AVE17 v Minister for Immigration

Case •

[2019] FCCA 1194

•

8 May 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVE17 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1194

Catchwords:
MIGRATION – Application for review of decision of the Immigration Assessment Authority (IAA) – whether the IAA failed to understand an integer of the applicant’s claim – whether one of the IAA’s findings was affected by jurisdictional error – whether one of the IAA’s findings was irrational and illogical – whether the IAA sufficiently speculated about what might occur in the future – no jurisdictional error revealed – application dismissed.

PRACTICE & PROCEDURE – Proposed amended application filed before the hearing – leave sought to rely on the proposed amended application – factors considered – leave refused.

Legislation:

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

Cases cited:

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)

[2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous

Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALR 630;

(2003) 75 ALD 630

Dranichnikov v Minister for Immigration and Multicultural Affairs

[2003] HCA 26; (2003) 214 CLR 496; (2003) 77 ALJR 1088;

(2003) 197 ALR389; (2003) 73 ALD 321

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

(2018) 92 ALJR 780; (2018) 359 ALR 1

Minister for Immigration and Citizenship v Li [2013] HCA 18;

(2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225;

(2013) 139 ALD 181

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16;

(2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367;

(2010) 115 ALD 248

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30;

(2018) 92 ALJR 713; (2018) 357 ALR 408

Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6;

(1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481;

(1996) 41 ALD 1
Applicant: AVE17
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY
File Number: SYG 570 of 2017
Judgment of: Judge Nicholls
Hearing date: 2 April 2019
Date of Last Submission: 2 April 2019
Delivered at: Sydney
Delivered on: 8 May 2019

REPRESENTATION

Representative for the Applicant: Mr S. Tambimuttu
Solicitors for the Applicant: Hodges Legal
Representative for the Respondents: Ms M. Donald
Solicitors for the Respondents: Sparke Helmore

ORDERS

  1. The name of the first respondent be amended to read Minister for Immigration, Citizenship and Multicultural Affairs.

  2. Leave to amend the application made on 27 February 2017 is refused.

  3. The application is dismissed.

  4. The applicant pay the first respondent’s costs set in the amount of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG570 of 2017

AVE17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

  1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 27 February 2017. The applicant seeks review of the decision made by the Immigration Assessment Authority (“IAA”) on 14 February 2017, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse to grant the applicant a Safe Haven Enterprise Visa (“SHEV”) (a protection visa).

  2. In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”, “RE1”).

Background

  1. The applicant is a citizen of Sri Lanka (item 10, CB 3). The applicant arrived in Australia on 13 October 2012 ([1] at CB 186). The applicant applied for a SHEV (“the visa”) to remain in Australia. This was received by the Minister’s department on 23 March 2016 (CB 19 and CB 31).

  2. The IAA outlined the applicant’s claims to fear harm in its decision record ([3] at CB 186):

    “The applicant’s claims can be summarised as follows:

·    He fears persecution because of his race; his perceived political views; and his actual (or perceived) membership of particular social groups.

·    Race – he fears persecution because of his Tamil ethnicity and particularly as a Tamil man from the Eastern Province;

·    Political views – he fears persecution because of his perceived support of Tamil separatist movements, including the Liberation Tigers of Tamil Eelam (LTTE), and/or against the Sri Lankan Government. This perception will arise as a result of a combination of factors including his race, his family’s previous areas of residence, his father’s actual or perceived ties to the LTTE, his father’s period of residence in the UK as an asylum seeker and his own attempts to seek asylum in Australia; and

·    Membership of particular social groups – he fears persecution as a failed Tamil asylum seeker and/or as a family member / relative of a former LTTE sympathiser or of a person with certain links to the LTTE.”

  1. The Minister’s written submissions at [6] provide background to the applicant’s claims to fear harm, as drawn from the evidence now before the Court:

    “6.1 When the applicant was fourteen, the applicant’s mother told him that his father had been abducted by the Liberation Tigers of Tamil Eelam (LTTE). Rumours circulated in the applicant’s village that his father had joined the LTTE, and the applicant’s family were known as the “Tiger family.” The rumours persisted after the defeat of the LTTE. As a result of this, the applicant’s father left Sri Lanka.

    6.2 The applicant was warned by his mother that people who were previously members of the LTTE had now joined the Karuna Group and that they would try to take revenge on the applicant because of his father. The applicant was later the subject of a failed abduction by two men, who showed him a weapon and threatened him. The applicant screamed, drawing the attention of the people nearby. The would-be abductors left the applicant alone.”

  1. On 7 September 2016 the delegate refused the applicant a SHEV because the applicant did not meet the criteria to receive protection under s.36(2)(a) or s.36(2)(aa) of the Act (CB 155–CB 176). On 13 September 2016 the matter was referred to the IAA (CB 178).

