ENU17 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 752
•21 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ENU17 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 752
File number: MLG 2172 of 2017 Judgment of: JUDGE BLAKE Date of judgment: 21 August 2024 Catchwords: MIGRATION – Application for judicial review – unparticularised grounds – where delegate accepted certain claims – where Immigration Assessment Authority (‘Authority’) found the claims ‘evasive’ and ‘vague’ and rejected the claims – where Authority listened to audio recording and did not call the Applicant for interview – whether Authority rejected the Applicant’s claims wholly or substantially on the basis of the manner in which the Applicant gave evidence – HELD that the Authority did not reject the Applicant’s claims wholly or substantially on the basis of his demeanour – application dismissed. Legislation: Migration Act 1958 (Cth). Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC
Division: Division 2 General Federal Law Number of paragraphs: 38 Date of hearing: 16 July 2024 Place: Melbourne Solicitor for the Applicant: Self-represented litigant Counsel for the Respondents: Mr Solomon-Bridge Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 2172 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ENU17
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
21 AUGUST 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration and Multicultural Affairs.’
2.The Application filed on 10 October 2017 be dismissed.
3.The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $8,371.30.
AND THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 17.05(2)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 on 21 August 2024.
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
JUDGE BLAKE:
INTRODUCTION
This is an application to review a decision of the Immigration Assessment Authority (‘Authority’). The Authority made its decision on 11 September 2017 (Court Book (‘CB’) 282) (‘Reasons’). In its decision, the Authority affirmed a decision of a delegate of the Minister (‘delegate’) not to grant the Applicant a Safe Haven Enterprise visa (subclass XE-790) (‘visa’).
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant is a Sri Lankan national. The Applicant arrived in Australia on 10 September 2012 as an unauthorised maritime arrival (CB 248). He applied for the visa on 19 August 2016 (CB 248).
On 29 December 2016, the Applicant was asked to attend a Protection Visa interview (CB 243).
On 14 June 2017, the delegate refused to grant the Applicant the visa (CB 245).
On 20 June 2017, the decision of the delegate was referred to the Authority for review (CB 263). The Applicant subsequently appointed a solicitor and registered migration agent to act for him (CB 277-279).
On 11 September 2017, the Authority affirmed the decision of the delegate not to grant the Applicant the visa (CB 282).
The Applicant filed his application in this Court to review the decision of the Authority on 10 October 2017 (‘Application’). The Application was accompanied by an affidavit of the Applicant filed on 10 October 2017.
Despite being given the opportunity to do so, the Applicant (who is not represented) did not file any amended application or written submissions. The Minister filed written submissions dated 15 May 2024 and relied on those, together with the Court Book as well as an affidavit of Madeleine Teo filed 21 May 2024 and an affidavit of Megan Kent filed on 22 May 2024.
THE DECISION OF THE AUTHORITY
The Authority set out the Applicant’s claims for protection at paragraph [5] of its Reasons. The Authority summarised those claims for protection as follows:
(a)the Applicant is a Tamil born in Jaffna who claims to have been targeted by armed Tamil groups because he was perceived as running a successful business;
(b)he was abducted in 1994 for 10 days by members of the Liberation Tigers of Tamil Eelam (‘LTTE’);
(c)in 2002, the Applicant was abducted by the LTTE for refusing to pay taxes and was released after a few days when he paid 100,000 rupees;[1]
(d)in 2003, the Applicant was abducted by the LTTE. He was released after a few days on payment of 200,000 rupees;
(e)in 2005, it was not possible for the Applicant to live in Batticaloa as Karuna had threatened to kill Jaffna Tamils, so the Applicant left and kept a low profile in Jaffna between 2005 and 2007. While he was hiding, his wife was harassed by Karuna Group members and fearing his wife and children would be harmed, he returned to Batticaloa in 2007;
(f)on returning to Batticaloa in 2007, the Applicant’s shop had been destroyed and goods had been looted. The Applicant suspected members of the Tamil Makkal Viduthalai Pulikal (‘TMVP’);
(g)in September 2008, the Applicant received phone calls from the TMVP who threatened harm if he did not pay 300,000 rupees. His wife paid money for his release and he was released after seven days;
(h)in 2010, he was abducted from his home by TMVP, detained for 15 days and released after 250,000 rupees was paid. He was beaten during detention;
(i)in 2011, he was abducted again by TMVP and detained for 20 days. He was released on condition that he agreed to pay 500,000 rupees later, however, he did not pay the money; and
(j)in May 2012, after returning from work, he was abducted by TMVP/Karuna and detained for 20 days and assaulted. He managed to convince them he would pay 500,000 rupees and was released.
