FEDERAL COURT OF AUSTRALIA

AKC17 v Minister for Immigration and Border Protection [2018] FCA 255

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the transcript)

ALLSOP CJ:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia dismissing an application for judicial review of the decision of the Immigration Assessment Authority in relation to the rejection of a Safe-Haven Enterprise Class XE visa. The history of the argument is tolerably confined in a way that I will identify in a moment. The history of the appellant is described fully and adequately in the reasons of the delegate and the Authority. The primary judge dealt with the history of the appellant in short form. No complaint is made about that.

2    The delegate accepted that the appellant was a Sri Lankan of Tamil ethnicity. The delegate also accepted that:

…the applicant was targeted in 1999 by the Sri Lankan Army (SLA) and was detained for three days because of being imputed as an LTTE supporter. I accept that the applicant's mother bribed the authorities for his release.

3    However, the delegate did not accept that:

…the applicant was wanted by the authorities to the extent that they wanted to arrest him. He was able to repeatedly travel in and out of Sri Lanka from 2000 — 2012. I do not consider it credible that the authorities would question the applicant, let him go, and keep looking for him and allow him to travel in and out of the country.

4    There was also placed before the delegate the question of the appellant’s divorce and the acrimony and hostility from his ex-wife’s family members. The delegate’s reasoning and conclusion on this issue was as follows:

The applicant stated that when he returned from India in 2009, he decided to divorce his wife and it took him eight months to get his divorce finalised through the Batticaloa district court. He stated that he was unable to leave the country until his divorce was finalised. He stated he travelled to Qatar in September 2010 as soon as his divorce was complete. The applicant submitted a document in Tamil language that he claimed was his divorce papers from the court. The applicant stated that his ex-wife's family worked in police and the army and during the time he was waiting for his divorce to be finalised, his wife's family intimidated him to not divorce his wife.

The applicant was referred to his claim that he resided in Batticaloa for eight months after returning from India in 2009 and again for another six months when he returned from Qatar in 2012. It was put to him that it appeared that nothing happened to him and was not targeted by his wife's family. The applicant stated that during those months he remained in hiding and his wife family were unable to find him. I do not consider it credible that if the wife's family members worked in the police and army they were unable to locate the applicant.

It was put to the applicant that during the Entry Interview on 17 October 2012, when he was asked about his marital status, he stated that he was still married and provided his wife's details. Further, when he was asked if he was separated or divorced his answer was 'no'. The applicant stated he took the question as if he was asked whether he was previously married and he provided his ex-wife's details. It was put to him that he was specifically asked if he was 'separated or divorced' and his response was 'no'. The applicant stated he said he was not divorced because he did not have any evidence to prove he was divorced.

I have major credibility concerns about this inconsistency. I have listened to the Entry Interview recording' and it is evident from the interview that when the applicant was asked 'are you separated or divorced', his response was 'no, no..'. I note that the applicant was commented about his command of English which has led me to conclude that he did not have difficulty understanding the question and his answer was spontaneous. Further I also note that the applicant has not made any mention if he had experienced any problem from his wife's family during that interview.

I have taken a negative inference from the applicant's inconsistent statements about his marital status. Considering my overall credibility concerns about his claims I am not prepared to extend the applicant benefit of the doubt and I do not accept that the applicant was divorced from his wife in 2010. I have not given weight to the purported divorce papers that supporting his claim that he divorced his wife in 2010.

Considering that I have not accepted the applicant was divorced I do not accept that his wife's family are after him and they wanted to kill him because of his divorce.

5    The reference to the Authority was pursuant to Part 7AA of the Migration Act 1958 (Cth).

6    Prior to consideration of the matter by the reviewing Authority, the legal representative of the appellant provided to the Authority further submissions and documentation. Those submissions dealt with the position of Tamils from Sri Lanka, from the east in particular, and requested that the Authority consider the appellant’s claim for complementary protection pursuant to s 36(2)(aa) of the Act. The submission continued as follows:

[7] … As defined in s 36(2A), “significant harm” includes “degrading treatment or punishment” which in turn, includes acts that cause, and are intended to cause, “extreme humiliation which is unreasonable”. He contends that the [Immigrants and Emigrants Act] causes, and was intended to cause, extreme and unreasonable humiliation in making it an offence punishable by imprisonment of 1-5 years and a fine to depart Sri Lanka otherwise than from an approved port of departure and/or without valid documents.

