FCF17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 981
•2 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FCF17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 981
File number: MLG 2509 of 2017 Judgment of: HER HONOUR JUDGE C.E. KIRTON KC Date of judgment: 2 November 2023 Catchwords: MIGRATION– review of Immigration Assessment Authority decision – affirmation of Delegate’s decision to refuse to grant a Protection (Subclass XE-790) Safe Haven Enterprise visa – whether the IAA misunderstood its task on review – whether the IAA erroneously imported a relative element to the ‘real chance’ test in s 5J(1)(b) of the Migration Act 1958 (Cth) – whether the IAA acted with appropriate caution with respect to information omitted from interviews shortly after arrival in Australia – whether the Applicant made a claim or a claim for protection of his daughters arose from the material – no jurisdictional error – application dismissed – costs ordered Legislation: Migration Act 1958 (Cth) ss 5H(1), 5J(1), 36(2), 473DD and 476
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) sch 2, pt 2, div 1, item 3
Cases cited: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189
CGA15 v Minister for Home Affairs [2019] FCAFC 46
CXB20 v Minister for Home Affairs [2020] FCA 1667
DFU16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 222
Minister for Home Affairs v AYJ17 [2019] FCA 591
MZAJC v Immigration and Border Protection [2016] FCA 208
MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
Ponnundurai v Minister for Immigration and Multicultural Affairs [2000] FCA 91
Division: Division 2 General Federal Law Number of paragraphs: 86 Date of last submissions: 17 October 2023 Date of hearing: 17 October 2023 Place: Melbourne Counsel for the Applicant: Ms Levine Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Ms Smith Solicitor for the Respondents: Australian Government Solicitor Solicitor for the Second Respondent: Submitting an appearance, save as to costs ORDERS
MLG 2509 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FCF17 BY HIS LITIGATION GUARDIAN ELENI DONNELLY OF THE OFFICE OF THE PUBLIC ADVOCATE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
HER HONOUR JUDGE C.E. KIRTON KC
DATE OF ORDER:
2 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Application filed on 21 November 2017 and amended on 3 October 2023 be dismissed.
2.The Applicant pay the First Respondent’s costs fixed in the amount of $8,371.30.
THE COURT NOTES:
A.For the purpose of clarity, Order 2 is intended to apply to the Applicant personally and not to the Litigation Guardian.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
HER HONOUR JUDGE C.E. KIRTON KC:
INTRODUCTION
By an Application filed on 21 November 2017 (Application) and amended on 3 October 2023 (Amended Application), the Applicant seeks judicial review of a decision of the Immigration Assessment Authority (IAA) dated 2 November 2017 (IAA Decision). The IAA affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) to refuse to grant the Applicant a Protection (Subclass XE-790) Safe Haven Enterprise visa (Visa).
The Amended Application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act) and contains within it three (3) grounds of review which will each be considered in detail below.
This matter was heard on 17 October 2023 and proceeded in person at the Court’s Melbourne Registry (Hearing). At the conclusion of the Hearing, judgment was reserved. These are the Reasons for Judgment in relation to the Hearing.
ISSUES IN DISPUTE
The issues in dispute are whether the IAA Decision was affected by jurisdictional error.
SYNOPSIS
I have determined that the IAA Decision is not affected by jurisdictional error and therefore the Application as amended by the Amended Application must be dismissed with costs.
BACKGROUND
The Court has before it a Court Book filed by the Minister on 28 August 2018 numbering 231 paginated pages (Court Book). The Court has reviewed the material in the Court Book in detail. The Court Book contains all relevant information that was before the Delegate and the IAA and the respective decisions of each. On 10 October 2023, the Minister filed Written Submissions (Minister’s Submissions). The Minister’s Submissions accurately summarise the background to this matter.
The Applicant was born in Sri Lanka and travelled to India by boat in 1990 at the age of nine (9) with his mother and grandparents. The Applicant and his family resided in India for 23 years,[1] following which he arrived in Australia as an irregular maritime arrival on 18 April 2013,[2] accompanied by his former wife, an Indian citizen, and two (2) children.[3] After arriving in Australia the Applicant separated from his wife.
[1] Court Book (CB) 11, 18, 33 and 36.
[2] CB 156.
[3] CB 20-21.
On 26 November 2015, the Applicant applied for the Visa (Visa Application).[4] In the Visa Application, the Applicant set out his claims for protection, which related to his Tamil ethnicity and his father’s prior membership of the Liberation Tamil Tigers of Eelam (LTTE), for which he feared retribution and harm from Sri Lankan authorities.[5]
[4] CB 78-117.
[5] CB 109.
The Applicant attended a protection visa interview at the Department of Immigration and Border Protection (Department) on 7 December 2016 (Visa Interview).[6]
[6] CB 131-142.
On 7 April 2017, the Department notified the Applicant that the Delegate had refused to grant the Visa (Delegate’s Decision).[7] Although the Delegate accepted that the Applicant was a Tamil failed asylum seeker and may be suspected of being a supporter of the LTTE, and that his fears of being arrested and killed amount to ‘serious harm’, the Delegate did not accept that his fear of persecution was ‘well-founded’.[8] Therefore, the Delegate was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations pursuant to s 36(2)(a) of the Migration Act.[9] Similarly, the Delegate did not consider there to be a real risk of significant harm to the Applicant if returned to Sri Lanka and thus he was not owed complementary protection pursuant to s 36(2)(aa) of the Migration Act.[10]
[7] CB 153-165.
[8] CB 161-162.
[9] CB 164.
[10] CB 164.
The Delegate’s Decision was referred to the IAA on 12 April 2017, as confirmed to the Applicant by letter dated 13 April 2017.[11]
[11] CB 170-171.
