FLM17 v Minister for Immigration

[2019] FCCA 261

FEDERAL CIRCUIT COURT OF AUSTRALIA

FLM17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 261

Catchwords:
MIGRATION – Judicial review – protection visa – credibility findings – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss.7AA, 473CC, 473DB, 473DD

Cases cited:

Minister for Immigration and Border Protection v MZYTS (2013)FCAFC 114

DFW16 v Minister for Immigration and Border Protection [2018] FCA 746
BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958

Applicant: FLM17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 514 of 2017

Judgment of: Judge Young

Hearing date: 21 January 2019

Date of Last Submission: 21 January 2019

Delivered at: Darwin

Delivered on: 21 January 2019

REPRESENTATION

Counsel for the Applicant: Mr Selliah

Solicitors for the Applicant: Rasan T. Selliah & Associates

Counsel for the Respondents: Mr O’Leary

Solicitors First Respondents: Australian Government Solicitor

ORDERS

1. The application filed 13 December 2017 is dismissed.

2. The Applicant is to pay the Respondent’s costs as agreed or assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADG 514 of 2017

FLM17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision of the Immigration Assessment Authority (the Authority) to affirm a decision of the Minister’s delegate to refuse the applicant a protection visa. The Authority, of course, was proceeding under the Fast Track Review Process in Part 7AA of the Migration Act.

3. The applicant is a Sri Lankan citizen of Tamil ethnicity.  He arrived in Australia by boat in 2012. His protection claims, in summary, were that he is of Tamil ethnicity; he was suspected of LTTE - the acronym for Tamil Tigers - sympathies and was consequently targeted by Sri Lankan authorities; further, he had lived in an area or a region controlled by the LTTE called Vanni in northern Sri Lanka and after returning from that region he was targeted by the Sri Lankan authorities and went into hiding from 2008 to the time of his departure for Australia in 2012.

4. Both the delegate and the Authority found the applicant’s claims lacked credibility and found that the applicant was not a person with LTTE links, real or suspected, and that his claims were inconsistent and had been elaborated over time.  The applicant made an application for a protection visa in 2013.  This was subsequently found to be invalid because the Minister - as I understand what I was told from the bar table by counsel for the Minister - had not lifted the bar at that point.  A new application was made in 2015.  Both protection visa claims were accompanied by written statements. The applicant was also interviewed by the Minister’s delegate in early 2013.

5. There are three grounds of review. I do not propose to read into the transcript the entirety of the grounds, I will summarise the grounds. Ground 1 alleges that the Authority failed to conduct its review pursuant to section 473CC of the Act according to law and it gave particulars that the Authority had failed to consider information that was before it pursuant to section 473DB of the Migration Act to the effect that it is difficult to understand in part the ground - because it failed to consider a submission made on behalf of the applicant and country information that was included in that submission. That is the first part of ground 1, and the second part of ground 1 is an allegation that the Authority failed to consider a birth certificate of the applicant’s son to ascertain his correct date of birth. And as will be seen in a moment, it was alleged that that had a significant effect on the Authority’s adverse credibility finding against the applicant.

6. In relation to the first part of ground 1, that is, the alleged failure to consider country information, it is necessary to briefly address how the Authority approached the applicant’s claims.  It relied on country information from the Department of Foreign Affairs and Trade, DFAT, to the general effect that the current situation in Sri Lanka was that Tamils who are not suspected of LTTE links either individually or to have family links are not at real chance of serious harm in Sri Lanka.

7. The Authority found, accepting the country information from DFAT, that there had been significant improvements in the human rights situation in Sri Lanka since the end of the war in 2009.  It concluded on the basis of inconsistencies in the applicant’s account and a lack of credibility in relation to particular aspects of his claims that he was not a person who had individual or family links to the LTTE nor was he suspected of such links by the Sri Lankan authorities.

8. The Authority relied on the DFAT country information, as I have mentioned.  The applicant said that the Authority ought to have considered other country information that was, impliedly at least, inconsistent and relevant. The country information that is said to have been inconsistent and relevant is set out generally at pages 239 to 247 of the court book.  That information, I will not detail all of it, but in summary, includes information from such organisations as the UNHCR and the US State Department, in other words, credible sources of country information along with Amnesty International, also a credible source of country information.

