EQQ17 v Minister for Home Affairs
[2019] FCA 176
•22 February 2019
FEDERAL COURT OF AUSTRALIA
EQQ17 v Minister for Home Affairs [2019] FCA 176
Appeal from: EQQ17 v Minister for Immigration & Anor [2018] FCCA 2007 File number(s): NSD 1429 of 2018 Judge(s): BURLEY J Date of judgment: 22 February 2019 Catchwords:
MIGRATION – rejection of Safe Haven Enterprise Visa application on the basis that no protection obligations were owed pursuant to subsection 36(2) of the Migration Act 1958 (Cth) – whether the Independent Assessment Authority failed to consider essential elements of the appellant’s claim – whether the Independent Assessment Authority’s decision was irrational, illogical and unreasonable – no jurisdictional error found, appeal dismissed Legislation: Federal Court of Australia Act 1976 (Cth), s 24
Migration Act 1958 (Cth), s 36
Cases cited: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107;(2017) 252 FCR 352
Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123
Date of hearing: 13 February 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 28 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: Clayton Utz Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS
NSD 1429 of 2018 BETWEEN: EQQ17
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
BURLEY J
DATE OF ORDER:
22 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondents’ costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BURLEY J:
1 INTRODUCTION
[1]
2 THE DECISION OF THE IAA
[6]
3 THE DECISION OF THE FCCA
[11]
4 THE APPEAL
[15]
5 DISPOSITION
[28]
1. INTRODUCTION
The appellant is a Sri Lankan citizen of Tamil ethnicity who came to Australia by boat in November 2012 as an unauthorised maritime arrival. In February 2016, he made an application for an XE-790 Safe Haven Enterprise Visa (SHEV) on the basis that Australia owed him protection obligations pursuant to ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth).
In February 2017, a delegate of the Minister for Immigration and Border Protection (as he then was) refused the appellant’s application. The matter was then referred to the Independent Assessment Authority (IAA) for a review of the decision pursuant to Part 7AA of the Act. On 22 September 2017, the IAA affirmed the decision of the delegate.
The appellant then applied to the Federal Circuit Court of Australia (FCCA) for a review of the decision of the IAA. On 24 July 2018, a Judge of that Court dismissed the appellant’s application.
On 9 August 2018, the appellant filed a Notice of Appeal from the decision of the FCCA. The appellant relies on a single ground, namely:
That there is legal error in the tribunal decision and that his Honour in the FCCA failed to identify the error.
The appellant represented himself at the hearing of this appeal, with the assistance of an interpreter. He did not file or seek to rely on any written submissions. The Minister was represented by Clayton Utz solicitors, who filed written submissions in advance of the hearing.
2. THE DECISION OF THE IAA
The IAA summarised the appellant’s claims by reference to a statutory declaration provided on 26 February 2016 and a subsequent interview with the appellant conducted by the delegate:
4.In support of his SHEV application, the applicant provided a statutory declaration, dated 26 February 2016, where he outlined his claims for protection (SHEV statement). Those claims can be summarised as follows:
•He is a Tamil male from [a province of Sri Lanka];
•In December 2009, he was employed by a boat owner named [S]to fish with five other fisherman;
•On one occasion, the engine on the boat stopped working and the men were intercepted by the Indian Navy. The men were told they had breached the border and were brought to India with the boat;
•The applicant and the other men were imprisoned for six months. Upon release, they were required to live within 100 metres of the police station. The men attended several court hearings. The applicant was released in February 2011 after payment of a AUD $700 (approximately) fine;
•The applicant heard that [S] travelled to India and retrieved his boat. The incident cost [S] AUD $3000;
•When the applicant returned to Sri Lanka, [S] threatened to kill him. [S] hated him because he had told the judge in India that he did not care whether the boat could be returned to Sri Lanka;
•The applicant reported [S]’s death threat to the police, but the police were unable to assist because [S] lived in a different district. The police advised him to stay away from [S];
•In June 2012, the applicant was caught on the street near his home by [S] and four other men. He was tied up and [S] hit him with a hammer and threw him into a van. [S] left and the four men drove him to a street. When three of the men went to a pub and the other man went to the toilet, he managed to escape;
•Following this incident, the applicant was introduced to the leader of the United National Party (UNP) in [the province] named [N]. To become powerful and to protect himself and his family, he began to work for [N] as a driver. Later, he helped [N] with some activities;
•In September 2012, the provincial council elections were held. The applicant worked very hard with the other supporters during this period;
•On Election Day, the applicant and others heard that the UNP had won the election. He and 20 others drove to the counting office to check the tickets. On the way, they were stopped by supporters of the Sri Lankan Freedom Party (SLFP) and attacked. His arm was injured and he ran away;
•The SLFP kept control of the country after the election. The applicant received many threats including death threats from the SLFP. His family also received threats due to his involvement in the election;
•He left Sri Lanka in order to protect himself and his family;
•If returned to Sri Lanka he fears being seriously harmed or killed. Even though the UNP won the national election in 2015, the tension between the UNP and SLFP [his province] continues to be severe. He is afraid of [S] and of political persecution.
