Epm17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 984
•11 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
EPM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 984
File number(s): SYG 3195 of 2017 Judgment of: JUDGE DRIVER Date of judgment: 11 May 2021 Catchwords: MIGRATION Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant for the most part disbelieved – whether the Authority decision is vitiated by the failure of the Secretary to send to the Authority a copy of a letter sent by the Secretary to the applicant in 2014 about a data breach considered – no jurisdictional error. Legislation: Migration Act 1958 (Cth), ss 36(2)(a), 473CB(1)(c)
Federal Circuit Court Rules 2001 (Cth), r 44.12
Cases cited: BVL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 165
CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 367
Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40
Number of paragraphs: 43 Date of hearing: 11 May 2021 Place: Sydney No appearance by the applicant Counsel for the Respondents: Mr T Reilly Solicitors for the Respondents: Mills Oakley ORDERS
SYG 3195 of 2017 BETWEEN: EPM17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
11 MAY 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,500.
REASONS FOR JUDGMENT
(revised from transcript)JUDGE DRIVER
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 8 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 this matter are set out in initial submissions filed on behalf of the Minister on 17 November 2020, which I adopt.
Background
The applicant is a male citizen of Sri Lanka who arrived in Australia on 26 September 2012 as an unauthorised maritime arrival[1].
[1] Courtbook CB 184
On 6 October 2012, the applicant participated in a biodata interview[2] and on 22 January 2013 he participated in an entry interview[3]. During those interviews, he claimed that he left Sri Lanka because his father was bedridden and the applicant and his family had no house or income.
[2] CB 1-11
[3] CB 12-24
On 24 February 2016, the applicant lodged a Safe Haven Enterprise Visa (SHEV)[4]. In a statement accompanying the SHEV and in a further statement of claim[5], he made the following claims[6]:
(a)the applicant was a Sri Lankan Tamil. He started working as a fisherman with Sinhalese workers. While working with them, he came to understand the problems caused by the Rajapaksa government and how they punished United National Party (UNP) members. He took part in UNP protest marches and in a march in 2006 Criminal Investigation Department (CID) officers assaulted and detained him, and warned him that he would be abducted and killed if he took part in protests again;
(b)the applicant’s father once gave money to a Sinhalese man and bought a house, but the man “cheated” his father and sold the house with a “false document”. The applicant complained to the police and the man gave back half the money, but he later threatened the applicant and tried to have the money returned;
(c)the applicant was approached by the Liberation Tigers of Tamil Eelam (LTTE) cadres who ordered him to work for them. He refused, but the cadres later found him while fishing and demanded he get in their boat. The Sinhalese co-workers refused to let him go. Later, other cadres found the applicant and warned him that they were aware that he worked for the LTTE. The LTTE warned the applicant that if he told anyone about their movements, they would “shoot [him] down”;
(d)Tamil paramilitary cadres told the CID that the applicant worked for the LTTE. He was interrogated by the CID until the applicant’s parents bribed them. The LTTE told the applicant they would come after him again after further investigation;
(e)in 2010, the applicant was arrested by the Navy and questioned about his involvement in transporting weapons for the LTTE. They beat him until he accepted he was an LTTE cadre. He was handed over to the CID who also interrogated him, tortured him and forced him to accept accusations against him. He eventually left the area and moved to Colombo with his uncle to escape them;
(f)in 2011, while at his cousin’s funeral, he received “threatening calls”. When he was about to leave the funeral, two Sinhalese men and a Tamil man got into his vehicle and ordered him to drive them to a remote area. Once they got there, they beat the applicant and told him they worked for the CID and were ordered to kill him. The applicant lost consciousness and was later found in a pond (the funeral claim);
(g)the applicant complained to the police but they refused to file a case as there were no witnesses. The applicant’s father told him to flee because the police would tell the CID about his complaint. He fled to Australia. Later, CID men found the applicant’s father and interrogated him about the applicant. The father was beaten and died from the beatings in 2012.
[4] CB 25-157
[5] see Supplementary Court Book (SCB)
[6] CB 71‑74, SCB
The applicant also submitted extracts from 29 news publications on the persecution of Tamils in Sri Lanka[7] and an affidavit attesting to the applicant’s claims and affirming that the applicant was a “working member” of the UNP and was subjected to “political victimisation”. The affidavit is signed and witnessed, but the name of the deponent is not stated.
[7] CB 62-71, 75, 79-153
On 24 January 2017, the applicant attended an interview with the delegate (SHEV interview). At the SHEV interview, the applicant claimed that[8]:
(a)there were translation issues with some of the applicant’s earlier interviews and those interviews should not be considered; and
(b)the applicant had helped Tamils who had been stranded at sea in Sri Lanka by getting them onshore and finding them accommodation.
