EOL17 v Minister for Immigration
[2020] FCCA 691
•7 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EOL17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 691 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in part and other fears found not to be well-founded – whether the Authority erred in its application of s.473DD of the Migration Act or erred in its credibility assessment of the applicant’s claims considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: AQU17 v Minister for Immigration (2018) 162 ALD 442 |
| Applicant: | EOL17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3160 of 2017 |
| Judgment of: | Judge Driver |
| Hearing dates: | 16 August 2018, 8 May, 4 December 2019, 11 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 7 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Foster |
| Solicitors for the Applicant: | Sentil Solicitor & Barrister |
| Counsel for the Respondents: | Mr B D Kaplan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application as amended on 11 December 2019 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3160 of 2017
| EOL17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 26 September 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from initial written submissions filed on behalf of the Minister on 9 August 2019.
The applicant’s claims can be summarised as follows:[1]
[1] Court Book (CB) 79 – 86
a)in mid-2006, the applicant participated in compulsory military training with the LTTE[2] for approximately 10 days. After training, he was required to dig bunkers, guard sentry points, and transport and clean weapons, but was not in combat;
b)on 5 July 2008, the applicant, his wife and two children fled to an army controlled area and were arrested by the SLA.[3] They were detained until September 2009. During his detention, the applicant was interrogated on approximately 10 occasions as the authorities knew he had undergone military training with the LTTE. The applicant’s wife was questioned on three occasions;
c)the applicant’s uncle was taken to a separate army camp after the war as he was suspected of being an LTTE cadre;
d)the applicant’s second maternal cousin was in the same camp as the applicant. He was interrogated, tortured and remained missing;
e)on 21 September 2009, the applicant’s family and his uncle’s family were released from the army camp;
f)in 2010, the applicant became the vice president of his local fishing union. During this time, the applicant was required, as a union member, to attend SLA meetings and assist them, which the applicant refused to do. Following his refusal, the applicant was prevented from fishing for five days. A few months later, the SLA searched for the applicant at his home and he was requested to attend the army camp and accused of supporting the LTTE. Following the applicant’s departure from Sri Lanka, the authorities came to his house on three or four occasions;
g)in September 2012, the applicant’s brother was detained and later released by the Sri Lankan authorities;
h)the applicant feared that if he were to return to Sri Lanka, he would be targeted by the Sri Lankan authorities because of his previous assistance to the LTTE. He could not seek protection as the authorities targeted Tamils;
i)the authorities would be suspicious of the applicant if he were returned as a failed asylum seeker.
[2] Liberation Tigers of Tamil Eelam
[3] Sri Lankan Army
On 15 August 2017, the delegate refused to grant the SHEV.[4] The matter was referred to the Authority and on 26 September 2017, the Authority affirmed the decision under review.
[4] Safe Haven Enterprise Visa; CB 146
Authority’s decision
The Authority had regard at [3] to the material referred to it under s.473CB of the Migration Act 1958 (Cth) (Migration Act). The Authority noted at [4] that it had received a submission from the applicant’s representatives, to which it had regard insofar as it contained legal argument or addressed the delegate’s findings. However, the Authority noted that the submission contained extracts of claims made by the applicant’s uncle. The Authority accepted at [4] that those extracts contained credible personal information and was satisfied that there were exceptional circumstances that justified considering the extracts.
The Authority also noted that the submission attached country information which pre-dated the delegate’s decision. The Authority was not satisfied at [5] that the information met s.473DD(b)(i) or (ii) of the Migration Act or that there were exceptional circumstances to justify its consideration. The Authority considered two letters purportedly sent by the Sri Lankan police (the letters). The Authority expressed concerns at [6] as to the authenticity of the letters, noting that they did not appear on letterhead and it was “implausible” that the police had developed an interest in the applicant five years after his departure from Sri Lanka and at the time when his visa application was being considered. The Authority found that in light of these concerns, the letters did not satisfy the requirement in s.473DD(b)(ii). While the Authority accepted that the applicant might have been unable to provide these documents prior to the delegate’s decision, it found at [6] that there were no exceptional circumstances to justify consideration of the new information.