  2. In assessing if the applicant could be classified as a refugee under the Act, the IAA considered the following:

    (i)That the applicant is a young male Tamil from the east of Sri Lanka and may have “imputed LTTE links and political opinion” ([20]-[35] at CB 190–CB 194);

    (ii)Karuna Group interest in both the applicant’s father and the applicant ([36]-[41] at CB 194–CB 195);

    (iii)The applicant may be considered a failed asylum seeker by the Sri Lankan authorities ([42]–[48] at CB 195–CB 196); and

    (iv)The applicant’s cumulative circumstances ([49] at CB 196–CB 197).

  3. The IAA came to the conclusion that the applicant did not satisfy the criterion to be classified as a refugee under s.5H(1) and s.36(2)(a) of the Act.

  4. In assessing whether the applicant is owed complementary protection, the IAA considered if there was a real risk the applicant may likely suffer significant harm. The IAA considered:

    (i)Discriminatory treatment of the applicant because of his Tamil ethnicity “and/or if his family continues to be labelled a ‘Tiger family’” ([53] at CB 197);

    (ii)The applicant’s status as both a returned asylum seeker and a son of an individual who sought asylum in the United Kingdom, “due to any imputed links to the LTTE or other political views, because of the Karuna Group’s previous adverse interest in the applicant or his father or because of a combination of these” ([54] at CB 197–CB 198); and

    (iii)The risk of the applicant facing the death penalty, “being arbitrarily deprived of life or tortured”, “subjected to pain or suffering, severe pain or suffering or extreme humiliation intentionally inflicted, or caused” ([55] at CB 198). 

  5. After assessing the applicant’s claims both individually and cumulatively the IAA concluded that if the applicant returned to Sri Lanka there is not a “real risk” that he “will suffer significant harm” ([57] at CB 198). Therefore, the applicant did not satisfy the requirements under s.36(2)(aa) of the Act ([57] at CB 198).

The Amended Application

  1. At the hearing before the Court the applicant (through his solicitor) sought leave to proceed by way of an amended application.  The Minister opposed leave being granted for this purpose.  The Minister relied on the late presentation of the grounds of the proposed amended application (although no prejudice was claimed), and further, and importantly, the lack of merit in the proposed grounds.

  2. The hearing proceeded on the basis of the parties arguing the merits of the proposed grounds. That is, whether there was an arguable case or sufficient merit to warrant the grant of leave.  The applicant abandoned the grounds of the initiating application.

  3. The grounds outlined in the applicant’s proposed amended application (25 February 2019) are as follows:

    “GROUND ONE

    The Authority committed jurisdictional error by making a finding that was irrational and illogical such that no reasonable decision maker could have come to it.

    PARTICULARS

    a) At paragraph 9, the Authority notes that the applicant claimed that his mother had told him that, while he was in Australia, men had come looking for hm and that she feared for her safety.

    b) At paragraph 12 of its decision, the Authority notes that the applicant was ‘generally consistent’ in his evidence.

    c) Despite noting the above, at paragraph 14, the Authority raised a concern with he truthfulness of the applicant’s claims in relation to events in Sri Lanka since his departure.

d)At paragraph 15, the Authority reasoned that the applicant had given no details as to the number or date(s) of any visits and did not explain “whatever his mother’s fears of people listening to her calls, why she did not previously mention that men came looking for him”.

e) This led the Authority to reject the applicant’s claim that armed men came looking for him in paragraph 16.

f) In essence, the Authority made findings of credibility which adversely affected the applicant on the basis that he could not answer a question about his mother’s opinion or her reason for doing a certain thing.

g) The Authority, therefore, erred by using this as a reason to make adverse credibility findings against the applicant.

Ground Two

The IAA’s finding that the applicant is not at risk of prosecution under Sri Lankan Immigrants and Emigrants Act 1949 is affected with jurisdictional error

PARTICULARS

a) The IAA found that if the applicant were to return to Sri Lanka, “he will be considered a failed asylum seeker who departed illegally by the Sri Lankan authorities”, this according to the IAA’s reasoning is “Because he does not have his passport he will likely return to Sri Lanka with temporary travel documents” [CB 189, 17].

b) The IAA states [CB 195, 43] “The applicant departed Sri Lanka legally by air, using his passport, and I am not satisfied that he is at risk of prosecution under the IE Act”.

c) The finding at [CB 195, 43] failed to consider the earlier finding at [CB 189, 17], namely that the applicant will be considered by the Sri Lankan authorities to be a failed asylum seeker who departed illegally, as his passport was taken from him by the agent whilst in Indonesia, and he will return to Sri Lanka with temporary travel documents.

d) It was open for the IAA to infer that the applicant was not at risk of prosecution under the IE Act [CB 195, 43] as it had been accepted by the IAA at [CB 189, 17] that the applicant will be considered by the Sri Lankan authorities as having departed illegally.

e) The finding therefore at [CB 195, 43] therefore is affected with jurisdictional error.

