GHX18 v Minister for Immigration

[2019] FCCA 2880

FEDERAL CIRCUIT COURT OF AUSTRALIA

GHX18 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2880

Catchwords:
MIGRATION – Application for Safe Haven Enterprise Visa – inconsistencies in applicant’s claims – adverse credibility findings – application for review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 5J, 36, 46A, 473CA, 473CB.

Cases cited:

SZRUI & Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80.
Minister for Immigration and Citizenship & SZIAI [2009] 259 ALR 429.
Minister for Immigration and Citizenship & SZMDS [2010] 240 CLR 611.
Minister for Immigration and Citizenship & Li [2013] 249 CLR 332.

Applicant: GHX18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 644 of 2018

Judgment of: Judge Egan

Hearing date: 7 October 2019

Date of Last Submission: 7 October 2019

Delivered at: Perth

Delivered on: 7 October 2019

REPRESENTATION

Applicant: In person

Solicitor for the First Respondent: Mr M. Sunits of AGS

ORDERS

1. The name of the First Respondent be changed to the ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

2. The application for review filed on 3 December 2018 be dismissed.

3. The Applicant pay the First Respondent’s costs of and incidental to the application, fixed in the amount of $4,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 644 of 2018

GHX18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 25 May 2013. 

2. Upon the lifting of the bar pursuant to the provisions of s.46A of the Migration Act 1958 (Cth) (the Act), the applicant applied for a Safe Haven Enterprise Visa on 29 September 2017.

3. On 14 June 2018, a delegate of the Minister refused to grant to the applicant the SHEV. The applicant was not found to be a person to whom Australia owed protection obligations. 

4. The delegate’s decision was referred to the Immigration Assessment Authority (the Authority) for review, pursuant to the provisions of s. 473CA of the Act.

5. On 8 November 2018, the Authority affirmed the delegate’s decision.  On 4 December 2018, the applicant applied to this court for judicial review of the decision of the Authority. 

6. At [3] of the reasons of the Authority, it was recorded that the Authority had had regard to the material provided to it by the secretary pursuant to the provisions of s. 473CB of the Act.

7. At [5] of its reasons, the Authority set out the applicant’s claims as follows:

   ·“He is a Tamil male of Hindu faith from Vavuniya in the Northern Province of Sri Lanka

   ·His father was forcibly recruited by the Liberation Tiger of Tamil Eelam and completed combat training in 2004. He provided shelter and transport for LTTE members.

   ·His father was arrested by the Criminal Investigations Division (CID), detained and released with reporting requirements.

   ·He was required to report to the CID when his father failed to comply with his reporting requirements.

   ·He was suspected of being associated to the LTTE and was detained at St Joseph’s camp and then released with reporting requirements.

   ·He departed Sri Lanka illegally by boat with the assistance of people smugglers.”

8. The grounds for review are set out on page 3 of the application for review as follows:

   “Grounds of application

   1. Jurisdictional Error

   2. Bias based on conscious or unconscious prejudice by ignoring relevant materials.

   3. Identifying a wrong issue on a wrong question”

9. At 6 – 25 inclusive of its reasons, the Authority set out in detail the particular claims made by the applicant in support of his application for the SHEV. In doing so, the Authority identified a number of inconsistencies in the versions of events as set out by the applicant. 

10. The Authority accepted that the applicant was a 28 year old Tamil male of Hindu faith, who came from the Northern Province of Sri Lanka. It also accepted that the applicant was a Sri Lankan national. 

11. At [7] of its reasons, the Authority accepted that the applicant had lived with his family in Sri Lanka, firstly in a place called Vavunikulam (said to be an area then controlled by the LTTE) and secondly in a place called Vavuniya (an area said to be controlled by the Sri Lankan Army).  

12. At [8] of its reasons, the Authority found that the evidence provided by the applicant in support of his claims of fearing harm should he be returned to Sri Lanka “have been overwhelmingly contradictory”. The Authority recorded that it had significant concerns regarding the credibility of those claims, and a general concern that the applicant was not a credible witness of truth. 