The Authority set out the applicant’s claims from [7]–[11] and the relevant law at [12]- [13].
The Authority considered the applicant’s claim to fear harm due to his imputed association with the LTTE at [14]–[26]. It noted at [15] the applicant’s inconsistent evidence regarding his association with the LTTE and found that the applicant did not attend weapons training or provide any other assistance to the LTTE. The Authority found at [16] the discrepancies in the applicant’s evidence regarding his fishing claim to be significant and that he had “fabricated his claims relating to fishing disputes”. As such, it did not accept this claim. Further, the Authority did not accept at [16] that the applicant was required to report to the army camp or was accused of helping the LTTE. Noting that the applicant did not mention his brother being questioned before his SHEV interview, the Authority did not accept this claim, at [17].
The Authority accepted at [18]-[19] that the applicant and his wife were questioned about LTTE activities while at the camp, that the applicant might have been physically assaulted and that the authorities might have gone to his house following his departure from Sri Lanka. However, the Authority found these events to be “remote in time and minor” and was not satisfied that the applicant was a person of concern to the Sri Lankan authorities at the time of the Authority’s decision or in the reasonably foreseeable future.
The Authority accepted that the husband of the applicant’s paternal cousin was abducted by unknown persons following the applicant’s arrival in Australia. However, it considered at [20] that there was insufficient evidence before it to accept that this person’s disappearance was indicative of any risk to the applicant. Further, the Authority accepted that the applicant’s maternal second cousin was tortured and went missing while in the army camp with the applicant. However, it found that there was insufficient evidence for it to accept that this was indicative of a risk to the applicant. In this respect, the Authority noted at [21] that as the applicant was also at the army camp, it would have expected the SLA to take action against the applicant if he was of interest to them. The Authority was also prepared to accept that the applicant’s uncle had scarring, was detained for some two years and underwent rehabilitation. However, it did not accept at [22] that the applicant would be of interest to the authorities because of his uncle.
The Authority considered at [23]-[25] DFAT[5] country reports and was not satisfied that the applicant’s Tamil ethnicity, the minor incidents relating to the LTTE until 2005, acts of violence unrelated to the applicant and/or his presence in a former LTTE controlled area “would be sufficient to cause the applicant to be a person of concern to the Sri Lankan Authorities”. Nor was the Authority satisfied at [27]-[30] that the applicant would be subject to discrimination or economic hardship amounting to serious harm for the purposes of s.5J(5) of the Migration Act. Further, it did not accept at [31]-[34] that the applicant faced a real chance of serious harm because he was a Tamil fisherman.
[5] Department of Foreign Affairs and Trade
The Authority considered at [35]-[42] the applicant’s claim to fear harm on the basis that he departed Sri Lanka illegally. The Authority found at [35]-[40] that the applicant did not face a chance of imprisonment, but was likely to be fined. It found that the imposition of any fine “would not of itself constitute serious harm”. Further, it found at [41] that the poor conditions that the applicant might face during any brief period of detention while awaiting appearance before a magistrate would not constitute serious harm as defined in the Migration Act. The Authority was also satisfied at [42] that the provisions and penalties of the Sri Lankan Immigrants and Emigrants Act were laws of general application that applied to all Sri Lankans equally, and that they were not applied in a discriminatory manner.
The Authority, based on country information, was not satisfied at [43]-[46] that the applicant would face a real chance of serious harm as a result of being a failed asylum seeker.
Turning to the complementary protection criterion, the Authority found that the applicant did not face a real risk of significant harm due to his illegal departure. It found in particular that the poor prison conditions that the applicant might face in detention were due to overcrowding, poor sanitation and lack of resources. Nor was it satisfied at [51]-[52] that any other aspect of the applicant’s treatment due to his illegal departure constituted significant harm. In light of its anterior findings, the Authority was not satisfied at [53]-[55] that any of the other claims advanced by the applicant gave rise to a real risk of significant harm.