On 8 May 2017, a volunteer from the Asylum Seeker Resource Centre (ASRC) wrote to the IAA requesting until 26 May 2017 to provide supporting evidence for the Applicant, noting that he had ‘only recently presented’ to their service and was due for an appointment with them on 17 May 2017.[12] The IAA responded by letter dated 9 May 2017, noting that although the 21-day time limit for submissions had expired, no decision was to be made on the review before 19 May 2017 and therefore submissions received until then may be considered, subject to their satisfaction of the requirements in s 473DD of the Migration Act.[13]
[12] CB 184.
[13] CB 185-186.
On 17 May 2017, the ASRC provided to the IAA, by email, a letter of the Applicant (Applicant’s Letter) and a ‘Sri Lanka (Tamil): Country Information Package’ produced by the ASRC (ASRC Package).[14] The Applicant’s Letter included the following:
(a)That the Applicant was not able to provide a submission to the IAA due to the short timeframe for submissions from the date of referral to the IAA, his inability to pay for legal representation or attend a free appointment in the timeframe, and owing to the complexity of the Delegate’s Decision;[15]
(b)That the Applicant did not consider the ‘IAA process’ to be fair or reasonable due to the short deadlines and the IAA being unable to consider new information that was not before the Delegate;[16]
(c)That pursuant to s 473DD of the Migration Act, there were exceptional circumstances in this case that justified consideration of new information;[17] and
(d)The Applicant requested an oral hearing before the IAA.[18]
[14] CB 187-210.
[15] CB 188.
[16] CB 188.
[17] CB 189.
[18] CB 189.
In the IAA Decision on 2 November 2017, the IAA affirmed the Delegate’s Decision to refuse to grant the Applicant the Visa.
IAA DECISION
The IAA Decision appears at pages 215 to 227 of the Court Book.
The IAA identified the relevant background to the matter, including the Delegate’s Decision, and then summarised the material before it. The IAA was not persuaded by the arguments advanced by the Applicant in the Applicant’s Letter, noting that there is no right to a hearing and that the circumstances did not warrant an interview with the Applicant.[19]
[19] CB 217, [9].
The IAA identified the ASRC Package as ‘new information’ within the meaning of s 473DD of the Migration Act and was not satisfied that such information could not have been provided prior to the Delegate’s Decision and therefore that exceptional circumstances existed allowing the IAA to consider it.[20] The IAA was however satisfied that it could consider new information obtained in respect of the Department’s data breach in 2014.[21]
[20] CB 217, [10]-[13].
[21] CB 218, [14].
The IAA proceeded to summarise the Applicant’s claims for protection.[22] The IAA then considered whether the Applicant was a refugee, pursuant to the definition in s 5H(1) of the Migration Act, ultimately concluding that he was not. Such a conclusion was reached after extensive consideration by the IAA of relevant country information and the material before it, including a number of findings in respect of the Applicant’s protection claims, such as:
[22] CB 218, [15].
(a)The IAA accepted that:
(i)The Applicant is a national of Sri Lanka of Tamil ethnicity;[23]
[23] CB 220, [26]-[27].
(ii)The Applicant, together with his family, travelled to India illegally in 1990 to escape the civil war in Sri Lanka, during which a number of his extended family members were killed;[24]
(iii)The daughter of his uncle was sexually assaulted by the Sri Lankan Army;[25]
(iv)The Applicant’s details may have been obtained by the Sri Lankan authorities as a result of the Department’s data breach in 2014, and that he may be identifiable as having sought protection in Australia;[26] and
(v)There is a possibility the Applicant may be charged under the Immigrants and Emigrants Act (I & E Act) upon his return to Sri Lanka,[27] and subsequently detained in a Sri Lankan prison for a brief period.[28]
(b)The IAA did not accept that:
(i)The Applicant’s father, cousin or brother-in-law were members of or had any involvement with the LTTE, nor had they ever been detained or arrested by Sri Lankan authorities for such involvement;[29]
(ii)Sri Lankan authorities have made enquiries about the Applicant and his family;[30] and
(iii)The Applicant has been told by his brother-in-law that if he returns to Sri Lanka, he will be arrested and killed.[31]
[24] CB 220, [28] and [51].
[25] CB 222, [38].
[26] CB 223, [49].
[27] CB 224, [54]
[28] CB 224, [56]; 225, [57].
[29] CB 221, [36].
[30] CB 221-222, [36].
[31] CB 222, [36].
As a result of these findings, and the relevant country information, the IAA was not satisfied that the Applicant met the requirements for the Visa in ss 36(2)(a) or (aa) of the Migration Act.[32] As such, the IAA affirmed the Delegate’s decision not to grant the Visa.[33]
[32] CB 226, [64]; 227, [71].
[33] CB 227.
PROCEEDINGS BEFORE THE COURT
On 21 November 2017, the Applicant filed the Application, together with an Affidavit of the Applicant, affirmed 21 November 2017 (Applicant’s Affidavit). At the time the Application was filed, the Applicant was not legally represented. The Applicant became legally represented on 10 August 2021 by Victoria Legal Aid.[34]
[34] Notice of Address for Service, filed 10 August 2021.
On 3 October 2023, pursuant to Orders of a Registrar of this Court made on 1 September 2023, the Applicant filed the Amended Application. The grounds of review as they have been amended in the Amended Application (Grounds of Review) provide as follows:
1. The Immigration Assessment Authority (Authority) misapplied the “real chance” test and/or asked itself the wrong question at [55] of its decision dated 2 November 2017 (Decision) by importing a comparative or relative element into its analysis of whether the Applicant faced a risk of torture or mistreatment as a returnee to Sri Lanka.
