AAX17 v Minister for Immigration - [2018] FCCA 985

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAX17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 985

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s fears found not to be well-founded – whether the Authority overlooked integers of the applicant’s claims or whether its decision was unreasonable or illogical considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 473CA

Cases cited:

Minister for Immigration v Li (2013) 249 CLR 332

Minister for Immigration v Ibrahim (2000) 204 CLR 1; [2000] HCA 55

Minister for Immigration v SZMDS (2010) 240 CLR 611

VN Railway Pty Ltd v Federal Commissioner of Taxation (2013) 211 FCR 188

SZOOR v Minister for Immigration (2012) 202 FCR 1

Applicant:

AAX17

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 19 of 2017

Judgment of:

Judge Driver

Hearing date:

20 April 2018

Delivered on:

15 May 2018

REPRESENTATION

Solicitors for the Applicant:

Mr S Tambimuttu of Hodges Legal

Counsel for the Respondents:

Mr B D Kaplan

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application as amended on 9 April 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 19 of 2017

AAX17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 9 December 2016. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The applicant is a male, born in a named town in Mannar district, Northern Province of Sri Lanka on 12 July 1985.[1]
[1] Court Book (CB) 70
The applicant arrived in Australia without a valid visa by boat on 8 September 2012[2] and applied for a Safe Haven Enterprise Visa (SHEV) on 2 December 2015.[3]
[2] CB 163
[3] CB 163
The Authority summarised the applicant’s claims for protection as follows:[4]
[4] CB 196-198
He claims that he comes from a wealthy family. His father owned five fishing boats and a fish warehouse; the business employed fifty people. The applicant worked in the family business after finishing school in 2004. Although the delegate stated in the Primary Decision Record that the applicant's family was still “conducting their business interests”, the applicant stated at the SHEV interview that while his father still owns five fishing boats, they are not being used; the warehouse has been seized by the navy and is not operating; and the applicant's remaining brother works as a fisherman with his own boat, selling his fish to someone else. His father is retired.
Two of the applicant's brothers live in Australia, while three brothers and a sister are refugees in France. He claims that the brother in Sri Lanka was recruited into the LTTE between 1991-1995, but has not mentioned any ongoing problems either for that brother or other members of the family because of this. He also claimed that his father was required to pay tax to the LTTE when they controlled the area where the business is located. This claim is consistent with country information and was accepted by the delegate.
The applicant claims that in 2008 the family was displaced from their usual place of residence and moved to an army controlled area thirty kilometres away. His parents, brother and sister remain there. In 2010, when the war was over, the applicant returned to their original village to resume the business.
The applicant stated that during the 2010 parliamentary elections he campaigned for the local TNA candidate, a distant relative. He went door to door, encouraging people to vote for the TNA; he paid for and distributed electoral material with his own money; he also got some of his workers to campaign for the TNA. He said that because the family was wealthy and well known in the area a lot of people listened to him. Country information discussed with the applicant at the SHEV interview indicates that his candidate was elected to parliament in the elections held in 2004, 2010 and 2015.
During the election campaign the army warned the applicant not to work for the TNA but said he should support the Muslim candidate, who supported the government.[5]The applicant said that after the election army personnel came to him and said that even though the TNA had won many seats, the army still held the power. Over the next months the army regularly demanded money and fish from the applicant.
[5] The delegate discussed information from Wikipedia with the applicant at the SHEV interview, but did not reference this in the Primary Decision Record. This information indicates that the Muslim candidate won most votes in the district in the 2010 elections and was also elected to parliament.
