Acw17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2019] FCCA 2833

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACW17 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR [2019] FCCA 2833

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority considered all claims made by the applicant – no jurisdictional error – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth) r.44.12

Migration Act 1958 (Cth), ss.5, 31, 36, 65, 473BA, 473BC, 473CA, 473CB,

473CC, 473DA, 473DB, 473DC, 473DD, 474, 476

Migration Regulations 1994 (Cth), reg.2.01.

Treaties:

Convention relating to the Status of Refugees, opened for signature 28 July

1951, 189 UNTS 137 (entered into force 22 April 1954), Art 1A.

Protocol Relating to the Status of Refugees, opened for signature 31 January

1967 (entered into force 4 October 1967).

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

CQG15 v Minister for Immigration and Border Protection (2016) 253 FLR 496

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197

ALR 389

SGBB v Minister for Immigration and Multicultural and Indigenous Affairs

(2003) 199 ALR 364

NABE v Minister for Immigration and Multicultural and Indigenous Affairs

(No.2) (2004) 144 FCR 1

Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111

AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR

503

Applicant: ACW17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number:   SYG 61 of 2017

Judgment of: Judge Emmett

Hearing dates: 27 July 2017, 23 July 2019

Date of Last Submission: 23 July 2019

Delivered at: Sydney

Delivered on: 10 October 2019

REPRESENTATION

Counsel for the Applicant: Mr Richard Chia (Direct Access)

Counsel for the Respondents: Mr Timothy Reilly

Solicitors for the Respondents: Clayton Utz

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 61 of 2017

ACW17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 7 December 2016 (“the IAA”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 16 September 2016 refusing the applicant a Safe Haven Enterprise (Subclass 790) visa (“SHEV”).

2. The applicant is a citizen of Sri Lanka and of Hindu faith and Tamil ethnicity, who fears harm from the Tamil Makkal Yiduthalai Pulikal (“TMVP”) and the Sri Lankan authorities in Sri Lanka.

Background

1. The applicant arrived in Australia on 16 August 2012 as an irregular maritime arrival having departed illegally from Sri Lanka with a passport issued in his own name on 6 January 2010.

2. On 1 April 2016, the applicant lodged an application for a SHEV with the Department of Immigration and Border Protection (“the Department”).

3. On 16 September 2016, the Delegate refused the applicant’s application for a SHEV.

4. On 21 September 2016, the Delegate’s decision refusing the applicant a SHEV was referred to the IAA.

5. On 7 December 2016, the IAA handed down its decision affirming the decision of the Delegate not to grant a SHEV.

6. On 10 January 2017, the applicant filed an application in this Court seeking judicial review of the IAA’s decision.

Legislative framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a SHEV (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Sections 36(2A) and 5 of the Act defines “significant harm.”

7. Part 7AA of the Act provides for a limited form of review of certain decisions (“fast track decisions”). Under Part 7AA, s.473BA of the Act provides as follows:

   “Simplified outline of this Part

   This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.

   Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.

   Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.”

8. Under s.473BC of the Act, the Minister may determine that a specified fast track decision, or a specified class of fast track decisions, may be reviewed.

9. Pursuant to s.473CA of the Act, the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made.

10. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

12. Section 473CB of the Act sets out the material that must be provided to the IAA by the Department when a decision is referred for review:

    “Material to be provided to Immigration Assessment Authority

    (1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

    (a) a statement that:

    (i) sets out the findings of fact made by the person who made the decision; and

    (ii) refers to the evidence on which those findings were based; and

    (iii) gives the reasons for the decision;

    (b) material provided by the referred applicant to the person making the decision before the decision was made;

    (c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

    (d) the following details:

    (i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

    (ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

    (iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

    (iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

    (v) if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

    (2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”

13. Pursuant to s.473CC(1) of the Act, the IAA must review a fast track reviewable decision referred to it under s.473CA of the Act. Section 473CC(2) provides that the IAA may either affirm the decision under review, or remit the decision for reconsideration.

14. The requirements of the natural justice rule are exhaustively set out in Subdivision A, Division 3 of Part 7AA of the Act (s.473DA). That section provides as follows:

    “Exhaustive statement of natural justice hearing rule

    (1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

    (2)To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”

15. Section 473DB(1) of the Act provides that the IAA must review a decision referred to it under s.473CA of the Act on the papers; that is, by considering the review material provided to it under s.473CB without accepting or requesting new information; and without interviewing the referred applicant.