9. I asked counsel for the applicant, given that the particulars of the country information are not set out in the submission and there is quite general reference to the country information, how the country information referred to in the applicant’s submission was relevant to his case and his situation.  

10. In my view, counsel was not able to point to information of particular relevance. I will provide two examples. Paragraph 8.1 of the submission at court book 245, referring to the Amnesty International report of 2014 - 2015, notes that Tamils suspected of links to the Liberation Tigers of Tamil Eelam continued to be arrested and detained under the Prevention of Terrorism Act instead of ordinary criminal law and so on.  Similarly, at 9.2, on court book page 246, there is reference to a US State Department country report for 2014 on Sri Lanka which notes that in that year there were attacks on and harassment of civil society activists, journalists and persons viewed as sympathizers of the LTTE by individuals tied to the government and also other human rights abuses.

11. This information, in my view, tends to suggest that the information was relevant to persons in a different situation to the applicant, assuming he were to return to Sri Lanka.  At paragraph 61 of its reasons, the Authority says this:

    Based on current information contained in the review material, it is evident the categories of persons at real risk were those who have had a significant role in post-conflict Tamil separatism, journalists or human rights activists who criticised the government human rights record and those who names appear on the stop watch list at the airport.  I do not accept the applicant fits any of these profiles.

12. I am not satisfied that (a) the material the applicant refers to in his submission was ignored and (b) even if it was ignored, I am not satisfied that that material, from what I can judge of it, is relevant to the applicant’s situation.  The applicant relied on the Minister for Immigration and Border Protection v MZYTS (2013) FCAFC 114 where the Full Court suggests that when a tribunal prefers some country information over other country information an evaluative process should be displayed.

13. In my view, that is a different case. In MZYTS, the country information that was overlooked was country information about Zimbabwe. The country information was about the risks to supporters and/or members of an opposition political party in Zimbabwe.  The Full Court found that an evaluation of that material was “key to assessing the claims of the applicant in that case.”

    In this case, I am not satisfied that the material is directly relevant to the applicant because he is not, according to the Authority’s conclusions, in the category of person who is described in that material according to its description in paragraph 61.  I am satisfied that there is no jurisdictional error displayed on that in relation to the first part of ground 1.

14. The second part of ground 1 relates to the applicant’s son’s birth certificate.  The applicant made applications for protections visas in 2013 and 2015 as I have noted.  In both cases, he provided information in support of those applications where he gave his son’s time of birth as May 2006.  In a later document which was apparently a translation of a birth certificate from Sri Lanka - a translation apparently made in Sri Lanka, though that is not clear, of a Sri Lankan birth certificate, a different birthdate was given, that is, in May 2007.  That was of significance because one of the factors that the Authority considered in concluding that the applicant had provided an inconsistent narrative over time related to an episode where the applicant said that he had gone to a region in northern Sri Lanka, Vanni, and shortly after he arrived there with his wife access out of that region was cut off, because a road, the A9, was closed in August 2006.  The applicant, according to the Authority, claimed that his son was born in that region, in Vanni.  The Authority concluded that that claim was inconsistent because the applicant’s son, according to the material relied on or referred to by the Authority, was born in May 2006.  Therefore, his son was not born, the Authority concluded, in the Vanni region after the road was cut off in August 2006.  The Authority considered that to be an inconsistency.

15. What is, in fact, the correct date of the applicant’s son’s birth is unknown. I am content to assume that it was 2007 for present purposes.  I might add that an examination of the applicant’s assertion that his son was born in May 2007 in Vanni, a region which counsel for the applicant told me is in the Northern Province of Sri Lanka, raises some further problems of consistency which, of course, I do not propose to attempt to resolve.  However, the information provided in the birth certificate from 2007, or at least the translation of the birth certificate, gives the applicant’s son’s birth in a town, apparently, according to counsel for the applicant, in Northern Province.  That is consistent with the assertion that the son was born in Vanni. However, an examination of the statements provided by the applicant in 2013 and 2015 both say the applicant’s son was born in Trincomalee, in Eastern Province, another part of Sri Lanka all together.