13. At [9] of its reasons, the Authority recorded that the applicant’s written evidence was that his father had been forcibly recruited by the LTTE in 2004, and that he had completed combat training. Such claim was consistent with information provided by the applicant at an arrival interview conducted in 2013 by the Department of Immigration. In the applicant’s SHEV application, he stated that from 2005 until 2009, his father had provided transport and shelter to LTTE members. At the SHEV interview, the delegate attempted on numerous occasions to clarify the details of the applicant’s father’s alleged LTTE recruitment, training and involvement. Of significance, when the delegate asked what duties his father had performed for the LTTE, it was recorded that the applicant responded by saying that his father was just a farmer. His later answers to questions put to him by the delegate were not consistent with the applicant’s earlier statement about the applicant’s father having allegedly been forcefully recruited by the LTTE. The applicant in his answer had said that his father had joined the LTTE without the family’s knowledge. 

14. At [12] of its reasons, the Authority recorded that the applicant’s SHEV application stated that after the war had ended, the applicant’s father had been targeted by the CID after they had discovered the father’s alleged association with the LTTE during the war. It was said that he had been arrested, interrogated and tortured by the CID for approximately seven days. The applicant asserted that his father was then given conditional release and instructed to report to the CID in Vavuniya once per month. It was noted by the Authority that the applicant’s written evidence was silent on the issue as to how the applicant’s father had come to the attention of the CID. It also noted that at interview, the applicant had provided three contradictory versions in that regard. 

15. At [13] – [15] of its reasons, the Authority closely dealt with the differing versions as provided by the applicant to questions in response to that issue. 

16. At [16] of its reasons, the Authority recorded that in a significant deviation from his written evidence that his father was held for seven days by the CID, the applicant had told the delegate at interview that his father had been arrested and imprisoned for four months. Such discrepancy was considered by the Authority to be substantial. The Authority, in that regard, had acknowledged that memory does suffer over time, but in the absence of any evidence as to the applicant having any health or memory problems, the Authority found that such discrepancy in evidence could not be attributed merely to the passage of time.

17. At [17] of its reasons, further inconsistencies were found by the Authority in relation to responses given by the applicant concerning the location of the office where the applicant’s father was allegedly required to attend for reporting after he had allegedly been released by the authorities.

18. At [18] of its reasons, the Authority noted that though the applicant’s father had allegedly failed to continue to report as was claimed was required of him by the authorities, the applicant had said that he had come to the adverse attention of the authorities. At [20] of its reasons, the Authority recorded that when asked whether the applicant’s father did not report to the CID because he was in hiding, the applicant responded that the reason his father had failed to respond to the CID was because he had gone to Jaffna to attend his uncle’s wedding. It was noted that such response was different to the applicant’s written statement, which claimed that his father had gone into hiding. There were clear inconsistencies in the accounts given by the applicant.

19. As to the applicant’s claims that he had been detained, interrogated and beaten by the authorities, in his written evidence, the applicant claimed that he had been held for five days at “Joseph Camp” but that he had been released on the sixth day, subsequently being required to report monthly. At [22] of its reasons, the Authority recorded that, at interview, the applicant told the delegate that he had been detained at Joseph Camp for one or two months which, of course, was a period significantly greater than the five days referred to by the applicant in his oral evidence.

20. At [23] of its reasons, the Authority referred to inconsistencies between the applicant’s story and details contained in an alleged letter from the Human Rights Commission of Sri Lanka dated 23 May 2012. Because of the inconsistencies between the contents of the said letter and the applicant’s evidence, the Authority gave no weight to such letter, as it was entitled to do. 

21. At [24] of its reasons, the Authority found that because of the substantial and numerous inconsistencies in the applicant’s various claims and evidence, it found that the applicant had manufactured his claims for the purpose of obtaining a protection visa. The Authority did not accept that the applicant had been suspected of having committed a criminal offence, or detained by reason of his ethnicity, age, origins, family links, or otherwise for any real or imputed LTTE links. It also found that the applicant had not been interrogated, beaten or subjected to any reporting requirements. 

22. At [25] of its reasons, the Authority accepted that the applicant had engaged the assistance of people smugglers and that he had departed Sri Lanka illegally by boat.

23. At [26] and [27] of its reasons, the Authority set out the relevant refugee assessment criteria pursuant to the provisions of s. 5H(1) and s. 5J of the Act.

24. At [28] of its reasons, the Authority found that the applicant was of no adverse interest to the authorities prior to his departing Sri Lanka, either on account of his ethnicity, his origins or on account of any real or imputed pro-LTTE or Tamil separatist opinion.