Seven or eight months later it was announced that the navy was going to administer that area. A naval camp was subsequently built close to the warehouse.
On several occasions in February 2011 some naval officers came and looked over the warehouse. On 20 April 2011 navy personnel from another base far away came to the warehouse at 5am. The applicant was handcuffed and taken outside. Soon after, 5 or 6 officers arrived from the local navy camp. They went into the warehouse and emerged about an hour later with a plastic bag which they said contained weapons. They questioned the applicant about how the weapons came to be in his warehouse, who did he have contact with etc. They put him in a truck and took him to Mulangavil army camp about fifteen kilometres away.
At the camp the applicant was threatened with a gun and asked further questions about why he had the weapons and where they had come from. At about midday his mother arrived at the camp with two "elderly people"; at the SHEV interview he said that they were his father's sisters, in his statutory declaration he described them as neighbours. About two hours later the applicant was released. He was told to stay away from the warehouse as the navy would be conducting an investigation there. He was told that he would be required to report on demand to either the Mulangavil camp, or another camp in Mannar district. He was required to report about ten times over the next three months. Each time he had to wait for two or three hours and would then be threatened and questioned about the weapons for about half an hour.
Meanwhile people from the village told the applicant and his family that the navy had taken over the warehouse. The applicant asked his parish priest to speak to the navy but the priest was told not to get involved, as weapons had been found inside the warehouse. The applicant submitted a letter from the priest with his application.
In July or August 2011 the applicant went to stay at the house of a friend in a Muslim area …. He did nothing but stay inside and watch television because he was afraid that if the locals saw a stranger there they would tell the authorities. Twice his friend told him about boats leaving for Australia; the first time he declined, hoping that the situation would calm down, but the second time he accepted because he said he could no longer live like that.
During the time he was [in] hiding … inquiries were made by navy personnel at his home, and again after he came to Australia. His father said that he did not know where the applicant was and they pushed him and said "You don't know? We know he is in Australia". The applicant's father then had to be hospitalised for three days.
The applicant believes that the navy planted the weapons in the warehouse. He suggests that they did this either to make him stop his support for the TNA, or in order to seize the warehouse. He was asked by the delegate why he would not have been charged in relation to the weapons, and he said that the navy was acting illegally and the matter was not referred to the police. There were no charges and there is no arrest warrant. The navy knew that there was no basis for the allegation.
The applicant said that he is afraid that he will be harmed by the navy if he returns. They might be afraid that the applicant will take steps to get the warehouse back. His family have reported the matter to the government officer but nothing has been done. The navy recently announced at a public meeting attended by the applicant's father, as well as the governor and members of parliament, that they are keeping that land. He also might face problems from the local Muslim politician because of his support for the TNA.
The applicant said that he cannot relocate to another area to avoid harm in his home village because new residents have to register with the police.
The applicant said that he also fears harm as a young Tamil boy; the week before some weapons had been found in the Vanni. In relation to religious discrimination, he said that he was bullied by Muslims in his village when he attended church: they would quote the bible to him.
The delegate considered an implied claim that the applicant would face harm on return to Sri Lanka as a person who left illegally.
The delegate refused to grant the visa on 31 August 2016.[6]
[6] CB 160
The delegate’s decision was referred to the Authority pursuant to s.473CA of the Migration Act 1958 (Cth) (Migration Act) on 7 September 2016.[7]
[7] CB 181

