ACM17 v Minister for Immigration - [2020] FCCA 1056

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACM17 v MINISTER FOR IMMIGRATION

[2020] FCCA 1056

Catchwords:
MIGRATION – Application for review of decision of the Minister’s delegate (the delegate) – whether the delegate failed to consider a claim – whether the delegate erred by finding that the applicant was an excluded fast track review applicant – grounds not made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 57, 476

Act Interpretations Act 1901 (Cth), s.15AB

Cases cited:

FMM17 v Minister for Immigration, Citizenship, Migrant Services and

Multicultural Affairs [2020] FCAFC 20

Hossain v Minister for Immigration and Border Protection [2018] HCA 34;

(2018) 264 CLR 123; (2018) 92 ALJR 780; (2018) 359 ALR 1;

(2018) 75 AAR 551

Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22;

(1997) 191 CLR 559; (1997) 64 FCR 151; (1997) 71 ALJR 743;

(1997) 144 ALR 567; (1997) 48 ALD 481

Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62;

(1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412;

(1989) 21 ALD 139

Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55;

(2012) 250 CLR 503; (2012) 87 ALJR 98; (2012) 293 ALR 257;

(2012) 91 ACSR 359; (2012) 84 ATR 1

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1;

(2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223;

(2011) 119 ALD 1

SZOPX v Minister for Immigration and Citizenship [2011] FCA 552

Re Australian Securities Commission v Neil Lucas [1992] FCA 234;

(1992) 36 FCR 165; (1992)108 ALR 521; (1992) 7 ACSR 676;

(1992) 27 ALD 67

Sager v O’Sullivan [2011] FCA 182; (2011) 193 FCR 311

FMM17 v Minister for Immigration [2019] FCCA 1500

Applicant:

ACM17

Respondent:

MINISTER FOR IMMIGRATION,

CITIZENSHIP, MIGRANT SERVICES

AND MULTICULTURAL AFFAIRS

File Number:

SYG 50 of 2017

Judgment of:

Judge Nicholls

Hearing date:

15 April 2020

Date of Last Submission:

15 April 2020

Delivered at:

Sydney

Delivered on:

6 May 2020

REPRESENTATION

Counsel for the Applicant:	Mr G. Foster
Solicitors for the Applicant:	Sentil Solicitor

Counsel for the Respondent:

Ms K. Hooper

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application made on 9 January 2017, and as amended, is dismissed.
The applicant pay the respondent’s costs set in the amount of $7467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 50 of 2017

ACM17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 9 January 2017, and amended on 26 July 2017, and further amended on 15 April 2020, seeking review of the decision of the Minister’s delegate (“the delegate”) made on 13 December 2016, which refused the grant of a Safe Haven Enterprise Visa, a protection visa (“the visa”) to the applicant. The delegate also found that the applicant was an excluded fast track review applicant (CB 139–CB 161).
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB” – “RE1”), and the affidavit of Ms Elizabeth Warner Knight, solicitor made on 21 January 2020 with annexure.

Background

The applicant is a citizen of Sri Lanka, and of Tamil ethnicity (CB 37 and CB 39). He arrived in Australia on 16 August 2012, as an “unauthorised maritime arrival” (CB 18 and CB 44). The Minister’s department received the applicant’s application for a Safe Haven Enterprise Visa (SHEV) on 25 September 2015 (CB 25–CB 77 see also CB 143). Attached to the visa application was the applicant’s written statement dated 17 September 2015, which outlined the applicant’s claims to fear harm (CB 69–CB 77).
In his statement the applicant summarised his claims to fear harm, relevantly, as emanating from: “…Ameer Ali and his armed men because of my political opposition to him” ([66] at CB 76), and the Sri Lankan Army (“SLA”) because of suspected connections to the Liberation Tigers of Tamil Eelam (“LTTE”) ([67] at CB 76). He also claimed to fear harm as a returning failed asylum seeker ([67] at CB 76).
In his account of relevant events in Sri Lanka the applicant set out his and his cousin’s previous dealings with Ameer Ali which arose from a construction contract awarded to his cousin’s construction company (by which the applicant was employed at that time). Ameer Ali sought to extort the applicant’s cousin with the result that: “Ameer Ali and my [the applicant’s] family became enemies.” ([46]–[47] at CB 73–CB 74).