GROUND THREE

The IAA failed to understand a pivotal integer of a claim raised by the applicant resulting in jurisdictional error.

PARTICULARS

a) The applicant’s representative submitted at [CB 83, 15] that the applicant has certain “characteristics that would cause him to be of interest to the Sri Lankan authorities and/or as someone who may be presumed to be a supporter or the family member of a supporter of Tamil separatist movements (including the LTTE)”, one of the characteristics was that the applicant “…had been identified by those within his local community as a “Tiger” or “LTTE” family”

b) The IAA accepted that the applicant’s family were “called / considered a ‘Tiger family’ in the village” at [CB 188, 13], [CB 196, 47].

c) At [CB 191, 25] however the IAA on its own accord formed the view that the consequence / result to the applicant due to the “Tiger” or “LTTE” family” characteristic he possessed was “social isolation”.

d) The IAA’s finding at [191,25] failed to understand and consider an essential integer of a claim raised by the applicant that was before the IAA.

e) The IAA’s reasoning at [191,25] lacks an evident and or intelligible justification as “there is no legal or evidentiary basis for the conclusions reached” See: BVG15 v Minister for Immigration & Anor [2019] FCCA 290 (15 February 2019).

GROUND FOUR

The IAA fell into jurisdictional error as its reasoning lacked reasonable speculation as to what might occur in the future, based upon the facts that were established on its own findings and country information considered.

PARTICULARS

a) The IAA accepted the following claims

a. The applicant’s father was perceived to be in the LTTE [CB 188, 13.
b. The applicant’s family “were called / considered a ‘Tiger    family’ in the village [CB 188, 13], [CB 193,33] and [CB 196, 47].
c. The applicant’s father was threatened and kidnapped by the paramilitary group – the Karuna group, he managed to escape and eventually fled to the IK [CB 188, 13], [CB 193,33].
d. The Karuna group attempted to abduct the applicant in 2011 [CB 188,13], [CB 193, 33].

b) According to DFAT incidents of extra-judicial killings, disappearances, kidnappings for ransom though a frequent occurrence during the war, “has considerably fallen since the end of the war” [CB 194, 37], implying that it does take place nevertheless.

c) The delegate referred to country information, which was considered by the IAA which confirms that the Karuna group and other paramilitaries “operated with a large degree of impunity under the former Rajapakse government” [CB 194, 38], and at [CB 195, 40] “Additionally, the country information discussed above suggests the power, impunity and activities of the Karuna Group have diminished” implying that the Karuna group does continue to operate nevertheless.

d) The IAA considered DFAT findings which confirms “…that the Sri Lankan authorities remain sensitive to the potential re-emergence of the LTTE and monitor former members and supporters of the LTTE” [CB 192, 29].

e) The IAA considered DFAT findings which confirms, though the risk of torture and mistreatment is “higher overall” for “high profile former LTTE supporters who are suspected of committing serious crimes…” “than the risk to the majority of low profile people with LTTE links”, “allegations of torture pertain to a relatively small number of cases compared to the total Sri Lankan population” [CB 192, 30].

f) The IAA considered country information which states “White van abductions are now seldom reported, and the number of torture complaints has reduced, although new cases of Tamil victims continue to emerge, both of torture and occasional white van abductions” [CB 192, 31].

g) The IAA considered country information which states “The authorities continue to monitor people, particularly in the north and east and persons perceived to sympathise with the LTTE continue to be intimidated, harassed, arrested, detained and tortured. UKHO notes that, despite improvements, there continue to be reports of abductions, torture complaints and police use of excessive force against Tamils perceived to support the LTTE’ [CB 192, 31].

h) The IAA considered country information which states “…the use of force against civilians though rare remains a problem” [CB 193, 32].

i) The IAA considered country information which states “…There are credible reports that the military and security forces have abducted, tortured, raped and sexually abused citizens and in the north and east security forces are responsible for detaining those accused of LTTE connections, with observers reporting that interrogations sometimes included mistreatment and torture” [CB 193, 32].

j) The IAA accepted “that an asylum seeker with actual or perceived links to the LTTE may be at risk of harm when processed at the airport” [CB 196, 47].

k) The IAA fell into jurisdictional error as its reasoning lacked reasonable speculation as to what might occur in the future based upon the facts that were established on its own findings and country information considered.”

[Errors in the original.]
[Underlining removed for ease of reading.]

  1. It is convenient to deal with the applicant’s proposed grounds in the order in which the applicant addressed them before the Court.

Proposed Ground Three

  1. Proposed ground three asserts that the IAA “failed to understand a pivotal integer of a claim raised by the applicant”.  Further, that the IAA’s reasoning at one point of its decision record “lacks an evident and or intelligible justification”.

  2. It must be said that there was some difficulty before the Court, in eliciting from the applicant’s solicitor, the exact nature of the jurisdictional error alleged in relation to proposed ground three.  (See further below).

