Esx18 v Minister for Home Affairs

[2019] FCCA 302

FEDERAL CIRCUIT COURT OF AUSTRALIA

ESX18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 302

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Haven Enterprise visa – whether the Authority failed to have a real and genuine engagement with the applicant’s claims and evidence – whether the Authority took into account an irrelevant consideration – whether the Authority failed to take into account a relevant consideration – no jurisdictional error made out – amended application is dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 476

Applicant: ESX18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2575 of 2018

Judgment of: Judge Street

Hearing date: 12 February 2019

Date of Last Submission: 12 February 2019

Delivered at: Sydney

Delivered on: 12 February 2019

REPRESENTATION

Counsel for the Applicant: Ms M Yu

Solicitors for the Applicant: Alan Rigas Solicitors

Solicitors for the Respondents: Mr A Fisher
HWL Ebsworth

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 12 February 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2575 of 2018

ESX18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 9 August 2018, affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise visa.

2. The applicant was found to be a citizen of Gambia and his claims were assessed against that country. The applicant arrived in Australia as an unauthorised maritime arrival on 24 May 2013. The applicant claimed to have participated in an unsuccessful coup to overthrow the President in March 2006 and that he was subsequently arrested and held in prison until approximately December 2010 and that he escaped by climbing into the back of a truck when leaving the prison grounds. The applicant alleges he crossed the border into Senegal and that he worked and stayed in Senegal for two years and obtained a fraudulent passport. The applicant claimed he travelled to Malaysia for two months and then to Australia.

3. The applicant fears he will be persecuted for his previous work with the National Intelligence Agency (“NIA”) who routinely practice torture. The applicant fears he will be perceived as someone who held a key role in the torture and killing of people as he was in charge of transporting people to the NIA prisons. The applicant also fears he will be subject to serious harm because of a history of being involved in a coup and that he will be accused of treason.

4. The applicant also alleged that in February 2017, his family home was attacked by a group of people who demanded to see him. The applicant fears he will be killed by people seeking revenge for their children who were tortured or killed by the NIA. The applicant also fears harm by reason of having escaped from the prison. On 18 June 2018, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise visa.

5. On 21 June 2018, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review and gave the applicant an opportunity to put on new information and submissions. The applicant did provide submissions dated 12 July 2018. Those submissions addressed in detail the adverse credibility findings that had been made by the delegate. Relevantly, the delegate did not accept the applicant’s claim to have been involved in the coup and did not accept that he was arrested and detained and did not accept that the applicant escaped from prison. The applicant’s submissions dated 12 July 2018, expressly addressed the adverse credibility findings by the delegate and put submissions why the applicant’s evidence should be accepted in relation to the coup and his arrest and, in particular, the applicant’s escape.

6. The Authority in its reasons identified in the background to the visa application. The Authority identified having regard to the material given by the Secretary under s.473CB of the Act. The Authority expressly referred to the applicant's submissions dated 12 July 2018 and the Authority identified that the Authority had regard to those submissions engaging with the delegate’s findings on what was said to be a number of factual errors in reaching adverse credibility findings and improperly assessing the country information.

7. The Authority also identified that the photographs were new information but was not satisfied that there were exceptional circumstances to justify considering the new information.

8. The Authority summarised the applicant’s claims. The Authority referred to the applicant’s alleged role with the NIA officers. The Authority accepted the applicant worked for the NIA as a driver from 2005 until the coup attempt in 2006. The Authority referred to the applicant’s claims in relation to the failed coup and referred to the applicant having given slightly inconsistent accounts of how many trips he made on the day and the order in which he dropped people at their locations. However, the Authority indicated it was satisfied that these inconsistencies are due to recalling events which took place some 12 years ago and are not necessarily indicative of any fabrication. The Authority considered that the applicant’s account of his involvement in the coup was plausible and accepted the applicant’s claim about his involvement in the failure of the coup.

9. The Authority referred to the applicant’s detention at Mile Two Prison and the claim that he was arrested and moved to Mile Two Prison in Banjul after 48 hours and was held there for five years. The Authority referred to the applicant’s claim that he never had a trial but was told that he had been convicted for treason. The Authority accepted that the applicant was detained in Mile Two Prison after taking into account country information together with people who were considered to have supported the failed coup attempt. The Authority found the applicant was never tried and convicted. The Authority accepted the applicant was interrogated and tortured while he was in prison.

