ADX17 v Minister for Immigration
[2017] FCCA 2768
•24 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADX17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2768 |
| Catchwords: MIGRATION – Safe Haven Enterprise (Class XE) Visa – whether IAA fell into jurisdictional error in failing to consider country information – whether failure to consider a claim or part of a claim arising on the evidence – whether failure to give adequate reasons – no jurisdictional error demonstrated. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa) & 476 |
| Cases cited: MZZMG v Minister for Immigration & Border Protection [2015] FCCA 607 QAAT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 968 |
| Applicant: | ADX17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 7 of 2017 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 1 June 2017 |
| Date of Last Submission: | 1 June 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 24 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Hodges |
| Solicitors for the Applicant: | Hodges Legal |
| Counsel for the Respondents: | Mr O Young |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The applicant’s Amended Application is dismissed.
The applicant do pay the costs of the first respondent in the amount of SEVEN THOUSAND, TWO HUNDRED AND SIX DOLLARS ($7,206.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 7 of 2017
| ADX17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’) of a decision of the Immigration Assessment Authority (‘IAA’) dated 13 December 2016. That decision affirmed an earlier decision of a delegate of the first respondent not to grant a Safe Haven Enterprise (Class XE) Subclass 790 visa (‘SHEV’) to the applicant. The decision of the delegate was made on 28 October 2016.
The applicant raises three grounds of review by an Amended Application filed 25 May 2017. On 17 February 2017, the applicant was given leave by the Registrar to file any amended application and affidavit by 14 April 2017. No objection has been taken by the first respondent to the applicant amending his application outside the time stipulated by the Registrar. I give the applicant leave to rely on the grounds pleaded in the Amended Application.
The amended grounds are as follows:
“1.The IAA committed jurisdictional error by incorrectly applying the UNHCR risk profiles to the applicant.
PARTICULARS
a.At [9], the applicant claimed that his cousin was an LTTE spy and had been missing since 2006.
b.the 2012 UNCHR Guidelines outlines six risk profiles which should be taken into account, the relevant ones in the applicant’s case are:
i. Former LTTE combatants or “cadres”
ii. Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.
c.At [21], the IAA found that it did not accept that the applicant has been imputed with an LTTE profile or that the authorities and EPDP had an interest in him for that reason.
i. Here, the IAA applied the incorrect test by considering whether the applicant would be imputed with an LTTE profile due to his association with his cousin.
ii. Instead, the IAA should have considered that the applicant faced a real risk of serious harm, in general, due to association with his cousin.
2.The IAA committed jurisdictional error by failing to properly consider the applicant’s evidence.
PARTICULARS
a.At [9], the applicant claimed that his father was taken by the army and was still missing.
i. The applicant further claimed that he was concerned “he may disappear like his father” [16].
b.At [11], the IAA accepted that the applicant’s father was missing.
c.However, the IAA did not make any further findings in relation to the risk of harm to the applicant as a result of his father’s status as a missing person or the potential harm the applicant may face if he was to return to Sri Lanka.
3.The IAA committed jurisdictional error by failing to give adequate reasons for its findings.
PARTICULARS
a.At [9], the applicant claimed that he had appeared as a witness in a murder trial in Australia and gave evidence which led to the conviction and sentence of a person who had Sri Lankan underworld and EPDP contracts.
b.At [36], the IAA stated that it “was not convinced that he [the convicted] would be in a position to organise for the applicant to be harmed.
i. The IAA did not provide further explanation for why it came to this conclusion and did not adequately consider the convicted person’s links to groups that may harm the applicant upon his return.
cIn relation the same claim, the IAA found that there was “no indication that any threats have been made to the applicant, any other witnesses or persons who have evidence, or to their family members in Sri Lanka”.
i. However, the IAA did not consider the risk of future harm to the applicant upon return.”
Background
The applicant is a Sri Lankan citizen and was born on 12 March 1970. He arrived in Australia as an unauthorised maritime arrival on 16 August 2012. He made an invalid application for a Subclass 866 Protection Visa in August 2013.[1] On 4 November 2015, he lodged an application for a SHEV Subclass 790. He is an ethnic Tamil and Hindu originally from Trincomalee, which is in the Eastern province of Sri Lanka.