[1] The Authority only refers to figures such as ‘100,00’ throughout its Reasons, without referencing the currency, but it is clear from the Court Book (‘CB’) documents, including the Applicant’s statutory declaration at CB 75, that the Applicant was referring to rupees.
The Authority accepted at [6]-[7] of its Reasons that the Applicant was a Hindu Tamil, born in Jaffna who lived in Batticaloa, and accepted he had a successful business and was perceived as wealthy.
Of significance, at paragraph [8] of its Reasons, the Authority found that the Applicant was not a credible witness. The Authority stated at [8]:
8.Having listened to the applicant’s interviews and read his statement I find the applicant is not a credible witness for the following reasons. In summary, firstly the applicant’s account changed significantly. For instance, initially he claimed he was harassed for money by the army, but he did not pay. There was no mention of any abductions. In his written statement he claimed he was threatened and abducted numerous times since 1994 until 2012 by the LTTE, Karuna, TMVP groups. However, in his protection interview (January 2017) he did not know who threatened him for money and thought it was armed groups, army, intelligence, Karuna or government collaborators and did not provide specific information about his claimed abductions. Secondly, I found his evidence was evasive, vague and lacking in details.
The Authority then continued its task by dealing in detail with the Applicant’s claims. Insofar as the Applicant made claims about being abducted and going into hiding, the Authority:
(a)did not accept that the Applicant was abducted or threatened as claimed (at [9]);
(b)considered the Applicant’s account ‘lacked credibility’. The Authority noted that the Applicant claimed in 2011 he was abducted and managed to convince them to release him, however, he ultimately did not pay his captors. The Authority did not consider it to be credible that the Applicant would be released in those circumstances and be able to continue to live and work in the area and not pay the promised amount (at [11]);
(c)stated ‘having listened to the applicant’s protection visa interview, I do not consider the applicant is a credible witness. I found the applicant’s evidence was evasive and vague, lacking in details. The applicant frequently did not respond to the questions asked and the delegate had to ask the same questions a number of times’ (at [12]);
(d)found the Applicant gave inconsistent and evasive evidence about his work history. The Authority noted, for instance, that in his January 2013 interview, the Applicant claimed he had started his shop in 2006, but in his 2017 interview he claimed that he had commenced it in 2001 (at [13]);
(e)considered the Applicant’s evidence about when he ceased work on his farm or at his shop as being evasive. The Authority noted, for example, in his 2017 interview, the Applicant was asked more than three times when he stopped working at his shop or farm. Each time the Applicant avoided the question or repeated he did not know the exact date, and he was not able to provide an approximate timeframe until he had been given many opportunities (at [14]);
(f)found the Applicant’s evidence about his address history and being in hiding was also inconsistent and evasive. The Authority noted that in his 2013 interview, the Applicant claimed he lived at the same address for the last seven years until his departure from Sri Lanka, however, in his written claims and 2017 interview, he claimed he was in hiding (at [16]-[17]); and
(g)found the Applicant’s evidence about going to Jaffna in 2005 for two years to avoid harm was also inconsistent (at [18]).