The Delegate

On 16 August 2016 the delegate wrote to the applicant, said to be pursuant to s.57 of the Act, to put him on notice that the Minister’s Department had received “relevant information” (said to be “adverse” information) in relation to his application for the visa, and to give him the opportunity to comment on this information (CB 131–CB 133).
The letter stated that the Minister’s Department had received information that the applicant had “…previously sought asylum in Germany and the United Kingdom” and that the “…applications for refugee status was [were] refused by both countries.” (CB 131.4.)
The letter explained that this information had “implications” in relation to “…the definition of ‘excluded fast track review applicant’” in s.5(1) of the Act. The letter set out the provisions of s.5(1)(a)(iii) of the Act and its relevance to the applicant’s status.
That is, that the information indicated that the applicant had made protection claims in other countries and been refused, and therefore he may be found to be “an ‘excluded fast track applicant’” for the purposes of the visa application.
The consequence of this was that if the delegate were to make such a finding, and otherwise refuse the grant of the visa, the applicant’s case would not be referred to the IAA for an assessment or review of the merits of his claims to fear harm.
The applicant responded through his then representative on 26 August 2016 (CB 134–CB 138).
The delegate found that the applicant was an “excluded fast track review applicant” because he satisfied the definition of that term as set out at s.5(1)(a)(iii) of the Act. (CB 142–CB 143).
The delegate set out a summary of the applicant’s claims to protection (CB 145–CB 147).
The delegate accepted that the applicant “…comes from a wealthy family in Sri Lanka. He used to work as a jeweller and he received a demand for a substantial amount of money with a death threat.” (CB 152).
The delegate accepted that the applicant may be threatened if he did not pay money demanded by extortionists in his home area. However, the delegate found that the applicant would not be exposed to such harm in other areas of Sri Lanka, to which he was free to move. (CB 157–CB 158).
The applicant claimed that while he was working in his cousin’s construction business he was asked for money from the LTTE. As an alternative to providing the money the LTTE asked for a community centre to be built, which was agreed to in February 2009. The delegate took into account country information about the strength of the LTTE during this period. The delegate was not satisfied that due to the LTTE’s dwindling strength during this period that they would have made such requests. The delegate found that this was not a credible claim (CB 148).
The delegate accepted that the applicant was “arrested, detained and tortured by the SLA in 1996, and was detained and questioned by the Sri Lankan authorities in August 2006” (CB 152). The delegate noted that the “situation” in Sri Lanka has changed while the applicant has been in Australia (CB 153). Further, the delegate found that they were not satisfied (at CB 153):
“…that the instance of being detained and released (without charge or harm) in August 2006 and of detention and torture in 1996 is indicative that the applicant will suffer harm in the reasonably foreseeable future upon return. I am therefore not satisfied that he would face a real chance of being harmed in relation to this matter upon return. I am therefore not satisfied that his profile is such that the applicant has a well-founded fear of persecution on the basis of any imputed LTTE support or links.”
The delegate also accepted that Tamils in the applicant’s home area were harmed during the civil war and subsequently. However, the delegate relied on country information to find, that the security situation in Sri Lanka had changed and that the applicant would not face harm on account of his ethnicity if he returned (CB 153). Further, the delegate found that it was “remote” that the applicant would face harm in his home area by reason of him being a Muslim (CB 155).
The delegate considered the applicant’s claim concerning his status as a returned failed asylum seeker (CB 155–CB 157). The delegate accepted that at the airport the Sri Lankan authorities would be aware of his status (CB 155). The delegate found, that even if the applicant were briefly detained upon arrival in Sri Lanka, this would not constitute serious harm. Further, the delegate was “…not satisfied that the applicant faces a real chance of serious harm for being [a] failed asylum seeker who departed illegally, during the investigation process or during any brief period spent in detention.” (CB 157).
The delegate considered the applicant’s political opinion in the context of his claimed fear of Ameer Ali (CB 158–CB 160). The delegate noted that Ameer Ali was connected with the United National Party (UNP). She found that “[t]here is no current evidence of members of the UNP targeting political opponents or their supporters.” (CB 159). The delegate found that it was “implausible that [Ameer Ali] continues to have an adverse interest in the applicant, a person who supported an opposing candidate during a 2012 provincial council election campaign in Sri Lanka.” (CB 159). The delegate went on to (at CB 159):
“…accept that there was an animosity between the applicant’s and Ameer Ali’s families because of their former business dealings, there is no evidence to indicate that any member of the applicant’s family has ever been harmed as a consequence…”
Further, the delegate found that country information indicated that the applicant could request protection from the authorities (CB 159). Although such protection may not be “absolute” it would be “adequate” to protect the applicant from the claimed fear. Therefore, the delegate found that “…should the applicant return to Sri Lanka, he could reasonably expect to obtain protection from the Sri Lankan authorities such that there would not be a real chance of suffering serious harm at the hands of Ameer Ali and his associates.” (CB 160).
In assessing the applicant’s eligibility for complementary protection, the delegate further considered the applicant’s claims concerning extortion, as set out above at [5] and [14]–[16].The delegate accepted (at CB 160):
“…that there is a real risk that the applicant will face harm in Oddamavady, Batticaloa from persons who seek to extort money from him. However, I find that this harm is localised and does not extend to other parts of Sri Lanka. Considering the applicant’s claims as a whole, I do not otherwise accept that there is a real risk that the applicant will face significant harm in Sri Lanka.”
The delegate also found in the context of complementary protection that due to the applicant’s circumstances, such relocation would be reasonable (CB 160).
Due to the reasons set out above, the delegate found that the applicant was not eligible for protection under s.36(2)(a) or s.36(2)(aa) of the Act (CB 161).