The decision of the Authority

The Authority considered the applicant’s claims and made findings which included the following:[8]
a)the Authority accepted that the applicant worked for the local TNA[9] candidate in the 2010 parliamentary elections and that the applicant was considered influential in the local area. However, given the country information about the current political position of the TNA, the Authority was not satisfied that there is a real chance that the applicant would face serious harm from the SLA[10] or supporters or rival political parties if he were not to return to his village;[11]
b)the Authority accepted the Navy[12] set up a base in late 2010 or early 2011. It accepted the Navy falsely accused the applicant of storing weapons, that he was required to report to two naval bases, that he was detained and threatened, that the Navy’s actions were illegal and that they knew the weapons did not belong to the applicant;[13]
c)the Authority did not accept the applicant’s claims about the motives for the Navy’s actions. It did not accept that the Navy may have wanted to stop him from supporting the TNA. It also did not accept the Navy took action again him in order to seize his warehouse;[14]
d)the Authority accepted that while the applicant was in hiding the Navy went to his family’s home looking for him and did so once more after he left Sri Lanka but did not consider this indicated a significant level of ongoing interest in the applicant;[15]
e)the Authority noted the motivation for the harassment is not clear, which makes it difficult to assess the risk of future similar harm;[16]
f)the Authority was not satisfied that the loss of livelihood or economic hardship is such to threaten his capacity to subsist, or comprises any other form of serious harm;[17] nd
g)the Authority accepted that the applicant’s brother was recruited into the LTTE[18] but noted the absence of any evidence to suggest that his brother’s involvement with the LTTE was known to, or if it was known, was of concern to the authorities.[19]
[8] CB 198 - 208
[9] Tamil National Alliance
[10] Sri Lankan Army
[11] CB 198 at [28]
[12] Sri Lankan Navy
[13] CB 200 at [30]
[14] CB 200 at [31]-[32]
[15] CB 201 at [33]
[16] CB 201 at [34]
[17] CB 202 at [38]
[18] Liberation Tigers of Tamil Eelam
[19] CB 203 at [40]