The current proceedings
These proceedings began with a show cause application filed on 12 October 2017. The matter came before me for a show cause hearing on 16 August 2018. At that time I ordered, under rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth) that:
Pursuant to rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth), the Minister is ordered to show cause why relief should not be granted in relation to the issue arising from Ground 1 of the application concerning the Authority’s application of s.473DD of the Migration Act 1958 (Cth) to two purported police letters dealt with at [6] of the Authority’s reasons, having in regard in particular to the decision of the Federal Court in CSR16 v Minister for Immigration [2018] FCA 474.
The matter was listed for a final hearing on 8 May 2019.
At that time, the applicant sought the opportunity to file and rely upon an amended application proposed by the applicant. I required the applicant to proceed by way of Application in a Case and listed it for hearing on 4 December 2019.
The Application in a Case was filed on 30 October 2019 and was supported by the affidavit of the applicant’s solicitor made on 29 October 2019.
On 4 December 2019, I granted leave for the proposed amended application subject to three procedural qualifications.
I vacated the show cause order made on 16 August 2018. The matter was listed for a final hearing on 11 March 2020.
The application as amended on 11 December 2019 contains five grounds.[6] Those are:
[6] Two numbered “4” but only the first four grounds were relied upon at the trial
1.Ground 1 [in accordance with Orders dated 16 August, 2018]:
The Authority committed jurisdictional error at (sic) it did not consider letters provided by the applicant in support of his claims [6].
Particulars.
a. The letters from the police that was (sic) put to the Authority was important documents in support of his claims, it is submitted that the Authority did not consider the new information according to law (S 4730D).
2. Ground 2 [By leave in accordance with Orders dated 16 August, 2018 - out of time]:
The IAA committed jurisdictional error when it concluded there were 'significant' 'discrepancies' such that the IAA concluded the applicant fabricated his claims relating to LTTE involvement so as to create a profile upon which to apply for protection. [15]
Particulars of error
*The IAA considered the applicant's nomination of 1997 (entry interview) and subsequent nomination of 2002 (SHEV interview) as being the year when he underwent compulsory weapons training, when the applicant noted he had made an error in nominating 1997 (page 42/43 SHEV interview), yet this was not mentioned by the Authority;
* The applicant said in his statutory declaration that he 'was required to assist the LTTE after mid-2006 by digging bunkers, guarding sentry points from time to time, and he transported weapons (para 14 ); and then expanded on this in the SHEV interview by saying this occurred for 10 days a month from 2002 - 2007 (page 46 transcript). Apart from the dates being in conflict, there are no discrepancies contra the IAA finding, which in themselves would not support a finding of fabrication. Accordingly the IAA's conclusions were unreasonable and/or findings that no reasonable decision maker would have made.
Proposed New Grounds
3. Ground 3:
The IAA committed jurisdictional error when it concluded there were 'significant' 'discrepancies' such that the IAA concluded the applicant fabricated his claims relating to fishing so as to create a profile upon which to apply for protection. [16] and that, as a consequence, the IAA did not accept the applicant was required to report to the army camp a few months later at which time he was accused of helping the LTTE. [16] Accordingly the IAA's conclusions were unreasonable and/or findings that no reasonable decisionmaker would have made.
Particulars of error
*The IAA considered the applicant's statement in his statutory declaration that he was prevented for fishing for 5 days, and his later statement in the SHEV interview he was prevented for 10 days, were significant discrepancies
4. Ground 4:
The IAA erred when it did not accept the applicant's brother has been called into the army for questioning since 2011, and stated that 'The applicant mentioned this for the first time at the SHEV interview, after providing a detailed statutory declaration running for some 5 typewritten pages. If the applicant's brother had been called in for questioning I would expect the applicant to have regarded this as highly relevant and have raised it in his detailed statutory declaration.' ([17])
The IAA'S statement was incorrect in that the applicant had raised this before the SHEV interview.