  3. The factual basis to the ground was explained as follows.  The applicant claimed that his father was perceived to have been a member of the LTTE.  In the applicant’s village, his family was considered to be a “Tiger family” (Tamil Tiger).  The applicant’s father was kidnapped by the Karuna Group (a paramilitary group).  He escaped and went to the UK.  The Karuna group attempted to “abduct” the applicant in 2011.

  4. The applicant’s proposed ground initially directs attention to [13] of the IAA’s decision:

    “13.Based on the country information and his evidence before, during and after the SHEV interview, I accept the majority of the applicant’s claim. I accept that he and his family lived in Negombo, then Batticlaoa from 2000, followed by Jaffna from 2004, went back to Batticaloa from 2007 and from late August / early September 2011 until he left Sri Lanka in July 2012 the applicant lived in a temple mission in Colombo, apart from his two to three weeks in India in December 2011. I accept that his father was harassed by the LTTE from around 2001 or 2002 and was forced to pay the LTTE money; that there were rumours his father was in the LTTE and they were called ‘Tiger family’ in the village; that in 2007 his father was questioned and threatened by the Karuna Group and eventually agreed to pay them two lakhs; that his father subsequently travelled to the UK; that after his father returned from the UK to assist his mother who was pregnant with the applicant’s sister, his father was kidnapped by the Karuna Group sometime prior to April 2008 but managed to escape; that his father fled to the UK in April 2008; and that his father unsuccessfully claimed asylum in the UK and has remained in the UK since. I accept that two men from the Karuna Group tried to abduct the applicant in June 2011 as claimed; that after the attempted abduction the men sometimes watched the applicant from a distance and called out to him; and that as a result of the incident his mother made arrangements for him to stay at the temple mission in Colombo.”

  1. Before the Court the assertion of jurisdictional error was variously said to be a failure to consider an integer of a claim, or a failure to “properly” consider an integer of a claim, or a failure to provide an intelligible justification for its finding in relation to that integer, which was otherwise said not to have been considered.

  2. In a further attempt to explain the exact nature of the jurisdictional error the applicant submitted as follows.

  1. The applicant’s migration agent made written submissions to the delegate in support of the application for the visa (CB 80–CB135 and CB 141–CB 153).  As part of the submissions the following was stated:

    “15. It is our further submission that, [the applicant] does possess characteristics that would cause him to be of interest to the Sri Lankan authorities and/or as someone who may be presumed to be a supporter or the family member of a supporter of Tamil separatist movements (including the LTTE). These characteristics include:

    …

    ·    he spent his teen years in a female-headed household that had been identified by those within his local community as a “Tiger” or “LTTE” family”.

  1. In a written statement made by the applicant at the time of making the application for the visa he stated (CB 56):

    “…However the whole village began to say that this is a Tiger family, this is a Tiger family.

After the LTTE was defeated in Batticaloa these rumours remained…”

  1. Bearing in mind what the IAA stated in [13] of its decision record (see above at [18]) the IAA dealt with the applicant’s “Tiger family” claim by considering it only as a matter of societal discrimination (see [25] at CB 191):

    “25. DFAT acknowledges that there is a moderate level of societal discrimination between ethnic groups resulting largely from the war.12 However, the report does not identify the affected ethnic groups or the nature of this discrimination. I note he lived in Batticaloa, Jaffna and Colombo and he attended school up to his A-levels, which he failed to complete when he moved to Colombo at his mother’s urging to reside in the temple mission. The applicant does not claim he suffered any incidents of societal discrimination while in Sri Lanka, but his family was previously called a ‘Tiger family’ which I accept could result in some social isolation. However, although a level of social isolation may be hurtful, I am not satisfied it amounts to significant ill treatment or any other type of harm that may be regarded as serious harm.”

    [Emphasis added.]
    [Footnote omitted.]

  2. The applicant also drew attention to [53] of the IAA’s decision record:

    “53. I accept that the applicant may face some level of societal discrimination as a young Tamil male from the east. Having considered the evidence discussed above however, I am not satisfied that the discrimination the applicant may face amounts to significant harm as defined in ss.36(2A) and 5 of the Act. I accept that he may face some level of social isolation if he returns to Sri Lanka and his family is still called a ‘Tiger family’ and as acknowledged above such action may at times be hurtful. However, I am not satisfied on the evidence that any hurt the applicant may suffer will amount to severe pain or suffering, or pain and suffering that could reasonably be considered as cruel or inhuman in nature. Similarly, such action may be hurtful but it does not amount to extreme humiliation. I am not satisfied that the applicant faces discriminatory treatment as a Tamil and/or if his family continues to be labelled a ‘Tiger family’ that amounts to significant harm as defined in ss.36(2A) and 5 of the Act.”

    [Emphasis added.]