Application to the Court

The applicant made his originating application to the Court on 9 January 2017. He did not appear to be legally represented at that time. This application contained three grounds. Orders made by a Registrar of this Court on 18 May 2017, gave the applicant the opportunity to file an amended application. The applicant filed an amended application on 26 July 2017.
By orders made on 21 October 2019 this matter was set down for final hearing on 20 February 2020.
On 17 February 2020 a solicitor (from Sentil Solicitor) filed, in effect, a notice that he was acting for the applicant.
On the same day, the applicant filed (without leave) written submissions. Attached to these written submissions was a further amended application. The submissions stated that the applicant did not press grounds 1 – 3 of the application that he had previously filed while he was legally unrepresented. The submissions stated that the applicant would seek leave to proceed with three new grounds (grounds 4 – 6).
The applicant’s amended application, which was to be the subject of consideration at the final hearing, (filed on 26 July 2017) contained four grounds. The proposed “new” ground 4 does not appear to relate to ground 4 in that application. The originating application only contained three grounds. It appeared that the applicant sought to abandon the grounds of the originating application. But his submissions were silent on the grounds of the amended application.
On 19 February 2020, I made orders by consent, following an approach by the parties, that the hearing of this matter be adjourned pending the determination of an appeal that was at that time before the Full Federal Court in FMM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 20 (“FMM17”). That matter was handed down on 26 February 2020. The final hearing of this matter was subsequently set down for 15 April 2020.
The grounds of the applicant’s further amended application filed on 17 February 2020 are in the following terms:
“New Ground 4:
4. The Delegate erred when she did not consider the express claim that the Applicant will be killed by Ameer Ali and his armed men because of his political opposition to him [CB76) and misunderstood relevant evidence concerning Ameer Ali and his claim.
Particulars
i.The Applicant's claims concerning this fear are contained at paragraphs 46 [CB73] - 63 [CB76].
ii.The Delegate misunderstood the evidence to be that 'there was animosity between his family and Ameer Ali because of their business dealings' [CB159], and 'there was animosity between the applicant's family and Ameer's families because of their former business dealings' [CB159] when the claim does not relate to any business dealings and is between the Applicant's family and Ameer Ali personally, but not his family about which there is no evidence 46 [CB73] - 63 [CB76];
iii.The Delegate;
a. failed to make any finding in respect of the aspect of the claim concerning the express claim that he will be killed by Ameer Ali and his armed men because of his political opposition to him [CB76), thereby constructively failing to exercise jurisdiction, and
b. Misdescribed the evidence which was material to the decision, making the findings that the Delegate was not satisfied the Applicant is a refugee as defined by S 5H (1) as outlined in S 36(2)(a) of the Migration Act [CB160], and that he is not a person in respect of whom Australia has protection obligations as outlined in S 36 (2)(aa) of the Migration Act [CB161], unreasonable.
New Ground 5:
5. The Delegate erred when she was satisfied the Applicant met the definition of an excluded fast track review applicant in S 5 (1) of the Act.
Particulars.
i.     [CB143]
ii.    S 5 (1) defines ‘excluded fast track review applicant’ as meaning inter alia:
“a fast track applicant (a) who in the opinion of the Minister …. iii has made a claim for protection in a country other than Australia that was refused by that country…”;
iii.     The Applicant had not made a claim for protection but for asylum in Germany [CB72] and the UK [CB73], the latter of which was refused.
iv. S 5 (1) of the Act defines ‘protection visa’ as: ‘“protection visa” has the meaning given by section 35A.
Note: Section 35A covers the following:
(a) permanent _____ (classified by the Migration Regulations 1994 as Protection (Class XA) _____ when this _____ commenced);
(b) other _____ formerly provided for by _____ 36(1);
(ba) safe haven _____ ___;
(c) temporary _____ (classified by the Migration Regulations 1994 as Temporary Protection (Class XD) _____ when this _____ commenced);
(d) any additional classes of permanent or _____ that are _____ as _____ by the regulations.
v. There is no definition of ‘claim for protection’ or of ‘asylum’ in the Act;
vi. Accordingly the Delegate incorrectly found the Applicant was an ‘excluded fast track review applicant’ under S 5 (1) of the Act.
New Ground 6:
6. The Delegate erred when she was satisfied the Applicant met the definition of an excluded fast track review applicant in S 5 (1) of the Act.
Particulars.
i.[CB 143]
ii.The claims made by the Applicant in Germany in 1996 and in the UK in 2000 (Germany [CB72] and the UK [CB73]) were totally different to the claim made by the Applicant to the Australian authorities in 2015 [CB25];
iii.The definition of a “a fast track applicant” relevantly includes an applicant “(a) who in the opinion of the Minister …. iii has made a claim for protection in a country other than Australia that was refused by that country…” see S 5 of the Act;
iv.The purpose or object, spirit and intention of the definition is meant to apply to claims which are the same or substantially the same;
v.The purpose or object, spirit and intention of the definition is not meant to apply to claims which are not the same or substantially the same;
vi.The spirit and intention of the legislation is not meant to apply to persons such as the Applicant where the claim for protection in a country other than Australia that was refused, is totally different made in Australia.”