Particulars
a)At [55] of the Decision, the Authority concluded: “[i]nformation from DFAT does not indicate that detention is selectively applied to returnees, that returnees are processed in any discriminatory manner or that those who committed an offence under I&E Act, such as the applicant, face a higher risk of torture or other mistreatment”.
b)The Authority erroneously engaged in a comparative or relative assessment of the Applicant’s risk of torture or other mistreatment,
c)The Authority failed to assess whether the Applicant himself faced a “real chance” of being tortured or mistreated upon return to Sri Lanka.
2. In assessing the Applicant’s claim to face a risk of harm because of his family’s involvement with the LTTE, the Authority misunderstood its task by failing to treat the content of an enhanced screening interview or an induction interview with the requisite degree of caution.
Particulars
a)The Authority rejected the Applicant’s claim to risk of harm because of his family’s involvement with the LTTE, concluding that the claim was made to “enhance” the Applicant’s protection claims.
b)A fair reading of the Authority’s reasons reveals that a key reason for the rejection of that claim was that the Applicant had failed to refer to it in an enhanced screening interview conducted 10 days after the Applicant’s arrival in Australia or the induction interview conducted about two months later.
c)In adopting this approach, the Authority failed to apply the necessary caution regarding the purpose and use of an entry interview.
3. The Authority failed to consider whether the Applicant was owed protection obligations as a member of the same family unit as one or both of his minor daughters, in respect of whom claims based on a risk of sexual violence were made by the Applicant and/or squarely arose on the material before the Authority.
Particulars
a)The Applicant made a claim, alternatively a claim squarely arose on the material before the Authority, that the Applicant’s minor daughters (with whom the Applicant had travelled to Australia) faced a risk of sexual violence in Sri Lanka.
b)In accordance with s 36(2)(b) or (c) of the Migration Act 1958 (Cth), the Authority was required to consider whether the Applicant’s daughters were persons who were owed protection obligations because they faced a risk of sexual violence in Sri Lanka, and then to consider whether the Applicant was also owed protection obligations as a member of the daughters’ family unit.
c)The Authority failed to consider whether of the Applicant’s daughters were persons who were owed protection obligations, or whether the Applicant was owed protection obligations as a member of the daughters’ family unit.
(Without alteration)
The material before the Court relied upon by the Applicant was: the Amended Application; the Applicant’s Affidavit; Submissions, filed by the Applicant on 3 October 2023 (Applicant’s Submissions); and the Applicant’s List of Authorities, filed on 13 October 2023.
The material before the Court relied upon by the Minister was: the Response filed on 2 January 2018; the Minister’s Submissions; and the Minister’s List of Authorities filed on 16 October 2023.
Both parties relied upon the Court Book. The Court has also considered the transcript of the Hearing, where both Counsel for the Applicant and Counsel for the Minister made comprehensive oral submissions.
At the commencement of the Hearing, Orders by consent were agreed between the parties, as follows:
(a)Amending the name of the Minister to the ‘Minister for Immigration, Citizenship and Multicultural Affairs’; and
(b)Appointing a litigation guardian for the Applicant and dispensing with the need for an affidavit to be filed, pursuant to r 11.10(1) and 11.10(2) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (2021 Rules) respectively.[35]
[35] Orders of Her Honour Judge C.E. Kirton KC, 17 October 2023, Orders 1-3.
The Court will now consider each of the Grounds of Review.
CONSIDERATION
Ground 1
Ground 1 contends that the IAA erroneously imported a comparative or relative element into its consideration as to whether the Applicant faced a risk of torture or mistreatment upon return to Sri Lanka. This is contended to be a misapplication by the IAA of the ‘real chance’ test and thus constituted a jurisdictional error.
Paragraph [55] of the IAA Decision is referred to as the relevant point at which the error was made, and it reads as follows:
55.[…] Information from DFAT does not indicate that detention is selectively applied to returnees, that returnees are processed in any discriminatory manner or that those who committed an offence under I&E Act, such as the Applicant, face a higher risk of torture or other mistreatment.[36]
(Footnote omitted)
[36] CB 224, [55].
The Applicant submitted that, even read in the broader context of the IAA Decision as a whole, the approach adopted by the IAA reveals that what was asked by the IAA is whether the Applicant will face a higher risk of torture or mistreatment than other returnees, as opposed to the correct question, being whether he as an individual will face a real chance of torture or other mistreatment upon return to Sri Lanka.[37]
[37] Transcript P8:L17-23.
The finding made by the IAA that the Applicant would not be at a ‘higher risk’ of torture or other mistreatment than other returnees to Sri Lanka is submitted by the Applicant to be an implicit recognition by the IAA that the Applicant is in fact at risk of such action.[38] Despite such an acknowledgement by the IAA however, it is submitted that the jurisdictional error lies within its subsequent failure to answer the question of whether the risk to the Applicant amounted to a ‘real chance’ of harm to the Applicant.[39]
[38] Applicant’s Submissions, filed 3 October 2023 (Applicant’s Submissions), [10]; Transcript P8:L33-34.
[39] Applicant’s Submissions, [11].
The Applicant relied upon the judgment of Murphy, Mortimer and O’Callaghan JJ in CGA15 v Minister for Home Affairs and Another [2019] FCAFC 46 (CGA15), wherein their Honours state, at [25]-[26]:
25The question as to whether the Tribunal’s reasons disclose a misunderstanding or misapplication of the “real chance” test depends on the particular facts of the case and on a fair reading of the reasons, read as a whole and without an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennen CJ, Toohey, McHugh and Gummow JJ). The Court’s focus must be whether having regard to the Tribunal’s reasons in this case it is more probably than not that the Tribunal misunderstood or misapplied the test […]
26The mere fact that a decision-maker expresses his or her ultimate conclusions in terms which reflect the visa criterion (as the Tribunal did in this case) does not definitively show that it applied the correct test […]
These comments of the Full Court in CGA15 are submitted by the Applicant to support the assertion that the IAA Decision, properly construed, reveals error in the application of the real chance test to the Applicant, despite reference having been made to the test throughout the decision.[40]
[40] Transcript P9:L28-35.