The current proceedings

These proceedings began with a show cause application lodged on 4 January 2017. The applicant now relies upon an amended application filed on 9 April 2018. There are three grounds in that application:
Ground 1
The Authority's finding at [CB 201, 37] that any harm the applicant might face emanates from elements of the Sri Lankan navy stationed in the applicant's locality is affected with jurisdictional error, because the Authority failed to consider essential integers of the applicant's claims once it found what the applicant's speculated as two possible motives were insufficient to determine "motivation for the past harassment" by the navy. See: Minister for Immigration and Multicultural Affairs v llaji Ibrahim [2000] HCA 55.
Particulars
1.The applicant claimed that;
a.he originates from a former LTTE controlled area [CB 70, 4].
b.he feared that he would be seriously harmed because he was a young Tamil male [CB 75, 52].
c.his father owned a large fishing business and that his father had interactions with the LTTE on account of his work [CB 70.9].
d.he began working in the family fishing business since 2004 [CB 71, 10] & [CB 59].
e.one of his brothers was an LTTE member who served during the period 1991 - 1995.
f.two of his siblings live in Australia while “three brothers and a sister are refugees in France” [CB 196, 9].
g.The applicant claimed that he was related to a TNA member of Sri Lankan parliament and a TNA politician [CB 71, 14].
The Authority accepted the above mentioned integers (1a - 1g) of the applicant's claims.
Problems with the army
h. since February 2010 the army began causing problems, the army used to come at night in civilian clothing and harass him [CB 72, 22].
i. he had to pay the army bribes from time to time [CB 72, 22].
j. the army verbally assaulted him several times and tried to harm him physically [CB 72, 24].
k. the army verbally abused and threatened him [CB 72, 27].
The Authority impliedly appears to accept the above mentioned integers (1h – 1k) of the applicant’s claims in the context of the 2010 elections [CB 199, 28]
2. The Authority accepted “that the applicant was harassed and threatened by soldiers because of his work for the TNA candidate in the 2010 elections” [CB 199, 28].
3.The Authority accepted at [CB 200, 30];
a.the navy set up a base in the applicant's village in late 2010 or early 2011.
b.the navy looked over the applicant's warehouse in early 2011 as claimed.
c.the navy falsely accused the applicant of storing weapons in the warehouse.
d.the applicant was required to report “to two naval bases some ten times ...”.
e.the applicant was "detained for up to three hours and threatened".
4.The Authority states that "the applicant speculated as to two possible motives for the navy's actions [CB 200, 31] which the Authority did not accept [CB 201, 32].
5.The Authority was of the view that “the motivation for the harassment is not clear” [CB 201, 34].
6.The Authority's inference that the harm the applicant faced from the navy was "localised" [to his home town], and that the risk of harm to the applicant does not relate to the "whole of Sri Lanka" and that the risk of harm to the applicant is not “from the security authorities as a whole" are inferences [CB 201, 37] that were made by the Authority because of an "absence of a clear motivation for past harassment" by the navy [CB 201, 36].
7.When assessing/determining the real motivation for the harassment the Authority relied on what the applicant speculated as two possible motives, the Authority did not go any further, there was an obligation to consider the essential integers of the applicant's claims which were before the Authority when the Authority realised that there was an absence of any clear motivation or benefit to the navy in their harassment [CB 201, 34].
8.It would be erroneous to make a finding on the basis of what the applicant speculated to be the motivation for the harassment by the navy, the applicant would not have been able to assist the Authority in reaching a finding concerning the state of mind of those who persecuted him.
Ground 2
