BBC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 993
•15 JUNE 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
BBC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 993
File number(s): SYG 592 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 15 June 2021 Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in part and other fears found not to be well-founded – whether the Authority failed to deal with an integer of the applicant’s claims or failed to consider what the position would be if it were wrong considered – jurisdictional error established. Legislation: Acts Interpretation Act 1901 (Cth) s 25D
Migration Act 1958 (Cth) ss 5H, 36, 430, 473EA
Cases cited: AYY17v Minister for Immigration and Border Protection (2018) 261 FCR 503
Minister forImmigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
SZUOK v Minister for Immigration & Anor [2015] FCCA 1429
Number of paragraphs: 63 Date of hearing: 11 May 2021 Place: Sydney Counsel for the Applicant: Mr B Zipser Solicitors for the Respondents: Ms S Roberts of Mills Oakley ORDERS
SYG 592 of 2019 BETWEEN: BBC19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
15 JUNE 2021
THE COURT ORDERS THAT:
1.A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 20 February 2019 into this Court for the purpose of quashing it.
2.A writ of mandamus shall issue requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
3.The first respondent shall pay the applicant’s costs of and incidental to the application, fixed in the sum of $6,500.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 20 February 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a male citizen of Sri Lanka of Tamil ethnicity who originates from a named location in the north of Sri Lanka and arrived in Australia on 13 October 2012 as an unauthorised maritime arrival.[1]
[1] Court Book (CB) 124
On 24 January 2013, the applicant participated in an entry interview[2] where he claimed that after his mother left Sri Lanka in October 2011, he received threatening calls from people demanding money from him because his parents had given him money to start a business. He did not know who was calling him. The callers said they would plant “illegal arms” in his house if he did not comply. The applicant eventually paid them some money and gave them his Sri Lankan National ID card.[3]
[2] CB 1-17
[3] CB 12
On 20 March 2017, the applicant applied for a Safe Haven Enterprise Visa (SHEV) with the assistance of his authorised representatives, Playfair Visa and Migration Services.[4] In his Form 790C, the applicant made broad claims that he faced harm in Sri Lanka based on: his Tamil ethnicity; his imputed political opinion as a Liberation Tigers of Tamil Eelam (LTTE) member or sympathiser; and his membership of the particular social groups identified as “failed asylum seeker” and “originating from a wealthy family whom are abroad and who have sought asylum and have been granted protection in Australia”.[5]
[4] CB 32-84
[5] CB 67-69
On 12 October 2017, the applicant lodged a four-page statement[6] in which he outlined his claims in detail as follows:
(a)his problems in Sri Lanka started when his father fled the country in 2009 under suspicion from the Sri Lankan Navy (Navy) that he was in the LTTE. His father had been an LTTE supporter and a fisherman who transported diesel, oil and matches for the LTTE;
(b)in 2003, the applicant’s father began “having trouble” with the Navy. Things became a lot worse after an incident in “late 2008” when the applicant’s father and brother (N) were stranded at sea overnight and failed to return to collect their identity cards from the Navy, as was expected of them. When they returned to his home location the next day, the Navy detained them, beat them and accused them of being involved with the LTTE. They were only released after the intervention of a local priest and payment of a bribe by the family;
(c)after their release, uniformed officers came to the applicant’s home and beat his father and N. Around May 2009, the father and N fled Sri Lanka because the authorities were suspicious of their involvement with the LTTE;
(d)around three or four months later, the applicant’s mother began receiving threatening phone calls. The applicant believed it was people from the Criminal Investigation Department (CID) or “another state body” because they said they were angry about the applicant’s father “escaping”. They threatened to hurt the family if they were not given money. The mother gave them money “many times”. The applicant’s family were wealthy so the CID knew they had money to give;
(e)in mid-2010, the father became a permanent resident in Australia and “sponsored” the applicant, his mother and another brother to come to Australia on a Global Special Humanitarian (Subclass 202) visa. The applicant’s sister was not included in the application as she was already married with children. The applicant was not granted a visa because he was too old to be a dependant, but his mother and brother left Sri Lanka in the second half of 2011. Around two or three months after his mother and brother left, the applicant began receiving threatening phone calls. The callers knew the applicant’s family had fled and that his father was involved in the LTTE. They threatened that if the applicant did not give them money, they would kidnap him or plant weapons in his house and arrest him. The first time, the applicant gave them 500,000 Sri Lankan rupees but they continued to demand money, so the applicant fled to Australia; and
(f)the applicant feared he would be arrested at the airport on his return to Sri Lanka because he did not have a national identity card and claimed that there was nobody in Sri Lanka who would provide bail. He also feared continued threats, financial extortion, abduction and torture if he returned to his home as he was from a wealthy family and people would think he had a lot of money because he had been in Australia for years.