5.On 25 August 2016, the delegate interviewed the applicant (SHEV interview). In the SHEV interview, the applicant provided the following additional information and/or claims:
•Following their capture by the Indian Navy, he and the other fishermen were tied up and beaten;
•He and the other men were captured and imprisoned in connection with the capture of Indian naval personnel by two Sri Lankans;
•When [S] travelled to India to retrieve his boat, his daughter eloped with a tuition teacher;
•After he was deported from India, he remained in hiding for several months in many different places;
•He attempted to return to India on 26 October 2011 to escape [S], but was refused entry and was returned to Sri Lanka after two hours;
•After he returned from the second visit to India, he was detained and beaten by the CID (Criminal Investigation Department);
•[S] holds the applicant responsible for ruining his daughter’s life and seeks to kill him for revenge.
The IAA accepted that the appellant spent an extended period of time in India prior to his return to Sri Lanka in March 2011, but otherwise found the appellant’s evidence as to the circumstances that led to his travel to India, including why he was detained there, unconvincing. This was because of perceived inconsistencies and implausible explanations provided by the appellant in, inter alia, his entry interview, his interview with the delegate and/or his statutory declaration as to:
(1)his role on the fishing boat – in one he said that he was a fisherman, in another he said that he was a cook and expressly stated that he was not a fisherman;
(2)the reason why the Indian navy intercepted the boat and why he was imprisoned – in one he claimed that the engine stopped working and they were told they had breached the border, in another he claimed that Indian authorities captured him because they were angry about unrelated Sinhalese persons who had captured two Indian Navy personnel from a gun boat;
(3)the history of the threats made by [S] to kill him – in the interview with the delegate, the appellant said that the threat was made 3 months after his return to Sri Lanka in about June 2012 because the appellant had immediately gone into hiding upon his return. The IAA considered that this was implausible because he would have gone into hiding before he was threatened;
(4)the events that took place when [S] captured him and put him in a van - in his SHEV statement, the appellant stated that [S] hit him with a hammer before leaving, and that the appellant escaped when three of the men went to the pub and the fourth went to the toilet. In a subsequent interview, the appellant stated that he was tied up, placed in a van and beaten, and later escaped when [S] went to buy liquor;
(5)his residential history as recorded in his SHEV application, which does not support the appellant’s claims that he went into hiding at various times;
(6)a new claim made at his interview with the delegate that he went to India in October 2011 to escape [S], whereas in his SHEV application he said that he went to India at that time for the purposes of employment;
(7)a new claim that, upon his return from India in October 2011, he was detained by the criminal investigation department (CID) and beaten because he was a Tamil;
(8)a new claim advanced in his SHEV interview in response to a question as to why [S] would still be a threat to the appellant after 4 years. The appellant claimed, broadly, that [S] felt his life had been ruined since his daughter eloped with a tuition teacher when [S] went to retrieve the boat from India; that [S] seeks revenge for making him travel to India to retrieve his boat; and that [S] had told him that he had spoiled his daughter’s life and that he would kill him wherever he travelled in Sri Lanka and anyone accompanying him. This the IAA found to be inconsistent with his earlier claim that [S] wanted to kill him because he told the judge in India that he did not care whether the boat could be returned to Sri Lanka;
(9)his attitude to being returned to Sri Lanka - at the conclusion of his entry interview, the appellant indicated that it “would be okay” for him to return to Sri Lanka if he were not put in jail. This was found by the IAA to be inconsistent with his other concerns as to threats by [S];
(10)his attitude to fears concerning his involvement with the UNP during the 2012 provincial elections - in his SHEV interview, the appellant indicated that he did not fear returning to Sri Lanka on account of this, which is inconsistent with his present claim; and
(11)the veracity of documents that the appellant had supplied in support of his claims as to involvement in the UNP.
These matters, which do not exhaustively list the difficulties expressed by the IAA with the evidence and claims made by the appellant, led the IAA to the view:
21. When considered cumulatively, I consider the above inconsistencies and implausibilities in the applicant’s evidence to lead me to conclude that he was not recalling a genuine personal experience in relation to the events that he claims led to his decision to leave Sri Lanka. I have had regard to the reasons put forward by the applicant as to why there may be inconsistencies in some of his evidence; however, on the evidence provided I am not persuaded that those reasons adequately account for the discrepancies noted....