[8] CB 187
On 31 January 2017, the applicant provided a submission in which he stated that the claims accompanying his SHEV application were “the real truth” and any other information or claims made while he was in immigration detention were made “in order to escape deportation”. The applicant also reiterated his claim that he was misinterpreted and accordingly that only his SHEV statement should be taken as being truthful[9].
[9] CB 178
On 3 February 2017, the delegate refused to grant the applicant a SHEV. The delegate accepted that the applicant was detained in 2006 for participating in a protest, but otherwise did not accept the majority of the applicant’s claims on the basis of identified inconsistencies in the applicant’s account of events[10].
[10] CB 184-197
The Authority
On 8 February 2017, the delegate’s decision was referred to the Authority[11].
[11] CB 202
On 24 March 2017, provided a submission to the Authority (the Authority submission) in which he claimed the following[12]:
(a)The applicant was a Tamil and therefore could not be a member of the UNP as the UNP was a Sinhalese party.
(b)The applicant worked as a taxi driver in Colombo so the authorities from Chillaw would not suspect him of being a terrorist.
(c)The applicant made the police complaint as a precautionary measure, but had since realised that it was mistake to do so given this would have been alerted to the CID.
(d)The applicant was arrested by the Navy many times, not just once.
(e)The Navy also arrested and tortured the applicant’s uncle and cousin and ordered them to find the applicant. The cousin had since left Sri Lanka (the uncle/cousin claim).
[12] CB 221-225
The Authority submission also included an excerpt from the Special Rapporteur on Torture and listed five articles on various topics related to Sri Lanka’s security situation as “relevant evidence”[13].
[13] CB 225
The Authority’s decision
On 8 September 2017, the Authority affirmed the delegate’s decision not to grant the applicant a SHEV[14].
[14] CB 228-240
The Authority referred to the new information submitted by the applicant. It was satisfied that the Authority submission, apart from the uncle/ cousin claim, was information which related to events that pre-dated the delegate’s decision and found there were not exceptional circumstances for considering it because[15]:
(a)the delegate made clear its concerns that the applicant’s claims were not credible and paused the interview to give the applicant an opportunity to reflect on those concerns, and advised the applicant that it would take into account any further information as long as it was received within seven days of the interview; and
(b)the applicant did not say why he was only now presenting this information to the Authority and it was satisfied that the applicant was given an opportunity to do so before the delegate’s decision.
[15] CB 229, [4]-[6]
The Authority was satisfied that exceptional circumstances existed to justify considering the uncle/cousin claim as it was prepared to accept that this would have occurred after the delegate’s decision[16].
[16] CB 230, [7]-[8]
The Authority considered the extract from the Special Rapporteur was “general” country information and was not satisfied that it could not have been provided before the delegate’s decision and therefore found there were not exceptional circumstances for considering it, nor did it find there was exceptional circumstances for considering the five articles referred to as they could not be regarded as credible personal information and all predated the delegate’s decision.[17]
[17] The paragraphs in the Authority’s decision at CB 230 are incorrectly numbered so that the numbers [7] and [8] are repeated, but this could not be said to be an error of any substance or that it went to the Authority’s jurisdiction in any sense; CB 230, [9]-[8]
The Authority accepted that the applicant was on a fishing boat with Sinhalese men and that they had refused to let the LTTE take him from them while they were fishing[18]. However, it considered it highly implausible that the LTTE was travelling in those waters as regularly as claimed. It was prepared to accept such an incident occurred once but not that he helped Tamils on multiple occasions[19].
[18] CB 232, [15]-[16]
[19] CB 232-233, [15]-[20]
The Authority found it implausible that the CID would interrogate the applicant on multiple occasions and accuse him of having LTTE affiliations, then let him go in exchange for a bribe, detain him again, and then let him go again[20].
[20] (CB 233, [21]-[22])
The Authority did not accept as credible that if the CID or the Navy suspected the applicant was smuggling weapons, or had assisted the LTTE, they would have released him after one day. It found the applicant’s evidence on these claims was vague. Overall, it was not satisfied that the applicant had a profile of interest to the authorities arising from his work as a fisherman as his evidence on this issue was confused and contradictory and it considered he had fabricated these claims. It did not accept them[21].
[21] CB 233-234, [23]-[26]
The Authority was prepared to accept that the applicant was a low level UNP supporter and participated in a 2006 protest and was detained overnight and beaten. However, it noted the applicant gave no other evidence of specific involvement with the UNP since 2006 and that the UNP were victorious in more recent elections. It therefore did not accept that the applicant would now be imputed with anti-government sentiments[22].