The Authority erred when inferring that the harm the applicant may face emanates from elements of the Sri Lankan navy stationed in the applicant's locality.
Particulars
1.The Authority was satisfied that any harm the applicant might face emanates from elements of the Sri Lankan navy stationed in the applicant's locality [CB 201, 37].
2.     The applicant in his statement of claims at [CB 72] states,
a.There was and continues to remain an army camp situated approximately 200 -     300 meters from the warehouse where I worked and resided in [CB 72. 21].
b.Since February 2010 the army began causing problems, the army come at night in civilian clothing and harass me and I had to pay bribes from time to time [CB 72, 22].
c.The army verbally assaulted me several times and tried to harm me physically [CB 72, 24].
d.The army verbally abused and threatened him [CB 72, 27].
e.He fears he would be seriously harmed by the Sri Lankan authorities particularly the Sri Lankan navy and the CID [CB 75, 52].
3.The applicant has been targeted by the army and the navy in the past, of the two groups, the navy appears to be the "primary agents of persecution" See: BOZ16 v Minister for Immigration and Border Protection [2018] FCA 418 (29 March 2018), paragraph 14.
4.On the basis of the claims put forward, the applicant feared harm from other agents of persecution (i.e. the army and the CID). The Authority did not reject these claims.
5.The phrase "Sri Lankan authorities" would encompass the army See: See: BOZ16 v Minister for Immigration and Border Protection [2018] FCA 418 (29 March 2018, paragraph 64.
6.The Authority erred at [CB 201, 37] when it inferred “I do not consider that the risk is from the security authorities as a whole' because the Authority failed to consider future harm from other agents of persecution.
7.The Authority took a "narrow approach" when determining harm the applicant would was confined to a local area.
Ground 3
The Authority's reasoning is illogical and so unreasonable, that no reasonable decision maker who has similar facts before him/her would make a similar decision.
Particulars
1.     The Authority accepted at [CB 200, 30];
a.the navy set up a base in the applicant's village in late 2010 or early 2011.
b.the navy looked over the applicant's warehouse in early 2011 as claimed.
c.the navy falsely accused the applicant of storing weapons in the warehouse.
d.      the applicant was required to report “to two naval bases some ten times...”.
e. the applicant was “detained for up to three hours and threatened”.
2.The applicant claimed at [CB 72, 29], that the army organised a meeting to inform the applicant and others that [the applicant’s home town] would be taken over by the Sri Lankan navy and that the navy would control the area.
3.The applicant previously had problems with the army;
a.since February 2010 the army began causing problems, the army used to come at night in civilian clothing and harass him [CB 72, 22].
b.he had to pay the army bribes from time to lime [CB 72, 22].
c.the army verbally assaulted him several times and tried to harm him physically [CB 72, 24].
d. the army verbally abused and threatened him [CB 72, 27].
4.The applicant stated at the SHEV interview according to the Authority that “false allegation” that the navy found weapons in the applicant's warehouse had never been passed onto the police or other authorities [CB 203, 44].
5.Even if the applicant did state that referred [to] at 4 above, it was not open for the Authority to infer at [CB 204, 44] that should the applicant be returned to Sri Lanka, upon arrival “any other routine inquiries made would not reveal the existence of the allegation made by the navy”.
6.On the facts made out it was not open for the Authority to infer in the manner it did at [CB 204, 44].

Ground 2 was not pressed.
In addition to the court book filed on 3 April 2017, I have before me as evidence the affidavit of Monica Kate Forrester Perotti made on 16 April 2018, to which is annexed the record of the applicant’s Irregular Maritime Arrival entry interview.
Both the applicant and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial of this matter on 20 April 2018.