Particulars
The applicant advised the Minister during one or more Screening interviews:
*page 29 of the SHEV interview
*The applicant now requires the Screening tapes
At the final hearing, in addition to the court book filed on 11 December 2017, I had before me the applicant’s affidavit affirmed on 9 February 2019 and the affidavit of Mrs Rajani Somasundaram affirmed on 30 April 2019, to which is annexed a record of interview with the applicant conducted by the Minister’s Department on 16 December 2016. The Minister also tendered correspondence from his solicitors to the applicant’s solicitors dated 27 November 2019.[7]
[7] Exhibit R1
Consideration
By the first ground in the application as amended, the applicant contends that the Authority committed jurisdictional error in not considering letters provided by the applicant in support of his claims. This ground relates to the Authority’s decision at [6] where the Authority stated:
The applicant also lodged two letters purportedly from the police. The letters do not appear on letterhead. I would have expected an official document in the nature of a request from the police for the applicant to attend for questioning to be on letterhead. I also consider it implausible that the police would suddenly develop an interest in the applicant approximately five years after his departure from Sri Lanka, and at a time when his protection application was being considered. I am therefore not satisfied that these letters contain credible personal information. While I accept that the applicant may be been unable to provide these documents prior to the delegate’s decision, I am not satisfied that there are exceptional circumstances to justify considering this information.
This ground was consistent with the show cause order that I had made and then vacated. The applicant asserts that the Authority misapplied s.473DD(a) of the Migration Act because it did not address the circumstances of why the applicant may have been unable to provide the letters prior to the delegate’s decision or any other circumstances, being matters it was required to address.
I prefer the Minister’s submissions concerning this ground.
In finding that there were not exceptional circumstances to justify consideration of the two letters purportedly from the Sri Lankan police,[8] the Authority had regard to various matters. These included the implausibility of the police suddenly developing an interest in the applicant five years after his departure from Sri Lanka and its impact on the credibility (or lack thereof) of the information, the fact that the letters did not appear to be on official letterhead, and that the applicant may not have been able to provide those documents prior to the delegate’s decision. In other words, despite not being under an obligation to do so,[9] the Authority had regard to the circumstances described in ss.473DD(b)(i) and (ii) in forming a view as to whether there existed exceptional circumstances to justify considering the new information. It cannot be said, therefore, that the Authority approached its assessment of whether exceptional circumstances existed by focusing solely on temporal factors such as that which is described in s.473DD(b)(i).[10] Indeed, so much is apparent from the Authority’s not being satisfied of the condition in s.473DD(a) despite having made a finding in the applicant’s favour on the condition in s.473DD(b)(i).
[8] CB 180-181
[9] See, for example, AQU17 v Minister for Immigration (2018) 162 ALD 442 at [13]-[14], [16] per McKerracher, Murphy and Davies JJ; CAQ17 v Minister for Immigration [2019] FCAFC 203 at [122] per Derrington and Steward JJ
[10] cf BVZ16 v Minister for Immigration (2017) 254 FCR 221 at 232 [46]-[47] per White J
Contrary to what is suggested by the applicant in his submissions, the Authority did not overlook any explanation given as to why the letters could not be provided to the delegate, as none was given by the applicant in his e-mail to the Authority dated 8 September 2017[11] or in his submissions to the Authority dated 10 September 2017.[12] It follows that his complaint has no merit. In any event, the Authority made a finding in the applicant’s favour on the criterion in s.473DD(b)(i), presumably because it was self-evident on the face of the letters that they could not have been provided to the delegate before a decision was made on the applicant’s protection visa application.
[11] CB 179
[12] CB 184-188
Ground 2
By this ground, the applicant contends that the Authority made a jurisdictional error in finding at [15][13] that there were “significant” discrepancies in the applicant’s evidence in relation to the weapons training which he allegedly underwent with the LTTE in Sri Lanka. In his affidavit affirmed on 22 September 2019, the applicant states that, in answer to Question 8b in his entry interview, he did not give the answer “1997”, but instead said “from 2002 to 2007”.
[13] CB 301-302
I also prefer the Minister’s submissions in relation to the second ground.
First, the applicant by this ground takes issue with the merits of the Authority’s fact-finding. The Authority was not only entitled, but it was required by force of s.473DB(1) of the Migration Act, to consider the applicant’s evidence on this claim which he gave during his entry interview, statutory declaration made in support of his SHEV application, and during his SHEV interview, and to form a view as to whether it was satisfied that it had been made out. The Authority was not so satisfied on account of inconsistencies in that evidence. Those inconsistencies pertained not only to the year in which the applicant allegedly underwent weapons training, but also its frequency. For example, in his SHEV interview, the applicant gave evidence that he underwent 10 days of training in 2002, but was required to train or work 10 days per month thereafter. At other times, however, the applicant gave evidence that he was required to undergo 10 days of training (in 1997 or mid-2006) but gave no evidence of any ongoing training requirement. These were not insignificant inconsistencies in the applicant’s account and the Authority was entitled to rely upon them in rejecting his claims as to his involvement with the LTTE.