[1] Court Book (‘CB’) p 149 at [1].
The IAA set out the applicant’s claim in some detail.[2] The substance of the applicant’s claims is not the subject of significant dispute between the parties. In his outline of submissions, the applicant set out a concise summary of the claims advanced before the Tribunal and I have adapted aspects of that summary below.
[2] CB pp 150-151 at [9].
The applicant’s claims included that during the civil war, he and his family were displaced and spent periods of time in refugee camps. During the civil war his father was taken by the Sri Lankan Army and is still missing.
In 1996, he moved from a Liberation Tigers of Tamil Eelam (‘LTTE’) controlled area to Trincomalee, which was at that time controlled by the Army. The Army questioned him and he was held overnight. Whilst he was staying at his auntie’s house, the Criminal Investigation Department (‘CID’) detained him for a period of one to two weeks. He was accused of being involved with the LTTE and tortured while detained. He claimed that he was harassed by the authorities on several occasions after that event.
From some time in 1996 until 2003, the applicant moved to stay at the Pastoral Centre where he worked as a volunteer. Generally he felt safe there but claimed to have experienced difficulties when he left the centre. In 1988, he was arrested and detained overnight whilst visiting an uncle in Vavuniya.
In 2002, he claimed to have been stopped by the Army and his identity card was taken from him. The card was returned but the applicant was required to report to the authorities for either one week or 15 times.
The applicant claimed that the authorities imputed him with a LTTE profile because of the fact that his cousin was a LTTE spy. That cousin has been missing since 2006. Before he went missing, the cousin had lived with the applicant’s mother. The applicant had regular contact with the cousin during that time.
Between 2003 and 2008, the applicant worked for CARE. He claimed that police were interested in him during this period after an LTTE cadre had been shot and had been found to have a CARE identity card in his possession.
The applicant claimed to be a supporter of Tamil political parties, Tamil United Front (‘TUF’) and Ilankai Tamil Arasu Kadchi (‘ITAK’). He stood as a candidate for ITAK in the Provincial Council elections in 2007/2008. He claimed to have actively campaigned for the party and as a result was placed on a watch list. The watch list had been established by the EPDP, a pro-government organisation that was opposed to ITAK. The applicant claimed that the EPDP would target him and cause him harm if he were to return to Sri Lanka.
The applicant claimed that Tamil people had difficulty at the end of the civil war. This included a riot by Sinhalese people who attacked Tamil people and looted their homes in 2011. The applicant claimed that his house was attacked by 20 Sinhalese people on 28 January 2012. During that attack, he says that he was physically assaulted and his property was damaged. Following the incident, Sinhalese people came to his home looking for him on four or five occasions.
The applicant travelled to his mother’s house in February 2012. The Army came to his mother’s house to look for him.
In May 2012, the applicant went to Mulankavil Refugee Camp but decided to depart Sri Lanka for Australia two months later in July 2012.
The applicant had given evidence in a murder trial in Australia which led to the conviction and sentencing of another Sri Lankan man. The murderer was involved with the Sri Lankan underworld and the EPDP and as a result the applicant fears that the convicted man could use his influence with people in Sri Lanka to harm him if he were to return there.
In summary, the applicant claimed to fear harm if he were to return to Sri Lanka because of his Tamil ethnicity; his involvement with the TUF and ITAK; his association to family members with LTTE links; his involvement in the conviction and sentencing of the Sri Lankan in Australia; and his status as an asylum seeker.
The decision of the IAA
The IAA gave a detailed consideration of the applicant’s claims and evidence.[3] In particular, it considered the applicant’s evidence in relation to the murder trial in Australia, notwithstanding that it contained information that had not been before the delegate. It was satisfied that the new information was “credible personal information” and exceptional circumstances existed justifying having regard to both the statement and the submissions.[4]
[3] CB pp 151-160.
[4] CB p 149 at [7].
The IAA accepted the applicant’s claims to having been displaced during the civil war and the fact that his father was taken by the Army and is still missing. It accepted that he moved into the Army controlled area of Trincomalee in 1996 and that he had been detained by the CID for one to two weeks and tortured. Whilst there were some inconsistencies in the applicant’s evidence in relation to his detention on that occasion, the IAA found that his account was consistent with independent country information.[5] However, the IAA took the view that country information supported that there had been a significant change in the circumstances in Sri Lanka since the conclusion of the civil war, and for that reason, there was not a real chance that the applicant would experience harm on return to that country by reason of his ethnicity.
