EVF17 v Minister for Immigration & Anor [2018] FCCA 2277 (13 August 2018)

Last Updated: 24 October 2018

FEDERAL CIRCUIT COURT OF AUSTRALIA

EVF17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2277

Catchwords: MIGRATION – Protection Visa – whether Immigration Assessment Authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment Authority’s decision – application dismissed.

Legislation: Migration Act 1958 (Cth)

Applicant:

EVF17

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

BRG 1067 of 2017

Judgment of:

Judge Vasta

Hearing date:

13 August 2018

Date of Last Submission:

13 August 2018

Delivered at:

Brisbane

Delivered on:

13 August 2018

REPRESENTATION

The Applicant appearing on his own behalf

Counsel for the Respondent:

Ms Forder

Solicitors for the Respondent:

Minter Ellison

ORDERS

(1) The application filed on 2 November 2017 be dismissed.
(2) The Applicant pay the First Respondent’s costs of and incidental to the application fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE

BRG 1067 of 2017

EVF17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 12 July 2013, Mr EVF17 left Papua New Guinea by canoe. He was apprehended by Australian authorities in the Torres Strait on 9 August 2013.
2. In 2015, he lodged an application for a Safe Haven Enterprise Visa (“SHEV”), but withdrew that application in April 2016. On 22 April 2016, he lodged a new application for a SHEV.
3. A delegate of the Minister refused to grant that visa on 7 July 2017. Because that decision was a fast track decision, the decision was automatically sent to the Immigration Assessment Authority (“the IAA”) for review.
4. On 25 September 2017, the IAA affirmed the decision not to grant EVF17 a Protection Visa. Having given that decision on 25 September 2017, EVF17 had 35 days in which to lodge any application for judicial review to this Court. He lodged the application on 2 November 2017 which is some three days out of time.
5. Accordingly, this is an application for extension of time, however given that it is three days out of time, the merits of the application will be really the determining factor in whether I grant the leave or not.
6. In his application before the Delegate and then before the IAA, he made the following claims:
   1. That he was born in West Papua, but he didn’t have any records or know his birth date, but he thinks he may have been born around 1981, and he spoke a tribal dialect called Kuman. He said that his birth place was a small camp or village near Tanah Merah in the Wamena district in West Papua.
   2. That his father was a member of the Korowai tribe and they lived in the bush as subsistence farmers. In about 1997, his father, mother and two elder brothers were murdered by the Indonesian Army because the family was farming near the Kabuna village and the Indonesians wanted the land. The Applicant said that he was not with his family at the time, but he found the bodies after the shooting. He went back to Tanah Merah to live with his uncle.
   100. He married a girl named Lizzie in Tanah Merah. Lizzie’s mother was from PNG, and Lizzie had stayed with an uncle in PNG to attend school. When she was about 17, she was brought back to Tanah Merah and married the Applicant because he was a good hunter who could get plenty of meat. They now have four children.
   4. Lizzie had studied English and taught the Applicant some English. In early 2013, her family asked him to go to Kiunga in Papua New Guinea to buy bullets for them. They told the Applicant about a lady from Tanah Merah who now lives in Kiunga and explained how to find her house. They gave him money and gold nuggets, and he walked to Kiunga.
   5. The Applicant bought some bullets and was at the lady’s house when the PNG police came. The police took the bullets and the remaining gold and money, and told the Applicant to go back to his village. He said that he returned to his village, and his wife’s family gave him more money and gold and asked him to go back to Kiunga.
   6. That at the initial interview that he had when he was first brought to the detention centres, he claimed that the man who had bullets in Kiunga had gone to Port Moresby. Because of that, he paid for a ticket and flew to Port Moresby, but the police were waiting for him and arrested him because he didn’t have a passport.
   7. At the interview with the Delegate, he claimed that he bought more bullets in Kiunga, but the police came and arrested him again. The police took the bullets and the money and told him to go home, but he said he wouldn’t do so. The police put him on an aeroplane and sent him to Port Moresby, where more police were waiting for him at the airport.
   8. He was taken to Bamama Prison. At the initial interview, he claimed he was held there for three weeks, but in his application he said it was for three months. He said that while he was detained because of possession of bullets and not having a passport, he met a person known as A. That person in prison suggested that the two of them come to Australia.
   9. After they were released from prison, the Applicant and the person A stole a canoe and made their way across Torres Strait. The canoe was not very seaworthy and they often had to stop on islands to repair it.
   10. The person A told the Applicant that he should claim to have been involved in separatism and to have killed Indonesians. The Applicant made these claims in his initial interview, but withdrew them when he made his Safe Haven Enterprise Visa application.
   11. Since he has been in Australia, his wife has divorced him and married another man. His wife’s family have taken his children.
   50. At one point he claimed that his son had been killed by the Indonesian forces, but he has now found out that his son is alive and unharmed.
7. He claims that if he is sent back, that his wife’s family will do him harm because they will believe that he has misappropriated the gold and the money.
8. The IAA went through the claims very thoroughly. It was a credit to the thoroughness of the IAA that whilst the Delegate had rejected that the Applicant had been born in Tanah Merah in West Papua, the IAA went through a number of maps and actually found a place called Tanah Merah that did fit the description that the Applicant had given, and so thus accepted that he was a person who had been born in West Papua.
9. At paragraph 31, the IAA said:
   • ...However, although I have accepted his claim as to origin, I have also found that he has not been honest and forthcoming about his personal history between his birth and departure from PNG and I have serious doubts as to his general credibility.
10. The IAA then went through those matters and came to the view that it did not accept him as a witness of truth. In doing so, it also looked at other country information that talked about the payback and compensation system which would have been an issue if the story about having taken money from his wife’s family to go and buy bullets had been accepted.
