DZB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 442 (10 March 2021)

Last Updated: 10 March 2021

FEDERAL CIRCUIT COURT OF AUSTRALIA

DZB19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 442

File number(s):	SYG 2638 of 2019
Judgment of:	JUDGE HUMPHREYS
Date of judgment:	10 March 2021
Catchwords:	MIGRATION – Immigration Assessment Authority – whether the Authority made jurisdictional error by failing to consider witness protection issues – whether the Authority made jurisdictional error by misapplying the complimentary protection obligation – whether the Authority did not take into consideration a relevant issue – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed.
Legislation:	Migration Act 1958 (Cth), ss 473, 36
Cases cited:	AUS 17 v Minister for Immigration and Border Protection [2020] HCA 37 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 Applicant WAEE v Minister for Immigration and Multicultural Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Number of paragraphs:	54
Date of last submission/s:	2 March 2021
Date of hearing:	2 March 2021
Place:	Parramatta
Solicitor for the Applicant:	The Applicant appeared in person.
Counsel for the Respondents:	Mr Riley of Counsel.

ORDERS

		SYG 2638 of 2019
BETWEEN:	DZB19 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	10 MARCH 2021

THE COURT ORDERS THAT:

1. The application is dismissed.
2. The applicant is to pay the first respondent’s costs, fixed in the amount of $7,000.00.

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. The applicant is a Tamil Catholic male from the Northern Province in Sri Lanka. The applicant arrived in Australia by boat, as an authorised maritime arrival, in October 2012. On 17 March 2017, the applicant applied for a temporary protection visa.
2. On 14 August 2019, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant his protection visa. The delegate was not satisfied that the applicant met the refugee criteria, or that he faced a real risk of significant harm upon return to Sri Lanka.
3. The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 17 September 2019, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
4. The applicant now seeks judicial review of the Authority’s decision

THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION

5. At paragraph 2 of its decision, the Authority notes that the applicant’s claims revolved around his own and his family’s Liberation Tigers of Tamil Eelam (“LTTE”) connections and fear of harm on the basis of his ethnicity, imputed political opinion, his affiliation with an LTTE supporter, including his ongoing political opinion in support of Tamil rights and the LTTE, and attendance at LTTE events and Facebook posts. The applicant further fears harm, as a failed asylum seeker who departed Sri Lanka illegally.
6. Paragraphs 4 to 25 of the Authority’s decision, deal with the consideration of new information provided to the Authority after the delegate’s decision. At paragraph 7 of its decision, the Authority notes that the applicant claimed that he was afraid to disclose his LTTE connections at the entry interview because he feared that Sri Lankan authorities and paramilitary groups would find out. Many asylum seekers had told the applicant not to disclose LTTE links. The Authority notes however, that the applicant had provided information about the LTTE in his 2017 statements, and as a result, did not accept that this explains why he had not disclosed the new information.
7. The first set of new information considered by the Authority relates to a copy of the tenth anniversary commemoration of the applicant’s wife’s cousin, Jatcha. The applicant claims that he did not provide the documents earlier, because he could not obtain them. The applicant only obtained the documents from a friend after he got a negative decision from the delegate. The Authority also considered a copy of a document from the local council elections in 2018 which is for “AAMM” who is Jatcha’s mother. AAMM is now serving as a member of the local council under the Tamil National Alliance (“TNA”). The applicant believes AAMM is likely to side with the government and her refusal to assist him in advancing his claims, indicates that she may be against LTTE supporters and may report him to authorities.
8. There are also photographs of Jatcha taken from a friends Facebook account which relate to ‘J’s’ death. There are four letters of support written in August and September 2019 by an Attorney, a Justice of the Peace, a Parish Priest and a Member of Parliament. The applicant claims that he had great difficulty in obtaining these documents previously, and that they are credible personal information which could have affected the decision.
9. There are photos of the applicant’s younger brother ‘J’ who departed for France in August 2017. The applicant claimed the photos were evidence of scarring and that his brother was tortured. This was not mentioned previously. The brother has been recognised in France as a refugee. The applicant was unable to provide this document previously, as it had only been issued a few dear days ago and is personal credible information.
10. In terms of consideration under s 473DD of the Migration Act 1958 (Cth) (“the Act”), the Authority found it difficult to accept that if Jatcha had been killed in 2008, and that his mother ran for election in 2008, that this would not have been previously mentioned, including at the protection interview.
11. If the applicant was a friend of Jatcha, the Authority found it difficult to accept that his mother would not have provided information to the applicant as to what happened to her son. The Authority did not accept that the applicant could not obtain the documents earlier, given that Jatcha was the applicant’s wife’s cousin. The Authority was not satisfied that the information and documents were credible, and was not satisfied that there are exceptional circumstances to consider them.
12. At paragraph 13-15 of its decision, the Authority deals with the applicant’s brother’s torture and the photographs supplied. The Authority does not consider the applicant’s explanation that his family did not tell him what happened to his brother at the hands of the Criminal Investigation Department (“CID”), as credible. It was not credible that the applicant would know that his brother left for France but did not know what happened to his brother and the claimed CID questioning or visits. The late provision of the information and the lack of credible explanation as to why it was not provided earlier, led the Authority to doubt that the information was genuine. The photos show a scar on the man’s ankle, however, it is not evident that the photograph is of the applicant’s brother or that the scar is a result of a CID assault upon him. The Authority concluded there were not exceptional circumstances to consider the information.
13. The Authority considered that the applicant’s brothers refugee status satisfied s 473DD(2)(i) of the Act, and were exceptional circumstances to consider that information.
14. At paragraphs 18 through to 25 of its decision, the Authority deals with four letters of support provided by the applicant. At paragraph 18 of its decision, the Authority notes that the applicant claimed that it was difficult to obtain these documents previously, but does not explain why that was the case, or why he was able to obtain them after the delegate’s decision, but not before.
15. The Authority notes that there are a number of problems with the documents, for example, the Attorney’s letter is poorly typed with misspellings. The letter from the Member of Parliament does not have an official email address just a Gmail address. The letter from the Priest, is also a general letter. The Authority considers that the letter lacks actual knowledge of events and as a general letter written without actual knowledge of the claimed events. At paragraph 24 of its decision, the Authority doubts the credibility of the documents, and does not accept the applicant’s explanation for the late provision. In the circumstances, the Authority was not satisfied that there were exceptional circumstances to consider the information.
16. At paragraph 26 of its decision the Authority sets out the applicant’s claims. Paragraphs 27 and 28 of the Authority’s decision, set out the relevant statutory tests, in order for the applicant to show that he is entitled to refugee protection.
17. At paragraph 29 of its decision, the Authority determines that the applicant’s claims changed throughout the application. At the end of the protection interview, the applicant said that he had memory issues and could only say what he remembers of the time. No evidence of any memory loss or other medical issues was provided.
18. Initially, according to the applicant’s entry interview, his reasons for leaving Sri Lanka were economic, saying that he wanted a better life for his sisters. The applicant had been required to sell his land and paid for the boat journey. The applicant stated that the Navy restricted how far out and how often he could go fishing. If they went out too far the Navy would bomb or shoot them. The applicant made no claims about being involved with the LTTE, or that his relatives were involved, or supported the LTTE, or any beatings, arrests or questioning. These claims came out later, in the applicant’s 2017 statements in a piecemeal way. The Authority did not consider that the applicant was so scared at of his entry interview, as to deny all LTTE links, or his arrest, bearing in mind that he could have mentioned harassment, questioning, being beaten and monitored. Further detailed information about the applicant’s LTTE connections and activities only came out later.
19. At paragraph 34 of its decision, the Authority considered that the applicant’s accounts of having relatives who were involved with the LTTE had changed over time and strengthened. There were significant discrepancies as to who Jatcha was. The applicant claimed to the Authority that Jatcha was his wife’s cousin but in 2017, stated that Jatcha was his wife’s brother. The Authority was not satisfied that there were translation errors to explain the difference between the two statements.
20. At paragraph 39 through to 67 of its decision, the Authority undertakes a detailed examination of the applicant’s claims as to LTTE involvement and the involvement of his relatives with the movement. The Authority notes that the applicant makes detailed claims about his involvement with the LTTE, yet at his arrival interview, he denied any political affiliation or training with any political groups and that he had not done any training or service with the LTTE.
21. At paragraph 54 of its decision, the Authority considers that the applicant had plenty of opportunity to explain his concerns about his LTTE connection and how this has affected him. The applicant’s claims were not elaborate and did not provide any meaningful detail. At paragraph 59 of its decision, the Authority accepts that the applicant may have been harassed and that there may have been fishing restrictions, but this was not uncommon during the conflict in the North. The Authority does not however accept that the applicant was suspected LTTE connections, questioned or beaten due to his relatives LTTE connections, or that he was harmed or beaten or questioned after the war or that he had LTTE relatives.
22. The Authority notes that the applicant has never claimed to have been sent to a rehabilitation centre or prosecuted after the war. This supports the view of the Authority that the applicant was not of interest to authorities or suspected of being an LTTE supporter or that he had LTTE connections.
23. At paragraph 65 of its decision, the Authority accepted that the applicant’s brother had made an application for refugee protection assessment in France. The Authority was not satisfied that the applicant’s brother been recognised by French authorities for refugee protection. The document produced, gave the applicant’s brother work rights for six months as a refugee, but did not confirm that the applicant’s brother had been accepted as a refugee and had been granted permanent or long-term residence in France.
24. Paragraphs 68 to 69 of the Authority’s decision deal with Facebook and Tamil activity attendances. The Authority noted that the Facebook account was not in the applicant’s name, or any name that might resemble his. Further, the post reviews and comments are innocuous. The Authority did not accept that the applicant had attended Memorial events, as he had not provided evidence beyond his assertion. The Authority did not accept that the applicant is a pro LTTE or pro Tamil rights or an activist and would be so upon return. The Authority did not accept that the applicant has been active in Australia or has any interest in such matters. The Authority concluded that the applicant added these claims at the end of the interview to enhance his protection visa claim.
25. Paragraphs 70 through to 77 of the Authority’s decision deal with claims of persecution, because the applicant is Catholic. The Authority does not accept that the applicant faces a real chance of being detained or questioned due to attacks on churches in the country, or that he is a Tamil activist, LTTE or other terrorist. While accepting that the applicant may have faced harassment, fishing restrictions and displacement in the past during the conflict, the Authority did not accept that the applicant faces a real chance of any harm in that regard, upon his return. The Authority noted this country information before it indicated that the security situation had improved since the end of conflict in 2009, in particular for the Tamil population. The Authority did not accept that the applicant would face a real chance of harm because of his Tamil ethnicity, religion, political opinion, membership of a particular social group, past harassment, fishing restrictions, internal displacement in Sri Lanka or connection to his family or his activities in Australia.
26. Paragraph 78 through to 93 of the Authority’s decision deal with issues of being a failed asylum seeker and having departed Sri Lanka illegally. The Authority noted that upon return, as an illegal departee the applicant would be detained and questioned. The applicant would most likely be placed before a Magistrate and charged with an illegal departee offense. Country information indicated that the guilty plea attracts an approximate AUD$25 fine. If the applicant pleaded not guilty, he would be released, pending his Court date. If the applicant arrived over the weekend, he may be briefly held in airport holding cell until he can appear before a Magistrate. The Authority was not satisfied that the applicant would face any real chance of torture, interrogation of mistreatment upon arrival during questioning or during detention prior to being placed before a Magistrate. The Authority concluded at paragraph 94 of its decision, that the applicant did not meet the requirements for refugee protection.
27. Paragraphs 95 through to 100 of the Authority’s decision, deal with an assessment under the complimentary protection requirements. The Authority was not satisfied that the applicant would suffer significant harm for any other reason set out in s 36(2A) of the Act, were he to be returned to Sri Lanka.