He arrived in Australia by boat. He will be questioned at the airport while checks are undertaken. The Authorities at the airport will notify his return to his home area, his previous arrest and detention on suspected LTTE involvements, he was divorced from his wife, his wife’s family want to kill him and his escape will come to the attention of the authorities. He will be detained for additional questioning and he will be subject to harm due to these cumulative bases.

On [the appellant’s] arrival at the airport in Colombo, he would be questioned by the CID and he will be persecuted and prosecuted as well for his illegal departure as a Tamil male from the East with the suspected LTTE profile. There is information before the DIBP that there are potential risks of physical violence in prison. He would be treated differently than other Tamils generally.

He will have to suffer continually in detention until a relative and/or family bail him. In fact there is no one in Colombo to vouch for, and bail him.

I refer to the DFAT report attached and this submission which contains reliable country information on Sri Lanka which evinces that [the appellant] was in danger in the past or at the time of departure and still now.

Sri Lanka is a unified country since the cessation of the civil war in May 2009, and given that the agent of persecution is the Sri Lankan state on arrival as well, there is no prospect that he would be able to relocate in order to avoid the harm/the severe punishment he fears.

The DIBP has no considered at all the protection/especially complementary protection available to him in Australia.

It is humbly submitted that all his previous information and this information including the reliable country information on Sri Lanka and the evidence give credibility to his refugee claims and his ongoing fear or persecution is being well-founded subjectively and objectively by this independent country information.

It is respectfully submitted that a combination of these factors mainly including his previous detention, his wife family’s ongoing threat and his departure by boat will bring him to the adverse attention of the Sri Lankan security forces on arrival.

I trust that you will contact him if any concern arises before you make a decision on your IAA review.

I trust this review application will be accorded with natural justice.

Please provide us with an opportunity to provide any information you think relevant before you make a decision on your Review.

He is willing to attend the IAA hearing and I will represent him during the IAA hearing. He trusts that IAA will invite him to appear before the IAA to give further evidence and present his oral evidence if only any issue/issues arise, even after this submission, when the IAA review matter before it makes a decision.

Should you have any queries in respect of this review generally and/or in respect of this submission please do not hesitate to contact my client or me.

(emphasis and errors in original)

7    It is to be noted that in the extract above there was a request to provide the appellant with an opportunity to provide any further information that is thought to be relevant. This request also indicated a willingness by the appellant to attend a hearing.

8    Under s 473DD, the Authority is not to consider any new information unless it is satisfied that there are (inter alia) exceptional circumstances to justify considering the new information.

9    The information that was provided to the Authority included the judgment of the Batticaloa District Court, dated 23 November 2010, evidencing the divorce of the appellant and his spouse. It also included an extract from an information book of the Batticaloa Police Station of July 2010 showing a report by the appellant to the police of threats that he had received, and a letter from the Reverend Hendrick of September 2016. There was no suggestion that these were fabricated documents. The District Court judgment reveals the divorce. The extract from the police information book includes the following extract, describing what the appellant said to the police:

I am living at the above address with my parents. I got married to [ex-wife] and we have been blessed with a daughter. My wife is from [address]. She is the daughter of Tamil and Sinhalese parents. I have been receiving threats from unidentifiable persons from the time I got married to her. I don’t have faith in my wife. I do feel that she has been having relationship with other men while I am not at home. Problems arose between us when I questioned her about this matter. Currently I am receiving death threats from unidentifiable persons. Because of these threats I have left my wife and living separately in order to ensure my safety. Since unidentifiable persons have been coming to my house, I have left my house and living in the houses of my relatives. I have filed a case in order to leave her completely. I am making this complaint for self protection because I have no protection for my life. I have got only the above to state.

10    The letter from Reverend Hendrick was to the following effect:

This is to state that [appellant’s mother], [appellant] and his brother … are well known to me. They were living in [address]. But due to some unavoidable circumstances and threat to their lives speciall [sic] to [appellant] by some unknown persons, at present they have been living with me for more than one year in the above mentioned address. I personally believe that it is not advisable to [appellant] to come to his Motherland, His life in danger too. I reemphasise that their lives in danger. So please be kind enough to understand their present situation and get an asylum to their son.

11    The Authority, first of all, considered whether it should look at this information, and considered that it was satisfied that there were exceptional circumstances to justify considering the new information. The Authority then, at [7] of its reasons, dealt with the question of a possible fresh hearing. It stated the following:

The representative has contended in the submission that a hearing (interview) may be required. I am satisfied that his submissions engage with any concerns the applicant may have with regard to the delegate's decision and findings, and I have considered the further submissions provided in support of the applicant's claims. Considering all the circumstances, I am not satisfied that an interview is necessary or required.

