FUY17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 777
•26 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FUY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 777
File number(s): SYG 4065 of 2017 Judgment of: JUDGE CAMERON Date of judgment: 26 August 2024 Catchwords: MIGRATION – Protection Visa – Refusal – Review of Immigration Assessment Authority’s (“IAA”) decision.
ADMINISTRATIVE LAW – Allegation that the IAA’s decision affected by jurisdictional error – No matter of principle.
Legislation: Migration Act 1958 (Cth), s 36, 474 Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Division: General Number of paragraphs: 23 Date of hearing: 5 August 2024 Place: Sydney Counsel for the Applicants: Mr G. Foster Solicitor for the Applicants: Sentil Solicitor Solicitor for the First Respondent: Mr L. Dennis, Mills Oakley Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
SYG 4065 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FUY17
First Applicant
FVB17
Second Applicant
FVC17 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
26 AUGUST 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
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
JUDGE CAMERON
INTRODUCTION
The applicants are citizens of Sri Lanka. Three of the applicants arrived in Australia on 15 February 2013 and the fourth was born in Australia on 20 April 2013. The first applicant (Applicant) and the second applicant are married and the third and fourth applicants are their children. On 22 December 2016, the Applicant lodged an application for a protection visa with what is now the Department of Home Affairs (Department), alleging that he feared persecution in Sri Lanka because of his presumed connections with the Liberation Tigers of Tamil Eelam (LTTE), because he is a Tamil and because he would return to Sri Lanka as a failed asylum seeker.
The second, third and fourth applicants were included in the visa application as members of the Applicant’s family and made no protections claims of their own.
On 3 May 2017, the applicants’ application was refused by a delegate (Delegate) of the first respondent (Minister) and that decision was then referred to the Independent Assessment Authority (IAA) for review. The applicants were unsuccessful before the IAA and have applied to this Court for judicial review of the IAA’s decision.
In this judicial review proceeding the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act 1958 (Cth)(Act); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA
Since 18 April 2015, the Act has prescribed the conditions for the grant of a protection visa relevantly in the following terms:
36 Protection visas—criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or …
(2A) A non-citizen will suffer significant harm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
...
BACKGROUND FACTS
The Applicant’s claims for protection were made in his visa application, in a statutory declaration dated 25 January 2017, in an interview with the Delegate conducted on 19 April 2017, in submissions that were undated but were attached to an email from the Applicant’s solicitor dated 28 May 2017 and in correspondence sent to the IAA by the Applicant’s solicitor dated 24 June 2017 which attached further submissions. As summarised by the IAA, the Applicant relevantly made the following claims:
•He is afraid to go back to Sri Lanka because of the fear the Criminal Investigation Department (CID) and other government authorities will kill him for the problems he had;
•He was detained twice by the authorities because of suspected Liberation Tigers of Tamil Eelam (LTTE) connections because of his brother-in-laws and because he donated money to charities;
•He was extorted by the CID on the second occasion he was detained, only paid half the amount they asked for and the balance remains unpaid;
•His wife’s family are from the eastern part of Sri Lankan and her maiden name is [well-known for its connections with] the LTTE;
•Tamils are still treated badly in Sri Lanka; and
•He would be a failed asylum seeker.
The IAA’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the IAA was not satisfied that the Applicant is a person to whom Australia has protections obligations under s.36(2) of the Act. On 4 December 2017, the IAA affirmed the decision of the Delegate not to grant the applicants protection visas. The IAA’s findings and reasons were summarised by the Minister in his written submissions. Relevantly, they were:
15.The IAA accepted the majority of the applicant’s claims that: the applicant’s brothers-in-law were arrested and in 2009 the applicant paid money to get SK (one of his brothers-in-law) released; his brothers-in-law left Sri Lanka and have since obtained refugee status in Australia; the applicant was detained by the police “sometime in 2010” for about two days on suspicion that he was providing funding to the LTTE because of charitable donations he made; during the detention he was questioned, beaten and tortured; he was released after his wife attended the police station with his identity documents and pleaded for his release; he was made to sign an unread document and was told he had to report when required; the CID came to his shop in Colombo in September 2012 and abducted him for about a day; while held he was questioned about his brothers-in-law’s whereabouts, beaten and tortured; the CID demanded 40 lakhs to release him; he paid 20 lakhs and was released; and that a few days later the CID demanded the remaining 20 lakhs.