16. Sections 473DC and 473DD of the Act set out the circumstances in which the IAA may consider new information in the conduct of a review of a fast track reviewable decision. Section 473DC provides:

    “Getting new information

    (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:

    (a) were not before the Minister when the Minister made the decision under section 65; and

    (b) the Authority considers may be relevant.

    (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

    (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

    (a) in writing; or

    (b) at an interview, whether conducted in person, by telephone or in any other way.”

    Section 473DD of the Act provides as follows:

    “Considering new information in exceptional circumstances

    For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

    (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

    (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

    (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

    (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.”

The applicant’s claims for protection

1. The applicant claims to fear harm from:

   a)a Tamil paramilitary group, the TMVP, due to his imputed political opinion of sympathising with the Tamil Eelam Liberation Organisation (“TELO”) or Liberation Tigers of Tamil Eelam (“LTTE”);

   b)the Sri Lankan authorities as a Tamil imputed with the political opinion of sympathising with the LTTE; and

   c)the Sri Lankan authorities on the basis of his illegal departure and being a failed asylum seeker.

The Delegate’s decision

1. On 19 August 2016, the applicant attended an interview with the Delegate.

2. The Delegate summarised the applicant’s claims for protection in its decision record before outlining the applicant’s fears regarding his return to Sri Lanka, in the following terms:

   “He fears being kidnapped and killed by the TMVP. He has received a formal death and believes this would be carried out if he is found. The applicant also states his family have been visited by members of the TMVP looking for the applicant.

   The applicant states the Sri Lankan Authorities (SLA) will not be able to protect him. “Even though the TMVP are pro-government, they act independently to inflict harm.

   The applicant attended the police station following the second incident. The applicant claims the police did not investigate the matter. He further states he was not offered any protection from the TMVP. The second time he was kidnapped and the police did not investigate the matter or provide protection.

   The applicant states, “Sri Lanka is a small country. There is not enough space for me to hide. The TMVP operate nationally – in Colombo, Jaffna, everywhere and they will find me and kill me.”

3. The Delegate proceeded to make the following findings of fact:

   a)That the applicant is a Sri Lankan Tamil male born in 1966.

   b)That the applicant is identifiable as an ethnic Tamil in part through his name, language and place of origin.

   c)That if the applicant were to be removed from Australia to Sri Lanka he would be returning as a failed asylum seeker.

4. The Delegate accepted the applicant’s account of discrimination as a Tamil. The Delegate accepted the applicant is a Hindu. The Delegate accepted the applicant’s claimed association with TELO as credible. The Delegate accepted that during the war the applicant may have been suspected of having LTTE links. The Delegate accepted that the applicant was a victim of extortion by the TMVP.

5. However, the Delegate did not accept as plausible the applicant’s explanation that the TMVP were still in pursuit him. The Delegate did not accept that the applicant feared serious harm for the reason of extortion by the TMVP. The Delegate noted that extortion was not identifiable as one or more of the reasons of race, religion, nationality, or membership of a particular social group or political opinion and proceeded to consider that claim under complementary protection. The Delegate noted that the applicant left Sri Lanka as a self-employed successful businessman and that there were recent reports of extortion by the TMVP. However, given that the applicant would be returning to Sri Lanka after a number of years, and without the financial wealth he had, the Delegate found he would not be of interest to the TMVP and therefore that there was not a real risk that the applicant would suffer significant harm.

6. The Delegate noted that the applicant feared persecution because of his Tamil ethnicity and his imputed political opinion as his wife’s brothers were killed as members of the LTTE. The Delegate had regard to a Department of Foreign Affairs and Trade (“DFAT”) report and country information before finding that there was not a real chance of a well-founded fear of persecution by reason of any imputed political opinion on account of association with the LTTE.

7. The Delegate had regard to relevant country information regarding the applicant’s claims as a failed asylum seeker who illegally departed Sri Lanka. The Delegate was not satisfied that those circumstances resulted in a real chance of persecution for one or more of the reasons mentioned in subsection 5J(1)(a) of the Act in the receiving country.

8. The Delegate did not accept that the applicant would be subject to any ongoing investigation in Sri Lanka. Further, the Delegate found that there was no evidence the applicant would be involved in any government opposed activities.