12    As will be seen in a moment, the Authority took some time later in its reasons in dealing with the information that had been provided, to which I have made reference. One matter which is raised at this point is that it is said that [7] displays a failure to address s 473DC(3)(a). The paragraph certainly deals with s 473DC(3)(b). It was submitted that the Authority has failed to respond to the request of the solicitor to “provide us with an opportunity to provide any information you think relevant before you make a decision on your review”. With respect, I do not think that there is any particular failure of the Authority to address anything. The appellant, through his legal representatives, provided further information, which was then considered in the context of s 473DD. Since the Authority was, as I will make clear in a moment, coming to decide the matter on a basis different to the delegate, the most relevant consideration was whether there should be a further interview.

13    I interpolate at this point that one must approach the legitimacy of the conduct of the review with a careful understanding of the terms of Part 7AA, and in particular the statutory preference, or presumption, if I may use that expression, for a review of the delegate’s decision without further hearing unless legal reasonableness informed by procedural fairness, amongst other things, demands it as a matter of law. An understanding of [7] is assisted by a consideration of how the new documents were dealt with. I should say at this point that in [10] and following, up to [34], the Authority dealt without present complaint with the position of the appellant as a Tamil from a former LTTE controlled combat area in the east of Sri Lanka. The particular complaint on appeal was that the primary judge failed to recognise the overall legal unreasonableness in the Authority not asking for further information in writing and not having a further interview, particularly in the context of how it dealt with the new information that had been provided.

14    The three documents to which reference has been made were dealt with in [35] through [44] of the Authority’s reasons:

[35] The applicant raised for the first time at the visa interview a claim that he feared harm from his ex-wife's family in connection with their divorce, which had been acrimonious. He feared his wife's brother in particular who was a member of the Sri Lankan police. At the interview, he stated that her family threatened him not to go through with the divorce on a number of occasions, however he had never been harmed directly. He stated this was because he was living in hiding with a local priest.

[36] The applicant has provided the IAA with a translation of a judgment, dated 23 November 2010, which indicates that the applicant and his ex-wife had been quarrelling and she had been harassing him. It indicates that "he could not tolerate the nagging of the defendant and he left on 15 January 2010". On the basis of that detail, I accept that the relationship had broken down and was acrimonious. However, I note the judgment makes no reference to violence or threats, other than harassment and nagging.

[37] There is also a translation of a complaint made to the Batticaloa Police Station dated 23 July 2010. It states he has been receiving threats from 'unidentifiable persons' since he married his wife. It refers to his concerns that his wife is having an affair, and that he left his home due to threats from these unidentified persons, who had been coming to his house, and that he has been living in the houses of his relatives.

[38] The complaint is self-reported and no evidence has been provided of any investigation by the police, if any. I note the report contradicts his evidence at the interview that he was threatened by his ex-wife's family due to the divorce proceedings, whereas the police report states he has been receiving threats since the inception of his. I also note that the applicant made no reference to concerns about his wife's fidelity in his interview with the delegate, nor did he claim that persons went to his home and threatened him. The report also contradicts his oral evidence that he was hiding in the residence of a local priest. The report instead states he has been living in the houses of his relatives.

[39] A letter from this priest, states that he has known the applicant, his younger brother and mother for some time. He states that they have been living in the church for the past year as they fear harm from unknown persons, and that the applicant should not return home. It provides no detail or clarity about the current threat faced by his family, or any past threats to the applicant. It also makes no reference to the applicant previously living with the priest.

[40] The delegate did not accept the applicant was divorced due to the late raising of his claim. I note the written visa application does in fact indicate that he is divorced. I have also had regard to the translation of the judgment of his divorce which has been provided to the IAA, and I accept he is divorced from his wife.

[41] While I accept he is divorced, and that the divorce may have been acrimonious with tension or some enmity between the families, I do not accept the applicant or his family are at threat from his ex-wife's family or unidentified persons. The applicant made no reference to these claims in his written visa application. He also made no reference to fearing harm from his wife's family at the arrival interview. At that interview, I note he was asked whether anything happened to him other than the 1999 incident. He made no reference to his wife, his divorce or any threats from her family or other persons.

[42] I have weighed the supporting evidence, however beyond the demise of their marriage it provides little consistent corroboration of his evidence given during the interview. It does not support his claim that he went into hiding and lived with the priest. Neither the police report, the letter, nor the judgment, specifically refer to threats from his ex-wife's family. The timing of the threats also sits at odds with the applicant's claims that his ex-wife's family targetted him because of his intention to divorce her.