The jurisdictional error made by the IAA in the present matter was likened by the Applicant to that identified in Ponnundurai v Minister for Immigration and Multicultural Affairs [2000] FCA 91, at [12] and [16], wherein Burchett J considered the Tribunal to have ‘strayed from the path’ of decision-making according to law in asking whether the applicant was ‘particularly’ at risk.[41]
[41] Transcript P9:L39-P11:L23.
The Minister’s Submissions contend that the claim advanced within Ground 1 is misconceived.[42] The Minister submitted that despite the ‘real chance’ test turning upon the ‘actual level of risk in any particular place’,[43] consideration by the IAA of the relative degrees of risk of harm is not prohibited in an assessment of the actual level of risk in a particular place.[44]
[42] Outline of Submissions of the First Respondent, filed 10 October 2023 (Minister’s Submissions), [12].
[43] Minister’s Submissions, [15] citing CGA15 v Minister for Home Affairs (2019) 268 FCR 362, [23] applied in BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41, [41].
[44] Minister’s Submissions, [14]-[16]; DQU16 v Minister for Home Affairs [2021] HCA 10, [10].
Further, Counsel for the Minister submitted that when reading the IAA Decision as a whole, not construing the reasons minutely and finely with an eye keenly attuned to the perception of error,[45] and wherein a number of objective findings were made in respect of the risk of harm to the Applicant, it is apparent that whether the Applicant faced a real chance of harm was properly considered by the IAA.[46]
[45] Transcript P27:L7-14.
[46] Minister’s Submissions, [18]-[21]; Transcript P16:L16-P30:L24.
It is apparent from the IAA Decision that the IAA properly appreciated that the test was whether ‘the applicant would face a real chance of harm as a result’ of being a returned asylum seeker from Australia. The first part of the IAA Decision at paragraph [50] is relevant to give context to paragraph [55] where the IAA says:
50.[…] if the applicant returns to Sri Lanka, I accept that the Sri Lankan authorities would identify the applicant on return as an asylum seeker from Australia. For the reasons given below I am not satisfied that the applicant would face a real chance of harm as a result. I do not accept it revealed his claims for protection or other information that may give rise to a real chance of harm now or in the reasonably foreseeable future.
Therefore the IAA is using the correct test of whether the Applicant would face a real chance of harm. The Court notes that when a decision-maker states the correct test, that is not necessarily determinative that the decision-maker has in fact applied the correct test. Nevertheless, it is a relevant consideration to support the conclusion that the IAA did not err and properly appreciated that the test was whether there was a real chance of harm, although that is not itself determinative.
The IAA made a number of significant findings about risk in clearly objective terms. In paragraph [52] it made observations about airport procedures and said:
52.DFAT and other sources considered by the delegate advise that returnees are treated according to the standard airport procedures, regardless of their ethnicity and religion and that they are not subject to mistreatment during processing.
The IAA found at paragraph [53] that the Applicant did not have a profile that would lead to him being perceived to be opposed to the Sri Lankan authorities on return, and that no such profile would be imputed to him.
At paragraphs [54] to [56] the IAA accepted that there was a possibility that the Applicant might be charged under the I & E Act for departing Sri Lanka other than via an approved port of departure. The IAA found that the chance of the Applicant being detained for more than a brief period was remote.
At paragraph [58] the IAA referred to country information that supported the conclusion that returnees who were merely passengers on a people smuggling venture are fined on a discretionary basis, with fines payable by instalment. There was nothing before the IAA to indicate that the Applicant would be treated as anything other than a mere passenger and that Sri Lankan authorities tend to view such persons as victims. At paragraph [59] the IAA said:
59. Country information indicates if the applicant pleads guilty to departing illegally, he will be required to pay a fine (which he can do by instalment) and will subsequently be released.
At paragraphs [59] and [60] the IAA assessed the circumstances as to when a person pleads not guilty to an offence under the I & E Act would likely to be granted bail on their own personal surety. The IAA therefore concluded at paragraph [61] that it was:
61.[…] not satisfied that the payment of a fine in this case amounts to serious harm, or that being held in detention for a short period at the airport, or possibly a nearby prison, cumulatively amounts to serious harm.
I conclude that the analysis contended for by the Applicant is not a fair or reasonable reading of paragraph [55] of the IAA Decision. On a fair reading the IAA’s use of relative language in paragraph [55] (“not …face a higher risk of torture or other mistreatment”) does not supersede its other objective findings. When the sentence at [55] is read in the context of these objective findings by the IAA about the potential harms facing the Applicant, being the risk of fine or detention, it must be reasonably found that the IAA at paragraph [55] was not suggesting it considered there to be a risk the Applicant would be tortured or otherwise mistreated.
When the IAA Decision and the findings are read as a whole, it is apparent that the IAA properly considered whether the Applicant faced a real chance of harm, and did so without engaging in a comparative analysis.
No jurisdictional error can be found in Ground 1. Ground 1 is therefore dismissed.
Ground 2
In Ground 2, the Applicant contends that the IAA misunderstood its task by failing to treat the content of ‘an enhanced screening interview or an induction interview’ (Interviews) with the requisite degree of caution, in its assessment of the Applicant’s claims of fearing harm due to his family’s prior involvement with the LTTE. The particulars of Ground 2 state that upon a fair reading of the IAA Decision, it is clear that a ‘key reason’ for the IAA rejecting the Applicant’s claim to fear harm in Sri Lanka because of his family’s purported involvement in the LTTE, was the fact that the Applicant failed to raise this information in the Interviews.