[5] CB p 155 at [31].
The IAA accepted that the applicant had come to the attention of the authorities and that he had been detained and questioned about possible LTTE links. It also accepted that he was required to report after the 2002 incident.
The IAA accepted that the applicant had given evidence against a Sri Lankan man who had been charged with murder in Australia.[6] It was not however, satisfied that there was a real chance that the applicant would experience harm as a result of this, finding that there was only a remote chance that this would occur.[7]
[6] CB p 151 at [14].
[7] CB p 157 at [36].
The IAA was concerned that the applicant had exaggerated the extent of his involvement with ITAK and Sri Lankan politics generally.[8] It was not prepared to accept that the applicant had been a member of ITAK and TUF for 10 years, or that he stood as a candidate in Provisional Council elections. It accepted that he had a low level of interest in Tamil politics and that it was possible that he had been involved in supporting one of the Tamil political parties in the 2008 election.[9]
[8] CB pp 152-153 at [20].
[9] Ibid.
On the basis of country information, the IAA was not satisfied that there was a real chance that the applicant would face serious harm from the EPDP as someone with a low profile of political involvement. Similarly, it was not satisfied that he would face serious harm from the EPDP if he were to become politically active or engaged in similar activity on return to Sri Lanka.[10]
[10] CB p 156 at [34].
The IAA was prepared to accept as plausible that the applicant had a cousin who had LTTE links, noting that this was consistent with country information. It accepted that he was in communication with his cousin but did not accept as a correlation that he would be imputed with a LTTE profile, or that he was of any interest to the authorities or the EPDP because of his cousin. It accepted that his cousin had been missing since 2006. The IAA regarded as significant the fact that the applicant had lived openly in Trincomalee and worked for CARE from 2003 to 2008, and that during that time he did not appear to come to attention of the authorities or the EPDP because of his cousin.[11]
[11] CB p 153 at [21].
The IAA was satisfied that the applicant did not have a real or imputed LTTE profile and that he was not involved in any activity identified by country information that might be likely to cause him to be of concern to the Sri Lankan authorities at the time of the review. For that reason, it was satisfied that there was not a real chance of serious harm arising for the applicant on the basis of being a Tamil from a former LTTE controlled area.[12] With respect to the implications for the applicant of having given evidence in a murder trial in this country, the IAA found that given the convicted person was presently serving a lengthy prison sentence in Australia, and in the absence of any evidence from the applicant as to how that person might exert influence over people in Sri Lanka, it was not satisfied that the convicted man would be able to orchestrate any harm to the applicant. It found that the fear was speculative and any chance of harm to the applicant was remote.[13]
[12] CB p 156 at [35].
[13] CB p 157 at [36].
The IAA found that there was insufficient evidence to conclude that the applicant’s house was damaged or that he was assaulted during that episode as claimed by the applicant.[14]
[14] CB pp 153-154 at [22].
Whilst the IAA accepted that the applicant had departed Sri Lanka illegally and might be detained and questioned at the airport on his return, facing a possible fine, and imprisonment, it found that any detention would be for a brief period and that prison conditions would not amount to serious harm. It found that any action taken by the authorities would be as a result of a law of general application, not applied in a discriminatory manner, and for that reason would not amount to persecution.[15]
[15] CB p 158 at [45].
The IAA considered the complimentary protection provision under s.36(2)(aa) of the Act and concluded that there was not a real risk that the applicant would face significant harm.[16]
[16] CB pp 159-160.
Submissions
Applicant’s submissions
With respect to ground one, counsel for the applicant referred the Court to the relevant risk profile in the UNHCR Guidelines. He submitted that given the applicant’s cousin was an LTTE spy, he clearly came within the category of a “former LTTE combatant or cadre”. As the cousin had lived with the applicant’s mother and the applicant was in close contact with him, he was clearly closely related to a person who came within one of the risk profiles which in turn brought him within category 6 of the risk profile. Rather than asking itself whether the applicant would be imputed with an LTTE profile, it was submitted that the IAA should instead have considered whether or not he faced a real risk of serious harm simply due to his association with his cousin. Once the connection had been established with his cousin, it was submitted that the applicant came within the UNHCR Guidelines. Further it was submitted that there were no factual findings as to the applicant’s connection with his father or his cousin, or with respect to whether or not the applicant was on an EPDP and Army watch list.