9. In the circumstances, the Delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there was a real risk that the applicant would be arbitrarily deprived of his life for those reasons. There was no evidence before the Delegate which indicated the applicant faced a real risk of being significantly harmed for those reasons as a necessary and foreseeable consequence of his removal from Australia to Sri Lanka.

10. Accordingly, the Delegate was not satisfied that the applicant was a refugee as defined by s.5H(1) of the Act; or that he was a person in respect of whom Australia had protection obligations as outlined in s.36(2)(aa) of the Act. Further, the Delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Sri Lanka, there is a real risk the applicant would suffer significant harm as defined in s.36(2A) of the Act.

11. On 16 September 2016, the Delegate refused the applicant’s application for a SHEV on the basis that the applicant is not a person to whom Australia has protection obligations.

The IAA’s review and decision

1. The IAA’s decision record is accurately summarised in the written submissions of the first respondent as follows:

   “IAA DECISION

   5. After considering the applicant's evidence and country information, the IAA was not satisfied that the applicant faced a real chance of serious or significant harm now or in the reasonably foreseeable future:

   (a) (fear of harm by reason of his imputed political opinion/association with the TELO and/or LTTE): The IAA accepted that the applicant trained with, and remained with the TELO for around a year, was not involved in any armed conflict and disassociated himself from the TELO because he did not want to be involved in “Tamils creating problems for other Tamils”. The IAA also accepted that the applicant's three brothers-in-law were LTTE combatants who were killed in the conflict in 1989. However, it noted that there was no evidence to indicate that:

   A. while the applicant lived in Sri Lanka he faced harm from the Sri Lankan authorities or Tamil paramilitary groups due to his family's connection with the LTTE; or

   B. the applicant would face such harm on his return to Sri Lanka, some 27 years after the death of his brothers-in-law.

   (b) The Tribunal accepted that the applicant and his family were affected by the Boxing Day tsunami tragedy that devastated large parts of Sri Lanka in 2004. It also accepted that the applicant established a building business to benefit from reconstruction works. The IAA had regard to a letter purported to be from the TMVP and accepted that the applicant may have been subject to extortion in Sri Lanka and that he and his family may have received threatening telephone calls and visits (collectively, extortion incidents). However, it did not accept, as plausible, that this incident in 2012 was connected with any of the applicant's activities associated with the TELO given that those activities occurred 29 years earlier. The IAA found that the extortion incidents occurred due to the applicant's building business endeavours. Whilst the IAA accepted that in operating his building business, the applicant was subjected to extortion from the TMVP, it was not satisfied that the applicant's fear of facing harm from the TMVP on return to Sri Lanka would be well founded. Having regard to the country information to which it referred, the IAA found that there had been a significant change in Sri Lanka since the applicant departed in 2012, with a weakening of the paramilitary groups and their renunciation of paramilitary activities. It concluded that the chance the applicant would face instances of extortion from such groups was now remote;

   (c) (fear of harm as a Tamil with associations to the LTTE): The Tribunal accepted that the applicant was a Tamil and originated from an area dominated in the past by the LTTE. The IAA noted that despite originating from a LTTE area, having connections with the TELO and family members who were killed in action in 1989 as LTTE members, the applicant was never questioned, arrested or detained by the Sri Lankan authorities or Tamil paramilitary groups. The IAA observed that this indicated that such groups were satisfied that he had no real or imputed LTTE connections. The IAA noted that the applicant:

   A. confirmed at his protection visa interview that neither he nor any of his family members were affiliated with any political groups or organisations in Sri Lanka, or with the LTTE; and

   B. had not engaged in any Tamil separatist activity in Sri Lanka or whilst overseas and that the available evidence gave no indication that he had any real links to the LTTE.