[Underlining Removed.]
[Errors in the Original.]

Before the Court

At the hearing both parties were represented by their respective counsel. The applicant confirmed that all the grounds of the originating application and amended application were not pressed. The applicant sought leave to proceed by way of the proposed further amended application.
The Minister did not oppose leave to further amend. Nor did he claim any prejudice if leave were to be granted. Leave was granted. The hearing proceeded as a final hearing of the three grounds of the further amended application. For convenience, the grounds are referred to as grounds 4, 5 and 6 as set out in both the applicant’s written submissions and the Minister’s submissions of 26 March 2020.

Consideration: Ground 4

Ground 4 asserts that the delegate failed to consider a claim to fear harm expressly made by the applicant. That claim is said to be that the applicant would be killed by Ameer Ali and his armed men because of the applicant’s political opposition to him.
In his particulars the applicant referred to the written statement of his claims submitted as part of his application for the visa (CB 69–CB 77), and in particular [46]–[63] at (CB 73–CB 76).
The particulars assert that the delegate misunderstood the applicant’s claim when she stated in the decision record that: “there was animosity between his family and Ameer Ali because of their business dealings” and “there was animosity between the applicant’s family and Ameer’s families because of their former business dealings”. [Note: there are minor differences with what the delegate actually wrote – see CB 159.]
The applicant’s contention in the particulars is that “…the claim does not relate to any business dealings and is between the Applicant’s family and Ameer Ali personally, but not his family about which there is no evidence.” [Emphasis in the original.]
Ultimately, the particulars assert as follows. One, that the delegate’s error was that she failed to make any finding concerning the applicant’s express claim that he would be killed by Ameer Ali and his armed men because of his political opposition to him. Two, that the delegate “misdescribed” the evidence. At best this appeared to relate to the absence of any claim by the applicant to fear harm from Ameer Ali’s family as opposed to him personally.

