Avh17 v Minister for Immigration - [2018] FCCA 2433

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVH17 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 2433

Catchwords:
MIGRATION – Application for SHEV – Where the IAA had appropriately weighed up all of the evidence – Where criteria not met – Application for review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2A), 36(2)(aa), 476(1)

pt. 7AA &

Cases cited:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11

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

Applicant:

AVH17

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

BRG 172 of 2017

Judgment of:

Judge Egan

Hearing date:

24 August 2018

Date of Last Submission:

24 August 2018

Delivered at:

Brisbane

Delivered on:

24 August 2018

REPRESENTATION

Solicitor for the Applicant:

W J Markwell & Associates

Solicitors for the First Respondent:	Sparke Helmore Lawyers
Second Respondent:	Submitting an appearance

IT IS ORDERED ON A FINAL BASIS:

That the Applicant be granted leave to read and file a Further Amended Application dated 11 August 2018.
That the Further Amended Application filed by leave today is dismissed.
That the Applicant pay the First Respondent’s costs fixed in the amount of six thousand, five hundred dollars ($6,500.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 172 of 2017

AVH17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Sri Lanka who arrived in Australia at Cocos Islands as an unauthorised maritime arrival on 27 August 2012. On 20 August 2013 the applicant sought to lodge an application for a protection visa (class XA). On 9 October 2015 the applicant lodged an application for a safe haven enterprise visa. On 13 January 2016 he attended an interview with a delegate. Following the SHEV interview on 21 January 2016 the applicant’s representative provided written submissions and country information to the delegate.
On 1 September 2016 a delegate of the Minister refused to grant the applicant a safe haven enterprise visa. On 6 September 2016 the matter was referred to the Immigration Assessment Authority (“IAA”) for review in accordance with part 7AA of the Migration Act 1958 (Cth) (“the Act”). On 30 September 2016 and 13 October 2016 the applicant’s representative provided submissions and further supporting documents to the IAA. On 1 February 2017 the IAA affirmed the delegate’s decision to refuse to grant the applicant the SHEV. The reasons of the IAA for affirming the delegate’s decision were attached to a letter directed to the applicant dated 1 February 2017.
Before the Court today is an application for review filed initially on 25 February 2017. That application was subsequently amended on 7 November 2017, and today, the applicant, through Mr Markwell, was granted leave to read and file a Further Amended Application for review dated 11 August 2018. The applicant makes such application for review pursuant to section 476(1) of the Act. In a statutory declaration dated 14 August 2013 provided with the SHEV application, the applicant claimed to fear harm from underworld criminals due to a complaint he made against them to police.
The applicant further claimed:
a)that in about May or June 2006 his brother was shot and killed by unknown people who were closely connected to the underworld in Sri Lanka;
b)that although he did not witness the murder he believed that the murder had been conducted either by, or at the behest of, two men named “F” and “R”, respectively. The applicant claimed that he had lodged a complaint with the police concerning his brother’s death on the basis of what he had been told. It was asserted that the men, F and R, had been arrested but later released. The applicant asserted that some days after their release he commenced to receive threatening phone calls from F.
c)The applicant alleges that in 2008 whilst the applicant was at his hotel he was attacked by five or six unknown men who stabbed him from behind, causing him to suffer life-threatening injuries. The attack was asserted by the applicant to be due to his refusal to keep paying extortion money to F and R. After that attack the applicant moved to a different location.
d)It is asserted by the applicant that in around April 2012 he was fired at by two men on a motorbike whilst he was working in a chicken shop.
The applicant believed that F and R had found out where the applicant had relocated to, and he alleged that he was shot at either by them, or by others at their behest. The applicant alleged that he subsequently fled Sri Lanka in August 2012. The applicant relies upon grounds 2(a), 2(c) and 3 as set out in the Further Amended Application filed by leave today. Those grounds are as follows:
2(a) The second Respondent has not asked the correct questions in relation to the Applicant being shot at in 2012.
The second Respondent has not asked the correct question, as to who actually inflicted the damage to the Applicant’s property in 2012.
2(c) The second Respondent has not taken a relevant consideration(s) into account and/or has not asked the correct question.
PARTICULAR
The Second Respondent has not considered the cumulative nature of all of the criminal acts against the Applicant, which have largely been accepted as occurring by the Second Respondent. Further, given that the Applicant has experienced four (4) criminal acts perpetrated against himself and his brother, now deceased, does the Applicant not now face a real risk of suffering significant harm again?
3 The Second Respondent has been unreasonable, illogical and irrational and a jurisdictional error has occurred.
PARTICULAR
The Second Respondent has been manifestly unreasonable in applying the ‘real risk of significant harm’ test ~~under~~ as set out in s. 36(2)(aa) ~~s.36(2A)~~ of the Act ~~and thus Wednesbury unreasonableness has occurred~~ and the decision is so unreasonable that no reasonable authority would have made such a decision. Further the decision is irrational and illogical and only one conclusion is available on the evidence and the Second Respondent has not come to that conclusion.