   The IAA was not satisfied that the applicant had any imputed LTTE links through his brothers-in-law to the extent that his profile would fall within any of the categories identified by the UNHCR as potential persons of interest. Accordingly, it did not consider that the applicant faced a real chance of harm from the Sri Lankan authorities or Tamil paramilitary groups, including the TMVP, on account of his family's link to the LTTE, his brothers-in-law or due to any imputed links to the LTTE;

   (d) (fear of harm as a Tamil): The IAA, on the basis of the available evidence and taking into account the country information to which it referred, was not satisfied that there was a real chance of harm arising to the applicant due to his Tamil race;

   (e) (fear of harm as an illegal departee/failed asylum seeker): The IAA accepted that as the applicant departed Sri Lanka illegally he may be charged under the Immigrants and Emigrants Act 1949 (I&E Act) upon his return. It also accepted that there was a chance that the applicant may be held in detention for a short period. However, it found that the brief period of detention to which the applicant may be subjected did not give rise to the level of threat to his life or liberty, or to significant physical harassment or ill-treatment or any other form of serious harm for the applicant. The IAA also accepted that as the applicant departed Sri Lanka illegally, he may be required to pay a fine but was not satisfied that this, or the provision of a surety, amounted to serious harm. Nor was it satisfied that the payment of a fine, being held in detention for a short period and for questioning, cumulatively, amounted  to serious harm;

   (f) The IAA further found that the country information to which it referred indicated that the process and the treatment to which the applicant would be subject under the I&E Act was not discriminatory and would not be applied in a discriminatory manner. Accordingly, it found that the treatment the applicant would face as a consequence of the application of the I&E Act was not persecution within the meaning of the Act. The IAA referred to country information (a DFAT report) which observed that there were some reports of mistreatment of Tamil asylum seekers who appeared to have an actual or imputed connection to the LTTE. However, on the available evidence, it was not satisfied that the applicant had an real or perceived connection to the LTTE. It did not therefore accept that the applicant would be imputed with separatist or anti-government dissident beliefs by the authorities because of the manner of his departure from Sri Lanka, his extended residence in a western country, having sought asylum in Australia, his connection to his brothers-in-law or his past TELO activity, whether considered individually or cumulatively. Accordingly, it found that the applicant did not face a real chance of persecution from the Sri Lankan authorities, either as a failed asylum seeker or as a returnee from the west or for any other reason.

   6. The IAA concluded that, having considered the applicant's claims and evidence, individually, and in combination, it was not satisfied that the applicant had a well-founded fear of persecution. Accordingly, it found that the applicant did not meet the requirement of the definition of "refugee" in section 5H(1) of the Act and did not meet section 36(2)(a) of the Act.

   7. The IAA then considered each of the applicant's claims by reference to the complementary protection criteria. While the Tribunal accepted that the applicant may be remanded for a short period of time upon return to Sri Lanka, it did not accept that any pain and suffering caused to the applicant by poor prison conditions would be intentionally inflicted as required by section 5(1) of the Act. It was satisfied that none of his claims gave rise to a real risk of significant harm for the purposes of section 36(2)(aa) of the Act.”

The proceeding before this Court

1. The applicant was represented before this Court by Mr Richard Chia, of counsel.

2. On 25 May 2017, the applicant attended a directions hearing before a registrar of this Court. On that occasion, the applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the IAA’s hearing, as well as submissions in support. The matter was set down for a show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) on 27 July 2017 before me.

3. On 27 July 2017, the applicant was represented by Mr Chia and leave was granted to the applicant to file in Court and rely upon an Amended Application. On that occasion, the show cause hearing was dispensed with and a further timetable provided for the filing of any additional evidence and submissions in support. The matter was set down for final hearing on 23 July 2019 before me.

4. Mr Chia confirmed to the Court that the applicant relied only on grounds 1 and 2 of the Amended Application filed on 27 July 2019. Those grounds are as follows:

   “1. The second respondent (“Authority”) failed to consider the applicant's claim, made at the protection visa interview, that he feared harm from Muslims due to his involvement in the building of a temple in Sri Lanka.

   2. Further or in the alternative, the Authority failed to consider the applicant's claim that he feared harm from business competitors and/or the Sri Lankan government acting in support thereof.”

5. Mr Chia read the affidavit of Gail Margaret Hargreaves, sworn 4 September 2017, annexing a transcript of the applicant’s interview with the Delegate on 16 January 2017.

Ground 1

1. Ground 1 asserts that the IAA failed to consider a claim made by the applicant at the interview with the Delegate, that he feared harm from Muslims due to his involvement in the building of the temple in Sri Lanka.

2. The respondent contends that the applicant never claimed a future fear of harm from Muslims due to his involvement in the building of the temple.