Consideration

Ground 1 – did the Authority err in considering the reasons for the past harm suffered by the applicant?

The applicant, by this ground, seeks to impugn [37] of the Authority’s reasons where it stated:
Even if I were wrong in this finding, I am satisfied on the basis of the applicant's evidence that any harm he might face emanates from elements of the Sri Lankan navy stationed in his locality. His evidence is that they are operating against him in an illegal manner so that there is no documentation of the allegations against him. In these circumstances, I do not accept that any risk of harm to the applicant relates to the whole of Sri Lanka because I do not consider that the risk is from the security authorities as a whole. The evidence suggests and I find that there are no records of what has transpired between him and the naval officers in his local area or the allegations against him. When asked at the SHEV interview why he could not move away to avoid the harm in his area, he said that it is necessary to register with the police wherever you live. Country information indicates that this is no longer required, at least in Colombo. While it is necessary for every resident to register with the local government office, even if checks were made with police in a person's area of origin, the applicant stated that the police are not aware of the allegation against him, so I do not consider that even if he were required to register with police in any area to which he might relocate this would result in a real chance of harm. (footnote omitted)
That paragraph needs to be read in conjunction with [36] where the Authority stated:
Overall, given the absence of a clear motivation for the past harassment, the length of time since it occurred and the changed political circumstances since then, I am not satisfied that there is a real chance that similar harassment of the applicant would continue should he return to Sri Lanka.
In both of those paragraphs, the Authority was dealing with the applicant’s claim of harassment by the Navy. The Authority separately dealt with the applicant’s claim of loss of livelihood at [38] where the Authority stated:
I accept that the applicant's family has lost its business as a result of the seizure of the warehouse which has meant that they can no longer carry on their business as fish traders in that location. I accept that this is a significant loss as the business must have been substantial, employing fifty people, and I accept that the applicant's family was wealthy. I also accept that fishermen in the Mannar area are subject to harassment and restrictions on their capacity to fish, and that this appears to be the result of discrimination.[20] However, the applicant says that his brother continues to work as a fisherman, now selling to others. As their father has retired, it appears that this brother is supporting the family. Even though the family's circumstances are economically more difficult than they were before, and unfair as this situation is, I am not satisfied that the loss of livelihood or economic hardship thereby caused to the applicant is such as to threaten his capacity to subsist, or comprises any other form of serious harm. The applicant has completed school, so is reasonably well educated; he speaks some English and some Sinhala. He has experience in running a business as well as in fishing. His evidence suggests that he has contacts throughout the fishing industry in areas outside his immediate locality. In these circumstances, I consider that the applicant would be able to find alternative ways of earning a livelihood on return to Sri Lanka and that he would not be prevented from doing so because of discriminatory treatment based on his ethnicity or any other reason. I am not satisfied that the effective forced closure of the business has or will result in a real chance of serious harm.
[20] Post War Development Not For All", Sunday Leader, 2 August 2015, CXBD6AODE11253; "Sri Lanka Navy arrests 33 local fishermen engaged in illegal fishing practices", Colombo Page, 28 March 2016, CX6A26A6E2626; "Occupying SL Navy continues to intimidate Tamil fishermen in Mannaar", Tamilnet, 21 April 2015, CXBD6A0DE5157
The applicant makes the following contentions:
a)the Authority has an obligation to “ascertain the motivation for allegedly persecutory conduct which an applicant for refugee status fears”;[21]
[21] Minister for Immigration v Ibrahim (2000) 204 CLR 1; [2000] HCA 55 at [102]
b)the ordinary meaning of the word “ascertain” is to “find something out for certain”;[22]
[22] Oxford Paperback Dictionary & Thesaurus (third edition)
c)in the instant matter the Authority relied upon what the applicant thought to be the “…motives for the navy’s actions”, which the Authority inferred to be a speculation,[23] when it made an attempt to ascertain the motivation for the Navy’s actions;
[23] CB 200 at [31]
d)the “navy’s actions” involved the Navy falsely accusing the applicant of having stored weapons in his warehouse and thereafter requiring the applicant to report at two Navy bases ten times, and during the reporting period the applicant was detained, interrogated and was threatened by the Navy. At the Navy camp “the applicant was threatened with a gun”.[24] The Authority accepted that the applicant was subjected to “significant harassment” by the Navy in early 2011;[25]
[24] CB 197 at [15]
[25] CB 201 at [34]
e)the Authority formed the view that there was an “absence of a clear motivation for past harassment”[26] by the Navy, despite the applicant having been, as the delegate found, “hand cuffed” and “dragged”, and the Navy officers having destroyed everything;[27]
[26] CB 201 at [36]
[27] CB 166
f)in the present matter the Authority accepted the following integers of the applicant’s claims:
i)the applicant originates from a former LTTE controlled area;[28].
[28] CB 70 at [4]; CB 203 at [40]
ii)the applicant feared that he would be seriously harmed because he was a young Tamil male;[29]
[29] CB 75 at [52]; CB 198 at [22]
iii)the applicant’s father / family owned a large fishing business[30] and his father had interactions with the LTTE on account of his work;[31]
[30] CB 199 at [28]
[31] CB 70 at [9]; CB 203 at [40]
iv)the applicant began working in the family fishing business since 2004;[32]
v)one of the applicant’s brothers was an LTTE member who served during the period 1991 – 1995;[33]