11. The IAA also looked at whether the Applicant would be imputed with an adverse political separatist anti-government or other profile, and was not satisfied that he faced a real chance of serious harm for that reason. The IAA accepted that he, being a West Papuan male, he was likely to face societal discrimination and other difficulties, but such was not at a level that would amount to serious harm.
12. The IAA also considered the information of a data breach that had occurred in 2014, but found that there was no reason that that would in any way suggest that the Applicant would be subject to serious harm.
13. At paragraph 65, the IAA said:
    • 65. Having regard to all of the evidence and information before me, I am satisfied the applicant does not face a real chance of serious harm: at the hands of his wife’s family or for being a West Papuan male. I am also satisfied that he does not face a real chance of harm on the basis of: any real or imputed political profile; for being a Christian, or a returned asylum seeker, for having left West Papua; or from arising from the data breach.
14. The IAA found that he did not meet the requirements of the definition of “refugee”. The IAA also looked at the complementary protection criterion, and concluded that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to a receiving country, that there was a real risk that the Applicant would suffer significant harm.
15. In the application before this Court, there was one ground and one ground only. That was that the IAA and the Delegate of the Minister for Immigration and Border Protection erred in law in making his decision. Of course, I cannot look at what has happened, or what the Delegate had done. I can only look at whether the IAA erred in law in making the decision.
16. This matter as a first court date was heard by Registrar Lynch on 4 December 2017. Registrar Lynch ordered that the Applicant file and serve any amended application by 5 March 2018, and that 28 days before the hearing, that the Applicant file and serve written submissions, and that the matter be heard today, 13 August 2018. The Applicant did not file any amended application, nor did he file written submissions, and the matter was left as it was when he filed the material.
17. However, there had been a request made to my Chambers on 27 July 2018 by the Applicant, asking to bring a friend with him for the hearing, because there were no Kuman interpreters available, and that the friend would be able to interpret for him. When I got into Court today, I raised this with the Applicant, and he said that there was no one coming with him. However, I found that his English was of a very good standard, and whilst he would struggle with some concepts in the English language, generally he understood what the hearing was about and what he had to do.
18. That was something that the Delegate had found when the Delegate interviewed the Applicant as well, and it was something that the IAA remarked upon. I did not feel that there was any problem or any injustice in proceeding with the matter.
19. Given that the ground was so general, I asked the Applicant what it was that he wanted this Court to do today. He replied that he did not want me to send him back to Papua New Guinea. He then told me in a very lucid way that the IAA decision was correct, but he must now tell the truth. He told me that he is a citizen of Papua New Guinea, and he was born on 1 January 1981.
20. He said that he was forced to leave his village in 2007. That was because he and his mother had been living in a village with a chief who had some 14 children through two wives. For some reason, in the village there had been a very strong suspicion that the Applicant and his mother were sorcerers. Even though that was the thought around the village, nothing had ever come of it. This was until the chief died in quite sudden circumstances.
21. The children of the chief thought that the Applicant and his mother were responsible for the death of the chief, and they had done so through sorcerous means. They sought to capture both the Applicant’s mother and the Applicant. The mother was captured, and she was burnt alive for her sorcery. The Applicant was able to escape. Through quite incredible means, he was able to live within the jungle for the next four months, making good his escape from the village and from the torture and death that awaited him back at the village.
22. When he finished his four-month trek, he was able to steal a boat, and that boat had an outboard motor. He simply navigated the islands and found an island where he decided to settle. On this island, he married one of the persons who had lived on the island, and they had four children. He said he was very happy for over five years. That was until 2013.
23. What occurred was that one of the daughters of the chief from his village ended up being married to a man who lived on the island. When the daughter of the chief arrived on the island, she discovered that the Applicant was there. The Applicant felt that he had no choice but to escape.
24. He left the island by canoe. He did end up escaping with someone else who had assisted him. That person did tell him that the best way for him to not be sent back to Papua New Guinea was to claim that he was from West Papua and that he was a political refugee.
25. He has apologised to this Court for misleading the authorities for the last five years, but because of the dire situation he says that he now finds himself in, he has to tell the truth. He said that he is still extremely scared that if sent back to Papua New Guinea, he will be killed.
26. Of course, if he had not told me this, he was not going to be sent back to Papua New Guinea, he would have been sent back to West Papua because he had been identified by the IAA as being an Indonesian citizen.
27. Whilst the story that the Applicant has told is very heartrending, and one obviously feels extremely sympathetic to the Applicant, that sympathy can have no part in my decision-making. The responsibility that I have in this Court is to examine the decision of the IAA and to decide whether that decision has been affected because the IAA descended into jurisdictional error.
28. The truth of the matter is, as the Applicant quite forthrightly claimed at the beginning of his submissions, there is no error in the decision of the IAA. The IAA decision is correct. So notwithstanding what it is that I may feel about the tale that the Applicant has now given to this Court, my duty, according to law, is clear.
29. I find that there is actually no jurisdictional error, and therefore I can only dismiss the application.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 23 October 2018