  3. In light of [53] the applicant also argued that the IAA accepted that the applicant’s family would still be called a “Tiger family” if the applicant were to return to Sri Lanka, but dealt with this on the basis that this would result in nothing more than societal discrimination.

  4. In what appeared to be a further attempt to add to the list of possible jurisdictional errors, the applicant submitted there was “no evidence” to support the finding particularly in light of the country information before the IAA.

  5. The applicant’s submissions also sought to emphasise that at [53] the IAA accepted that the applicant’s family would “still” be called a “Tiger family” if, and when, the applicant were to return to Sri Lanka.

  6. Ultimately, I understood the applicant’s complaint to be as follows.  I pause to note that I have used the term “complaint” and not “assertion of jurisdictional error”, because the applicant’s explanation of proposed ground three was explained essentially in those terms.

  7. That is, the IAA made a finding that because the applicant’s family would be called a “Tiger family” (in the context of the applicant’s return in the reasonably foreseeable future) he would only be subject to societal discrimination.  The applicant’s complaint now is that his family being called a “Tiger family” would attract the adverse interest of the Sri Lankan authorities which would result in serious or significant harm to him.  The IAA did not consider this.

  8. The applicant’s ground lacks requisite merit for the following reasons.

  9. The applicant claimed to fear harm on return to Sri Lanka, amongst other things, because his family was known as and was called, a “Tiger family” and that this “characteristic” would continue on his return.

  10. When regard is had to the parts of the IAA’s decision record that the applicant seeks to rely on, it cannot be said that the IAA failed to understand or consider the applicant’s claim to fear harm on return because his family were called, and would continue to be called, and perceived to be, a “Tiger family”.

  11. This is not a case, nor really did the applicant’s submissions seek to explain it as such, of a failure to consider an integer of a claim expressly made or clearly arising from the material presented (see NABEv Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 and Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26).

  12. It must be said that the applicant’s complaint relied on an unfair reading of the IAA’s decision as a whole.  The applicant’s focus was narrow and failed to take into account the context for the IAA’s relevant reasoning.

  13. The applicant claimed to be at risk of harm because of an imputed pro – LTTE political opinion. There were a number of factual assertions which the applicant made in support of this claim.  The “Tiger family” assertion was only one of these.

  14. As set out above before the Court the applicant selectively, pointed to the reference to “Tiger family” in his migration agent’s submissions (see [21] above).  The complete “list” of claims is as follows (at CB 83):

    “15. It is our further submission that, [the applicant] does possess characteristics that would cause him to be of interest to the Sri Lankan authorities and/or as someone who may be presumed to be a supporter or the family member of a supporter of Tamil separatist movements (including the LTTE). These characteristics include:

·    his ethnicity as a Tamil, particularly a young Tamil male who has grown up in the Eastern province of Sri Lanka;

·    he has a close relative, namely his father, who was suspected as providing support to the LTTE and fled Sri Lanka as a consequence of this;

·    he spent his teen years in a female-headed household that had been identified by those within his local community as a “Tiger” or “LTTE” family;

·    he has personally been the subject of threats from members of the Karuna group which he believes was related to suspicions as to his father and/or his ties to the LTTE;

·    his father has been residing in the UK for several years as an asylum seeker;

·    he departed from Sri Lanka in 2012 without any family members and while still a minor; and

·    he has since made attempts to seek asylum in Australia.”

  1. The IAA set out these claims in its decision record in some detail (see [5]–[10]).  At [13] the IAA accepted some of these factual assertions.  (See above at [18]).

  2. In understanding the IAA’s reasoning the whole of the structure of its decision record is important.  At [5]–[16] the IAA set out the applicant’s factual account of why he said he feared harm in Sri Lanka. The IAA accepted some of these claims.  This included, for current purposes, the “Tiger family” assertion (see [13] at CB 188).

  3. The IAA then set out its consideration in relation to s.5H(1) and s.5J of the Act (the refugee assessment) at [18]–[49]. Paragraph 25 is one part of that consideration in the context of DFAT information concerning “social isolation”.

  4. The IAA also had regard to further country information including DFAT reports, UK Home Office reports and UNHCR guidelines (see [26]–[35] of the IAA’s decision record).

  5. It was in that context that the IAA again referred to the “Tiger family” matter at [33]. At [33] it also referred to other elements of the applicant’s perceived political opinion claim.

  6. It is important to note that the applicant’s claim relating to the “Tiger family” appellation was but one part of his claim to fear harm for reason of his claimed imputed LTTE links or imputed political opinion.

  7. At [34] the IAA set out eight reasons as to why it found that the risk of harm to the applicant because of this entire suite of claims was remote.

  8. Specifically in relation to the family, that is the perception arising from the various “characteristics” the applicant attributed to his family (including the “Tiger family” appellation) the IAA found that other than an event in 2006, the family had subsequently “never…been arrested,  detained, questioned and/or harmed by the Sri Lankan authorities about any matter…” ([34] at CB 193.6).