16.However, the IAA identified a number of discrepancies in the applicant’s evidence. Notably, the IAA rejected the applicant’s claim (raised for the first time at the SHEV interview) that he went into hiding in Kandy after his release in 2010, and returned to Colombo where he hid at a friend’s place. The IAA found he had failed to mention a “significant claim” in his written statement and his claim of hiding during the day was inconsistent with his written statement that the CID came into the shop in Colombo and “took him” in September 2012.
17.Given the “lack of detail”, the IAA was not satisfied the applicant and his family experienced ongoing discrimination and harassment while in Sri Lanka, but was prepared to accept that he and his family were “sometimes” monitored in Colombo. Further, the IAA did not accept that the authorities would wait “more than four years” after the applicant had left Sri Lanka to “suddenly” in January 2017, ask as to the applicant’s whereabouts. The IAA rejected this claim…
(references omitted)
I adopt that summary.
THE PROCEEDING IN THIS COURT
In their amended application the applicants alleged:
Ground 1.
The IAA erred when it failed to consider a claim by the Applicant 1 and thereby constructively failed to exercise its jurisdiction.
Particulars
i.Applicant 1 stated “people are being arrested on return to Sri Lanka. Recently a Singhalese priest told a village headman that they will kill all the Tamils or send them to India.” [20];
ii.The IAA mentioned this claim at [38]: “Applicant 1 also said at the SHEV interview that recently a Singhalese priest made threats to kill, or move to India, all the Tamils in a village. He did not provide any more detail and the delegate could not locate any country information to support the claim”;
iii. The IAA did not make any further reference to this claim;
iv.The IAA did not make a determination as to this claim which was material, and so failed to constructively exercise its jurisdiction, thereby committing jurisdictional error.
Ground 2
The IAA erred when it found the Applicant 1's claim he was hiding during the day is inconsistent with his written statement that the CID came into the shop in Colombo and took him in September 2012, thereby making an unreasonable, illogical and irrational finding.
Particulars
i. [24];
ii. Applicant 1 had stated during the SHEV interview:
a.“[The Police] knew I have a shop. Knew in the sense they don't know much."
b."Q Did the Police know about your shop? A Yeah for some extent. I think someone might have told about I having a shop. Q If they wanted to find you they could have find you. A Yes they will find in some way." (Page 32)
iii.Accordingly, the claim he was hiding in the shop did not prevent his position being known to the police, nor was it inconsistent with him being arrested there.
Ground 3.
The IAA erred when it did not consider it credible that during the SHEV interview he changed his evidence about hiding in Colombo from working at his shop during the day and hiding at night to hiring managers to run the shop and hiding in the day as well.
Particulars
i. [24][CB262];
ii.The Applicant referred to his activities in the Colombo shop after returning from Kandy during the SHEV interview at [T30-32]
iii.The evidence given by the agent does not disclose the Applicant hired managers but that 'he was telling the LTTE actually organising some Manager to look after the business. He was actually hiding there. Nobody can spot him. And he also return him with the help of his friend by Motorbike' [T50];
iv.Accordingly, the IAA misunderstood the evidence and came to an unreasonable finding, thereby committing jurisdictional error.
CONSIDERATION
Ground 1
In the first ground of the application the applicants alleged that the IAA had failed to “make a determination” on the Applicant’s assertion that a Sinhalese priest had told a village headman that “they” would “kill all the Tamils or send them to India”. It was submitted that the Applicant’s assertion concerning what the priest was supposed to have said amounted to a separate claim to fear harm for being Tamil, but was one which the IAA had failed to consider, albeit it had noted it.
The present allegation mischaracterises what the IAA did. It relevantly said:
… Applicant 1 also said at the SHEV interview that recently a Sinhalese priest made threats to kill, or move to India, all the Tamils in a village. He did not provide any more detail and the delegate could not locate any country information to support that claim…
Even though the Delegate made enquiries, the assertion concerning the priest was unsupported by other evidence. Absent such particular evidentiary support it was not unreasonable of the IAA to test the assertion by reference to other information that it did have, which I infer is what it was doing when it proceeded in subsequent sentences to consider discriminatory and harassing behaviour of certain Sinhalese Sri Lankans toward the applicants. Having done so, it noted that the applicants had not been harmed and concluded that such discrimination and harassment as they may have suffered at the hands of Sinhalese Sri Lankans did not support a well-founded fear of persecution in Sri Lanka.