[43] Lastly, I agree with the delegate's assessment that if members of his ex-wife's family were in fact a part of the Sri Lankan police with the reach and capacity to harm him and his family, it would seem highly unlikely that he would be able to reside in Batticaloa for two periods of several months, including returning from Qatar, without being identified or found.

[44] When considered together, these concerns lead me to find that these claims are not genuine. I accept their marriage was acrimonious, but I am satisfied there is no real chance of the applicant or his family being harmed by his ex-wife, her family or any other unknown persons, in connection with the demise of their marriage or otherwise.

15    The Authority accepted (in contradistinction to the delegate) that the appellant had been divorced from his ex-wife. Thus there was an acceptance of the Batticaloa District Court judgment. A particular complaint is made, however, about how the authority dealt with the police report and the letter from the priest. The first particular complaint is that at [41], the Authority said that the appellant had made no reference to the claim that he or his family were at risk or threat from his ex-wife’s family or unidentified persons in his written visa application, when it was submitted that this was not correct. At page 75 of the Appeal Book, one finds the statutory declaration of the appellant made with the aid of a solicitor in March 2016.

16    Under the heading “What I think will happen if I am forced to return to Sri Lanka”, the appellant swore to the following in [21]-[22]:

[21] If I am forced to return to Sri Lanka I fear that I will be subjected to harm including violence being inflicted on me by the police and military.

[22] My ex-wife’s brother is a police officer. If I return to Sri Lanka I am certain he would locate me and I would be assaulted and detained.

17    It was submitted that [22] picked up the now quite detailed material concerning the threats alleged from the family of his ex-wife. I am not persuaded that that is necessarily the correct way to read the statutory declaration. The paragraph appears adjacent to the more general claim of potential violence to be inflicted by police and the military, and I would understand that to be related to the matters of the kind considered by the Authority from [10] to [30].

18    It was also stated at [41] of the Authority’s reasons that the appellant made no reference to these claims at the initial interview. That is accepted as correct. However, the initial interview was one in which he was asked to explain why he left Sri Lanka very briefly, in two sentences. The answer was that he was scared to live there, that his house was surrounded by a military camp, that near his house three men had joined the Tamil Tigers, and “[t]hey are always suspicious of us, the military.”

19    The interview then went on to deal with his circumstances and his treatment by the military in 1999. In [38], the Authority noted the self-reporting of the matters in the police report and that the police report stated that he had been receiving threats since the inception of his marriage. There was also an inconsistency between what the report stated and his evidence that he had been hiding in the residence of a local priest. The reality is, however, that there was a weighing process of the supporting evidence and the Authority considered that there was little consistent corroboration of the appellant’s evidence.

20    In stating that there was little consistent corroboration of the appellant’s evidence given during the interview and that the material does not support his claim that he went into hiding and lived with the priest, the matter that concerns me is the terms of the letter from Reverend Hendrick, which does corroborate his evidence that he went into hiding and lived with the priest. However, it is correct that the police report is, to some degree, inconsistent and the judgment of the Batticaloa District Court does not help. It is also the case that, as [42] of the Authority’s reasons says, Reverend Hendrick’s letter does not specifically refer to threats from the ex-wife’s family. Nor does the police report specifically inculpate members of his ex-wife’s family. Reference is made to unidentifiable persons – presumably, unidentified persons. An inference can arise from the police report that he was referring to his wife’s family, but that is far from clear.

21    I would agree, as far as it goes, with one of the submissions helpfully put by Mr Zipser: that it would have been preferable for the Authority to discuss its concerns with the appellant. Nevertheless, the question is not so much what would have been preferable but whether it was legally unreasonable not to do so. Whilst the matter has troubled me somewhat, ultimately I do not consider that the conclusions from [35] and following lack intelligible reasoning and justification. There was some degree of corroboration, but the conclusion of a lack of consistent corroboration of the persons who were making the threats and the consistency of the police report and Reverend Hendrick’s letter do not persuade me that the Authority, acting reasonably, could not have come to the views it did.

22    Going back to [7] of the Authority’s reasons, in circumstances where the Authority has come to the view that it would receive the further information, I do not think that it was called upon to consider any more than whether it should have a further interview. For these reasons, I would not conclude that the decision of the Authority was legally unreasonable. This was the conclusion of the learned primary judge. At [37] and [38], the primary judge’s reasoning appears. It is substantially conclusory, but given that I am not persuaded that the matters raised by Mr Zipser, in his helpful submissions, lead to the conclusion of legal unreasonableness, I need not say any more about the brevity of the reasons.

23    For those reasons, I would dismiss the appeal.

Associate:

Dated:    8 March 2018