Insofar as the Applicant made claims about threats and abductions, the Authority:
(a)considered the Applicant’s descriptions of who made the threats were vague, inconsistent and not descriptive. The Authority noted that in his written claims, the Applicant stated that threats were from TMVP, Karuna and the LTTE, however, in his 2017 interview, the Applicant either did not know or said it was many people and different groups. He was asked three times which armed groups but he could not identify them, whereas in September 2012, he claimed he was harassed by the army (at [19]);
(b)stated that the Applicant’s descriptions of the abductions were very vague, general and not specific. The Authority noted that despite his written claims setting out the various abductions between 1994 and 2012, in his 2017 protection interview he did not describe what happened, where he was taken or provide specifics (at [22]);
(c)stated that the Applicant’s evidence in his 2017 interview about what happened to his shop and any subsequent threats was evasive and lacked credibility. The Authority noted that the Applicant was unsure whether the shop continued to operate, then said his wife had ceased operating the shop but he did not know when this occurred, and that he later said the shop ceased operating (at [23]); and
(d)did not accept that the Applicant’s wife had been threatened by anyone, or that the Applicant had lived in fear or was at risk of abduction (at [27]-[28]).
Insofar as the Applicant claimed that his wife and others had made complaints to the police, the Authority:
(a)noted that while the Applicant had provided a 2016 written statement which added that the Applicant’s wife and his mother-in-law made statements to the police in 2008, he made no mention of these complaints in his 2013 statement or in his 2013 or 2017 interviews. The Authority stated ‘I consider this is another example of the applicant adding to his account in order to enhance his protection claims’ (at [29]);
(b)did not accept that it was credible that the Applicant would make a police complaint in September 2008 in relation to events that occurred in February 2007 (at [30]);
(c)noted that there were major discrepancies in the statements made by the Applicant as to whether he had paid money or not following his abductions. The Authority noted that in his written statements he claimed he paid money numerous times but that in his arrival interview he claimed he did not pay any money. In all the circumstances, the Authority considered the Applicant had fabricated his claims and also noted that the ‘lack of details and evasive responses at interview further reinforce my view that the applicant has fabricated his claims’(at [32]-[33]); and
(d)did not accept that the Applicant was forced to pay monies to various persons and considered further that the Applicant was not a credible witness who had fabricated his claims (at [34]).
Insofar as the Authority dealt with matters relating to the Applicant’s brother, brother-in-law and brother-in-law’s brother, the Authority:
(a)noted that the Applicant failed to mention at his 2013 interview his brother being targeted, failed to mention that various problems led to his brother’s wife’s death and that his brother became mentally ill, and noted inconsistencies in his evidence. The Authority did not accept, among other things, that the Applicant’s brother became mentally ill due to harassment, that the Applicant’s brother-in-law was shot and killed by the Army in front of him and did not accept that the Applicant’s brother-in-law’s brother was imprisoned by the CID (at [36]-[40]).
The Authority then considered the Applicant’s claims against the relevant provisions of the Migration Act 1958 (Cth). Insofar as the Applicant claimed to fear harm from the LTTE, the army, Karuna/TMVP and other armed groups, the Authority:
(a)did not accept the Applicant was abducted, threatened, extorted for money or was of interest to the LTTE, army, CID, intelligence groups, unidentified people, Karuna/TMVP or armed Tamils, paramilitary groups, government collaborators, authorities or anyone, or that they are looking for him (at [44]); and
(b)considered Country Information and concluded that the Applicant does not face a real chance of persecution because of his Tamil race or ethnicity, Hindu religion or membership of a particular social group (at [55]), and did not accept that the Applicant or his family are at risk of harm from the army, Karuna/TMVP, LTTE or armed groups, Tamil or other paramilitary groups or the CID, authorities or that the group of authorities are looking for the Applicant or have an interest or him or his family (at [47]-[56]).