Counsel for the Applicant submitted that it was apparent from a review of the reasoning at paragraphs [31] to [37] of the IAA Decision, that a ‘key basis’ for the IAA’s rejection of the Applicant’s claim that he feared harm in Sri Lanka because of his family’s involvement with the LTTE, was the Applicant’s failure to include reference to those claims at the enhanced screening interview conducted 10 days after his arrival in Australia; or the induction interview conducted about two (2) months later. It was submitted that paragraphs [31] to [33] of the IAA Decision ‘specifically focused’ on the omissions from the Interviews, and that paragraph [37] of the IAA Decision referred to “the absence of these claims from the applicant’s previous interviews with the Department”.[47]
[47] Applicant’s Submissions, [12] and [13].
Counsel for the Applicant submitted that ‘disproportionate’ reliance upon such a failure is erroneous in circumstances where it is well-established that a cautious approach is required by decision-makers with respect to any omissions made by applicants at entry interviews: MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 (MZZJO).[48] Counsel for the Applicant relied on MZZJO, at [56],[49] which provides as follows:
56.[…] some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.
[48] Transcript P19:L23-25.
[49] Transcript P18:L4-P19:L19; Applicant’s Submissions, [15] and [16].
Relying on the above, the Applicant submitted that the IAA’s rejection of protection claims on the basis of information being omitted, or even specifically denied, by the Applicant at the Interviews represented an error by the IAA. The fact that the Interviews were held ‘very, very shortly’ after the Applicant’s arrival in Australia and were not for the specific focus of the making of protection claims were factors pointed to in support of this ground.[50] In this regard, Counsel for the Applicant also relied on Minister for Home Affairs v AYJ17 [2019] FCA 591 (AYJ17) at [38] to [42],[51] where Moshinsky J said at [41]:
41.In the present case, I consider that it was illogical or irrational in the sense described by Crennan and Bell JJ in SZMDS for the IAA to reject the respondent’s claim concerning the death of his brother on the basis that he did not mention it at the arrival interview. First, the purpose of the arrival interview in this case was primarily to obtain details about biodata and travel to Australia; its purpose was not to obtain a detailed description of the respondent’s claims. This is indicated by the introduction on page 1 of the form (which is to be contrasted with the “Important Information” set out on page 1 of the entry interview form); the structure of the form (divided into two parts, one dealing with biodata, the other with travel); the length of the form; and the limited space available for a response to question 21.
[50] Transcript P12:L23-30.
[51] Transcript P19:L29-P20:L29.
Further, the Applicant’s explanation as to why he omitted to mention familial involvement with the LTTE, being that he was ‘scared’ to admit to such involvement for fear of losing his right to remain in Australia and was in some confusion as to exactly which family members were involved, is pointed to by the Applicant as having been unreasonably rejected by the IAA. The IAA found these explanations by the Applicant to be ‘unconvincing’ and noted that the Applicant had a ‘number of opportunities’ to provide the claims and did not do so.[52] Counsel for the Applicant submitted that the link between the number of opportunities a person has to make a claim and their fear at the time is not apparent and nor was it articulated by the IAA in the IAA Decision.[53]
[52] CB 221, [35].
[53] Transcript P16:L31-36.
The findings of the IAA in this respect were submitted by Counsel for the Applicant to represent an ‘over-focus’ by the IAA on the omissions of the Applicant at the Interviews, the explanations for which were rejected for no compelling reason.[54]
[54] Transcript P19:L11-14; Applicant’s Submissions, [14].
At the Hearing, Counsel for the Applicant made reply submissions further addressing the IAA’s rejection of the Applicant’s explanation as to why he did not raise or admit to the prior involvement of family members’ in the LTTE at the Interviews. Specifically, Counsel submitted:
[…] this is exactly the sort of information that consistently with the authorities a person who is Tamil might be afraid of the LTTE, claims to be afraid of the LTTE, fled Sri Lanka, and says he fears to return. This is the very sort of information that at a very early stage dealing with foreign authorities – in this case Australian authorities that are foreign to this person – that one might expect to be omitted. It’s the very scenario that the authorities caution against placing so much weight on.[55]
[55] Transcript P52:L13-19.
The Minister contends that the IAA did not misunderstand its review task in relation to the Interviews. The Minister submitted that a visa applicant’s failure to raise a claim previously may well be relevant to credibility: AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83 at [27] (AVQ15).[56]
[56] Minister’s Submissions, [27].
Counsel for the Minister relied on AVQ15, as follows:
23.A decision-maker is entitled to rely upon inconsistencies in assessing a visa applicant’s credibility but it is important that the process be conducted fairly and reasonably, taking into account that the assessment of the reliability, and credibility, of accounts given by asylum seekers is well recognised as involving a number of particular features and considerations, and calls for a careful and thoughtful approach.
[…]
27.[…] In some circumstances a visa applicant may raise a claim for the first time at an advanced stage of the decision-making process and the failure to raise the claim previously may well be relevant to credibility […]
28.[…] even where it is reasonably open to find that a person has given inconsistent evidence, the decision-maker needs to assess the significance of that inconsistency and the weight to be given to it. […][57]
[57] Transcript P34:L33-P35:L46; AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83, [23], [27] and [28].
The Minister submitted that a decision-maker is entitled to rely upon inconsistencies in assessing a visa applicant’s credibility, provided that they do so fairly and reasonably, taking into account that the assessment of the reliability and credibility of accounts by asylum seekers requires a careful and thoughtful approach. The Minister contended that the IAA Decision shows that the IAA adopted such an approach in assessing the credibility of the Applicant’s claims in this case.[58]
[58] Minister’s Submissions, [27]; Transcript P36:L1-2.