Before the Court, the applicant was unable to satisfactorily explain how the delegate’s reference to “families” as it appears at CB 159 was material to the delegate’s decision and therefore capable of revealing jurisdictional error. (Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [46].
In any event, the real complaint appeared to be that the delegate misunderstood the claim by understanding it to relate to the business dealings between Ameer Ali and the applicant’s family when the claim was a fear of harm because of the applicant’s political opposition to Ameer Ali.
The applicant’s submissions did not satisfactorily explain this pleading in light of the evidence before the Court, and the delegate’s reasoning as expressed in her decision record.
The applicant made clear in his written statement, submitted in support of his application for the visa, that he feared he would be killed by Ameer Ali and his armed men, because of his political opposition to Ameer Ali ([66] at CB 76).
However, the applicant’s account of his dealings with Ameer Ali, in essence, commence at [46] (CB 73) of his statement with the reference to his cousin’s construction business. What follows at [47] (CB 74) is the applicant’s claim, and explanation as to why, his family and Ameer Ali “became enemies”.
In that context, the applicant subsequently stated that he was a supporter of the Sri Lankan Muslim Congress (SLMC) and that in Parliamentary elections in 2010 Ameer Ali lost to the SLMC candidate, and thereby became “…enraged with SLMC members, including me, [the applicant]…” ([54] at CB 74).
At provincial council elections in September 2012 Ameer Ali was a candidate and was opposed by the People’s Movement of Good Governance (PMGG) which was supported by the applicant’s “…whole extended family.” ([57] at CB 75).
Relevantly, on 18 July 2012 a group of armed men came to his house and told him not to “nominate the PMGG candidate.” He was subsequently threatened by having a gun placed to his head. His wife was also threatened. ([60]–[61] at CB 75).
The applicant claimed to fear that if he returned to Sri Lanka he would be “…killed by Ameer Ali and his armed men because of [his] political opposition to him.” ([66] at CB 76).
The applicant attended an interview with the delegate on 11 March 2016 (CB 145.5). The applicant has not provided any transcript of that interview to the Court. The only relevant evidence before the Court of what he stated at the interview are the relevant references made by the delegate in her decision record.
The delegate summarised, in detail, the applicant’s claims and evidence as given in his written statement and subsequently. (CB 145.6– CB 147.7).
It is necessary to note that the applicant’s claims as to past events were not confined to his dealings with Ameer Ali. Those parts of the delegate’s summary of the applicant’s claims relating to Ameer Ali (and ground 4 of the application to the Court) are variously set out from about the sixth dot point at CB 146.6.
The delegate set out the applicant’s claims as to his family’s dealings with Ameer Ali, and then the claims of the political opposition to Ameer Ali (see from the 15^th dot point at CB 146).
At the 11^thdot point at CB 147 the delegate recorded:
“· If he were to return to Sri Lanka, the applicant fears that he will be killed by Ameer Ali and his armed men. This is because of the applicant’s political opposition to Ameer Ali.”
See further at the 14^th dot point at (CB 147):

“· He is unable to seek protection against Ameer Ali and his associates in Sri Lanka. Ameer Ali is a powerful man and is presently the Minister for Rural Development in Sri Lanka”.