Relevant to a consideration of each of the above grounds is a consideration of the findings which have been made by the IAA relating to circumstances of criminality as raised by the applicant, both before the delegate and the IAA. As to the issue of the applicant’s brother, it is common ground that the applicant’s brother was murdered in about May or June 2006. In relation to that death, it was found at paragraph 11 of the IAA reasons that the IAA was prepared to accept that the applicant believed his brother had been shot, and further, that the applicant had been told that F and R were the killers and were each underworld criminal figures.
It was also found by the IAA that the applicant had a genuine belief that the latter was true, and it was further found that he reported his belief as to F and R being the culprits to the police. It was accepted that the police may have arrested, or at least questioned F and R, but that, based upon lack of supporting evidence, F and R were subsequently released without charge. At paragraph 12 of the IAA reasons, it was found plausible first that F and R would threaten the applicant to stop any further agitation, and secondly that it was also plausible that they may have extorted money from the applicant.
No inconsistency was found in the applicant’s claims of being threatened about his brother’s killing and being extorted at the same time by F and R, and it was accepted that both circumstances could coexist. At paragraph 13 of the IAA reasons it was found that the applicant was threatened by F and R when he named them as suspects. It was accepted that F and R then commenced extorting money from the applicant and that this was in part related to his suspicion that they had shot his brother. That ongoing extortion, based on the IAA findings, continued until on or about 25 December 2008 when the applicant was the subject of a stabbing which gave rise to life-threatening injuries.
The applicant claims that he was attacked at the behest of F and R after he refused to continue to pay to them any more extortion money. At CB150 there is evidence of a “diagnosis ticket” recording the serious injuries suffered by the applicant at the time of his admission into hospital on 25 December 2008. That document also records that the applicant was discharged from hospital some two months later on 25 February 2009. It was found by the IAA at paragraph 15 of its reasons that the applicant was stabbed at that time upon his having refused to continue to pay extortion money to F and R.
The next significant allegation of criminality made by the applicant is that in 2012 he was shot at by two attackers at the time the applicant was living at a different place to the early 2008 stabbing, his having relocated to such place after his recovery from the earlier stabbing. On page 151 of the court book there is a true English translation of an entry from the Kurunegala Police Station entitled “Extract from the Information Book of Kurunegala Police Station” that records an entry having been made on 24 April 2012 at 6.50 am. The record is as follows:
Kumara Shiva, Age 28 years, Tamil-Hindu, Profession: Business, Married, Male, resident – No: 420/4, 2^nd lane, Sirikulm Watta, Mallawapitiya, Kurunegala. states as fallows. I am residing at the above address. I am married and have a children. I am doing business at my profession. On 23/04/2012 at about 7.00 p.m. I was at my chicken stole, and I heard a person firing few shots. I got scared and I ran with the brother Ahamed – an employee who served in this shop. There was a Three Wheel No: NW YR 5114 parked in front of my chicken stole. And my said vehicle was damaged. I shall give the cost of damage later. To day on 24/04/2012 I came to lodge this complaint. This is only what I have to say. Read and explained. Admitted as correct. 1 PC 52152 Ginasiri have recorded the statement of Kumara Shiva correctly. Signed xxxxxxxxx PC 52152 Gunaisiri’s Signature
This is a true copy extracted from the Complain Book maintain in the Kurunegala Police Station. Signed…Illegibly
What is relevant from a reading of the police statement referred to above is that the personal details of the applicant have been given, indicating that it was the applicant and no other person who made the statement to the police. That is relevant because the applicant at interview asserted that it was his father whom had made the statement rather than him. The IAA, relevantly, made findings that that was not the case, and that the applicant had, in fact, made the statement as recorded on the face of the information book record.
What is also significant is that the statement records that at about 7.00pm on 23 April 2012 the applicant was at his chicken store and that he heard:
…a person firing few shots. I got scared, and I ran out with the brother, Ahamed – an employee who served in the shop.
The significance of the latter is that it was recorded that the applicant had stated that he “ran out” (presumably from the chicken store) after he heard a person firing gunshots.
The IAA pointed to the discrepancy between that contemporaneous record made shortly after the alleged event, and to what the applicant later said at interview. At the interview the applicant claimed that he was already outside his shop and on his three-wheel motorcycle when the two attackers arrived and fired at him. At paragraphs 16-19 inclusive of the IAA reasons, the IAA has found that the applicant was not to be believed in relation to the alleged circumstances surrounding the 2012 shooting. The IAA pointed to the fact that the police statement was made in the first person and that it recorded an entirely different factual scenario to that as later portrayed by the applicant.
It did not accept that the entire tenor of the statement, as recorded in the police information book, was an error, as claimed by the applicant. It is clear that if someone alleges that upon hearing gunshots they were scared and ran out of a building or structure, they could not have been sitting on a three-wheel motorcycle situated outside the structure at the time of the alleged firing of such shots. The possible circumstances giving rise to damage having been sustained by the three-wheel motorcycle from gunshots are many and varied. For example, it could have been caused a misfire, through mischief, or by a richochet entirely unrelated to the targeting of the applicant.
