the meaning of s.5AA of the Migration Act 1958 (Cth) (Migration Act).

2. On 10 December 2015 the Department of Immigration and Border Protection (Minister’s Department) sent to the applicant a letter notifying him that the Minister had lifted the bar under s.46A of the Migration Act and inviting him to apply for a temporary protection visa or a safe haven enterprise visa (SHEV).

3. On 29 November 2016 the applicant applied for a SHEV. 

4. On 7 March 2017 the applicant attended an interview with the delegate to discuss his claims for protection, and on 28 March 2017 the delegate refused to grant the applicant the SHEV. The matter was then referred to the Authority for review in accordance with s.473CA of the Migration Act.

5. The Authority wrote to the applicant on 31 March 2017 acknowledging the referral and providing information about the Authority review and a copy of the Authority’s Practice Direction.  The applicant did not provide any submission or new information to the Authority.

6. On 6 September 2017 the Authority affirmed the delegate’s decision. 

Claims for protection

1. The applicant’s claims are set out in his statement of protection claims at CB 72-75, with further information provided at his interview with the delegate. In summary, the applicant’s claims for protection are as follows:

   a)family involvement with the Liberation Tigers of Tamil Eelam (LTTE): his father and uncles were supporters of the LTTE. His father provided food to the LTTE, and in 2006, his father killed 2 people on instructions from the LTTE. In 2008, one of his uncles was caught and publicly beaten. His father and uncle were responsible for a bomb blast in 2008 which was in the vicinity of his village. In 2010, his father was abducted. In the same year, his uncle was shot and killed;

   b)support of the Tamil National Alliance (TNA): the applicant assisted a relative in a campaign for the 2012 Provincial Council election. He also supported the TNA by setting up meetings on 4 to 5 occasions. However, the applicant was not a member of the TNA and did not vote in the elections as he did not believe he was old enough to vote. The applicant was threatened by unknown persons to stop his support for the TNA;

   c)Tamil ethnicity/imputed political opinion: the applicant feared harm on the basis of this ethnicity, religion and perceived political affiliation with the LTTE. The applicant was aware of other Tamils who have returned to Sri Lanka who have been harmed; and

   d)illegal departure: the applicant claimed to fear harm on the basis of having left Sri Lanka illegally.

The Authority’s decision

1. On 6 September 2017, the Authority affirmed the decision not to grant the applicant a SHEV. The Authority noted that no new information was received from the applicant.[1]

   [1] Court Book (CB) [3]

2. Family involvement with the LTTE: the Authority accepted that the applicant’s father and uncles openly supported the LTTE and attended meetings, and that the applicant accompanied them.[2] However, the Authority had concerns about the plausibility of the applicant’s claims in relation to his father. The Authority noted that the applicant did not claim that his father was responsible for the bomb blast until his SHEV interview. The Authority did not accept his explanation that he was too afraid to make the claim earlier. Further, the Authority noted various inconsistencies and implausibility in the applicant’s claims in relation to his father.[3]

   [2] CB 134 [8], 135 [11]

   [3] CB 133 [7]

3. The Authority did not accept that the applicant’s father was abducted, or that his father hid weapons for the LTTE.[4] Further, the Authority had difficulty accepting the applicant’s claims that his uncles had disappeared as alleged by the applicant.[5]

   [4] CB 135 [9]-[10]

   [5] CB 135 [11]

4. Support for the TNA: the Authority had significant doubts about the applicant’s claims about his involvement in the 2012 Provincial Council election. The Authority noted that the applicant was unable to state who the parties were in the election. Further, the Authority noted that the applicant’s evidence at the interview, in relation to the threats he received, was inconsistent with what he put in his written statement. The Authority was willing to accept that the applicant provided low level logistical support setting up campaign meetings in the 2012 Provincial Council election to assist a distant relative, but did not accept that he was threatened or that people came looking for him after the election.[6]

   [6] CB 136-137 [13]-[19], 139 [28]