  9. In that light, all that remained on the evidence before it, in relation to the “Tiger family” appellation was the “social isolation” matter which the IAA addressed at [25] and [53] in relation to serious and significant harm respectively.

  10. Ultimately when the complaint in proposed ground three is considered in light of the way the applicant presented his claims to fear harm (including the “Tiger family” aspect), and the IAA’s consideration of it, the ground is an attempt to cavil with the findings made by the IAA.  There is no merit in proposed ground three such that leave should be granted.

Proposed Ground Two

  1. Proposed ground two asserts that the IAA’s finding that the applicant was not at risk of harm because of the Sri Lankan Immigrants and Emigrants Act 1949 (“I&EA”) is affected with jurisdictional error.

  2. The applicant explained this proposed ground before the Court as follows.

  3. At [17] of its decision record the IAA stated:

    “17.The applicant claims to have left Sri Lanka on 22 July 2012 to travel legally to Singapore by air and then on to Malaysia by car using his Sri Lankan passport. He travelled illegally to Indonesia by boat on 25 July 2012. He left Indonesia on 10 October 2012 to travel to Australia illegally by boat as a passenger. The agent that accompanied him took his passport from him in Indonesia. Because he does not have his passport he will likely return to Sri Lanka with temporary travel documents. I find that, if he were to return to Sri Lanka, he will be considered a failed asylum seeker who departed illegally by the Sri Lankan authorities.”

  1. Before the Court the applicant emphasised that in the first sentence the IAA noted that the applicant claimed to have left Sri Lanka “legally”.  However, in the last sentence of [17] the IAA found that if he were to return to Sri Lanka he would be considered by the authorities to have departed “illegally”.

  2. At [43] the IAA stated:

    “43.The Constitution (Sri Lanka) entitles any citizen to ‘the freedom to return to Sri Lanka’. Entry and exit from Sri Lanka is governed by the Immigrants and Emigrants Act 1949 (Sri Lanka) (IE Act). Under the IE Act, it is an offence to depart other than from an approved port of departure, such as a seaport or airport. The applicant departed Sri Lanka legally by air, using his passport, and I am not satisfied that he is at risk of prosecution under the IE Act.”

  1. The applicant’s submission is that there was inconsistency in the IAA’s findings in relation to the question of legal or illegal departure.  This led the IAA not to consider the effect on the applicant’s circumstances of any prosecution under the I&EA.

  2. The Minister submitted that the reference to “illegally” (at [17]) when read fairly was “clearly a mistake” or a “typographical error”, and that the Court should read that reference as being that the applicant left Sri Lanka “legally”.  Thus, there is no inconsistency in the IAA’s findings.

  3. The Minister submits that the IAA made a “mistake”.  The applicant submits that the IAA made inconsistent findings. The applicant’s position was that the IAA’s reasoning led to inconsistent findings that deprived him of the opportunity to have his claim of persecution because of prosecution under the I&EA considered.

  4. I do not agree with either submission.  The answer to the applicant’s ground, and more particularly whether the applicant’s ground has relevant merit, is not to be found simply by noting the seeming inconsistency in the IAA’s two statements.  Rather it is to be found in having regard to what the applicant actually claimed in relation to the proposition that he feared harm on return to Sri Lanka, and what he did not claim, and what the IAA actually considered.

  5. In his application for the visa the applicant indicated (in answer to the two options: “legally” or “illegally”) that he departed Sri Lanka “illegally” (CB 39).  However, when that is read with the handwritten information next to it, and with what the applicant otherwise claimed, it is clear that what he is referring to is the “scheme” under which he left Sri Lanka.

  6. Next to the option “legally” the applicant stated (handwritten): “left Sri Lanka with an agent.  Agent took my passport in Indonesia”.

  7. In context therefore, the delegate found that the applicant left Sri Lanka legally (see CB 175.3).  That is through the lawful departure point, the airport, and with a passport in his name.  The reference to “illegally” is a reference to the “scheme” of his departure arranged by his mother.  He was in the company of an agent (a people smuggler) who subsequently took his passport and arranged for him to travel through Malaysia and Indonesia and arrived “unlawfully” in Australia.

  8. There is nothing in the applicant’s own written statement, oral evidence to the delegate, or in the comprehensive written submissions made on his behalf by his migration agent, to say that he feared serious or significant harm on return to Sri Lanka because he left illegally.

  9. Nor specifically is there any claim that he feared such harm because of prosecution under the I&EA because he left illegally, or indeed for any other reason.  That is a claim made by his lawyer now, and was not before the delegate or the IAA.  Nor did the circumstances he presented before the IAA give rise to such a claim.

  10. The only claim to fear immediate harm on return, was said to be because he would be returning as a failed asylum seeker and be perceived as having LTTE links.