Counsel for the Minister noted that it was important ‘not to overstate the requirement that there be some caution’ in relation to omissions at early interviews as espoused by the Federal Court in MZZJO.[59] This was particularly emphasised by Counsel for the Minister in circumstances where the IAA in the present matter had noted inconsistencies in the Applicant’s evidence and considered the explanations provided for those inconsistencies.[60] In this regard I refer to MZZJO at [57], where the Full Federal Court said:
57.Had the Tribunal relied only on a failure to mention details at the entry interview, we may have been inclined to see this as involving a misunderstanding of its task on review. However, the Tribunal relied on inconsistencies arising from information presented by the appellant after the entry interview as well, including inconsistencies between the delegate interview and what he said to the Tribunal, and the somewhat inexplicable reluctance of the appellant to have his childhood friend, who arrived on the same boat, give evidence to corroborate aspects of his account. We consider its approach was open to it as a merits decision-maker, and the Federal Circuit Court was correct to so find.
[59] Transcript P36:L7-8.
[60] Transcript P36:L10-13.
Counsel for the Minister distinguished AYJ17 by reference to paragraphs [34] and [36] of the judgment,[61] which provide as follows:
34.[…] Had the respondent been asked a question about the omission to refer to his brother’s death in the arrival interview, he may have provided an explanation for the omission, or he may have provided evidence that he did in fact mention it and this part of his response to the question was not recorded on the form. In circumstances where the IAA knew that it did not have any evidence from the respondent about this matter (because he had not been asked about it by the delegate) and that the respondent was likely to be able to provide relevant evidence, it was legally unreasonable to rely on the arrival interview in the way the IAA did and not to consider exercising the power in s 473DC.
[…]
36.This is not to suggest that the IAA is obliged to provide an opportunity to comment simply because it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. Clearly, there is no such obligation: DGZ16 at [72]. But the circumstances here are quite different. The IAA proposed to rely on a matter that had not been explored before the delegate and about which the respondent was likely to be able to provide evidence. This is not merely a matter concerning credibility. […]
[61] Transcript P36:L17-P38:L11.
Counsel for the Minister submitted that AYJ17 is different from this situation in which the Delegate did put to the Applicant certain omissions and discrepancies between the information he had provided at different interview stages. The IAA had the benefit of those explanations and could evaluate them. Therefore it was submitted that this case is distinguishable from AYJ17. I agree with that submission.
Counsel for the Minster submitted that the IAA properly analysed the discrepancies between the Applicant’s account and fairly had regard to the Applicant’s explanation. Counsel further submitted that the IAA’s finding not to accept the Applicant’s claim about association with the LTTE, was a finding that was reasonably open to the IAA.[62]
[62] Transcript P39:L32-37.
It is common ground that at the Interviews the Applicant did not articulate a claim that his father or other relatives were members of the LTTE. At the highest it was put that if he returned to Sri Lanka it might be imputed to him that he was a supporter of the LTTE, but it was not said that family members actually were.[63]
[63] Transcript P32:L15-19.
The IAA summarised the information provided by the Applicant during his enhanced screening interview at paragraph [32] of the IAA Decision.[64] This interview took place on 23 April 2013, which the IAA states is “approximately ten days after the applicant’s arrival in Australia”. Therefore here the IAA is cognisant of the type of considerations the case law says decision makers should be cognisant of when persons have recently arrived in Australia and they are being interviewed. In particular the IAA noted that the Applicant “was asked whether any of his relatives were directly involved in the war, he stated ‘no they didn’t take part in the war but they were living in that area’.[65] Therefore the IAA correctly recorded the answer the Applicant gave when asked whether family members were involved in the war. It wasn’t an omission to advance a claim at the interview but rather a response to a specific question.
[64] CB 220, [32].
[65] CB 220-221, [32]; CB 13.
The IAA then summarised the information provided by the Applicant during his enhanced screening interview at paragraph [33] of the IAA Decision.[66] This interview took place on 25 June 2013, more than two (2) months after the Applicant arrived in Australia. The IAA noted that:
33.[…] The applicant was specifically asked whether any members of his family had been associated with or involved with any political groups or organisations or activities of protests against the government, and he stated no.[67]
[66] CB 221, [33].
[67] CB 221, [33]; CB 27.
Therefore again the Applicant has directly answered “No” to questions which would have informed at this earlier stage whether his family members were members of the LTTE.
It was in the Visa Application made on 26 November 2015, some two (2) and a half years after the Applicant arrived in Australia on 18 April 2013, that the Applicant first claimed that his father was in the LTTE and that his brother-in-law had been arrested by the Sri Lankan government.[68]
[68] CB 109.
In paragraph [34] and [35] of the IAA Decision, the IAA assessed the Applicant’s explanation at his Visa Interview for not mentioning in the Interviews that his father was a member of the LTTE and that his brother-in-law had been arrested in 2009 as follows:[69]
34At the protection visa interview, the delegate asked why he had not mentioned that his father was a member of the LTTE at his previous interviews with the Department. He stated the first interview was short and he was scared to admit that his father was LTTE as he feared he would lose his right to stay in Australia if he did. The delegate also put to the applicant that he had not previously mentioned that his brother-in-law had been arrested in 2009. He stated “it was my cousin not brother-in-law… they were my cousins’ and cousins’ husband and this was my mother’s sister’s daughter and she was raped and tortured by the army”. The delegate asked the applicant whether he was now claiming that it was not his cousin or brother-in-law but instead it was cousin’s husband that went into Boosa camp. He stated the person who went into Boosa camp was his mother’s sister’s son. The delegate put to the applicant that in his protection visa statement, he claimed his brother-in-law was arrested in 2009 but he had previously not made mention of this at his previous interviews with the Department. He stated it was short interview and there was not enough time to give all the details and because he was scared he did not mention he was in the LTTE. The delegate put to the applicant that he had previously made no mention of a cousin or brother-in-law at his previous interviews. He stated his brother-in-law was still missing (mother’s sister’s daughter’s husband) and because it was a short interview he could not give all the details.