5. Tamil ethnicity/religion/political opinion: the Authority accepted that the applicant is a Tamil Christian, but was not satisfied that the applicant would be restricted in his practice of Christianity or that there was a real chance he would experience serious harm as a Christian.[7] Noting that the applicant was issued with a passport in 2011, the Authority found that the authorities had no concern about the possibility the applicant may depart Sri Lanka, and did not accept that he would be harmed for any political opinion, for any reason, if returned to Sri Lanka. The Authority did not accept that the applicant would be perceived as having any LTTE profile and, taking into account developments in Sri Lanka referred to in country information, the Authority did not accept that the applicant would face a real chance of harm as a young Tamil man from a former LTTE-controlled area.[8]

   [7] CB 138 [23]

   [8] CB 138-139  [24]-[27]

6. Illegal departee/failed asylum seeker: the Authority considered the applicant’s treatment as an illegal departee/failed asylum seeker if he were returned. The Authority was not satisfied that the treatment the applicant would likely face on his return to Sri Lanka (a short period of detention, questioning and payment of a fine) would amount to serious or significant harm.[9]

   [9] CB 140-141 [29]-[38]; 142-143 [44]-[46]

7. Based on the findings summarised above, the Authority found that the applicant did not meet the criteria in s.36(2)(a) or s.36(2)(aa) of the Migration Act.

The current proceedings

1. These proceedings began with a show cause application filed on 27 September 2017.  The applicant now relies upon an amended application filed on 11 January 2019.  There is one particularised ground in that application: 

   1. The IAA acted unreasonably in failing to consider all integers of the applicant’s claims by misunderstanding  its task in assessing whether the applicant engage Australia’s protection obligations and thereby made a jurisdictional error.

   Particulars

   (a) The applicant was unrepresented at his entry interview on 5 February 2013 at Scherger IDC, Far North Queensland and he did not have a migration agent representing him at the SHEV interview or before the IAA;

   (b) the applicant’s statement was prepare over the course of 3 hours by RAC’s Legal Help for Refugees Clinic;

   (c) The SHEV interview was confidential and the last opportunity for the applicant to provide all his protection claims to the department;

   (d) The applicant disclosed more detailed information in relation to his father’s LTTE activities and his abduction in 2010 and provided the following evidence:

   i. A photograph of his father with the LTTE Supreme Leader Prabhakaran; and

   ii. News clippings of the bombing in [a named location].

   (e) At paragraph 6 the IAA wrote:

   I would expect the basic account of events to be broadly consistent across the versions the applicant has provided to the department and to be consistent with country information;

   (f) At paragraph 11 the IAA found as follows:

   I do not accept that one of these uncles was responsible along with his father for the bomb blast in 2008; noting the later advance this claim by the applicant I am not satisfied that this claim is genuine;

   (g) The IAA gave no other reasons for failing to consider the integer of the claim other than ‘late advance’ and also to recognise the purpose of the entry interview is primarily for the department to get information about the people smuggling ring that the applicant use to come to Australia. The IAA has failed to carry out its task as required by law.

(errors in original)

1. This matter was originally docketed to Judge Barnes, but at call over on 13 March 2019, the matter was transferred to my docket.  At the trial of this matter today, I received into evidence the applicant’s affidavit accompanying his original show cause application.  I also received the book of relevant documents filed on 7 December 2017.  The applicant, who appeared by telephone, told me that he had provided the book of relevant documents to his lawyer and did not have it with him.  In the circumstances, I received the book of relevant documents subject to relevance. 

2. As matters transpired, the only relevant document is the Authority decision which is also attached to the applicant’s affidavit.  Only the Minister prepared pre-hearing written submissions, in accordance with a registrar’s procedural orders.  The applicant said that he had received but had not read those submissions.  I had the interpreter booked for today’s hearing and present in court, read the submissions to the applicant in the Tamil language.  I then invited the applicant to make oral submissions.  The applicant told me that he had lost evidence he regards as significant and therefore was unable to prove his claims before the Authority.  He made that assertion also to the Minister’s Department prior to the Authority decision.