  11. This is what the IAA addressed. At the first sentence of [17] the IAA addressed the applicant’s own claim that he left legally (as set out above). At the two last sentences of [17] the IAA considered his claim concerning the “illegal” scheme that his mother had put in place when he left Sri Lanka.  That is, that he feared harm as a returning failed asylum seeker, who departed Sri Lanka with the assistance of an “agent” who “took his passport from him in Indonesia.  Because he does not have his passport he will likely return to Sri Lanka with temporary travel documents” ([17] at CB 189.9).

  12. At [42]-[43] of its decision record the IAA addressed something different. That is, the applicant’s claim to fear harm on return to Sri Lanka as a failed asylum seeker returning from a Western country.  As there was no claim by the applicant that he feared harm for reason of having actually left “illegally” it was reasonably open to the IAA to conclude that he had, for the purposes of the consideration of the failed returning asylum seeker claim, left “legally by air”.  This is consistent with his having left unhindered through the Sri Lankan airport and security checks using his own passport.

  13. The applicant (including in comprehensive submissions made by his migration agent) made no claim to fear harm because of likely prosecution under the I&EA. There is no indication of legal error on the part of the IAA in finding that he was not at risk of prosecution under the I&EA in circumstances where the applicant “departed Sri Lanka legally by air, using his passport” ([43] at CB 195.7).

  14. In all therefore, the applicant’s ground lacks sufficient merit to argue for the leave the applicant now seeks.

  15. I should also note again that the Minister’s submission was that the reference to “illegally” (at [17]) is a typographical error and should be read in context as being “legally”. The applicant argues that it was not a “mistake”, but an inconsistency in the IAA’s reasoning which had the result that the IAA did not consider that he would be prosecuted under the I&EA for illegal departure.

  16. Even if I were to accept that the reference was a typographical error, or even part of a “mistake”, this would not have altered the conclusion set out immediately above.

  17. That is because such an error or mistake was not material to the outcome of the IAA’s assessment, and does not indicate an error in the exercise of jurisdiction on the part of the IAA (see Hossain v Minister for Immigration and Border Protection [2018] HCA 34 particularly at [18]–[19], [23]–[25], [30] and [66]–[72]).

  18. The applicant’s argument in his submissions in relation to proposed ground two was that the applicant was denied the opportunity of consideration of persecution for reason of being a failed asylum seeker who departed illegally (the character of the departure was not at issue as the applicant consistently claimed to have left Sri Lanka through the airport using his own passport (“legally”) as part of the scheme arranged by his mother for him to travel to, and enter Australia without authority (“illegally”)).

  19. The applicant made no such claim before the delegate or the IAA.  As set out above the claim was that he would come to the adverse attention of the Sri Lankan authorities because of perceived LTTE links, and as a failed asylum seeker.

  20. In relation to those claims, and as they were referred to the IAA, the IAA considered them and concluded he would not be at risk of persecution, or significant harm for reason of his claims (at [48], [54] and [56] of the decision record).

  21. It is within the analysis leading to these conclusions (“outcomes”) that the IAA made reference to the I&EA (at [43]).

  22. As set out above, and as the applicant’s submissions also assert (see point e. at page 7 of the applicant’s submissions) “…the applicant did not actually depart Sri Lanka illegally”.

  23. In this light the conclusion that the applicant would not likely suffer serious or significant harm for reason of returning to Sri Lanka as a failed asylum seeker is not susceptible of any indication of jurisdictional error.

  24. Specifically in relation to the I&EA the applicant does not now dispute, nor in the circumstances could he reasonably do so given what was before the IAA, that he left Sri Lanka “…from an approved port of departure…by air, using his passport” (at [43]).  These were the critical findings in relation to the I&EA aspect of the IAA’s consideration.

  25. In that light the finding that he left “legally” is a finding consistent with the evidence before it being the elements involved in his departure (which the applicant did not then, or now, dispute).

  26. Even if the IAA had by way of typographical “error” or “mistake” referred earlier in its reasoning (at [17]) to his having left “illegally” that “mistake” or “error” did not in the circumstances presented have any material impact on the reasoning, finding and conclusion ultimately set out by the IAA. In all proposed ground two lacks requisite merit.

Proposed Ground One

  1. Proposed ground one asserts that the IAA’s decision was “irrational and illogical such that no reasonable decision maker could have come to it”.

  2. The proposed ground was explained in submissions as follows.  The IAA accepted the applicant’s claims as to events that occurred before he came to Australia, but did not accept his claims as to events that occurred after he left Sri Lanka and arrived in Australia.

  1. The applicant referred to [12] of the IAA’s decision record to argue that the IAA found that he “was ‘generally consistent’ in his evidence”.  Although the IAA expressed some doubts because the applicant was said to be “vague on some of the details”, it attributed this to his age at the time of those events and that “much of his information was obtained from his parents, including only obtaining further information from his father after the SHEV interview”.