As set out above, in his ground, and submissions before the Court, the applicant argued that the delegate misunderstood the applicant’s claims concerning the fear emanating from Ameer Ali and his armed men. He submitted that his fear was because of his political opposition to Ameer Ali and not his family’s business dealings.
At the interview with the delegate (on the only relevant evidence before the Court) the delegate set out her understanding of the applicant’s claims and evidence (at CB 150.7):
“At interview, the applicant stated that Ameer Ali had a personal vendetta against him and his family for a number of reasons. These included firstly Ameer Ali's loss of income as a consequence of the Red Cross' termination of contract with Dharshani Construction, a company from whom Ameer Ali had received kickbacks. The applicant stated that his and his family's refusal to pay Ameer Ali a bribe after [the cousin’s construction company] was awarded the Red Cross contract was a further reason why Ameer Ali disliked him and his family. He added that Ameer Ali's loss at the 2010 elections and the fact that the PMGG, with the assistance of the applicant and his family were fielding a candidate against him at the 2012 provincial elections only added to Ameer Ali's need to seek revenge against him. The applicant stated that Ameer Ali was the then President Rajapaksa's right-hand man and consequently he wielded a lot of influence in the community. He added that Ameer Ali had armed groups who worked for him and it was the threats he received from members of these groups that prompted his departure from Sri Lanka.”
This is consistent with the evidence that is before the Court. There is no evidence before the Court to say that it was inconsistent with what the applicant said at the interview with the delegate
The applicant now argues that his claim to fear harm from Ameer Ali was confined only to the political opposition aspect of his claim. I do not agree with the applicant’s contention in his argument now that the delegate misunderstood, or “misdescribed” the applicant’s claim. Plainly, the applicant’s claims as to past events that informed his fear of harm from Ameer Ali included his interactions with the applicant’s family.
The delegate’s relevant understanding of the applicant’s claims, including what is extracted above at [55], is to be found under the heading of: “Political involvement and consequent threats received.” (CB 150.5–CB 151.3).
It is clear, as the heading to this section indicates, that the delegate understood that the applicant’s claim to fear harm from Ameer Ali was for political reasons, but given what preceded it, this was also in the context of a personal vendetta against the applicant’s family.
It is also clear that the delegate understood, with reference to country information, that the applicant, whom it accepted as plausible in this regard, was a supporter of the PMGG, and was threatened by armed men, whom he speculated were supporters of Ameer Ali and his political party. (CB 150.9–CB 151.2).
The delegate also understood that the applicant’s then representative had submitted that the applicant claimed to fear harm because as a “Wealthy [Muslim] businessman” he had received a telephone call from people whom he speculated were supporters of Ameer Ali and had demanded money. The delegate found as credible that he had received a threatening phone call in which money was demanded from him. (CB 151.3–CB 151.7).
The applicant’s claim to fear harm for political reasons was considered under the heading of “Political opinion”. (CB 158.3–CB 160.2). The subject of that consideration was (at CB 158.3): “The applicant claims that if returned to Sri Lanka, he will be targeted and subjected to serious harm including death at the hands of gangs associated with Ameer Ali and the UPFA.”
Contrary to the applicant’s argument now, the delegate plainly understood that the applicant’s claim was based on past events involving Ameer Ali, including what was said to be the applicant’s political opposition to him, and in the context of Ameer Ali’s animosity to the applicant’s family (at CB 159.3):
“The applicant's evidence is that not only is he targeted by Ameer Ali because he campaigned against Ameer Ali in the April 2010 general election and supported an opposing candidate in the build up to the September 2012 provincial council election but that there was an animosity between his family and Ameer Ali because of their business dealings.”
The delegate addressed this claim as follows (at CB 159.4):
“There is no current evidence of members of the UNP targeting political opponents or their supporters. In light of the evidence before me, I note that Ameer Ali has achieved a successful political career through the UNP and I consider it implausible that he continues to have an adverse interest in the applicant, a person who supported an opposing candidate during a 2012 provincial council election campaign in Sri Lanka. And while I accept that there was an animosity between the applicant's and Ameer Ali's families because of their former business dealings, there is no evidence to indicate that any member of the applicant's family has ever been harmed as a consequence. The applicant has made no claims of his cousin, whose business took over some of Ameer's Ali business transactions, facing any form of harm or harassment in Sri Lanka.”
The delegate’s statutory task was to consider the likelihood of harm in the reasonably foreseeable future. While past events can inform such consideration, the test is one of reasonable foreseeability (Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22 and Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62).
While the delegate accepted some of the claims as to past events she gave intelligible and cogent reasons for finding that the applicant would not suffer harm from Ameer Ali for reason of his political opinion.
The applicant has been unable to explain, let alone satisfactorily explain, how the ground, as pleaded, could rationally be made out given what he had set out in his written stamen, what he is reported to have said at the interview, the clear terms of the delegate’s understanding of his claim concerning political opinion and Ameer Ali, and the context in which that fear was said to have arisen.
On the evidence, the applicant’s claim concerning Ameer Ali plainly had a political element to it. It also had a business related element, at the very least contextually, involving the applicant and his family.
The delegate properly understood the applicant’s claims in this regard and, also appropriately, considered both elements.
I note for the sake of completeness, that the Minister pointed to the delegate’s additional finding that in any event, the applicant could access adequate state protection in relation to his claims of fear of harm for reason of political opinion (CB 159.5–CB 160.2 see also [21] above). The applicant has not sought to assert error in the delegate’s finding in this regard.
In all ground 4 is not made out.