35.The applicant’s oral evidence regarding his family’s involvement in the LTTE was unconvincing. I accept that at the protection visa interview there appeared to be some confusion regarding the applicant’s familial relationship to the people he claimed were involved with the LTTE; however I am not satisfied that this confusion explains the omission of any previous mention. Nor am I persuaded by the applicant’s explanations for not providing this information at his previous interviews. The applicant’s enhanced screening interview was over 30 minutes in length and his induction interview was conducted over two and a half hours. He was specifically asked at the entry interview whether he or his members of his family had been associated or involved with any political groups or activities against the government, he stated no. I have listened to the enhanced screening interview and the applicant appears to openly provide responses to the questions posed. I am not satisfied that the applicant was too scared to provide this information given the number of opportunities presented where he could have provided these claims and he did not.
(Without alteration)
[69] CB 221, [34] and [35].
Therefore the IAA assessed the Applicant’s explanation at his Visa Interview for not mentioning in the previous Interviews that his father was a member of the LTTE and that his brother-in-law had been arrested in 2009, consistent with the requirement to consider ‘whether there is an acceptable explanation for the person having given inconsistent evidence’: AVQ15 at [28]. In doing so, the IAA did not accept the Applicant’s explanation that he did not have enough time to provide all the details because the interview was short. The IAA noted that the enhanced screening interview was over 30 minutes in duration and that the induction interview was conducted over two (2) and a half hours. Further, it was open to the IAA not to accept the Applicant’s claim that he did not previously mention that his father was in the LTTE ‘because he was scared’.[70] The IAA did so after listening to the enhanced screening interview and forming the view that ‘the applicant appears to openly provide responses to the questions posed’ and stating that a ‘number of opportunities presented where he could have provided these claims and he did not’.[71] Therefore, taking into account the considerations in MZZJO at [56] and [57], the IAA did not fail to apply the necessary caution with respect to the Interviews.
[70] CB 221, [34].
[71] CB 221, [35].
The evidential inconsistencies in the Applicant’s evidence on which the IAA relied were logically and rationally capable of supporting the IAA’s findings. The IAA assessed the evidence in accordance with the requirements identified by the Full Court of the Federal Court in AVQ15 at [23], [26] to [28]. It is not necessary for the IAA’s reasons for decision to expressly assess these matters: BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 189 at [144] and [157]. Having considered these matters, ‘how all these matters are weighed and evaluated in a particular case is a matter for the decision-maker’: AVQ15 at [28].
The IAA’s rejection of the Applicant’s claim that his relatives were members of the LTTE was reasonably open to it and did not involve legal error.
No jurisdictional error can be found in Ground 2. Ground 2 is therefore dismissed.
Ground 3
Ground 3 contends that the IAA erred by failing to consider a claim, in accordance with ss 36(2)(b) or (c) of the Migration Act, that the Applicant’s daughters were at risk of sexual violence and that the Applicant was therefore owed protection as a member of their family unit. Ground 3 asserts that the IAA made a jurisdictional error in failing to consider whether the Applicant was owed protection as a member of the same family unit as one or both of his minor daughters, in respect of whom claims of risk of sexual violence were advanced by the Applicant, or otherwise squarely arose on the material.[72]
[72] Applicant’s Submissions, [17].
The Court understands that there is no dispute between the parties that at the time of the Visa Application, the Applicant’s daughters were under 18, thus being members of his family unit pursuant to s 5 of the Migration Act and r 1.12(2)(b)(i) of the Migration Regulations 1994 (Cth). Also not in contention is the fact that had a protection claim been made by the Applicant in respect of his daughters, the IAA would have needed to consider the claim.
The Applicant’s Submissions point to the Applicant’s claim, referred to in the Delegate’s Decision,[73] and of which the IAA was aware,[74] raised at an induction interview that the daughter of his uncle was raped in Sri Lanka, and questioning how he could return there with his children if that was the case.[75] The Applicant contends that it is this claim, which may be taken as advanced by the Applicant or arising from the material, which the IAA was required to consider, particularly in light of its acceptance that the sexual assault of the Applicant’s uncle’s daughter by the SLA did in fact occur.[76]
[73] Applicant’s Submissions, [22] and [23]; CB 158.
[74] Applicant’s Submissions, [24]; CB 220-221, [32]-[33].
[75] Applicant’s Submissions, [22]-[23]; CB 10-14, 27.
[76] Applicant’s Submissions, [24]; CB 222, [38].
The specific nature of the jurisdictional error contended to have been committed by the IAA in Ground 3 is in its failure to consider whether the Applicant was owed protection as a member of his daughters’ family unit, subsequent to its assessment of whether the daughters’ themselves were owed protection obligations due to facing a real risk of sexual violence in Sri Lanka.[77] The repetition in the material of the Applicant’s fear of the children returning to Sri Lanka was highlighted by Counsel for the Applicant in support of the assertion that it required consideration by the IAA.[78]
[77] Applicant’s Submissions, [25]-[26].
[78] Transcript P23:L41-46.
The Minister submitted that contrary to the Applicant’s claims, no protection claim with respect to the Applicant’s daughters arose from the material before the IAA, and nor did the Applicant raise it as an independent claim at any point during the Visa Application or interview process.[79] Rather, the IAA properly dealt with the information regarding the sexual assault of the Applicant’s uncle’s daughter, ultimately concluding that such an occurrence was not connected to the Applicant nor ‘had any ongoing repercussions’ for him.[80]
[79] Transcript P39:L44-47.
[80] Minister’s Submissions, [34]-[37]; CB 222, [38]; Transcript P40:L1-2.