10. The Authority referred to the applicant’s claim that after almost five years, in approximately December 2010, he was able to escape from prison by hiding under a table that was loaded onto a truck leaving the prison grounds. This is clearly a reference to the applicant’s statement provided in support of his Safe Haven Enterprise visa. The applicant’s statement referred to the events occurring in relation to his alleged escape. The applicant’s statement referred to loading tables and chairs onto a truck, sliding under a table and hiding. The prison guards then opened the lorry doors, had a quick look and failed to see the applicant so they let the truck go through the gate. The applicant’s statement referred to the lorry driver stopping at a school and the applicant sneaking out of the lorry. The applicant’s statement also asserted that he was not completely sure of the dates as it happened when he was in prison and he did not have a watch, phone or diary and after five years it was hard to know the date exactly. The applicant asserted that he thought it was about December 2010 that he escaped prison.

11. The Authority in its reasons, identified that in comparison to the evidence that the applicant gave about his time in prison, the applicant’s description of his escape at the Save Haven Enterprise visa interview lacked any real detail and was unconvincing. The Authority noted that the applicant provided very little description of the escape itself and it was unclear how he was able to simply climb into a truck and be driven out of such a place without detection by guards.

12. The Authority’s referred to the applicant climbing into the truck and being driven out of the prison without detection by the guards, which is clearly a reference to the substance of what was referred to in the applicant’s statement. The Authority did not accept the applicant’s claim that he escaped from prison and considered that it is very likely that he was eventually released from the prison without a trial on the basis that he had a low level role as a driver and, in spite of regular interrogation and torture, the applicant was unable to provide any intelligence of value to the authorities.

13. Following the making of this finding, the Authority gave an example of an indication that while people can be held without trial, they can also be released. The Authority in that regard referred to subsequent acts that had occurred in 2017 where a President released 171 prisoners. The example given by the Authority was not material to the Authority’s adverse findings and was a relevant observation in the context of the Authority explaining how other circumstances could give rise to the applicant being released having rejected the applicant’s assertions that he escaped.

14. The Authority referred to the applicant’s description of events of 2011 and found that they were contradictory and evasive. The Authority found that the applicant wanted the delegate to believe that he had escaped from prison at the end of 2011 and never returned to Gambia. The Authority referred to the applicant’s assertion in the Safe Haven Enterprise visa application that he escaped from prison in December 2011 and caught a taxi to a friend’s house where he stayed for a few days before taking a taxi to Senegal on 31 December 2011, where he remained for the next two years.

15. The Authority noted in the Safe Haven Enterprise visa interview that the applicant said he escaped in late 2011 and only spent a few hours at his friend’s house before crossing into Senegal and never returned to Gambia. The Authority noted that the delegate put to the applicant that he applied for a visa to the United Kingdom from Ghana on 31 May 2011, which was refused. The delegate also raised with the applicant that on 15 September 2011, the applicant applied for a visa to the United States from Banjul. The applicant then admitted that he applied for two visas in different false names in 2011 but said that he was reluctant to say this in case he was suspected of being a criminal. The applicant denied every returning to Gambia or travelling to Ghana to arrange these documents in spite of the evidence to the contrary.

16. The Authority noted in the applicant’s post-interview submission to the delegate on 23 May 2018, that the applicant claimed again that he was in prison in 2011 but also admitted that he applied for the passport and visas in 2011, which the Authority considered the applicant would have been unable to do if he had been in prison.

17. The Authority referred to the applicant’s submissions dated 12 July 2018, and that the applicant claimed he was in prison from 2006 to 2010 and denied stating that he was in prison in 2011. The Authority referred to the applicant submitting that he escaped in 2010 and travelled to Senegal and that he travelled back to Gambia twice in 2011 to apply for a passport and later a visa.

18. The Authority found the inconsistencies in the applicant’s claim about where he was in 2011 and the process by which he departed Senegal as well as the evidence that he was in Gambia and Ghana applying for documentation throughout 2011, to give rise to a finding that the applicant either remained in Gambia after he was released from prison in the end of 2010 or went to Senegal but travelled between Senegal and Gambia and Ghana at will and without harm as he was not wanted by the authorities. It was in those circumstances that the Authority was satisfied that during 2011 the applicant applied for a passport in Gambia in April 2011 and unsuccessfully attempted to get visas to travel to the UK in May 2011 from Ghana and the US in 2011 from Gambia. The Authority was satisfied that the applicant eventually flew to Malaysia on the passport he obtained in 2011 and then went on to travel to Australia by boat via Indonesia.

19. The Authority found that the applicant was evasive about the events of 2011 because he wanted to give the impression that he was a wanted man after escaping from prison and therefore he could not be in Gambia. The Authority found that if the applicant was released from prison he would not have been wanted and would have been able to spend time in Gambia arranging his travel which is supported by his various applications for a passport and visas.

20. The Authority considered it implausible that families of people affected by NIA torture would seek the applicant out for harm in February 2017. The Authority did not accept the applicant or his family had been threatened or otherwise singled out for harm by families of victims of NIA.