vi)two of the applicant’s siblings live in Australia while “three brothers and a sister are refugees in France”;[34] and
vii)the applicant claimed that he was related to a TNA member of Sri Lankan parliament and a TNA politician;[35]
g)the Authority does not appear to have dealt with the claim at [46][36] where the applicant claimed that the local parish priest was told by the Navy that he “was being investigated”. This claim if assessed and considered along with other integers of the applicant’s claims referred to above would have assisted the Authority in making a finding regarding motivation for past persecution;
h)the applicant submits that on the basis of integers of the applicant’s claims, the Authority was obliged to look beyond what the applicant thought were the “two possible motives for the navy’s actions”, especially when the Authority was willing to accept other integers of the applicant’s claims which are likely to have assisted the Authority in ascertaining the motivation for the persecutory conduct by the Navy;
i)while the Authority could not be expected to conduct a “search” for the motivation for the persecutory conduct, it is unreasonable to make a finding regarding the motivation of persecutory conduct on the basis of what is considered to be a speculation, especially where the persecutory conduct was not a (single) random attack and where integers of an applicant’s claims may have been of assistance to the Authority in determining the motivation for the persecutory conduct;
j)the Authority’s failure to ascertain the motivation for the Navy’s persecutory conduct resulted in an inference that affected the Authority’s decision, because “an inference that the harm the applicant faced in the past and or is likely to face in the foreseeable future emanates from the Navy is localised, is founded essentially on what the applicant thought were the two motives for the navy’s persecutory conduct”;
k)the applicant could not have known the state of mind of the persecutor, being the Navy, and therefore the Authority was obliged to ascertain the motivation of the Navy’s persecutory conduct, which the Authority did not do.
[32] CB 71 at [10]; CB 59
[33] CB 203 at [40]
[34] CB 196 at [9]; CB 204 at [44]
[35] CB 71 at [14]; CB 200 at [28]
[36] CB 74
The applicant submits that, if the Authority had considered that the motivation to persecute the applicant was for reasons other than what the applicant had thought to be the reasons, the Authority would not have found it difficult “to assess the risk of future similar harm”.[37]
[37] CB 201 at [34]
I accept the Minister’s submissions in relation to this ground. The ground does not establish jurisdictional error for the following reasons.
First, having considered the applicant’s claim to fear harm at the hands of the Navy from [29]-[35],[38] the Authority concluded at [36][39], as reproduced at [13] above, that “given the absence of a clear motivation for the past harassment, the length of time since it occurred and the changed political circumstances since then, I am not satisfied that there is a real chance that similar harassment of the applicant would continue should he return to Sri Lanka.” (emphasis added). The effect of this finding is that the applicant did not face a real chance of harm which, inevitably, had the consequence that he did not have a well-founded fear of persecution for the purposes of s.5H of the Migration Act. There being no real chance of harm, the questions of the motivation of the Navy, the alleged agent of persecution, does not arise.
[38] CB 200-201
[39] CB 201
Secondly, contrary to the applicant’s submissions, the law is not such that “[t]he Authority has an obligation to ‘ascertain the motivation for allegedly persecutory conduct which an applicant for refugee status fears.’” In Ibrahim, a case upon which the applicant relies, accepted the Minister’s submission that, on the facts of that case, the failure by the then Refugee Review Tribunal to make a finding as to the motivation for a particular incident some seven years prior to the date on which a claim for refugee status was made was not an error of law.[40]
[40] McHugh J (dissenting as to the result), at 26-27 [84] and [87]
In the present case, the Authority not having identified the motive for the Navy’s previous harassment of the applicant was not erroneous, in the light of the Authority’s findings that:
a)there was no ongoing interest in the applicant;[41]
b)some length of time had elapsed since he was harassed;[42]
c)there was changed political circumstances in Sri Lanka;[43]
d)it rejected the claim that he was harassed due to his political activities;[44] and
e)that the applicant’s evidence was not that he will seek to take back possession of the warehouse on his return.[45]
[41] CB 201 at [33]
[42] CB 201 at [36]
[43] CB 201 at [36]
[44] CB 200 at [31], 201 at [34]
[45] CB 201 at [35]
In Ibrahim, McHugh J “agree[d] with other members of the Court … that the Tribunal should not search for the ‘motivation’ of war”, and then went on to say the following: [46]
Nevertheless, the Convention requires the Tribunal to ascertain the motivation for the allegedly persecutory conduct which an applicant for refugee status fears. In this case, among the questions which the Tribunal should have asked were (a) what harm does the applicant fear on his return to Somalia? (b) is that fear well-founded? (c) why will the applicant be subjected to that harm? And (d) if the answer to (c) is “because of his membership of a particular social group”, would the harm constitute persecution for the purpose of the Convention?
[46] At 32-33 [102],
As noted above, the Authority did not accept that the applicant would be subjected to harm on his return to Sri Lanka. Accordingly, the question why the applicant would be subjected to harm did not fall for determination.
Thirdly, and in any event, the Authority found, at [37],[47] that any harm that the applicant would face at the hands of the Navy would be localised. Put another way, even assuming that the applicant faced a real chance of persecution if returned to Sri Lanka, the Authority found that it would not extend to all areas of Sri Lanka.[48] That finding, which was a separate and independent basis for that part of the Authority’s decision concerning the applicant’s claim to fear persecution at the hands of the Navy, is not being challenged in these proceedings and provides a complete and independent answer to Ground 1.
[47] CB 201-202
[48] cf s.5J(1)(c)