GROUNDS OF JUDICIAL REVIEW

28. The applicant’s grounds of judicial review are contained in the initiating application filed with the Court on 14 October 2019. They are as follows verbatim:

Ground One
IAA made jurisdictional error by failing to consider witness protection issues.
Particulars.
Applicant witnessed killing by the EPDP and fears that he will be targeted preventing him from giving evidence about the killing.
Ground Two
IAA made jurisdictional error by misapplying the complimentary protection obligation.
Particulars
Authority failed to consider any questioning or interrogation may be attendant with mistreatment.
Ground Three
Authority did not take into consideration a relevant issue.
Particulars.
Authority did not consider familial connections giving rise to imputed LTTE profile through Applicant’s brother.

THE APPLICANT’S SUBMISSIONS

29. The applicant appeared before the Court unrepresented. The applicant was assisted by an Interpreter in the Tamil language.
30. Prior to the commencement of the hearing, the Court ensured that the applicant was in possession of the relevant Court Books and that the first respondent’s written submissions, which he had been provided with, had been interpreted to him. The applicant was also provided with a pen and paper so that he could take notes during the Court hearing should he wish to.
31. At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review, and the difference between the two types of review. The Court also explained the process by which the Court hearing would be undertaken.
32. Despite Court orders, no written submissions were filed by the applicant in support of the grounds of judicial review outlined above.
33. The applicant told the Court that he did not understand why the Authority declined to accept the documents he sought to provide as new information. The applicant reiterated that while in immigration detention, he was advised by other detainees not to reveal any links to the LTTE and this is why he did not do so on his arrival interview. The applicant said that he was unaware of the refugee assessment process and matters that would be considered as part of the assessment process. The applicant had made mistakes in the manner in which he presented his information. The applicant reiterated that he was unable to obtain written documents till much later and did not know what was required.
34. At the conclusion of the first respondent’s oral submissions, the applicant was asked if he would like to say anything further, in reply. The applicant stated that he had nothing further to add.