25. At [29]-[36] inclusive of its reasons, the Authority relevantly referred to and considered the contents of country information which it had reviewed for the purpose of assessing the likelihood of the applicant suffering harm should he be returned to Sri Lanka. In all respects, the Authority, after having considered the contents of relevant country information, including a DFAT country report dated 23 May 2018, found that none of the applicant’s claims constituted a basis for it being found that there was a reasonable likelihood of the applicant suffering harm should he be returned to Sri Lanka.

26. At [39] of its reasons, the Authority found that the applicant did not meet the requirements of the definition of refugee pursuant to the provisions of s. 5H(1) of the Act.

27. At [40] – [41] of its reasons, the Authority set out the relevant complementary protection criteria. 

28. For the reasons given by the Authority in relation to the applicant’s claims for protection, the Authority similarly rejected the applicant’s claim that he was owed complementary protection under the Act. 

29. At [43] of its reasons, the Authority accepted that the applicant had departed Sri Lanka illegally by boat and that, by doing so, it was likely he would be charged for committing an offence under Sri Lankan legislation. The Authority accepted that the applicant could be questioned, held in an airport holding cell for a short period, fined and that he may incur costs associated with the Court process upon his return to Sri Lanka. 

30. The Authority was not satisfied, however, that such treatment amounted to significant harm. It was also not satisfied that there was a real risk that the applicant would be arbitrarily deprived of his life, be subjected to the death penalty, or be subjected to torture. The Authority was not satisfied that any period of detention would amount to cruel or inhumane treatment or punishment, or degrading treatment or punishment. It, therefore, found that the applicant did not face a real risk of significant harm should he be returned to Sri Lanka.

31. At [44] of its reasons, the Authority found that, as a failed asylum seeker in Australia, the applicant may be monitored and otherwise suffer some social stigma from community members upon his return to Sri Lanka. The Authority, however, did not accept that there was a real risk of significant harm being suffered by the applicant on that basis. It further found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, that there was a real risk that the applicant would suffer significant harm. Specifically, the Authority found that the applicant did not meet the relevant section 36(2)(aa) criteria.

32. As to each of the grounds of review, none have been particularised so as to enable the Court to properly assess the basis on which those claims have been made. The applicant has not supplied any additional information as to what would constitute a basis for each of the claims.  However, the first respondent has not sought to have the claim dismissed on the basis of lack of particularity and, accordingly, the Court shall proceed on that basis.

33. As to Ground 1 of the application for review relating to jurisdictional error, no such error has been demonstrated by the applicant. The Authority closely considered all of the claims made by the applicant. It pointed to a substantial number of inconsistencies throughout its examination of the applicant’s claims. Those adverse findings gave rise to the finding that the applicant was not a witness of credit. The Authority was entitled to make such findings on the basis of the evidence before it. Such findings were open to it.  The Authority did not act unreasonably in making such findings. No breach of procedural fairness has been demonstrated on the part of the Authority. Such ground has not been made out.

34. As to ground 2 of the application for review relating to bias, there is no evidence that the Authority was in any way biased in its treatment of the applicant’s claims, or in the manner in which it conducted its review.  There is nothing in the way in which the Authority conducted its review, its process, or in its reasons for decision, which would lead a fair-minded lay person to reasonably apprehend that the Authority might not have brought an impartial mind to the matter when arriving at its decision.[1] Further, it has not been demonstrated that the high bar required to be met in respect of any bias allegation has been reached. Such ground of review is without merit.

    [1]        SZRUI & Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at

    [2].

35. As to ground 3 of the application for review relating to an alleged failure on the part of the Authority to conduct the inquiry properly by reference to the correct issues before it, again, the Authority has not been demonstrated to have acted improperly. Its assessment of the evidence was logical, considered and careful. It appropriately recognised each of the claims made by the applicant, but on a factual basis made adverse findings against the applicant which were entirely appropriate.

36. It cannot be said that the Authority, when analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship & SZIAI [2009] 259 ALR 429 at [25] – [27], where it was said:

    “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

    [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

    [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

37. Further, it cannot be said that no other rational or logical decision-maker could not have made the same decision as did the Authority.  As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship & SZMDS [2010] 240 CLR 611 at [130]:

    “130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person.  The same applies in the case of an opinion that a mandated state of satisfaction has not been reached.  Not every lapse in logic will give rise to jurisdictional error.  A court should be slow, although not unwilling, to interfere in an appropriate case.”

1. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship & Li [2013] 249 CLR 332 at [66] and [76], where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

2. The applicant has failed to demonstrate any jurisdictional error on the part of the Authority.

3. The application for review is, accordingly, dismissed.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 11 October 2019