3. The Minister acknowledges that issue but notes, in effect, that the fact that the applicant had lost material and could not give it to the Authority cannot weigh against the Authority decision.  It is apparent that the Authority’s decision turns significantly on adverse credibility conclusions reached by the Authority.  Those conclusions were open to the Authority on the material before it.  The applicant, in his submissions in reply, acknowledged the difficulty he faced in being unable to prove his claims.  I otherwise agree with and adopt the Minister’s submissions concerning the ground of review advanced. 

4. The applicant’s ground does not establish jurisdictional error. In summary:

   a)the Authority considered all of the claims for protection raised by the applicant and their component integers;

   b)there is nothing unreasonable, illogical or irrational in the Authority’s rejection of the applicant’s claims of his father’s involvement with the LTTE;

   c)there is nothing in the Authority decision to suggest that it misunderstood its statutory task; and

   d)there is no evidence before the Court to suggest that the applicant provided to the delegate or the Authority any photograph of his father with the LTTE Supreme Leader Prabhakaran or news clippings of the bombing.

5. It is well established that the Authority is required to consider the claims raised by the applicant and their component integers, including claims that are expressly articulated by the applicant and implied claims that clearly emerge from the materials before the Authority.[10]

   [10] Htun v Minister for Immigration [2001] FCA 1802; (2001) 233 FCR 136 at [42]; NABE v Minister for Immigration (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [55], [68]; AYY17 v Minister for Immigration [2018] FCAFC 89 at [18]

6. In the present case, the Authority has not failed to consider any claim or integer raised by the applicant. Rather, the Authority has considered the claims raised by the applicant and made findings adverse to the applicant.

7. The Authority had particular concerns about the applicant’s evidence in relation to his claims to fear harm as a result of his father’s alleged activities with the LTTE and abduction, and the applicant’s involvement in the 2012 Provincial Council election campaign.[11] This appears to be the basis for particular (e). 

   [11] CB 133 [6]

8. The Authority did express concerns that the applicant had not raised some of the claims about his father’s activities until the protection visa interview. However, this was not the only basis for the Authority making adverse findings in relation to these claims. The Authority also considered that there were inconsistencies and implausibility in the evidence advanced by the applicant, which collectively cast doubt on the veracity of the applicant’s claims, and set these out in detail at [7]. These concerns include:

   a)the applicant stated at his arrival interview that his father had been missing for 3 years, but did not advance claims that his father was involved with the LTTE. However, the Authority accepted that this omission might be because the applicant was asked why he left Sri Lanka and so his response may have focused on 2012 events;

   b)the applicant included in his written claims that the army and police believed his father was involved in a bombing but did not state that his uncle and father were responsible for the bombing until his SHEV interview. The Authority considered the applicant’s explanation as to why he did not raise this earlier, but was not convinced by that explanation;

   c)the Authority considered that if the applicant’s father had been responsible for the bomb blast, he would have been apprehended sooner;

   d)the Authority was concerned that the applicant claimed his mother had not reported his father’s disappearance to the police because she was concerned about attracting adverse attention from the authorities, but his mother had still been willing to go to village authorities and the applicant’s uncle’s wives had reported their husband’s disappearances, when they had similar profiles to that alleged in relation to the applicant’s father; and

   e)the Authority did not consider it plausible that the applicant’s father would have been able to evade detection of the authorities from 2006 to 2010 if the authorities were aware that he was a LTTE supporter as claimed, given the heavy military presence in the area.