Insofar as it was claimed that the Applicant was at risk of harm from being wealthy or a business owner, the Authority by reason of its earlier factual findings was not satisfied that the Applicant faced a real chance of harm from Sri Lankan authorities, army, security forces, government collaborators, police, CID, armed groups, paramilitary, Tamil groups, TMVP or Karuna groups, LTTE, unidentified people or other groups, or from the community in general for an imputed pro LTTE or anti-Sri Lankan government political opinion and/or because of his background, wealth, being a businessman, being a Tamil Hindu male born in Jaffna and living in Eastern Province, who has overseas family and who has lived and worked overseas, now or in the reasonably foreseeable future, if he returns to Sri Lanka (at [57]-[59]).
Insofar as it was claimed that the Applicant faces a risk of harm from being a failed asylum seeker, the Authority (having considered Country Information) did not accept the Applicant faced a real chance of serious harm as a failed asylum seeker upon his return (at [60]-[64]). Insofar as it was claimed that the Applicant faced a risk of harm from having departed Sri Lanka illegally, the Authority accepted on the basis of Country Information that the Applicant would be subject to being charged, bailed and fined up to 50,000 rupees. The Authority did not accept that the Applicant or his family could not afford to pay the fine. The Authority considered the Applicant’s circumstances and also Country Information available to it. The Authority found the chance of the Applicant being subjected to torture or mistreatment during questioning was remote and was ultimately satisfied that the Applicant does not face a real chance of serious harm due to his illegal departure, now or in the reasonably foreseeable future, if he returns to Sri Lanka (at [60]-[75]).
At [75] of its Reasons, the Authority expressly stated that it had considered the Applicant’s claims cumulatively and individually and was not satisfied that the Applicant has a well-founded fear of persecution now or in the reasonably foreseeable future if he returns to Sri Lanka.
As to whether the Applicant had made out a case for complementary protection, the Authority noted its earlier findings. It then considered at paragraphs [80]-[86] the issue of how the Applicant might be treated on his return to Sri Lanka and concluded that the Applicant does not face a real risk of significant harm.
THE APPLICATION
The Application, as filed, contained two Grounds of Review. They are as follows:
1.The Immigration Assessment Authority did not afford me procedural fairness.
2.The Immigration Assessment Authority applied the wrong legal test.
The Grounds above are not particularised and ordinarily, failure to particularise a ground of review is itself a sufficient basis to dismiss it: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] (Perram, Derrington and Stewart JJ).
Given the Applicant was unrepresented, I asked him to expand upon the Grounds of Review. The Applicant submitted that the interpreter who assisted him previously did not interpret properly. The Applicant said that he has some understanding of English, and that he noticed the interpreter was interpreting incorrectly. He says he raised this with the interpreter, at which point the interpreter told him that he would leave him alone and walk out. The Applicant was unable to name the interpreter, but said he spoke to the Authority through a male interpreter. The Applicant submitted that he told the ‘immigration people’ about the interpreting issues but they did nothing about it. He submitted that a decision had therefore been made on what the interpreter was telling them (which was something else) and not what he was saying.
At the outset, it is important to observe that whatever issues the Applicant may have had with an interpreter, they are not issues that could have occurred in any hearing or interview before the Authority. That is because the Authority conducted its review on the papers. The Applicant was never interviewed by the Authority. The Applicant’s recollection of what he said occurred before the Authority is incorrect.
It also follows from the above that the matters about which the Applicant complains before me do not speak to the Grounds of Review in his Application, which are squarely directed to the Authority.
In DVO16 v Minister for Immigration and Border Protection (2021) 273 CLR 177 (‘DVO16’), the High Court considered a matter in which the applicants asserted there had been missed translations in their interviews with the delegate. The majority (Kiefel CJ, Gageler, Gordon and Steward JJ) acknowledged that translations might result in invalidity of an administrative decision, but whether it did so turned on the facts (at [8]). The Court went on to consider the issue at paragraphs [20]-[24] and provide guidance on whether such errors might, among other things, breach the reasonableness condition implied into the procedural duty of the Authority.