THE FIRST RESPONDENT’S SUBMISSIONS

35. The first respondent’s submissions are relatively short. After setting out the history of the matter, the manner in which the Authority dealt with the new information and its assessment of the applicant’s claims, the first respondent notes that the first ground claims that the Authority failed to consider “witnesses protection issues”, noting the applicant claims to have witnessed a killing by the Eelam People’s Democratic Party (“EPDP”).
36. This claim was noted by the Authority at paragraphs 52 and 57 of its decision, albeit in the context of the Authority noting that the applicant made varying claims over time. The Authority did not make any specific finding about this incident, but found that the applicant was exaggerating and embellishing his experiences. The Authority accepted that the applicant had been harassed at paragraph 59 of its decision. However, the Authority found that the applicant was not of interest to Sri Lankan authorities at paragraph 66 of its decision. On a fair reading, the Authority was thereby implicitly rejecting the claim that the applicant faced harm because he witnessed a killing by the EPDP: (see Applicant WAEE v Minister for Immigration and Multicultural Affairs [2003] FCAFC 184; (2003) 236 FCR 593) at [47].
37. The second ground complains that the Authority misapplied the “complimentary protection obligation” by failing to consider questioning or interrogation “may be attendant with mistreatment”. The Authority accepted that the applicant may be questioned on his return at paragraphs 87 and 97 of its decision, but not mistreated: (see paragraphs 85 and 99 of the Authority’s decision).
38. The third ground claims that the Authority failed to consider familial connections, giving rise to an imputed LTTE profile through the applicant’s brother. However, the Authority rejected the applicant’s claim that his brother was questioned about him or assaulted at paragraph 63 of its decision and found that the brother’s French refugee claim did not assist the applicant’s: (see paragraph 65 of the Authority’s decision). There was no basis for the Authority to find that the applicant was imputed with an LTTE profile because of his brother, given these findings.