9. The Authority provided its reasons for having doubts about the applicant’s claimed fear of harm resulting from his involvement in the 2012 Provincial Council elections at [13]-[18]. These include:

   a)the applicant gave inconsistent information at his arrival interview and his SHEV interview about the role of his relative;

   b)the applicant was unable to identify which parties made up the TNA coalition the candidates were standing for, although the Authority accepted that the applicant may have minimal knowledge of the parties;

   c)the applicant’s claim that his relative was successful is inconsistent with official records from the Eastern Provincial Council;

   d)the applicant was unable to provide more specific information about when he provided assistance;

   e)the applicant gave inconsistent evidence in his written statement and at the SHEV interview in relation to the threats that he claimed to have received;

   f)the applicant did not suggest that other helpers were threatened, or that his relative, who was far more involved in politics than the applicant, was threatened;

   g)the letter of support provided by a member of the Provincial Council does not provide independent corroborative evidence and indicates that the applicant was a long standing support who was continually threatened, which was not consistent with the applicant’s account; and

   h)information given by the applicant at the arrival interview suggests that the applicant was making plans to leave Sri Lanka prior to his claimed involvement in the September 2012 election.

10. At particular (f), the applicant challenges the Authority’s findings in relation to his uncles’ involvement in the LTTE. The Authority’s reasons for rejecting the applicant’s evidence include that the description in the police report of the abduction of his uncle in 2009 is inconsistent with the applicant’s account, the applicant did not claim his uncle and father were responsible for the bomb blast until the SHEV interview. The Authority was ultimately willing to accept that the applicant’s uncles have been missing since 2008 or 2009 and that the body of one was discovered in 2010, but was not satisfied that the applicant would face harm as a result of this, noting that he had faced harm in the past due to his relationship with his uncles and had not been questioned about their activities.[12]

    [12] CB 135 [11]

11. In some cases, adverse credibility findings can be affected by jurisdictional error on the basis of unreasonableness, illogicality or irrationality.[13] However, this is not such a case. The Authority’s reasons, considered in their entirety, provide a logical and coherent explanation for rejecting aspects of the applicant’s evidence. It cannot be said that no logical decision-maker could have reached the findings made by the Authority, or that only one finding was open on the evidence and the Authority failed to reach that finding.[14] The decision and findings made by the Authority were open to it on the evidence and do not disclose jurisdictional error for unreasonableness, illogicality or irrationality.

    [13] ARG15 v Minister for Immigration [2016] FCAFC 174 at [83]

    [14] see Minister for Immigration v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135]

12. Further, the applicant in particular (d) has referred to evidence that he says he provided in support of the relevant claims. In particular, the applicant claims that he provided a photograph of his father with the LTTE Supreme Leader Prabhakaran and news clippings of the bombing, but he does not indicate who he provided this evidence to. The primary difficulty for the applicant in relation to this particular is that there is no evidence before the Court to suggest that the applicant provided this evidence to the Minister’s Department or the Authority. 

1. On the contrary, the delegate’s decision refers to the evidence and simply says that the applicant sought to come to Australia to obtain protection and stated that he had brought the documents with him.  There is no suggestion in the delegate’s decision the applicant showed or provided the photograph and newspaper clippings to the delegate. The Authority decision records that the applicant said he lost the photograph on the boat to Australia, which suggests it was not before the Authority.[15] There cannot be jurisdictional error in the Authority failing to consider evidence that was not before it and which was not material that the Secretary was required to provide under s.473CB of the Migration Act.

   [15] CB 131-132 [4]

2. Finally, the applicant’s ground and particulars when read as a whole suggest that the assertion the Authority did not understand its statutory task is because it did not give any reason for rejecting the claim that the applicant’s father and uncle were responsible for a bomb blast other than its late advance. This cannot be accepted. First, it is clear from the reasons as a whole that the late advance of the claim was not the only reason for its rejection. Second, nothing in the Authority’s reasons suggest that it failed to understand its statutory task. The Authority clearly understood that it was required to review the delegate’s decision and form its own views on whether the applicant met the criteria for a protection visa. The Authority has clearly and correctly identified the relevant criteria and the relevant law and has not misapplied these provisions.

3. I conclude that the applicant is unable to demonstrate that the decision of the authority is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order. 

4. In consequence of the dismissal of the application the Minister seeks an order for costs fixed in the sum of $5,200. The applicant did not wish to be heard on costs.

5. I will therefore order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,200.

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 18 August 2020