3. In support, the applicant referred to the following extract of the transcript:

   “Interpreter: I was building a Hindu temple near the courts, so that time I faced some problem. I was building up a temple there and there was a [not clear on recording] so the Muslim people they wanted to remove their slippers and get in the temple so some problems started and during that time I came here due to the problems. During that building time I faced problems and I came here.

   DIBP Officer: Any other problems like practicing your religion yourself?

   Interpreter: The Muslim troubled me saying that I shouldn’t build the temple at their own site and they also wanted to remove their slippers somewhere there and they started creating problem and then I came here.”

4. The transcript continued as follows:

   “DIBP Officer: Any other problems?

   Interpreter: That was one problem before that I was abducted in a van.

   DIBP Officer: Is that because of your religion?

   Interpreter: Because I was Hindu maybe [not clear on recording] abducted me but they said because I was LTTE.

   DIBP Officer: So you don't know who abducted you?”

5. The applicant submitted that the Delegate made no reference to the applicant’s “problems” arising from his involvement in building the Hindu temple. However, the transcript does not disclose that the applicant was asserting any fear of harm from Muslims in the future as a result of building the Hindu temple. His “problems” were specific to the time of the building. Otherwise, the applicant did not provide any further detail as to the “problems” that he said he suffered at the hands of the Muslims other than that they told him he should not be building the temple on their site and that they wanted to remove their slippers somewhere. There is a reference by the applicant to the Muslims starting to create unidentified problems before he began on the building site. The applicant then asserts that he was abducted in a van. The Delegate specifically asked the applicant if that was because of his religion and his answer, fairly read, was that his abductors said that it was because he was “LTTE”.

6. There is no mention by the applicant of any claim of a fear of harm from Muslims because of his Hindu ethnicity in his statement provided to the IAA.

7. In the circumstances, whilst the IAA was bound to give proper, genuine and realistic consideration to a claim raised by the applicant, I do not accept that the applicant made any claim of a fear of future harm from Muslims by reason of his involvement of building the Hindu temple. His only claim in relation to the building of the temple was a claim of abduction from the building site by TMVP personnel who extorted him for money. The IAA accepted that in operating his building business the applicant had been subjected to extortion from the TMVP. However, the IAA was not satisfied that his fear of facing harm from the TMVP on return to Sri Lanka was well founded.

8. The IAA identified with particularity the country information on which it relied that indicated that kidnappings for ransom, whilst frequent during the civil conflict, had fallen considerably since the end of the conflict and that some Tamil militant groups, including the TMVP, had renounced paramilitary activities. The IAA found that based on the country information before it of the significant changes in Sri Lanka since the applicant departed in 2012, the weakening of the paramilitary groups and their renunciation of paramilitary activities, the chance that applicant would face instances of extortion from such groups was remote. Accordingly, the IAA concluded that there was not a real chance that the applicant would suffer harm on return to Sri Lanka on that basis.

9. Those findings where open to the IAA on the evidence and material before it and for the reasons it gave. The IAA findings were logically probative of the claim before it and made on rational grounds in a procedurally fair manner (see CQG15 v Minister for Immigration and Border Protection (2016) 253 FLR 496, 507-9, [36]-[38]; ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109, 130-131 [83]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2, [30]).

10. In the circumstances, I do not accept that there was an unarticulated claim which was raised clearly or squarely on the material before the Delegate, that the applicant feared harm from Muslims in the future by reason of building a Hindu temple. The Delegate, as stated above, made the clear statement that the applicant did not claim to fear harm by reason of being a Hindu. The Delegate referred to the applicant’s statement that he did not experience any form of discrimination in practising his Hindu faith.

11. The function of the Tribunal is to respond to the case that the applicant advances (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 405 per Kirby J; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17] per Selway J; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 (“NABE (No.2)”) at [58]-[60] per Black CJ, French and Selway JJ).

12. As stated above, such a claim did not emerge from the materials (see NABE (No.2) at [55] and [68]; Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ at [79]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at 509-510).

13. Accordingly, ground 1 is not made out.

Ground 2

1. Ground 2 asserts that the IAA failed to consider the applicant’s claim, made at the entry interview, that he feared harm from business competitors and/or the Sri Lankan government acting in support of his business competitors.

2. The respondent contends that the applicant’s claim to fear harm because of his building contracts was put in support of his claim to fear harm from the TMVP.