This case is a long way from the circumstances contemplated by the High Court in DVO16. In DVO16, the representative of the applicant raised concerns with both the delegate and with the Authority about the accuracy of the translation and there was expert evidence about it. In this matter, the Applicant was represented before the Authority but his representative made no submission to the Authority that there had been issues with the interpretation before the delegate. Further, in this matter, the Applicant has not identified any specific errors. These failures by the Applicant means that the Court (even if it were inclined to do so) cannot undertake the evaluative exercise contemplated by the High Court in DVO16.
For these reasons, the Applicant’s complaints before me about missed translations or incorrect interpreting that occurred before the delegate do not give rise to any jurisdictional error. No errors have been identified and there is simply no evidence of such errors being raised (by the Applicant’s representatives before the Authority) or before me now.
It is now necessary to consider an issue that was raised by the Minister in conformance with the model litigant obligations. The delegate accepted that the Applicant had, among other things, been previously extorted by the LTTE and armed groups in Sri Lanka. The Authority reached very different conclusions, finding among other things, that the Applicant was variously evasive, vague and that his evidence was lacking in details or that his account lacked credibility. The Authority reached these conclusions after listening to an audio recording of the Applicant’s interview with the delegate. The Authority did not interview the Applicant separately prior to making the findings that it did.
In ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 (‘ABT17’), the High Court considered whether it was unreasonable for the Authority to reject an account given by an applicant in an audio recorded interview, in circumstances where the delegate had accepted the account. The High Court noted the potential for an informational gap to arise in the review material where an interview with an applicant has been conducted by the delegate in person and has been audio recorded but not video recorded, and the Authority is then provided with the audio recording, which means the Authority is not in the position of having being able to examine for itself the totality of the information available to the delegate (the missing information being the visual impression of the applicant at interview). At paragraphs [13]-[25], the plurality (Kiefel CJ, Bell, Gageler and Keane JJ) set out the relevant principles governing such a situation. In the circumstances of that case, the High Court ultimately concluded that the Authority had acted unreasonably in rejecting the account given by the applicant in the audio recorded interview (which account the delegate had accepted in making the delegate’s decision) wholly or substantially on the basis of its (being the Authority’s) own assessment of the manner in which that account was given.
When regard is had to the principles in ABT17 and the circumstances of this case, the question which the Minister quite properly raises is whether the Authority rejected the Applicant’s claims wholly or substantially on the basis of its assessment of the manner in which the Applicant’s account was given. If the Authority rejected the account of the Applicant wholly or substantially on the basis of its assessment of the manner in which the Applicant gave his account, then that could give rise to the issue identified by the High Court in ABT17.