16. As I say, that is an inconsistency that I cannot resolve and nor is it my task to resolve that, but I point out that that is a further inconsistency that arises by looking at the material about the applicant’s son’s birth. 

17. The Authority, while it did take into account that matter as an inconsistency, also pointed to other quite separate examples of inconsistency in the applicant’s narrative.  It says that the applicant gave inconsistent statements in his various written applications about when he was in Vanni, from in one case March 2007 to March 2008 to 2006 to August 2008.  It pointed out that in his protection visa interview he said he was in Vanni from 1990 to 2009 and then moved to Trincomalee after the war, that is after 2009, and then married.  However, there appeared to be a statement that he married in 2006 in Trincomalee before the war ended. 

18. At another time, he apparently said that he went to Vanni to visit his grandmother and aunties after he became married and then his wife gave birth to the child while they were in Vanni. The Authority pointed out that that was inconsistent with another statement he made that he went there because his grandmother was seriously ill.  The Authority pointed out that the applicant’s narrative about staying in Vanni and working was also inconsistent and that in his 2013 statement he claimed he worked in Vavuniya, which is a town elsewhere in the north, and returned to Vanni to visit his wife monthly as he did not want to lose his job.  In a 2015 statement he said that was incorrect.  Rather, he stayed in Vanni and did gardening for his grandmother because he could not obtain a pass from the LTTE to leave the area until March 2008.  There are other inconsistencies pointed out.

19. The applicant at no time pointed out to the Authority that the information that he had given in the earlier statements about his son’s birth, that is, in the 2013 and 2015 statements where the son was said to have been born in May 2006, was an error.  It appears clear enough that the Authority has overlooked the inconsistency between the information about birthdates given by the applicant and has without being aware of the inconsistency has accepted the 2006 date as uncontested, as it were. 

20. I am not satisfied that the error, if indeed it was an error, was a critical error or was an error of such gravity so as to constitute jurisdictional error.  By using the word “gravity”, I am referring to the High Court decision in Hossain v Minister for Immigration and Border Protection [2018] HCA 34, where the plurality of the Court pointed out that jurisdictional error consists of a failure to follow or apply a statutory precondition for the exercise of jurisdiction, along with an assessment of the gravity of the error. I am not satisfied in this case that this error has made any real difference to the Authority’s assessment of the consistency of the applicant’s narrative. I am not satisfied that it has effectively deprived the applicant of the possibility or the chance of a favourable outcome in front of the Authority. I am not satisfied that aspect of ground 1 constitutes jurisdictional error.

21. In relation to ground 2, the allegation is that the Authority ought to have invited the applicant to clarify the inconsistencies between the written statement in support of the applicant’s 2013 protection visa claim and the 2015 protection visa claim which was also accompanied by a written statement. 

22. The applicant relied on the decision of Barker J in DFW16 v The Minister for Immigration and Border Protection [2018] FCA 746 where his Honour held that the Authority’s reliance on inconsistent claims, that is, inconsistent claims between a 2013 statement also made in support of an invalid application, as in this case, and a statement made in 2015, where the delegate had not referred to any inconsistencies between those statements and in circumstances where the applicant was entitled to assume that his invalid application was to be ignored, constituted jurisdictional error. More specifically, it was held that in the circumstances it was unreasonable for the Authority not to exercise its power under section 473DC (3), to seek new information from the applicant addressing the inconsistencies.

23. In my view, DFW16 must be distinguished from the case at hand.  In the present case, it is true that the delegate did not refer to any inconsistencies between, as it happens, a written statement made in support of an invalid application in 2013 and a further written statement made in 2015.  However, in this case the applicant, in his written submission to the Authority, drew attention to the inconsistencies between his 2013 statement and 2015 statement and sought to explain those inconsistencies. 