I conclude that the IAA did have regard to the assertion concerning the Sinhalese priest allegation and addressed it in the manner I have described.
Ground 2
The second ground of the application arises out of para.24 of the IAA’s decision where, relevantly, it was said:
Applicant 1 claimed for the first time at the SHEV interview that after the police released him from his detention in 2010 he went into hiding for three months in Kandy and then returned to Colombo and hid at a friend’s place. He initially said that he worked during the day in his shop and stayed at his friend’s place at night. Later during the SHEV interview, Applicant 1 said through his representative that he actually hired managers to run the business and he was hiding. I do not consider it credible that … during the SHEV interview he changed his evidence about hiding in Colombo from working at his shop during the day and hiding at night to hiring managers to run the shop and hiding in the day as well. Additionally, his claim of hiding during the day is inconsistent with his written statement that the CID came into the shop in Colombo and took him in September 2012 …
(emphasis added)
The allegation is that it had been illogical of the IAA to find that that Applicant’s claim to have hidden during the day was inconsistent with his written statement that the CID came into his shop in Colombo and arrested him in September 2012.
That allegation is misconceived. What the IAA noted was its understanding that the last version of the Applicant’s account of hiding in Colombo was that he had hidden at his friend’s house not only at nighttime but also during the day while the business was being run by managers. On that basis, the allegations that the Applicant had been hiding at his friend’s house yet also arrested at his shop was indeed inconsistent.
Ground 3
The third ground of the application also relied on para.24 of the IAA’s decision. It alleged that the IAA had misunderstood the Applicant’s evidence to the Delegate concerning whether he had been hiding at his business or at his friend’s home while in Colombo. The applicants submitted that that misunderstanding led to the IAA’s finding that the Applicant had given inconsistent evidence with the result that had been unreasonable, irrational and illogical of it to have found that he had fabricated evidence about being in hiding.
At his interview with the Delegate, the Applicant said that while in Colombo he had worked at his shop during the day and had hidden, with his wife, at his friend’s house at night. Later in the transcript of that interview the following is recorded:
Migration Agent: Also, that they stayed away from the house for the time till they arrive here. Because of the fear that they could not return to their home.
Interpreter: Until you come here you didn’t stayed in your house, you avoid staying your house because of the fear.
Migration Agent: When you asked the question, they would have known the businesses where he was businesing so, he was telling that he actually organising some Manager to look after the business. He was actually going in hiding there. Nobody can really spot him. And he also returned home, with the help of his friend by Motorbike.
Interpreter: When the question ‘who managed the shop’ was asked you told the shop was managed by a Manager and you were in hiding and you came home in the friend’s Motorbike.
It is to be noted that the Applicant did not participate in those statements which were spoken by his migration agent and the interpreter. Presumably the agent was speaking in English to the Delegate and the interpreter was translating those statements to the Applicant. The Applicant did not challenge any of his agent’s statements. What the agent said was:
(a)the applicants could not return home;
(b)“they” would have known where he conducted business;
(c)he organised managers to run his business;
(d)the Applicant was “going in hiding there”;
(e)nobody could spot him; and
(f)the Applicant returned “home” with the help of his friend by motorbike.
That passage is not clear and, because of that, one available interpretation of it is the one the IAA recorded in its reasons, quoted earlier. That being so, even if that was not the interpretation that others might have given that passage, it was not illogical of the IAA to have found that the Applicant’s evidence, as it understood it, was inconsistent with the Applicant’s allegation of having been arrested.
However, the more important point is that the IAA rejected the Applicant’s allegation about hiding in Colombo because he changed the details of the allegation during the course of his interview with the Delegate, not because of its inconsistency with his allegation of arrest. The latter issue was mentioned by way of emphasis to that more important point. It was not itself a determinative issue.
CONCLUSION
Jurisdictional error on the part of the IAA has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 26 August 2024
SCHEDULE OF PARTIES
SYG 4065 of 2017 Applicants
Fourth Applicant:
FVD17
0
1
1