Consideration: Ground 5

Ground five asserts that the delegate fell into legal error in finding that the applicant was an excluded fast track review applicant.
This term is defined in the Act at s.5(1). Relevantly this includes:
“"excluded fast track review applicant" means a fast track applicant:
(a) who, in the opinion of the Minister:
…
(ii) has previously entered Australia and who, while in Australia, made a claim for protection relying on a criterion mentioned in subsection 36(2) in an application that was refused or withdrawn; or
(iii) has made a claim for protection in a country other than Australia that was refused by that country; or
(iv) has made a claim for protection in a country other than Australia that was refused by the Office of the United Nations High Commissioner for Refugees in that country…”
As set out above, the delegate found that the applicant satisfied that definition. The consequence was that his case was excluded from referral for review by the IAA because he had made claims for protection in both Germany and the United Kingdom in the past (CB 142–CB 143) (with reference to s.5(1)(a)(iii) of the Act).
The applicant’s argument is that, on the evidence, the applicant was applying for “asylum” in those countries, in circumstances where there is no evidence that claims for “asylum” in Germany or the United Kingdom are “protection” claims under the respective relevant legislation of those countries.
The applicant also argues, that the definition of “protection” in the Act (or in any other relevant statute) does not include a reference to “asylum”.
In these circumstances, therefore, the delegate was in error to find that the applicant’s claims to asylum in Germany and in the United Kingdom were claims to “protection” and therefore brought him within the definition of an excluded fast track review applicant.
The applicant’s ground focuses on the term “a claim for protection” as it appears in s.5(1)(a)(iii) of the Act.
As the Minister correctly submits, the issue raised by the applicant here is one of statutory construction. In that light, the task of considering this construction must begin and end with the actual relevant text of the statute, in this case s.5(1) of the Act, and when this is read in context (Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39]).
At the hearing, the Court sought to clarify whether the core of the applicant’s argument as to why the applicant should not have been found to be an “excluded fast track review applicant” was the difference in wording between “asylum” and “protection”, or that the Act did not define “asylum”, or if the separate submissions were made to convey, essentially, the same argument. Consequently, given the lack of clarity, both submissions are addressed below.
As set out above, the applicant’s ground, and the arguments in support, rely on a distinction between the terms “protection” as it appears at s.5(1) of the Act in the definition of “excluded fast track review applicant”, and “asylum” as it relates to what the applicant says he applied for in Germany and the United Kingdom.
The applicant’s ground is not made out for the following reasons.
First, the applicant submitted that there is no evidence that the claims for “asylum” in Germany and in the United Kingdom are “protection” claims as defined in the respective legislation of those countries.
However, what the applicant has overlooked in the current dispute is that the onus to establish jurisdictional error in the delegate’s decision rests with him (Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 at [67] and SZOPX v Minister for Immigration and Citizenship [2011] FCA 552 at [11] and the authorities referred to there: Australian Securities Commission v Lucas (1992) 36 FCR 165 and Sager v O’Sullivan [2011] FCA 182).
He has produced no evidence, let alone made any reference to, any specific German or United Kingdom legislation, to support the proposition that the previous applications for “asylum” do not fall within the description of “protection” as that term appears within the relevant definition in s.5(1)(a)(iii) of the Act.
Second, it is the case that when the delegate wrote to the applicant to give him the opportunity to comment on the information received from overseas concerning relevant events in Germany and the United Kingdom, the delegate stated (CB 131):
“Information before the department indicates that you previously sought asylum in Germany and the United Kingdom and that your applications for refugee status was refused by both countries.”
[Emphasis Added.]
On the evidence before the Court, in his written statement of claims (prepared with the assistance of a registered migration agent) the applicant did refer to what relevantly occurred in Germany as the “asylum process” ([38] at CB 72), and in the United Kingdom as a claim for “asylum” ([41] at CB 73).
However, the delegate reports that the applicant referred to these events as, variously, applications for “protection” in both countries (CB 142.6), and his “application for refugee status” in the United Kingdom (CB 142.7).
The delegate appears to have understood the terms “asylum” and application for “protection” interchangeably (CB 142.7 see also CB 72–CB 73).
The applicant’s argument as explained before the Court is that the terms (“asylum” and “protection”) are not interchangeable. The Minister submits that in the relevant circumstances they are synonymous.
A difficulty with the applicant’s submissions was that they diverted focus from the appropriate question that the Court needs to answer. It is not whether the Court finds that the applicant is an excluded fast track review applicant, but whether it was reasonably open to the delegate, on the materials before her, to so find, and whether she gave cogent and intelligible reasons for this finding.
In FMM17 at [22]–[23] the Full Federal Court set out the relevant principles in construing, in context, the meaning of the definition of excluded fast track review applicant as contained in s.5(1) of the Act. That judgment is binding on this Court.
The application of those principles to the circumstances of FMM17 provide relevant guidance to this Court in the current case. Noting however, that each case, plainly, must be decided with reference to its own circumstances and facts.
In the current case, the applicant stated that he had made an application for “asylum” both in Germany and the United Kingdom (CB 72–CB 73). That is not in dispute.
The term “a claim for protection” as it appears in s.5(1)(a)(iii) of the Act does include these “asylum” applications made by the applicant. As the Full Federal Court said in FMM17:
“37. The reference to a claim for protection, in context, must mean a claim of a kind that seeks protection from harm that would be the consequence of refoulement. This is evident from the operation of the definition as an exclusion from fast track merits review under Part 7AA as well as the terms in which para (a)(ii) and (a)(iv) of the definition are expressed.”
In the current case, it was reasonably open for the delegate to find, based on the material before her, that the applicant’s applications for asylum in both Germany and the United Kingdom, were both “a claim for protection”. That is, the applicant had been seeking protection from harm that would be a consequence of his being refouled to Sri Lanka from either Germany or the United Kingdom.
Ground five is not made out.