Ground 3 – irrationality or unreasonableness

The final ground in the amended application contends that the Authority’s reasoning was “illogical and so unreasonable, that no reasonable decision maker who has similar facts before him/her would make a similar decision”.
The applicant contends as follows:
a)“Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”;[49]
[49] See Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 at [76]
b)the Authority accepted that the applicant was subjected to “significant harassment” by the Navy in early 2011;[50]
[50] CB 201 at [34]
c)the Authority accepted at [30]:[51]
[51] CB 200
i)the Navy set up a base in the applicant’s village in late 2010 or early 2011;
ii)the Navy looked over the applicant’s warehouse in early 2011 as claimed;
iii)the Navy falsely accused the applicant of storing weapons in the warehouse;
iv)the applicant was required to report “to two naval bases some ten times…”;
v)the applicant was “detained for up to three hours and threatened”;
vi)the applicant was interrogated and he was subjected to significant harassment in 2011;[52]
vii)at the Navy camp “the applicant was threatened with a gun”;[53]
d)the applicant stated at the SHEV interview (according to the Authority) the “false allegation” that the Navy had found weapons in the applicant’s warehouse had never been passed onto the police or other authorities;[54]
e)the Authority states at [37]:[55]
The evidence suggests and I find that there are no records of what has transpired between him and the naval officers in his local area or the allegations against him.
f)the applicant submits that it was not open for the Authority to infer that “there are no records” of what transpired between the applicant and the naval officers over a period of approximately three months (April 2011 – July 2011), as this inference has been made solely on the applicant’s assertion that the police or other authorities were unaware of the serious allegation. On the basis of the serious nature of the allegation, and the subsequent events that followed thereafter, it would not be reasonable to infer that records of what transpired between the applicant and naval officers would not be in existence and that upon arrival the allegations made by the Navy would not come or are is unlikely to come to light. The applicant had been accused by the Navy for storing weapons in his warehouse, he was picked up by the Navy and transported in a truck, threatened with gun, interrogated, detained had reporting requirements imposed on him by the Navy and to say the Navy made no record of what had transpired, simply because the applicant may have stated that the “police are not aware of the allegation against him”[56] is so unreasonable when considering subsequent events that followed after the serious allegation made by the Navy. Whether the allegation made by the Navy is false or not or, if what the Navy did to the applicant is “unlawful”[57] or not, or what the applicant asserted to be, ought not to determine, if what transpired between the applicant and the Navy over a three month period would not have been documented and not have been passed or shared with the police, CID[58] and other authorities including the Navy outside of the applicant’s local area; and
g)the applicant in his statement of claims at [46][59] stated that the Navy told a local parish priest that the applicant “was being investigated”.This integer of the applicant’s claims does not appear to have been dealt with, and it is reasonable to infer that any ongoing investigation by the Navy has the potential to cause problems to the applicant upon arrival as there is a possibility of the weapons allegation by the Navy becoming known. If the Authority had considered that the investigations were ongoing, the Authority could not have inferred as it did at [44].[60] The applicant submits that it was not open to the Authority to form the view that what had transpired between the applicant and the Navy was “undocumented”.[61]
[52] CB 201 at [34]
[53] CB 197 at [15]. In fact the Authority only mentions this in its summary of the applicant’s claims
[54] CB 203 at [44]
[55] CB 201
[56] CB 202 at [37]
[57] CB 204 at [44]
[58] Criminal Investigation Department
[59] CB 74
[60] CB 204
[61] CB 204 at [44]
I reject this ground, which is in substance an appeal to the merits. The Authority was entitled to find, as it did at [37],[62] that “there are no records of what has transpired between [the applicant] and the naval officers in his local area or the allegations against him.” Indeed, the applicant himself had given evidence at the interview with the delegate that the allegation concerning the presence of weapons in his warehouse “had never been passed on to the police or other authorities”.[63] In those circumstances, the Authority’s finding was one which another reviewer could very comfortably have made based on the material before the Authority.[64]
[62] CB 201
[63] CB 203 at [44]
[64] Minister for Immigration v SZMDS (2010) 240 CLR 611 at 648 [131], 649-650 [135] per Crennan and Bell JJ; SZOOR v Minister for Immigration (2012) 202 FCR 1 at 23 [85] per McKerracher J
In any event, the impugned finding at [37][65] is inconsequential given the Authority’s conclusions at [36].[66] Those conclusions are independent of the Authority’s relocation findings at [37].[67]
[65] CB 201
[66] CB 201
[67] CB 201-202
The Minister submits further that, in so far as the applicant alleges legal unreasonableness, that allegation is misplaced. Reasonableness is “a condition of the exercise of a discretionary power conferred by statute.”[68] It is said to concern the lawfulness of the exercise of a discretionary power, not the making of factual findings.[69] It is unnecessary to deal with that submission in this case.
[68] Minister for Immigration v Li (2013) 249 CLR 332 at 370 [90] per Gageler J
[69] VN Railway Pty Ltd v Federal Commissioner of Taxation (2013) 211 FCR 188 at 201 [68]-[70] per Tracey J

Conclusion

The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.

I will hear the parties as to costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 15 May 2018