The IAA accepted as plausible the claims that the appellant had been detained and imprisoned in India, however, it did not accept that, upon his return to Sri Lanka, he had come to the adverse attention of [S] (or persons connected to him). It also rejected the appellant’s claim that he spent most of his time in hiding upon return to Sri Lanka, that he went to India in October 2011 for the purpose of escaping from [S], and that he was detained by the CID when he returned from India in late 2011. It was also not satisfied that the appellant would come to the adverse attention of SLFP members or supporters due to his previous actions or political activities.
In the result, the IAA indicated that it was not satisfied that the appellant met the requirements for protection under the Act.
3. THE DECISION OF THE FCCA
The appellant relied on the following grounds of review in the FCCA (the particulars are disjointed because a number were deleted by amendment):
1. The IAA committed jurisdictional error as it failed to consider essential elements of the applicant’s claim.
Particulars
c. The Applicant claimed to have returned to Sri Lanka in March 2011 [par 4].
d. The Applicant claimed to have tried to return to India on 26 October 2011 [par 5].
e. The Applicant left Sri Lanka illegally and travelled to Australia.
h. The IAA accepted that the Applicant tried to travel again to India on 26 October 2011 [par 9].
i. The IAA considered the risk to the Applicant to return to Sri Lanka as a failed asylum seeker [pars 34 and ff]
j. The IAA did not consider the cumulative claims arising from the fact that the Applicant had been imprisoned in India for a period of 6 months, had departed Sri Lanka a second time and travelled to India and subsequently departed Sri Lanka illegally and sought asylum in Australia.
2. The Authority committed jurisdictional error by making a finding that was irrational, illogical and unreasonable.
Particulars
a. At paragraph 4 of its decision, the authority outlined the applicant’s claims which included the following:
i. In December 2009, the applicant was employed by a boat owner named S to fish with five other fishermen.
ii. On one occasion, the engine of the boat stopped working and the men were intercepted by the Indian Navy. The applicant and his co-workers were told that they have breached the border and were brought to India where they were arrested and imprisoned.
b. At paragraph 5 of its decision, the Authority noted that the applicant claimed in his SHEV interview that he and his co-workers were captured and imprisoned in connection with the capture of Indian naval personnel by two Sri Lankans.
c. The Authority found, at paragraph 10, that the applicant’s evidence regarding his work on the boat and this [sic] circumstances of his arrest was unconvincing.
d. The Authority reasoned, at paragraph 11, that the applicant had provided inconsistent descriptions of his role on the boat that was intercepted. Specifically, the Authority raised an issue with the applicant’s evidence in his entry interview that he was employed as a cook.
e. In doing so, the Authority placed undue weight on a minor or trivial inconsistency in the applicant’s evidence at his entry interview and neglected to consider the consistency of the applicant’s claim in subsequent statements and applications.
i. In the section of his SHEV application which refers to his travel history, at CB 48, the applicant clearly notes that his reason for visit was ‘work-fishing’.
ii. In the section of his SHEV application which refers to his employment history, at CB 51, the applicant has clearly stated that his occupation between 1994 and 2012 was a ‘fisherman’.
iii. In his Statutory Declaration, at CB 69, the applicant reiterates his claim that he worked as a ‘fisherman’.
f. At paragraph 12, the Authority referred to inconsistencies in the applicant’s evidence regarding the reasons for the capture of the boat he was working on. Specifically, the Authority noted that, in his Shev interview, the applicant claimed that the boat was intercepted because two Sinhalese persons had captured two Indian naval personnel from a gun boat.
g. In doing so, the Authority neglected to consider that, despite advancing a new claim at the SHEV interview, the applicant had continued to claim that the boat was initially intercepted because it had breached Indian borders.
The primary judge summarised the appellant’s reliance on ground 1, based on the submissions advanced on his behalf by his representative, as concerning the question of whether or not the IAA had failed to consider the claims advanced by the appellant cumulatively. The primary judge rejected this submission and concluded that the IAA’s reasons reflected a genuine and real engagement with a cumulative consideration of the appellant’s claims.
The primary judge rejected the submissions made by the appellant’s representative in relation to ground 2. First, he did not accept that the inconsistency concerning the role of the appellant on the fishing boat was immaterial. Secondly, he did not accept that the alleged inconsistencies identified by the IAA concerning why the appellant was detained in India were not, in fact, inconsistencies but rather logical possibilities. The primary judge otherwise found that the 7 matters identified in ground 2 were logical and rational and were not the subject of any adverse submission.
In the result, the primary judge found no jurisdictional error on the part of the IAA and dismissed the appeal.
4. THE APPEAL
The appellant in oral submissions contended that his statements were true and correct, but that the interpreter made mistakes which led to an incorrect view of his evidence. He submitted that he had substantial evidence to support his claims and asked the Court to go through the statement that he had given and come to a conclusion.