  2. Yet at [14] the IAA had “concerns about the truthfulness of the applicant’s claims in relation to events in Sri Lanka since his departure”. The submission was that it had the concerns in spite of the applicant having also received this information from his mother who was a part of his family.

  3. The applicant now argues that both sets of evidence were found to have common characteristics. That is, both were in part vague and came from family members.  Yet the IAA accepted one set, but found adversely to the applicant’s credit in relation to the other.

  4. In short the IAA’s decision contained irrational and illogical findings which rendered its decision unreasonable.

  5. In what must be said was a common feature in the applicant’s submissions before the Court, the proposed ground and the explanation proffered for it was selective.

  6. The IAA set out the applicant’s claims as to past events in Sri Lanka in some detail (see [5]–[9] of the decision record).  It is the case that at [12] the IAA stressed the concerns as the applicant now submits, and noted the source of his information.

  7. However, the applicant’s submissions overlooked the fact that the IAA gave reasons as to why, notwithstanding its concerns, it accepted much of the applicant’s factual claims as to past events.  At [13], and with reference to [11], the IAA explained that the “majority of the applicant’s claim” was accepted based on the country information before it.

  8. At [14] the IAA did, as the applicant submitted, express concerns about the “truthfulness” of his claims as to events after he left Sri Lanka.

  9. Yet again, the applicant’s argument failed to address the IAA’s extensive reasoning at [15] which explained the finding at [14].

  10. In his written submissions the applicant made brief reference to both Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (“SZMDS”). However, he made no attempt either in his written submissions, or orally before the Court, to explain whether the unreasonableness arose as a result of some identifiable errors, or that the decision was legally unreasonable because of the outcome arrived at by the IAA.

  11. One reason for this omission may be the selective focus of the applicant’s argument which ignored much of the IAA’s actual and relevant (to its findings) reasoning.

  12. In any event it was not illogical or irrational or unreasonable of the IAA to find that some of his evidence to the delegate lacked credibility, whereas other aspects were accepted. This is because the IAA made findings that were reasonably open to it on what was before it, and the reasons that it gave were in relation to matters which were probative to the assessment of credibility. Nor did the IAA fail to give an intelligible justification for its decision. (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [82]).

  13. Contrary to the applicant’s submissions, and with reference to SZMDS at [135] (applicant’s submissions page 5 at point c.) the IAA’s findings were reasonably open to it and there was a logical connection (for the reasons given) between each of the two sets of evidence referred to now by the applicant, and the respective conclusions drawn by the IAA.

  14. The applicant’s proposed ground, and submissions, appeared not to have understood that the determination of claims of legal unreasonableness is fact dependent and requires attention to all of the evidence.

  15. The applicant’s selective focus on some of the evidence reveals the paucity of his proposed ground.  In the circumstances the applicant’s proposed ground can only be properly characterised as an attempt to cavil with the different findings made by the IAA using the assertion of illogicality, irrationality, and unreasonableness, as camouflage for that attempt. In short, proposed ground one lacks requisite merit because in essence it is an attempt to invite the Court to engage in impermissible merits review.

Proposed Ground Four

  1. The terms of proposed ground four (with particulars) are set out above.  Before the Court the applicant’s submissions were not clear. The applicant opened his submissions in relation to proposed ground four by stating that the IAA did not “sufficiently speculate” or “speculate sufficiently enough” as to what might occur in the future.

  2. The applicant attempted to explain this by reference to his claims before the IAA about past events in Sri Lanka concerning the perception that his family were linked to the LTTE, and harm from paramilitary groups, like the Karuna Group.

  3. He then sought to take issue with some of the IAA’s findings which he said lacked requisite speculation as to what would likely occur in the future.  Therefore, I understood the essence of proposed ground four to be that the IAA failed to properly apply “[t]he real chance” test.  That is, in failing to properly “speculate”, the IAA’s conclusion as to the applicant’s risk of harm in the future, was not open to it.

  4. This proposed ground suffers from the flaws generally noted above in relation to the applicant’s other proposed grounds.  In particular, as with proposed ground three, it is selective, and in essence seeks to challenge factual findings made by the IAA which were otherwise reasonably open to it on what was before it.

  5. There is nothing in the evidence before the Court to indicate that the IAA misunderstood or misapplied the real chance test, including the element of reasonable foreseeability (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6. There is no merit in this proposed ground such as to argue for the leave sought.

Conclusion

  1. In all, the proposed grounds all lack requisite merit.  Leave to amend the application is refused.  The applicant formally abandoned the grounds of the originating application.  I will make the appropriate orders. 

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 10 May 2019

CORRECTION (10 May 2019)

The words “and amended on 25 February 2019” were removed from paragraph [1] as they refer to an amended application where leave was not granted for this amended application to be relied upon.

Key Legal Topics

Areas of Law

  • Administrative Law

  • Immigration

Legal Concepts

  • Judicial Review

  • Jurisdiction

  • Procedural Fairness

  • Natural Justice

  • Appeal

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0