The second difficulty is that there is no reliable evidence to support the assertion, which the applicant makes in his affidavit affirmed on 22 September 2019, that he did not say to the officer conducting the entry interview that he underwent training in 1997. The record of the entry interview at CB 3 and CB 24 suggests that the applicant gave evidence during that interview that he underwent training in 1997. Despite the onus being on him to do so,[14] no independent evidence to the contrary has been furnished by the applicant. Moreover, the transcript of the SHEV interview records an admission by the applicant that he underwent training in 1997.[15] Accordingly, the weight of the evidence before the Court supports the finding, which I make, that the applicant gave evidence at the entry interview that he underwent training with the LTTE in 1997.
[14] Minister for Immigration v SZGUR (2011) 241 CLR 594 at 616 [67]-[68] per Gummow J, 623 [91] per Heydon J, 623 [92] per Crennan J
[15] affidavit of Mrs Somasundaram affirmed on 30 April 2019, Annexure A, page 42
Grounds 3 and 4
The Minister asserted that these grounds should not be considered because of asserted non compliance with the orders I made on 3 December 2019. While there is technical merit in the Minister’s objection, I excused the non compliance and considered those grounds. There is, however, no real substance in them.
The third ground takes issue with the findings made by the Authority at [16] where the Authority stated:[16]
I do not accept that the applicant was prevented from fishing or that he refused to help the Sri Lankan Army or Navy. In his statutory declaration, the applicant stated that he was prevented for fishing for five days. In his SHEV interview, the applicant stated that he was prevented for fishing for 10 days. I consider the discrepancies in the applicant's accounts to be significant, and this leads me to conclude that the applicant fabricated his claims relating to fishing disputes with the Army or Navy so as to create a profile upon which to apply for protection. It follows that I do not accept that the applicant was required to report to the army camp a few months later at which time he was accused of helping the LTTE.
[16] CB 302
The Minister is correct to describe this ground as an appeal to the merits.
In any event, it was open to the Authority to consider the applicant’s evidence, which he gave in his statutory declaration in support of his SHEV application and in his SHEV interview, on the duration of any period of inability to fish and then to draw conclusions as to the truthfulness of that claim and his claim that he refused to assist the Sri Lankan military. Having made those findings, the Authority did not accept that the applicant was required to report to the army camp at which time he was accused of assisting the LTTE.
Ground 4 takes issue with the Authority’s finding at [17][17] that the applicant mentioned the fact of his brother having been “called into the Army camp for questioning since 2011” for the first time during his SHEV interview. I reject the applicant’s contentions in relation to this ground.
[17] CB 302
The applicant has provided no independent evidence to substantiate the bare assertion, made at [2]-[3] of his affidavit affirmed on 22 September 2019 and at [10] of his affidavit affirmed on 9 February 2019, that the claim the subject of the Authority’s findings at [17][18] was raised at an interview with a departmental officer at Curtin Immigration Detention Centre prior to his SHEV interview. The bare assertions in the applicant’s affidavits are insufficient to establish, on the balance of probabilities, that he gave the evidence described in his affidavits at a time prior to his SHEV interview. This is so in the face of the Authority’s findings at [17] and the absence of any documentary evidence or audio recording substantiating the applicant’s contention despite a subpoena for the production of such material having been issued to the Minister on 11 December 2019. The Minister informed the applicant’s solicitors that the Minister’s Department was unable to locate anything that suggested that the applicant participated in another interview aside from the following, evidence of which has already been produced:
a)biodata interview (CB 1–8);
b)arrival interview (CB9–28); and
c)SHEV interview (see the affidavit of Mrs Somasundaram filed on 30 September 2019).
[18] CB 302
Conclusion
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 7 April 2020
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