21. The Authority did not accept the applicant’s claim as credible that he escaped prison. The Authority did not accept that the applicant was pursued after he left prison. The Authority found the applicant finally departed Gambia at the end of 2011 when he made a plan to travel to Australia after unsuccessfully seeking visas to travel to the UK and the US earlier in the year.

22. The Authority did not accept the applicant would be perceived as someone who held a key role in the torture and killing of people. The Authority did not accept the applicant faces a real chance of harm on return to Gambia on account of his connection to the NIA. The Authority found that there is not a real chance that the applicant will be subject to any reprisal action from families affected by the NIA’s practices.

23. The Authority found that whilst it accepted that the applicant had been arrested, detained, interrogated and tortured, and that the applicant had been released by the authorities in Gambia, the Authority found that the applicant was not subject to any further harm on this basis after his release from prison in 2010.

24. The Authority was not satisfied that if the applicant returned to Gambia he would face a real chance of harm on the basis of his political opinion and as someone who is involved in an attempted coup against the former President of Gambia. The Authority did not accept the applicant’s claim that he would face persecution or that he will be the subject of an effective denial of access to basic services and denied the capacity to a livelihood which could cumulatively threaten his capacity to subsist.  

25. The Authority did not accept that the poor economy and lack of services in Gambia have threatened the applicant’s capacity to subsist in the past. The Authority found that there is no credible evidence to suggest that they will do so in the future. The Authority noted that the applicant’s family continues to reside in Gambia and that the applicant made no claims in relation to their capacity to subsist.

26. The Authority was satisfied that the applicant would have access to medical and healthcare services, similar to other Gambia nationals. The Authority was not satisfied on the evidence that the applicant would be faced with a real chance of persecution due to his race, religion, nationality, membership of a particular social group or political group now or in the reasonably foreseeable future.

27. The Authority referred to the applicant as being a Sunni Muslim. The Authority was not satisfied that the applicant would be denied the right to practice his religion or that he will face serious discrimination or other harm at the hands of the authorities or the general population in Gambia on the basis of his religion. The Authority was not satisfied the applicant faced a real chance of harm of his return to Gambia because of his prolonged absence from the country.

28. The Authority found the applicant did not meet the definition of refugee in s.5H(1) of the Act and found the applicant did not meet the criteria in s.36(2)(a) of the Act.

29. The Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Gambia from Australia, there is a real risk the applicant would suffer significant harm. The Authority found that the applicant did not meet the criteria in s.36(2)(aa) of the Act and affirmed the decision under review.

The grounds

1. The grounds in the amended application are as follows:

   1. The second respondent (the Authority) failed to conduct a review as required by s 473DB(1) of the Migration Act 1958 (Cth) by failing to properly consider the Applicant’s claims and evidence.

   a. The Authority at [13] of its decision, rejected the applicant’s claim to have escaped from prison and instead found that it was likely that the applicant was released without trial for reasons including that his “description of his escape at the Safe Haven Enterprise visa interview lacked any real detail and was unconvincing”.

   b. In making the finding referred to above (a), the Authority did not make any findings or reasons that demonstrate that it took into account the applicant’s evidence about the circumstances of his escape from prison at [33-35] of his statement dated 14 June 2017.

   c. The matters referred to above at (a)-(b) were relevant to the Authority’s conclusion that the applicant did not have a well-founded fear of persecution. Consequently, its decision was affected by jurisdictional error.

   2. The Authority took into account an irrelevant consideration in rejecting the applicant’s claim to have escaped from prison.

   Particulars

   a.  The IAAa at [13] of its decision, rejected the Applicant's claim to have escaped from prison and instead found that it was likely that the Applicant was released without trial for reasons including that "Among President A’s first acts since assuming the Presidency in 2017 was the release of 171 prisoners from Mile Two prison, a majority of whom were political prisoners”.

   b.  The IAA took into account an irrelevant consideration in making the finding above at (a), because on the accepted facts, President Adama Barrow had not been elected at the time of the Applicant's claimed escape from prison, which was around December 2010. As such, the acts of President A during his term as president from 2017 onwards could not have rationally affected the assessment of whether the Applicant escaped from prison in 2010 as claimed.

   c. The matters referred to above at (a)-(b) were relevant to the TAA's conclusion that the Applicant did not have a well-founded fear of persecution. Consequently, its decision was affected by jurisdictional error.

   3. The Authority failed to take into account a relevant consideration in dealing with inconsistencies in the applicant’s evidence.   

   Particulars

   a.  The IAA, at [14]-[19] of its decision, considered that the Applicant had given inconsistent evidence about when he escaped from prison and what he was doing in 2011.

   b.  In doing so, the IAA did not take into account the Applicant's explanation for the inconsistencies in his evidence, at [38] of his statement dated 14 June 2017. At [38] of the Applicant's statement, he stated that "I am not completely sure of the dates when all this happened as I was in prison and did not have a watch or phone or diary and after 5 years, it is hard to know the date exactly".

   c. The matters referred to above at (a)-(b) were relevant to the TAA's conclusion that the Applicant did not have a well-founded fear of persecution. Consequently, its decision was affected by jurisdictional error.