I have set out earlier a summary of the Reasons of the Authority. When the Reasons are read in context, in my view, the Authority’s rejection of the Applicant’s claims was not based wholly or substantially on its own assessment of the manner in which the Applicant gave his account to the delegate, notwithstanding that it used words such as ‘vague’, ‘evasive’ and lacking ‘credibility’ to describe the Applicant’s claims. I have come to this view having regard to the following:
(a)at paragraph [8], the Authority described the Applicant’s evidence as ‘vague’. A reading of the entire paragraph [8], however, discloses that the Authority was concerned with the failure by the Applicant to, among other things, provide specific information about his claims;
(b)at paragraph [12], the Authority described the Applicant’s evidence as ‘evasive and vague’. A reading of the entire paragraph [9], however, discloses that what the Authority was concerned with was, among other things, the Applicant ‘frequently’ not responding to questions asked and the delegate having to ask the same questions a number of times;
(c)at paragraph [13]-[14], the Applicant’s evidence was described as evasive. A reading of those paragraphs disclose, however, that the Authority was concerned about inconsistencies in the Applicant’s evidence (paragraphs [13] and [14]), that the Applicant avoided questions and had to be asked multiple times or could not provide specific information (at [14]);
(d)at paragraph [17], the Authority described the Applicant as ‘vague’ and ‘evasive’. A reading of the entire paragraph [17] and paragraph [16], however, discloses that the Authority was concerned with inconsistent evidence given by the Applicant and the Applicant ‘not recounting true events’;
(e)at paragraph [19], the Authority described ‘the applicant’s descriptions of who made the threats [as] vague, inconsistent and not descriptive’. A review of that paragraph, however, discloses that the Authority was concerned with inconsistencies in the evidence given by the Applicant when his written claims were compared with what he stated in the 2017 interview. The Authority also noted that the Applicant had to be asked on three occasions which armed groups had threatened and abducted him and he stated ‘maybe Karuna, or Pillayan’ but that he could not identify them;
(f)at paragraph [22], the Authority stated of the Applicant that ‘his descriptions of the abductions were very vague, general and not specific’. A review of that paragraph discloses, however, that the Authority was concerned that despite the fact his written claims referred to various abductions, he did not describe what happened, where he was taken or provide specifics in his 2017 interview. The Authority expressly noted that the account was ‘lacking in details and does not detail any specific event’;
(g)at paragraph [23], the Authority referred to the evidence given by the Applicant in his 2017 interview about what happened to his shop and any subsequent threats as ‘evasive and [lacking] credibility’. A review of that paragraph discloses, however, that the Authority was concerned with the Applicant’s recollection of events and it pointed to various details including that the Applicant was unsure whether the shop continued to operate, and when the shop ceased to operate; and
(h)at paragraph [33], the Authority once again referred to the Applicant’s evidence as ‘evasive’. A review of the paragraph, however, discloses that the Authority was concerned about the fact that the Applicant’s accounts had changed significantly and that he failed to provide detail to support his claims.
It is important at this point to say something about the use by the Authority of the word ‘vague’. The use of that word may be interpreted as the Authority considering that the Applicant sounded vague i.e that the Authority was relying on the manner in which the evidence was given. While that is a construction that may be open in a particular case, it is not one that applies in this matter. The Authority did not say the Applicant ‘sounded’ vague (as was the case in ABT17). Rather, the better inference to be drawn is that when the Authority used the term ‘vague’ in this matter, it was referring to the Applicant’s accounts as lacking in detail. That is the better inference to draw in this case and may be seen from the explanations given by the Authority as to why it considered aspects of the Applicant’s evidence to be vague: see for example the Reasons given by the Authority at paragraphs [8], [12], [19] and [22].
I observe that in paragraph [13] of its Reasons, the Authority described the Applicant’s evidence about his work history as being inconsistent and also ‘evasive’. The Authority went on to note that when questioned, among other things, ‘the applicant hesitated’. This statement clearly relates to the manner in which the Applicant gave his evidence. While so much might be accepted, this statement of itself does not lead to a conclusion that the Authority rejected the Applicant’s claims wholly or substantially on the basis of the manner in which the Applicant gave his evidence. The Reasons of the Authority read in context and as a whole, including those passages that I have referred to in these reasons, disclose that the Authority did not reject the Applicant’s account of events wholly or substantially on the basis of the manner in which he gave evidence.
For all of the above reasons, this case differs from what occurred in ABT17. The Authority did not reject the Applicant’s claims wholly or substantially on the basis of the manner in which he gave his evidence. Rather, the Authority rejected the Applicant’s claims for the various reasons set out in its Reasons, which I have referred to above.
CONCLUSION
It follows from the reasons above that the Authority has not committed any jurisdictional error. The Application must be dismissed.
The Applicant has been entirely unsuccessful. The Minister seeks costs in the amount of $8,371.30. Given the Applicant’s complete lack of success, I will award costs to the Minister in the sum of $8,371.30.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 21 August 2024
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