In Mr Hodges’ submission, there was compelling detail before the IAA as to the type of information relating to the applicant that might be associated with the watch list.
With respect to ground two, it was submitted that whilst the IAA made a finding that the applicant was fearful of disappearing, “like his father”, it did not make any findings in relation to the risk of harm to the applicant as a result of his father’s status as a missing person. For that reason, it had not taken into account the totality of the evidence and had not properly considered the case advanced by the applicant.
With respect to ground three, it was submitted that the IAA did not summarise or make findings as to certain aspects of the applicant’s claims with respect to the circumstances surrounding him giving evidence in the murder trial. In simply making a finding that it was not convinced that the convicted murderer would be in a position to harm the applicant, it was submitted that it had failed to properly explain its reasoning. It was submitted that the conclusion reached by the IAA flew in the face of public knowledge about the operation of underworld figures and the fact that they can orchestrate crimes from prisons. It was submitted that this was a well-known fact in Australia. It was not open to the IAA on the findings it made to come to the conclusion that a person with underworld connections could not organise reprisals in Sri Lanka. In finding that it was not convinced that the convicted man would be in a position to organise for the applicant to be harmed, it was submitted that the IAA had applied the wrong test because it was only necessary for the applicant to establish that there was a risk of such harm and not to positively prove that there was such harm, or to convince the IAA of that.
It was submitted during oral submissions that there was no evidence to support the IAA’s finding that there was no evidence of any threats having been made to either the applicant or other witnesses or persons who gave evidence in the trial to any members of their families in Sri Lanka. Mr Hodges submitted that the IAA had not disposed of the question of whether or not there was a chance that the applicant would be at risk from friends of the convicted man. Further, counsel for the applicant referred the Court to the following line in the reasons of the delegate with respect to the murder incident:
“Departmental records indicate the applicant was present at the time of such an incident. I accept that the incident occurred.”[17]
[17] CB p 118.
It was submitted that this gave rise to the distinct possibility that the IAA had access to information that was not conveyed to the applicant and it was unfair to the applicant because we do not know what those records were, or what information they contained. This submission was an aspect of ground three that was not particularised in the applicant’s grounds but in any event, such information does not appear to have been used by the IAA to make an adverse finding with respect to the applicant. The applicant has not established that there was any other information on which the IAA relied as the reason, or part of the reason, for its decision that was not provided to him.
The first respondent’s submissions
The submission of the first respondent with respect to ground one was in essence that the UNHCR is a species of country information and as such the use of it and any weight to be attributed to it was entirely a matter for the IAA. It submitted that the claims of the applicant with respect to his cousin’s circumstances were thoroughly addressed by the IAA. In the submission of the first respondent, the IAA used the UNHCR Guidelines in a strictly limited manner. That was when considering whether or not the applicant had a well-founded fear of persecution based on his ethnicity.[18]
[18] CB pp 155-156 at [31]-[32].
It was submitted that there could not be any complaint in the process that the IAA undertook, namely a finding that the applicant did not have a real or imputed LTTE profile and was not involved in any other activities that the country information on which it relied indicated would cause him to be of concern to the authorities, and for that reason, did not face a real chance of serious harm on the basis of being a Tamil from a former LTTE controlled area.[19]
[19] CB p 156 at [35].
Further, the finding of the IAA was that it was plausible that the applicant had a cousin with LTTE links. The first respondent submitted that the next part of the reasoning of the IAA was crucial:
“However, I do not accept that he has been imputed with an LTTE profile or that he is of interest to the authorities or the EPDP because of his cousin. His cousin has been missing since 2006. The applicant was living openly in Trincomalee and working for CARE from 2003 to 2008 and did not come to the attention of the authorities or the EPDP at that time because of his cousin.”[20]
[20] CB p 153 at [21].
That paragraph then concludes with the following sentence:
“I do not accept that the applicant was imputed as having an LTTE profile because of his cousin, nor that the authorities and the EPDP had an interest in him for that reason.”