24. It is quite different to the situation in DFW16 where the court held that the applicant in that case was entitled to assume that the 2013 written statement would be ignored.  Here, the applicant drew attention to it,  anticipating that there would be a difficulty raised by reason of the inconsistencies between the two statements, and attempted to address the inconsistencies between the statements.  In my view, there is no unfairness to the applicant, in those circumstances, in the Authority relying on the 2013 statement. Indeed, in those circumstances, it was not unreasonable for the Authority not to exercise its power under section 473DC(3) to seek new information from the applicant to address the inconsistencies.  That ground is not made out.

25. Ground 3 was a ground added to the amended application by consent today. The ground alleges that the Authority misapplied sections 473DB and 473DD of the Act. The argument, as far as I could understand it, was the Authority erroneously refused to accept new information provided by the applicant. The new information is set out in the Authority’s reasons. I will summarise the nature of that information. It was a claim by the applicant that his father was involved in the LTTE; a claim that the applicant’s father’s brother was a member of the LTTE or a high-ranking functionary in the LTTE; third was a claim that the applicant himself had worked for or with an LTTE intelligence officer in Trincomalee and surrounding regions; and, finally, that there had been a successful extortion against the applicant’s wife, as it understood it, while the applicant was in Australia, and that it was to be inferred that the extortion was carried out by government agents.

26. The applicant says that the authority failed to apply the correct test under section 473DD in determining whether (a) it was satisfied there are exceptional circumstances to justify the consideration of the new material and that it conflated the test in subsections 473DD(a) and (b); and, thirdly, that it failed to consider whether this information was credible personal information. It was also alleged in (f) the Authority erred by finding that the new information was previously known because it would have been known to the applicant when the Authority ought to have considered whether or not the new information was previously known to the first respondent or to his delegate.

27. In relation to that last point, (f) it was effectively conceded by the Minister if that had occurred, it would constitute error but the Minister said, and this is a submission I accept, that the Authority in fact did not address the question of whether the new information was previously known to the applicant, to the Minister or otherwise.  It decided that it should not receive the new information on other grounds. 

28. The applicant also referred to the decision of White J in BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958, where his Honour found that where the Authority had considered the criteria in (b)(ii) and (b)(iii) were decisive as to the question of whether or not there are exceptional circumstances in (a), that was an error.

29. It is necessary, having regard to that, to look at how the Authority approached the question of new information.  It dealt with the issue in some detail at paragraphs 10 through to 19.  I note that paragraph 16 is blank but 10 to 19 is the numbering.  The general approach of the Authority was to look at the nature of the information. That is, information that was quite personal, about the applicant and his family, and it concluded that the information could have been raised before then.  It rejected the applicant’s explanation about why that information was not provided at an earlier point and pointed to the various opportunities and encouragements that the applicant had received to provide detailed information in support of his claims over the period that this claims had been made, a period of some years.

30. It was not satisfied that the information could not have been provided to the Minister before the Minister’s decision or the delegate’s decision. Secondly, in addressing (b)(ii), it considered that the information was not credible for the reasons that I have described, essentially very major claims made very late in the process, with an inadequate explanation. As counsel for the Minister said, really, the Authority was saying that this information so lacked credibility that it did not reach the necessary standard of veracity to be considered under section 473DD.

1. It is true that the Authority did not give any separate reasons for why it was not satisfied that there were exceptional circumstances to justify the reception of the information but given the nature of the information, that is, information that was personal to the applicant, was central, crucial information, and the lack of any adequate explanation for not raising it before, it is not surprising that the question of the reliability or veracity and the explanation for not raising that important information, if it was true, at an earlier point was the focus of the Authority’s inquiry. 

2. Nevertheless, the Authority went on to say at paragraph 18, “I have considered the applicant’s circumstances.”  A reference to what particular circumstances is not set out, but I think it is probably a reference to the applicant’s circumstances generally and his explanations.  The Authority said it does not accept that there are any exceptional circumstances. So in a formal sense, at least, it has distinguished between the considerations in 473DD(a) and (b), even though, as I say, the main focus of the inquiry was on 473DD(b).  I am not satisfied that there is evidence that the Authority has done what BVZ16 said was impermissible, that is, treating the factors in 473DD(b) as decisive on the question of (a).  I am not satisfied, for that reason, that there is any error demonstrated in the Authority’s approach. 

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 6 February 2019