CONSIDERATION

39. It is well established that the Authority is not required to accept uncritically any and all claims made by the applicant: (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 at 451).
40. The Authority’s decision runs to some 21 pages and 101 paragraphs. It is a very detailed discussion of the applicant’s claims and a considered analysis of them and their credibility.
41. In relation to the first ground that the Authority did not consider ‘witness protection issues’ the Court notes that no particulars are provided to expand on what the Authority did not specifically take into account. The Court notes that the issue of the applicant being a witness to a man being shot by the EPDP is referred to at paragraphs 52 and 57 of the Authority’s decision. At paragraph 53 of its decision, the Authority noted that the applicant referred to other incidents as well, but not about fear of harm due to his connection with Jatcha or other LTTE relatives.
42. The Authority discussed the applicant’s various claims but at paragraph 59 of its decision, was not satisfied that the applicant was suspected of LTTE (involvement), or that he was questioned or beaten due to relatives LTTE involvement. At paragraph 66 of its decision, the Authority concludes that the applicant was not of interest to Sri Lankan authorities or that authorities visited or assaulted the applicant’s brother or sister or family. The first respondent contends that on a fair reading, the Authority implicitly rejected the claim that the applicant was at risk of harm due to witnessing a killing by the EDEP. The Court is satisfied that the claim was considered by the Authority, but rejected in findings of greater generality: (see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [91]). Ground one reveals no jurisdictional error.
43. Ground two contends that the Authority misapplied the complimentary protection obligation by failing to consider questioning or interrogation ‘may be attendant with mistreatment’. It is clear that the Authority went into some detail in considering at paragraph 78 through to 93 of its decision, the issue of the applicant returning to Sri Lanka as a failed asylum seeker and an illegal departee. The Authority specifically considered the question of whether or not the applicant faced a real chance of torture, arbitrary arrest, detention or any harm on return. At paragraph 82 of its decision, the Authority quoted credible country information indicating that there was no mistreatment upon arrival or questioning at the airport.
44. The Authority did however note that it was likely that the applicant may be arrested for leaving Sri Lanka illegally and put before a Magistrate but that he would be only subject of a fine. The Authority also specifically noted that the applicant may be held over a weekend, if he was unable to be placed before a Magistrate during a weekday, but it did not accept that the applicant faced a real chance of prolonged or indefinite detention, imprisonment or investigation upon return, as it did not accept that he had any profile or background of interest or concern to Sri Lankan authorities.
45. The Court is satisfied that the Authority specifically considered the risk of harm under the complimentary protection guidelines at paragraphs 96 to100 of its decision but, for the reasons it gave, found that there was no basis for it to give protection, as it was not satisfied there was a real risk of significant harm. Ground two reveals no jurisdictional error.
46. Ground three alleges that the Authority did not take into consideration a relevant issue, as it did not consider the applicant’s familial connections giving rise to an imputed LTTE profile through the applicant’s brother. This ground fails on a factual basis. The applicant’s claims in relation to his brother or other familial connections, were specifically considered and rejected. The Authority also found that the applicant would not be given an imputed LTTE profile because his brother had been given what appeared to be, a limited right of work and residence in France. The Authority rejected the vast majority the applicant’s claims and found that he was not of interest to Sri Lankan authorities for any reason, including familial connections. Ground three fails.
47. As a matter of fairness, given that the applicant is unrepresented, the Court has considered whether or not the manner in which the Authority dealt with the new information sought to be provided by the applicant, contains error as identified by the High Court in AUS 17 v Minister for Immigration and Border Protection [2020] HCA 37. This decision requires the Authority when considering new information pursuant to s 473DD of the Act to consider that information first by reference to the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) of the Act prior to considering whether not there are exceptional circumstances under s 473DD(a) of the Act.
48. The consideration need not be formulaic in the wording used in the decision, if the language used by the Authority is sufficiently clear to indicate it has adopted the relevant process. Further, if it is clear that the relevant information does not and cannot fit within the relevant criteria of either s 473DD(b)(i) or (ii) of the Act, it may not be necessary to specifically refer to the subsection.
49. The relevant consideration of the new material under s 473DD of the Act begins at paragraph 9 and extends through to paragraph 25 of the Authority’s decision. The first consideration relates to material relating to Jatcha’s memorial and his mother as a politician in 2018. At paragraph 10 of its decision, the Authority finds that the claim that the applicant could not obtain the documents earlier, lacks credibility. The Authority also found that the claim that the material could not have been provided earlier, lacked credibility. At paragraph 11 of its decision, the Authority concluded that there were not exceptional circumstances to consider this information. Although not spelt out specifically, the Court is satisfied that the Authority did deal with the issues under s 473DD(b)(i) and (ii) of the Act before turning its mind to whether not there are exceptional circumstances. No error arises.
50. Paragraph 13 of the Authority’s decision deals with the applicant’s brother’s torture and photos. The consideration starts off with the statement that the Authority does not consider that there are exceptional circumstances to consider the information or the photographs. The Authority does not accept the applicant’s explanation that his family did not tell him what happened to his brother at the hands of the CID. The Authority notes that the applicant claimed that his brother was initially assaulted two or three times, which is at odds with the explanation that his family did not tell him what happened to his brother. The late provision of the information and the lack of a credible explanation, led the Authority to doubt that the information was genuine. Whilst it is not entirely clear, the wording of paragraph 13 of the Authority’s decision in its totality, indicates that the Authority did consider whether or not the information could have been provided to the first respondent before he made his decision, but was of the view the explanation provided by the applicant was not credible. Secondly the Authority had clear doubts as to whether or not the material was credible personal information. At paragraph 14, of its decision, the Authority again repeated that there were not exceptional circumstances to consider the information.
51. The Court is satisfied that notwithstanding that the Authority initially stated there was no exceptional circumstances to warrant considering the information, the Authority then went through a process of considering impliedly the criteria under s 473DD(b)(i) and (ii) of the Act before making a final conclusion. No error arises. The Court has taken into account that the Authority’s reasons should not be read with too keen an eye for error
52. At paragraphs 18 to 24 of its decision, the Authority considered whether or not to admit letters of support. The Authority initially notes that the applicant claimed that it was difficult to obtain these documents previously, but does not explain why this was the case or why he was able to obtain them until after the delegate’s decision but not before. This clearly engages with
    s 473DD(b)(i) of the Act. The Authority then goes on to undertake a detailed examination of the material but has, for the reasons it gave, considerable concerns as to the credibility of the information. The Authority makes a specific finding of this at paragraph 24 of its decision, that the material lacks credibility. This clearly indicates an engagement with s 473DD(b)(ii) of the Act. It is only then, that the Authority states that it is not satisfied that there are exceptional circumstances to consider the information. No error arises.
53. In these circumstances, none of the grounds of the application has been made out. The Court considered whether not there is any unarticulated jurisdictional error in the decision, but for the reasons set out above, the Court is unable to find any jurisdictional error.

CONCLUSION

54. Accordingly, the application is dismissed.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated: 10 March 2021