The first respondent submitted that the IAA went on to make a positive finding of fact that it did not accept the applicant was imputed with a profile as an LTTE supporter on the basis of his cousin’s LTTE links, and that the EPDP did not have any ongoing interest in him.[21]
[21] CB p 154 at [27].
The first respondent submitted that the IAA relied on those findings as well when concluding that the applicant did not come within the complimentary protection obligations.
With respect to ground two, the first respondent submitted that it is clear from the reasons that the IAA recognised and considered the applicant’s claim with respect to his father and specifically accepted that his father was taken by the Army and was still missing when considering the question of a well-founded fear of persecution.[22] It was submitted that it was clear that the claim with respect to the father was considered in light of country information and found that there had been significant change in the country circumstances since the end of the civil war, and for that reason, the applicant would not experience harm by reason of his Tamil ethnicity. The finding with respect to his father was considered in light of that country information and subsumed by the broader findings. Those findings, it submits, were open to the IAA on the evidence before it.
[22] CB p 155 at [30].
With respect to ground three, the first respondent submitted that the finding made by the Tribunal was not in error and on the limited information it had before it, it was clearly open to it.
Consideration
The IAA was not obliged to take into account the UNHCR Guidelines.[23] I accept the submission of the first respondent that the IAA relied primarily on other country information and used the UNHCR Guidelines in the limited way identified. It was not a jurisdictional error for the IAA to prefer the country information it did to that contained in the UNHCR Guidelines.[24] Nor was it an error for it to use the UNHCR Guidelines in the limited way that it did. The question of weight to be attached to country information was a matter for the IAA.[25] In reality, the applicant seeks to agitate an impermissible merits review with respect to ground one and I dismiss it.
[23] MZZMG v Minister for Immigration & Border Protection [2015] FCCA 607.
[24] QAAT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 968; NAHI v Minster for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29.
[25] QAAT op cit at [51].
As to ground two, it is well established that if the IAA failed to make a finding on, “a substantial, clearly articulated argument relying upon established facts”, then it may have fallen into jurisdictional error by reason of a constructive failure to exercise jurisdiction.[26] The principle was explained by the Full Court in NABE as follows:
“It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome …”[27]
[26] NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] 144 FCR 1 at [55]; SZTQP v Minister for Immigration & Border Protection [2015] 232 FCR 452.
[27] NABE op cit at [63].
The applicant is correct to submit that the importance of considering the totality of the evidence has been stressed in a number of cases. However, I do not except that the IAA did not properly address the applicant’s claim to fear harm based on his association with his father and the implications of his father’s disappearance. The IAA clearly accepted that the applicant’s father was missing. The applicant’s claim was that he was worried that “he may disappear like his father”.[28] Having accepted that the applicant had spent several periods displaced due to the civil war, and that his father was taken by the Army and still missing,[29] the IAA then embarked upon a consideration of the circumstances in Sri Lanka as they applied to Tamil ethnicity during and after the civil war.[30] It also considered the emergency regulation that enabled the security authority to use broad power “to arrest and detain subsuspects”[31] and noted that those powers had now been lifted. It then noted that whilst the Prevention of Terrorism Act remained in force in Sri Lanka, and that there was some reports of ongoing arrests and disappearances, country information from the Department of Foreign Affairs and Trade (‘DFAT’) noted an improvement in the security situation resulting in a decrease in Tamils held in detention.[32] It noted DFAT information that suggested that the monitoring of Tamils had decreased and that there was a more proactive approach to human rights and reconciliation with respect to Tamils. It was then that it referred to the UNHCR current guidelines which stated that being of Tamil ethnicity alone did not give rise to protection needs and that there was no longer a presumption for a requirement for protection for reason of being of Tamil ethnicity from a former LTTE controlled area.[33] In my view, a fair reading of the IAA’s reasons suggests that the fact and implications of the father’s detention and disappearance were considered in light of that information. In other words, that specific aspect of the applicant’s claims was subsumed by the findings of greater generality based on country information. I am not satisfied that jurisdictional error has been demonstrated on the basis of a failure to consider the implications of the applicant’s claims with respect to his father.
[28] CB p 151 at [16].
[29] CB p 155 at [30].
[30] CB p 155 at [31].
[31] CB p 156 at [32].