[22] CB 234, [27]-[28]
The Authority had concerns with the credibility of the funeral claim and did not accept it, given the applicant did not mention elements of the claim at the SHEV interview. It also did not consider it credible that the applicant would have made the police complaint given he would have realised the CID (who he claimed attacked him) worked with the police[23].
[23] CB 235, [30]-[33]
The Authority referred to the claim raised in the first two interviews that the applicant left Sri Lanka because his father was bedridden. It noted the applicant claimed during the SHEV interview that he had spoken to his father “a few days earlier and he had sounded OK” and that this was not consistent with his claims that he was bedridden and later passed away. It did not find his claim that his brother-in-law was questioned by the CID and told them that the applicant was in Australia to be reliable[24].
[24] CB 235-236, [34]-[35]
The Authority referred to the applicant’s various claims that parts of the evidence he had submitted should be disregarded, noting he claimed at one point that his evidence at the SHEV interview was the truth but later claiming that what was in his SHEV application was the truth because he had used a “Tamil-speaking advisor”. It did not accept this explanation and found it did not overcome its considerable concerns regarding the inconsistencies in his evidence[25].
[25] CB 236, [36]
The Authority accepted that the police visited the applicant’s family home on one occasion about his attempt to depart Sri Lanka by boat, but on the basis of its findings above was not satisfied that he was otherwise of interests to the authorities. Nor did it accept that the father passed away because the CID authorities harmed him, that the CID questioned the applicant’s brother-in-law or the uncle/cousin claim[26].
[26] CB 236, [37]
The Authority did not accept that the applicant had any perceived links to the LTTE or an imputed pro-LTTE profile, any profile of interest to the Sri Lankan authorities or that the applicant faced any real chance of harm for any reason[27].
[27] CB 237, [43]
The Authority considered any harm the applicant might face as a returning asylum seeker. It found there was no country information before it to support a finding that the applicant would be imputed as an LTTE supporter simply because he had sought asylum in Australia. It noted the applicant did not have a passport and that country information indicated he could remain in custody at the airport for a short time on any return. While it accepted there was a real chance the applicant would be questioned and briefly detained, it did not accept that this would amount to serious harm. It found the applicant did not meet s 36(2)(a) of the Migration Act 1958 (Cth) (Migration Act)[28].
[28] CB 237-239, [44]-[54]
The Authority referred to its anterior findings and found that there was not a real risk that the applicant would face significant harm, as a returning illegal asylum seeker or otherwise[29].
[29] CB 239-240, [55]-[59]
Current proceedings
This matter was originally docketed to Judge Barnes but was subsequently transferred to my docket for hearing. The matter came before me on 27 November 2020. At that time, I received into evidence the Courtbook and a Supplementary Courtbook as well as the applicant’s affidavit filed with his originating application upon which he wished to continue to rely. The applicant told me, at that time, that data relating to him had been breached and he drew attention to a letter from the Secretary of the Minister’s Department dated 12 March 2014.
In view of those facts, I granted an extension of time for the application under s 477(2) of the Migration Act and made a show cause order under rule 44.12(b) of the Federal Circuit Court Rules 2001 (Cth) requiring the Minister to show cause why relief should not be granted in relation to the apparent data breach affecting the applicant and the apparent failure of the delegate and the Authority to deal with it in their decisions. The matter was listed for a final hearing at 10.15 am today.
The applicant was of course present in Court at that time the final hearing was listed and so was aware of the future listing and the positive development for him in the case. In the circumstances, it is surprising that the applicant has failed to attend today’s hearing. Having failed to contact the applicant by telephone and reminders having been sent to him by email, I have decided that the best course is to proceed in the applicant’s absence.
For the purposes of today’s hearing, the Minister relies on the affidavit of Julian Taylor Pipolo made on 30 April 2021. Mr Pipolo deposes as to the enquiries he made concerning the apparent data breach. I draw from that affidavit two facts. The first is that the applicant was one of those affected by the data breach in the Minister’s Department in 2014. The second is that the letter sent to the applicant by the Secretary of the Minister’s Department about the data breach was not provided by the Secretary to the Authority. The Minister’s position is addressed in further submissions filed on 30 April 2021.
CONSIDERATION
On 12 March 2014, the Minister sent the applicant a letter explaining that he was part of the data breach (the data breach letter).[30] The data breach letter was not referred to in the Authority’s decision of 8 September 2017.
[30] See: Affidavit of Julian Taylor Pipolo affirmed on 30 April 2021 (Annexure A)
The Minister accepts that the data breach letter was in the Secretary’s possession and that, pursuant to s 473CB(1)(c) of the Migration Act, it should have been provided to the Authority as part of the “review material”: s 473CB(1) of the Migration Act. The Minister accepts therefore that the Secretary’s failure to do so constituted a breach of s 473CB(1).