Counsel for the Minister relied upon a number of authorities for the principles relevant to when a decision-maker will be required to consider a claim, including the following:
(a)A claim must have been raised squarely, or clearly arise from, the material before the decision-maker: CXB20 v Minister for Home Affairs [2020] FCA 1667 (CXB20) at [41];
(b)It must be shown that the appellant ‘sufficiently raised the relevant issue’: DFU16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 222 (DFU16) at [16];
(c)A decision-maker is not required to consider a claim that is not expressly made or is not ‘tolerably clear’ from the materials before it: DFU16 at [17], citing NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 (NAVK) at [15];
(d)It is not the task of the decision-maker to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been: DFU16 at [17], citing NAVK at [15]; and
(e)It is not for a reviewing court to retrospectively piece together a possible claim that might have been made before the decision-maker: DFU16 at [20], citing MZAJC v Immigration and Border Protection [2016] FCA 208 at [12].
In light of the principles above and on the material before the IAA, the Minister submitted that there was no error on the part of the IAA in not considering a protection claim in respect of the Applicant’s daughters. Specifically, the material before the IAA raised by the Minister included the Applicant’s Visa application,[81] submissions to the IAA,[82] and correspondence with the Department that the Applicant was estranged from his former wife.[83]
[81] CB 95 and 109.
[82] CB 189
[83] CB 144-146.
In reply submissions, Counsel for the Applicant submitted that not much can be made of the fact that the Visa Application did not formally include the Applicant’s daughters in circumstances where the claim is repeatedly raised elsewhere in the material before the Delegate and the IAA.[84]
[84] Transcript P53:L21-28.
To establish this ground, the Applicant must prove that the matters concerning the claim that the Applicant’s daughters were at risk of sexual violence; were raised squarely, or clearly arose from, the material before the IAA; rely upon established facts; were not considered by the IAA when considering whether to grant the Visa; and were substantial, or material, in the sense that consideration of the arguments might have resulted in a different decision: CXB20 at [41].
The Applicant and his former wife separated after arriving in Australia, and his wife filed for divorce.[85] When the Applicant applied for the Visa on 26 November 2015, he applied on his own behalf only, and did not list either of his daughters as members of his family unit.[86] The only other members of the Applicant’s family listed in the Visa Application, and not included in Part B of the Visa Application, were his mother and sister.[87] The Applicant did not claim that his daughters were persons owed protection under s 36(2) of the Migration Act, or that he sought to satisfy the criteria of the Visa as a member of their family unit.
[85] CB 219, [18]; CB 158.
[86] CB 79.
[87] CB 95.
Although the IAA was aware that the Applicant had arrived in Australia with his wife and daughters,[88] taking into account the considerations in CXB20 at [41] and DFU16 at [18] to [20], I conclude that no claim that they had a well-founded fear of persecution squarely arose from the material before the IAA. The IAA therefore did not fail to consider any claim that squarely arose that the Applicant’s daughters were at risk of sexual violence. The IAA properly considered information provided by the Applicant that his female cousin had been raped or sexually assaulted by a member of the Sri Lankan Army. In assessing this information the IAA concluded that:
38.I accept the applicant’s uncle’s daughter was sexually assaulted by the SLA. However at the enhanced screening interview the applicant’s own evidence was that as a result of this event this person had left Sri Lanka. The applicant has made no mention of any claims of harm on return on this basis nor am I satisfied that this event is in any way connected to the applicant or had ongoing repercussions for the applicant.[89]
[88] CB 218, [15].
[89] CB 222, [38].
In doing so, I am satisfied that the IAA properly considered the extent to which this information informed any claim of the Applicant. It was open to the IAA to conclude that the Applicant did not make any claim on the basis of this information about his cousin being sexually assaulted, and to conclude that this event had no ongoing repercussions for the Applicant and from which it can be inferred that would extend to his daughters.
The Court notes finally that the Applicant’s Submissions at paragraph [27] state:
27.Notably, the Applicant’s daughters currently hold Safe Haven Enterprise Visas, and one of them remains a minor.
Counsel for the Minister submitted that it is not relevant that the Applicant’s daughters currently hold Safe Haven Enterprise visas (Protection Visas) for the following reasons. There was no evidence before the IAA to the effect that the Applicant’s daughters had been granted Protection Visas. There is no evidence before this Court whether their Protection Visas were based on the daughters’ own claims to fear harm or were derivative claims based on the mother’s application herself for a Protection Visa. There is no evidence before the Court as to whether the daughters were granted Protection Visas on the basis of risk of harm to them in Sri Lanka or whether India was the country of assessment with respect to the daughters. Further, there is no evidence as to whether their Protection Visas were granted on the basis of risk due to sexual harm. Therefore, Counsel for the Minister submitted that the Court should not find it ‘notable’ that the Applicant’s daughters are said to currently hold Protection Visas.[90] I agree with those submissions.
[90] Transcript P49:L23-43.
No jurisdictional error can be found in Ground 3. Ground 3 is therefore dismissed.
CONCLUSION
The Amended Application failed to identify any jurisdictional error in the IAA Decision and therefore must be dismissed.
At the Hearing, the Minister sought costs fixed at the scale amount of $8,371.30 in accordance with item 3, Division 1, Part 2, Schedule 2 of the 2021 Rules.[91] Counsel for the Applicant submitted that if an order for costs was to be made in favour of the Minister, an order for the payment of costs by the Applicant himself, as opposed to his litigation guardian, would be appropriate.[92] Counsel for the Minister agreed with this submission.[93] Accordingly, I will make an Order that the Applicant pay the Minister’s costs in the sum of $8,371.30.
[91] Transcript P50:L20-22.
[92] Transcript P55:L45-47.
[93] Transcript P56:L4-20.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Judge C.E. Kirton KC. Associate:
Dated: 2 November 2023
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