[32] Ibid.
[33] Ibid.
The second matter raised under this ground during the course of oral submissions, although not particularised in the Amended Claim, was that the IAA made no specific finding as to whether or not the applicant was on an EPDP watch list. That complaint can be answered by reference to the fact that the IAA made a finding of fact that it did not accept that the EPDP had any ongoing interest in him and that it did not accept that the EPDP had made any enquiries at his family home since his departure from Sri Lanka.[34] The IAA identified that part of the applicant’s claim based on his name being on a watch list.[35] Whilst the IAA did not specifically make a finding that the applicant’s name was not on a watch list, that is in my view a clear implication of its finding that he was no longer of any interest to the EPDP. To conclude otherwise would be to read the IAA’s decision with an eye keenly attuned to the perception of error. I am not satisfied that the applicant has demonstrated jurisdictional error on the basis of a failure to consider this aspect of his claim.
[34] CB p 154 at [27].
[35] CB p 150 at [9] dot point 8.
I dismiss ground two.
As to ground three, it was not necessary for the IAA to refer to every piece of evidence and every contention made by an applicant in order for its reasons to be adequate.[36] The IAA is not a court but rather an administrative body as the Full Court observed in WAEE, such administrative bodies are “operating in an environment which requires the expeditious determination of a high volume of applications”,[37] whilst the Full Court was referring to the Refugee Review Tribunal, the observation is apposite to the IAA and it is not necessary for the IAA to provide reasons as comprehensive as those expected from a court of law. It is of course, required to provide reasons that adequately explain its findings. With respect to the applicant’s contention that the IAA did not provide adequate reasons as to why the applicant’s circumstances having been a witness in a murder trial did not give rise to a real risk of harm, I am not satisfied that this was the case. Specifically, I reject the submission that the IAA did not, in dealing with this issue, consider the risk of future harm to the applicant upon return to Sri Lanka. In finding that the fact that the convicted murderer had a friend from the same area in Sri Lanka where the applicant’s family lived, was a “tenuous association at best”, the IAA was considering the question of whether or not there was a real chance of harm to the applicant on his return to Sri Lanka and that consideration included the assessment of risk at the hands of an agent or agents of the convicted man. To the extent that the IAA did not expressly couch its reasons in those terms, I accept that an inference of a failure to consider an issue may in some circumstances be drawn from the failure to expressly deal with it in its reasons. I note the observations of the Full Court in Applicant WAEE: “but that is an inference not to readily to be drawn where the reasons were otherwise comprehensive and the issue has at least been identified at some point.”[38] The IAA considered the fact that the convicted man was serving a lengthy period of imprisonment and that no mechanism had been suggested by the applicant as to the manner in which it might be possible for him to influence others to harm the applicant. It was relevant for the IAA to note that there was no evidence before it that the applicant, or any other person, had been threatened as a result of having given evidence. I am satisfied that it was open to the IAA to conclude that the risk of harm to the applicant on this basis was remote. I am not satisfied that the IAA failed to ask itself the correct question.
[36] WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184.
[37] WAEE op cit at [46].
[38] WAEE op cit at [47].
I dismiss ground three.
Counsel for the first respondent properly drew the Court’s attention to that aspect of the IAA’s decision and reasons that dealt with the possibility that the applicant would be subjected to poor prison conditions during a brief period of detention on return to Sri Lanka. The IAA found that there would be no intention to inflict severe pain or suffering or extreme humiliation to the applicant whilst so detained.[39] In that regard, the findings of the IAA were consistent with the Full Court of the Federal Court decision in SZTAL v Minister for Immigration & Border Protection[40] which concluded that an actual subjective intention would be required in order to intentionally inflict or cause harm of the relevant kind. The first respondent noted at the time of hearing, that that matter was pending an appeal in the High Court. Since hearing submissions in this matter, I note that the High Court has handed down its decision on the appeal and dismissed it.[41] No jurisdictional error occurred in making that finding in this matter.
[39] CB p 160 at [53].
[40] [2016] FCAFC 69.
[41] SZTAL v Minister for Immigration & Border Protection; SZTGM v Minister for Immigration & Border Protection [2017] HCA 34.
Accordingly, I make the orders to be found at the beginning of these reasons.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 24 November 2017
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