3. In his entry interview, the applicant answered the question, Why did you leave your country of nationality?, “Because of threats from the government.” The applicant answered the following question, Why was the government threatening you?, “I build buildings for contract. There was business competition. The competitor was supported by the government. The threats started 10 July 2012. They called me and threatened me. They told me to come to a particular place but I knew if I went there I wouldn’t return.” The transcript of the interview reveals the following exchanges between the Delegate and the applicant:

   “DIBP Officer: Ok, alright. Do you remember if, if anyone was interested in your building contracts?

   Interpreter: Yes. That is why the problem is created.

   DIBP Officer: Yes, can you talk about that please?

   Interpreter: The other would have asked the same contract was asked by the other people for lower rate so then they have gone and reported this to the other party so it could have been.

   DIBP Officer: Ok, can we go into that a bit more so I can understand a bit more about that?

   Interpreter: I have taken a contract for one rate so some people like some people who was working with me, they've gone to the other party and asked them to get this contract for a lower rate, they would bring their relatives.

   DIBP Officer: Ok, and did this have something to do with the TMVP?

   Interpreter: They also do these contracts, they have people to do these contracts. They have people who also do these contracts and they have been having that um…

   DIBP Officer: Ok, what I need to know is a little bit more about you mentioned like you said about the building contacts but you also mentioned that it had something to do with the TMVP are you able to explain that a little bit further?

   Interpreter: They came and took me they demanded 50,000 from me and also they said if I don't give them money they will shoot me so there would have been some reason behind it.

   DIBP Officer: Is there anything else you can tell me about that?

   Interpreter: My oldest daughter is involved with studying, my youngest daughter is at home. Even now they are asking, demanding money from them. They took me, demanded money, 50 Laks and um they said if I don't give the money they will shoot me so there should be some reason behind it. We have sold one house also.

   DIBP Officer: What do you think the reason is, this is what we are trying to work out your claims, what do you think the reason is?

   Interpreter: The problem is because of the contract. Wives, brothers were shot dead and they have damaged their houses and they have that anger and I have this building contract so they that is another reason so all these reasons there have been

   DIBP Officer: I don't understand when you said it's because of a contract. Why is it because of a contract?

   Interpreter: I have got the contract and I was I got the job and TMVP people have asked for the contract and it was not given to them so they got angry with me.

   DIBP Officer: So are you saying they have a building company as well, is that what you’re saying?

   Interpreter: They are still taking contracts like small contracts now.”

4. The transcript discloses that the applicant was given every opportunity to expand on or explain further his claims to fear harm from business competitors and/or the Sri Lankan government acting in support of his business competitors.

5. In his statement dated 9 October 2015 provided in support of his application, the applicant makes clear that his fear of harm is from the TMVP. The applicant stated that the Sri Lankan authorities would not be able to protect him from harm that he may face at the hands of the TMVP, even though the TMVP is pro-government. The applicant said that the TMVP would act independently to inflict harm. While the Delegate accepted that the applicant was a victim of extortion by the TMVP, the Delegate did not accept that the TMVP was still in pursuit of the applicant.

6. Other than the applicant’s statement at the entry interview that the government was threatening him by its support for his building competitors, there is no further elaboration by the applicant either in his statement or at the interview before the Delegate of a claim to fear harm from business competitors supported by the government.

7. I accept the submission of the first respondent that the applicant’s subsequent elaboration on his fear of harm from the TMVP because of extortion by it, is an expression of the applicant’s clearly articulated fear of harm from the TMVP arising from the operation of his building business. As stated above in ground 1, based on country information before it, the IAA found that fear not to be well-founded. As stated above, that finding was open to the IAA on the evidence and material before it and for the reasons it gave.

8. In the circumstances, for the same reasons as referred to in ground 1 above, I am not satisfied that a separate claim was made by the applicant to fear harm from the government by reasons of its support for the applicant’s building competitors.

9. Accordingly, ground 2 is not made out.

Conclusion

1. A fair reading of the IAA’s decision record makes clear that the IAA understood the claims being made by the applicant; and, had regard to all material provided in support.

2. The IAA then made findings based on the evidence and material before it. Those findings of fact were open to the IAA on the evidence and material before it and for the reasons it gave. A fair reading of the IAA’s decision record makes clear that the IAA reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the IAA complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The IAA’s decision is not affected by jurisdictional error and is therefore a privative clause decision.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 10 October 2019