Ground 1

1. Ms Yu of counsel on behalf of the applicant, submitted in relation to ground 1 that the Authority had not had a real and meaningful engagement with the applicant’s statement provided in support of his Safe Haven Enterprise visa interview. In respect of the adverse finding made by the Authority in paragraph 13, in respect of the applicant’s claimed escape from prison, Ms Yu took the Court to the applicant’s statement and in particular paragraphs 33 and 35 as well as paragraph 38, and submitted that the Authority’s reasons suggested the Authority had only referred to the Safe Haven Enterprise visa interview and had not taken into account on a fair reading of the applicant’s statement. The applicant referred to hiding under the table, leaving on the truck and the truck being driven out of the prison in the applicant’s statement.

1. There is no proper basis for the Court to infer that the Authority did not have regard to the applicant’s statement. The Authority expressly referred to the submission dated 12 July 2018 in paragraph 4 of its reasons and expressly descended into the detail of the submission concerning the adverse findings by the delegate on the grounds of credibility.

2. Further, the Authority also referred to the submissions in paragraph 18 of the Authority’s reasons. The Authority’s reasons are not to be read with a keen eye for error and must be read as a whole. On the face of the Authority’s reasons, there was a real and genuine engagement by the Authority with the applicant’s claims and evidence. The adverse finding in relation to the applicant not having escaped in paragraph 13 was open to the Authority for the reasons given by the Authority.

3. On a fair reading of the Authority’s reasons as a whole, it is apparent that the Authority took into account the applicant’s statement provided in support of the Safe Haven Enterprise visa as the Authority made adverse credibility findings in respect of the whole of the applicant’s claims. Further, the Authority’s reasons expressly referred to having regard to the material provided in the opening of its reasons. No inference should be drawn that the Authority overlooked or did not consider the applicant’s statement. No jurisdictional error as alleged in ground 1 is made out.

Ground 2

1. In relation to ground 2, Ms Yu took the Court to the Authority’s reasons in paragraph 13 and referred to the events that occurred in 2017 subsequent to the applicant’s release. It is patent that the Authority appreciated that its reference to the release of prisoners was one in 2017 as the Authority said so and was a reference by way of analogy to the logic of the Authority. The Authority in that regard was not referring to the release in 2017 as a material consideration in the adverse finding of fact that the Authority had already made in respect of the applicant not having escaped. Rather, the Authority was giving an example of circumstances as a matter of logic in which persons can be released from prison.

2. The example was not irrelevant as a matter of logic. The example does not support the contention that the reference to the 2017 release was a material consideration in the adverse finding by the Authority in respect of the applicant not having escaped. The Authority took into account, as the Authority was entitled to, that if the applicant was found not to have escaped logically and rationally, the applicant must have been released. That adverse finding was open. There was no irrelevant consideration taken into account as alleged in ground 2. No jurisdictional error as alleged in ground 2 is made out.

Ground 3

1. In relation to ground 3, Ms Yu submitted that the Authority had failed to take into account the applicant’s explanation in his statement as to his inconsistencies concerning the date that he was released. Ms Yu took the Court to paragraph 38 of the applicant’s statement and his assertion that he was not completely sure of the dates when he was released from prison.

2. It is apparent from the Authority’s reasoning in paragraphs 14 to 19 that the Authority took into account the different evidence given by the applicant as to when he allegedly escaped from prison and whether it was 2010 or 2011. The Authority’s reasons make no express reference to the applicant’s assertion of being unsure of the dates referred to in paragraph 38, however it was not necessary for the Authority to refer to every piece of evidence advanced by the applicant.

3. The Authority had already taken into account the explanation of the slight inconsistencies and the recalling of events that took place some 12 years ago in the context of accepting the applicant’s evidence in respect of being involved in the coup. There is no proper basis to infer that the Authority failed to take into account the applicant’s statement in the adverse findings made in paragraphs 14 to 19.

4. Further, the Authority did not just rely upon the inconsistencies in relation to the date, but also materially relied upon the inconsistencies in relation to the visa applications for the reasons that were raised by the delegate with the applicant and the location of where those visa applications had been made. The Authority’s reasons in relation to the events of 2011 were open to the Authority and the Authority found that the applicant was seeking to suggest that he had escaped in 2011 from prison and therefore that he could not have been in Gambia and that the applicant appreciated that if he had been released from prison he was not a wanted man. There was no failure to take into account a relevant consideration as alleged in ground 3. No jurisdictional error is made out by ground 3.

Conclusion

1. As the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  27 March 2019