In Minister for Immigration and Border Protection v CPA16[31], the Full Federal Court (at [32]) set out the following propositions relevant to circumstances where there has been non-compliance with s 473CB(1) of the Migration Act:
(a)where the Secretary fails to give review material to the Authority in breach of s 473CB(1) of the Migration Act, this will result in jurisdictional error where the review material that was not provided could have resulted in the making of a different decision;
(b)whether a document or information which was not given to the Authority could have resulted in it making a different decision must be assessed “realistically”;
(c)in order for the Court to decide whether the Authority’s decision could have realistically been different, it is appropriate to have regard to the Authority’s decision;
(d)the applicant has the onus of proof to show that the missing document or information was material;
(e)speculation as to how the missing document or information “may” have affected the decision is not enough to discharge that onus.
[31] [2019] FCAFC 40
The Minister’s submissions also deal further with the Authority’s decision. I agree with and adopt those submissions.
As noted above, on 8 September 2017, the Authority affirmed the delegate’s decision not to grant the applicant a SHEV[32].
[32] CB 228-240
Relevantly, the Authority[33] found the following:
(a)it accepted that the applicant had departed Sri Lanka illegally in September 2012 and had sought asylum in Australia;
(b)it found there was no credible evidence that the applicant had an adverse profile with the Sri Lankan authorities or that he was anything other than an ordinary illegal departee from Sri Lanka;
(c)it accepted that the applicant had made an “aborted attempt” to depart Sri Lanka five days before his actual September 2012 departure, that the police had intercepted his vessel and recorded his details, and that the police then visited his family’s home as a result. However, it noted that the applicant had not claimed there were any adverse consequences for his family from this;
(d)it found that the fact the applicant had departed Sri Lanka illegally by boat would be evident on his return to Sri Lanka and that while there was a real chance that the applicant would be questioned, fined and held briefly on re-entry, this would not amount to serious harm;
(e)it was not satisfied that the applicant would face a real chance of harm on account of having sought asylum in Australia;
(f)it accepted that the applicant may be held in detention for a short period and may face a fine on the basis of country information on the processes faced by Sri Lankan illegal returnees but was not satisfied that he faced a real risk of significant harm on these bases.
[33] at CB 237-239, [44]-[53]
The Minister’s submissions then addressed the data breach letter. In essence, the Minister concedes that the Secretary should have provided the letter to the Authority for the purposes of the review, but it does not concede that the error goes to jurisdiction. I agree with the Minister’s submissions in that regard and adopt them.
The data breach letter
The data breach letter stated that the “information” potentially released in the data breach was:
(a)the applicant’s name, date of birth, nationality, gender, details about his detention in Australia and whether he had any family members in detention.
As outlined above, the Authority accepted that the applicant had departed Sri Lanka illegally by boat and, critically, that the Sri Lankan authorities would become aware of this on his return. In those circumstances, the Secretary’s breach in failing to provide the data breach letter could not have realistically made a difference to the Authority’s decision.[34] Any information that was purportedly disclosed in the data breach was effectively subsumed by the Authority’s acceptance of the essential components of that information and its findings about the risk of harm the applicant would otherwise face as a failed asylum seeker.
[34] CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 367 at [4], [49]-[52], [126]-[139]; BVL18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 165
The only information that could have been disclosed in the data breach letter that the Authority did not explicitly accept would have become known to the Sri Lankan authorities were details of the applicant and/or his family members’ detention in Australia. However, it is not clear how this information could be considered material in the sense that it realistically could have made a difference to the Authority’s decision.[35] There was nothing innate about the applicant being detained that could have affected the Authority’s assessment of whether he faced any risk of harm. The onus is on the applicant to prove that this information was material and he has not discharged that onus.
[35] ibid
The data breach letter is signed by the applicant himself on 13 March 2014. He has clearly been aware of the letter and raised it of his own volition at the hearing before me on 27 November 2020. Despite this, at no stage has he submitted that being subject to the data breach could have impacted an assessment of whether he faced a real risk or chance of serious or significant harm on return. Again, the onus is on the applicant to prove that the Authority’s decision realistically could have been different if the data breach letter had been considered and mere speculation will not suffice.[36]
[36] CPA16 at [32]
CONCLUSION
I conclude that the decision of the Authority in this case is free from jurisdictional error. It is therefore a privative cause decision and I will order that the application be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $7,500. I am satisfied that costs in that amount have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis. I will, in addition, order that the applicant pay the first respondent’s costs and disbursements of or incidental to the application fixed in the sum of $7,500.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 18 May 2021
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