Consideration: Ground 6

Ground six asserts that the delegate fell into legal error in finding that the applicant met the definition of an excluded fast track review applicant because the “object, spirit and intention of the definition” is meant to apply to claims which are the same, or substantially so.
The argument was that in the current case, the claims to protection in Germany and the United Kingdom, relating to an earlier period in the applicant’s life were “totally different” to the claims made in Australia.
The applicant’s submission was that the definition of “excluded fast track review applicant” was unclear as to whether the claim made in another country must be the same, or substantially the same, as that made in Australia.
In the current case, the applicant sought to argue that the circumstances in this case were distinguishable from those in FMM17 because in that case while the applicant made a “previous claim” in France (before making a claim in Australia) there was no suggestion that the claim was different to that in Australia.
The applicant referred to [6] of FMM17 in order to demonstrate that the facts were distinguishable from the current case:
“6. The appellant brought an application in the Federal Circuit Court for judicial review of the refusal of his application for a temporary protection visa. The application was prepared without legal assistance. It said:
After coming out of France I have faced the same difficulties in Sri Lanka [and that's] the reason I again sought Asylum in Australia. I feel unfair that Australian Government considering that [F]rance rejecting my application as basis for being considered and excluded fast track applicant.”
The Minister submitted that [6] of FMM17 was in reference to “whether there was an adequate evidentiary foundation for the delegate’s finding”, and was not of use in attempting to distinguish the judgment on “the separate point”. The Minister took the Court to [25] of FMM17 v Minister for Immigration [2019] FCCA 1500 to highlight that there was no factual difference between FMM17 and the matter at hand:
“25.The applicant’s migration agent made submissions to the Delegate stating the events giving rise to the applicant’s present claims for protection occurred after the applicant had been removed from France and that he should not be considered to be an “excluded fast track review applicant”: CB 187.”

In reply, the applicant submitted that [42] of FMM17 at first instance (FMM17 v Minister for Immigration [2019] FCCA 1500), further supported the proposition that the applicant in that case had made similar claims in France and Australia. That paragraph is in the following terms:
“42. In the above circumstances, the applicant is plainly an “excluded fast track review applicant” within the meaning of that term in s.5(1)(a)(iii) of the Migration Act. Further, the applicant himself stated in the grounds of review he was “suffering the same difficulties in Sri Lanka” following his deportation from France and “that’s the reason” he sought protection in Australia. In the Court’s view the applicant has confirmed he was seeking protection in Australia because he had been unsuccessful in obtaining protection in France, and thus, even if s.5(1)(a)(iii) of the Migration Act is restricted to excluding applicants who have made the same, or a similar, claim for protection in another country, the applicant would still fall within the meaning of the phrase “a claim for protection in a country other than Australia that was refused by that country” on a more restricted meaning of that phrase.”
I respectfully note that in FMM17 (at [8]) under the heading “Issues on appeal” the Full Court found that:
“8. The appellant claims that the primary judge erred in not accepting his contention as to the proper construction of the relevant words in the statutory definition of 'excluded fast track review applicant'. He submits that on the proper construction of the Act, the words 'a claim for protection' used in the relevant category of exclusion mean a claim for protection that was based upon alleged facts that are materially the same as those relied upon as the basis for the claim subsequently made in Australia. The submission advanced for the appellant focusses upon the word 'claim' and seeks to read that word as meaning a claim of a particular kind, namely a claim based on materially the same facts as the subsequent claim. The appellant says his claim for protection was based upon new matters that occurred after he returned to Sri Lanka from France and therefore he is not an excluded applicant. The Minister maintains that the delegate applied the correct view of the Act.”
In the current case, the applicant submits that his claims are based on different periods of the applicant’s life, and are not similar. For this reason, the applicant argues that he should therefore not be considered an excluded fast track review applicant.
In short, the appellant in FMM17 also argued to be an excluded fast track review applicant, claims in both countries must be similar. This argument was found not to assist the appellant (see FMM17 at [25], [27], [30]–[31]).
In the current case, the applicant sought to draw on s.15AB of the Act Interpretations Act 1901 (Cth), and the use of extrinsic material, to argue that the Explanatory Memorandum which related to the legislative amendment which introduced s.5(1)(a)(iii) of the Act provided support for the proposition that claims made by an applicant in another country which were different to claims made in Australia would put such an applicant outside the definition of an excluded fast track review applicant. Further, the Minister’s relevant Procedures Advice Manual (“PAM”) supported the proposition contended for now by the applicant.
It is not necessary for current purposes to review the applicant’s argument in great detail and to have regard to the Explanatory Memorandum, or the PAM. That is because, as was, with respect, made clear in FMM17, this argument including the reference to extrinsic material was put to, and rejected by, the Full Federal Court in FMM17 (see at [24]–[F], and see [105] and [107] of this judgment). Ground six is not made out.

Conclusion

The grounds of the further amended application are not made out. The applicant has formally abandoned the grounds of the application and the amended application. It is therefore appropriate to dismiss the application. I will make the appropriate order.

I certify that the preceding one-hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 6 May 2020