The submission that the interpreter made mistakes has not been raised before. It was not raised before the FCCA, at a time when the appellant was represented by a legal practitioner and in circumstances where the materials that the IAA considered were available to the parties. No evidence has been advanced in the present appeal to support it and it is not the subject of any ground of appeal or particulars. Accordingly, it must be rejected.
It is apt to observe early in considering the present appeal that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the appellant satisfies the criteria for the grant of the SHEV or to grant the appellant a visa. As such, neither Court has the capacity to consider the factual merits of the IAA’s decision to refuse to grant the SHEV to the appellant. The jurisdiction of the FCCA is limited to considering only whether the IAA’s decision to refuse to grant the appellant the SHEV is lawful under the Act, that is, whether the decision of the IAA is invalid by reason of jurisdictional error; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is jurisdictional error in the decision of the FCCA on appeal from the IAA under s 24 of the Federal Court of Australia Act 1976 (Cth). To the extent that the oral submissions of the appellant put forward a further basis, unsupported by evidence, upon which the merits of the decision of the IAA are challenged, that is not a permissible approach.
The only ground advanced on appeal is that there is legal error in the decision of the IAA which the primary judge failed to identify. The appellant is self-represented, and it is appropriate to consider this ground in the context in which it appears, namely as an appeal from the decision of the primary judge. In the FCCA, the appellant alleged two legal errors on the part of the IAA. It is the failure on the part of the primary judge to identify those errors to which it may be assumed the present ground of appeal relates.
The substance of the first ground advanced before the primary judge was that the IAA did not consider the cumulative claims arising from the fact that the appellant had been imprisoned in India for a period of 6 months, had departed Sri Lanka a second time and travelled to India and subsequently departed Sri Lanka illegally and sought asylum in Australia. This ground has an immediately difficulty in the fact that, as the IAA noted at [34] of its reasons, the appellant did not specifically raise a claim for protection on the basis that if he returned to Sri Lanka he would do so as a failed asylum seeker. Nevertheless, the IAA considered this claim at some length at [35] – [40] and found that there was not a real chance of serious harm from the Sri Lankan authorities. Further, at [41] the IAA notes that after considering the appellant’s claims individually and cumulatively, it finds that the appellant does not have a well-founded fear of persecution. That note expressly reflects consideration on the part of the IAA not only on the question of the effect to the appellant of his return to Australia as a failed asylum seeker, but also the balance of the claims that had been raised and considered earlier in its reasons.
In my view the rejection by the primary judge of this ground was not in error.
The substance of the second ground is that the IAA committed jurisdictional error by making findings that were irrational, illogical and unreasonable by placing “undue weight” on minor or trivial inconsistencies in the appellant’s evidence, and neglecting to consider the consistency of his claims in subsequent statements and applications. The ground accordingly contends that the IAA fell into jurisdictional error on the basis of unreasonableness and the absence of an intelligible justification for the findings made.
The principles governing legal unreasonableness have been considered by the Full Court in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 (Eden) (Allsop CJ, Griffiths, and Wigney JJ) at [58] – [65]. At [65], the Full Court said:
... the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: Singh at 445[42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
The contention advanced was that the inconsistencies referred to in items (1) and (2) of paragraph [7] above were minor or trivial. The suggestion in the ground is that the reference to these inconsistencies was plainly unjust or lacking in evident or intelligible justification when taken in the context of the other matters to which the ground refers. In my view, the primary judge was correct to reject this ground. As a finder of fact, the IAA is entitled and required to assess the credibility of the claims advanced before it. It does so on the basis of the materials presented. The question of the weight to be placed on those materials is for the IAA to assess and it did so in a manner that did not lack in evident or intelligible justification. In my view, the reasoning of the IAA was not otherwise legally unreasonable.
To the extent that this ground concerns an alleged failure on the part of the IAA actively to engage with the question of the credit of the appellant, it is to be noted that if a statute requires a decision-maker to consider a matter, the decision-maker must engage in an ‘active intellectual process’ directed at that claim or criteria: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107;(2017) 252 FCR 352 at [45], per Griffiths, White and Bromwich JJ.
However, one must be careful not to permit a ground based on a failure to consider a claim to slide into a merits review of the decision of the IAA; Carrascalao at [32]. The principle does not require the decision maker to refer in the reasons to every piece of evidence and every contention made. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter, bearing in mind that one does not read the decision below with the eye attuned to the perception of error; Carrascalao at [45].
The reasons given by the IAA for making its findings of credit are set out in its reasons and are rational and intelligible. The matters set out in items (1) and (2) of paragraph [7] above form but a part of the reasoning going to the credit of the appellant. In my view, this ground is not made out.
Accordingly, no jurisdictional error has been demonstrated to arise from the reasoning of the IAA, and the primary judge did not err in rejecting this ground.
5. DISPOSITION
The appeal must be dismissed with costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate:
Dated: 22 February 2019
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