Another possibility is that it could have been an unintended impact from a poorly directed shot directed at some other person or structure. In any event, the Court is not in a position to, nor is it its duty to, conduct a merits review of any such factual scenario. What is clear is that the IAA considered all of the evidence before it and at [19] made relevant findings that the alleged shooting in April 2012 was not related to either F or R or both of them. Paragraph 20 of the IAA reasons constitutes a cumulative assessment of each of the factors of criminality last referred to.
It records the findings of the IAA that, based on all of the information and evidence, including the significant passage of time since the applicant’s last claimed encounter with F and R – namely, in 2008 at the earliest or 2012 at the latest – the IAA was not satisfied that the applicant faced a real chance of harm at the hands of F or R, or any of their associates, should he return to Sri Lanka. The first ground of review as set out in paragraph 2(a) of the grounds is a complaint that the IAA asked an incorrect question as to who actually inflicted the damage to the applicant’s three-wheel motorcycle in relation to the 2012 alleged shooting.
As was discussed at length in dialogue at the hearing between the Bench and Mr Markwell, on behalf of the applicant, the questions, posed as being appropriate on behalf of the applicant, were inapt in light of the findings of the IAA. For example, as to the first proposed question which ought to have been asked -
“How did the damage to the applicant’s property occur?”
it is clear that if the evidence of the applicant was accepted, then, the damage suffered by the three-wheel motorcycle was from a gunshot and the bullet impacting with such motorcycle.
So much is trite and obvious on the factual material which was before the IAA. The IAA had not improperly failed to address such question, rather it made findings based on other factors relating to inconsistent reporting on the part of the applicant. The second question posed was:
“Who inflicted the damage on the applicant’s property?”
The IAA at paragraphs 18 and 19 of its reasons found that there was no evidence as to who inflicted the damage. In such circumstances, it is inapt for such question to be asked when there is no supporting evidence able to justify the asking of the question.
The third question to be asked:
“What was the motive for the damage?”
This also falls into the same category as the second question in terms of its answer. If the identity of the shooters was unable to be established, then, likewise, any motive for the infliction of damage or the shooting of the bullets could not possibly be ascertained. Ground 2(a) is without merit. As to ground 2(c) it is asserted by the applicant that the IAA failed to have due regard, in a cumulative sense, to the relevant events the subject of evidence before it.
It was suggested that the cumulative matters which ought to have been taken into account were those of the murder of the applicant’s brother, threats and extortion by F and R after the murder of the applicant’s brother, the stabbing of the applicant and the 2012 shooting. Firstly, the 2012 shooting cannot be considered to constitute part of any neglected cumulative consideration because there was no evidence, as found by the IAA, that the applicant was the subject of the shooting at all. Secondly, the murder of the applicant’s brother was unrelated to any actions on the part of the applicant.
It was only after the applicant made a complaint to the police that he believed that F and R were responsible for the death of his brother, that F and R commenced to make threats and to extort money from the applicant, as found by the IAA at paragraph 13 of its reasons. Similarly, the stabbing of the applicant in 2008 was found to have been related to the applicant’s refusal to continue to pay extortion money to F and R. So it was only the threats and the stabbing that the applicant could realistically point to as being matters which cumulatively ought to have been taken into account for the purpose of assessing whether there would be a real risk that the applicant would suffer significant harm if he returned to Sri Lanka, as provided for in section 36(2)(aa) of the Act.
In that regard, as referred to earlier, the IAA had appropriately weighed up all of the evidence and made such a cumulative assessment as recorded in paragraph 20 of its reasons. In those circumstances, there is no merit to ground 2(c) of the applicant’s application for review, and no jurisdictional error has been established, just as in the case of ground 2(a) of the application for review. The assertion in ground 3 of the application for review is that the IAA had unreasonably, illogically and irrationally acted so as to constitute a jurisdictional error.
In paragraph 39 of the IAA reasons the IAA found that the applicant would not face a real chance of serious harm at the hands of underworld figures on the basis of ethnicity or religion. That complemented the earlier finding in paragraph 20 that there was no real chance of harm from criminal associates of F and R. In paragraphs 41-48 inclusive of the reasons, the IAA in its reasons properly identified all of the factors which it ought to consider, pursuant to section 36(2A) of the Act as well as section 36(2)(aa) of the Act.
It appropriately addressed issues of risk of torture or mistreatment for people returning to their country of origin, and, at paragraph 48, found that, having regard to the cumulative circumstances and profile of the applicant, there was no basis for a finding that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm at the hands of underworld figures or otherwise due to his ethnicity or religion.
It upheld the refusal of the grant of the visa by the delegate. It is considered that in all of the circumstances there has been no satisfaction of the unreasonableness test either based on Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229, Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [62] or Minister for Immigration and Citizenship v Li [2013] HCA 18 at [76] considerations. The IAA did not come to a conclusion which lacked any evident or intelligible justification. In all of the circumstances, therefore, the application for review is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 21 September 2018