[6] CB 96-100
On 11 December 2018, the applicant attended an interview with the delegate (SHEV interview).[7]
[7] CB 126; a summary of the events of the SHEV interview are included in the delegate’s decision at CB 126-128
On 10 January 2019, the delegate refused to grant the applicant a SHEV. The delegate was not satisfied that the applicant was owed any protection obligations under either s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).[8]
[8] CB 124-140
The Authority’s decision
On 15 January 2019, the matter was referred to the Authority.[9]
[9] CB 142-143
On 5 February 2019, the applicant’s representative lodged a five-page submission which contained argument disputing the delegate’s findings (the Authority submission).[10]
[10] CB 159-163
As noted above, on 20 February 2019, the Authority affirmed the delegate’s decision to refuse to grant the applicant a SHEV.[11] Its decision can be summarised as follows:
[11] CB 169-185
(a)to the extent that the Authority submission contained argument about matters that were before the delegate, the Authority found it was not new information. However, it found that a reference to the Sri Lanka Crime and Safety Report published by the US Department of State in 2018 (2018 Report) was new information, given the delegate had considered the 2015 version of the report. The Authority took into account the representative’s submissions about the importance of relying on the most recent information but was not satisfied that there were exceptional circumstances that warranted consideration of the 2018 Report as the information contained in both reports regarding the motives for kidnappings and ransoms was “identical”;[12]
(b)the Authority accepted that the applicant’s father was a fisherman and that it was plausible he had transported goods for the LTTE and was stopped and arrested with N in 2008. However, it placed significant weight on the fact that the father purportedly only came to the authorities’ attention on one occasion in 2008 and was questioned and physically mistreated but then was released and “able to proceed on his way”;[13]
(c)the Authority was not satisfied that someone who was imputed as being linked to the LTTE would have been able to continue fishing openly. While it accepted that the applicant’s father would have been questioned about LTTE activities, the Authority found this would have been “common practice” at the time. The Authority also accepted that the applicant and N were released after the local priest paid a bribe but found this could only be because the authorities did not believe they were working with the LTTE. The Authority did not accept that such persons would not be detained or charged if they had been suspected of supporting the LTTE;[14]
(d)the Authority placed significant weight on the fact that the father and N were able to leave in Sri Lanka in 2009 legally under their own passports. It did not accept that the authorities would have allowed them to leave during the civil war if they were considered to be connected to the LTTE. As it did not accept that the applicant’s father or brother were of interest as LTTE supporters, the Authority also did not accept that the applicant would be so imputed because of his familial links;[15]
(e)based on an assessment of country information, the Authority accepted it was plausible that the applicant’s mother was subjected to extortion and that the family (apart from the applicant) had migrated to Australia. Although it had “some concerns” about the applicant’s account, the Authority was willing to accept that he was subject to an extortion demand which he paid and that he was threatened with abduction. However, it was not satisfied that the extortionists’ knowledge of his father’s circumstances indicated they were from the government. The Authority found it was equally possible that aspects of the family’s circumstances were generally known;[16]
(f)based on country information that indicated the influence of paramilitary groups had subsided, the Authority was not satisfied that the applicant would be subject to extortion demands if he returned to Sri Lanka. It was also not persuaded that the Sri Lankan police would extort the applicant or that he would be subjected to extortion because he would be viewed as having a lot of money, based on the absence of any reporting that returned asylum seekers were subjected to extortion demands in Sri Lanka;[17]
(g)as the applicant left Sri Lanka legally using his own passport and there was no evidence that he was hampered in his attempts to leave, the Authority did not accept that he was of interest to the authorities or imputed as an LTTE supporter when he left.[18] The Authority found he had not come to harm because of his familial links when he was in Sri Lanka previously, that there had been a significant passage of time since his departure, country information indicated that the authorities were currently focused on those involved in Tamil separatism (which the applicant was not) and there was nothing to indicate that Tamils with family members who had been granted protection in Australia would be of adverse interest or imputed as LTTE supporters;[19]
(h)the Authority did not accept that the applicant had or would be perceived to have a profile of concern and found there was no indication that his status as a failed asylum seeker would bring him adverse attention. It acknowledged country information that indicated the applicant could be visited or contacted by the CID but was not satisfied that such contact would lead to any harm. Further, while the Authority accepted that the applicant no longer had a National ID Card, it found there was no indication that he could not apply for a replacement card;[20] and
(i)the Authority referred to the applicant’s fear of difficulties obtaining employment in Sri Lanka. It found the information before it indicated that he had completed his O Levels and a computer course and had extended family in Sri Lanka. It took into account his previous employment there and was not satisfied that he would be denied employment or that he would suffer any significant economic hardship.[21]
[12] CB 170-171, [4]-[6]
[13] CB 173, [12]-[13]
[14] CB 173-174, [14]
[15] CB 174, [15]
[16] CB 174-175, [17]-[19]
[17] CB 175-176, [20]-[21]
[18] CB 176, [22]
[19] CB 177-178, [27]
[20] CB 178, [28]-[31]
[21] CB 179, [33]
Accordingly, the Authority found that the applicant did not meet s 5H(1) of the Migration Act (ie he was not a refugee) and therefore could not meet s 36(2)(a) of the Migration Act.[22] It considered s 36(2)(aa) and noted that it accepted that the applicant would be subject to checking and questioning on any return but that such conduct would not amount to serious harm, nor was it satisfied that any visit to him “as a failed asylum seeker on return would amount to or lead to significant harm”. It otherwise referred to its earlier factual findings in finding that the applicant did not meet s 36(2)(aa).[23]
[22] CB 179, [35]
[23] CB 180, [38]-[41]
THE CURRENT PROCEEEDINGS
These proceedings began with a show cause application filed on 13 March 2019. At the trial of this matter on 11 May 2021 I granted the applicant leave to file and rely upon a proposed amended application annexed to the applicant’s written submissions. Leave was not opposed. There are two grounds in the application as thus amended:
1.The applicant claimed that, if required to return to Sri Lanka, he would be the target of extortion attempts. The Immigration Assessment Authority ("the IAA”) at [20] made an upfront finding that it was "not satisfied that there is a real chance the applicant would be subject to extortion demands should he return to Sri Lanka". However, a consideration of the reasons underlying the upfront finding indicates that the IAA did not properly address and deal with the risk to the applicant of extortion attempts by criminal groups if required to return to Sri Lanka. This is a jurisdictional error.
2.The applicant claimed that, if required to return to Sri Lanka, he would be harmed because of his association with his father who transported goods for the LTTE during the civil war. In connection with this claim, an important question was whether the Sri Lankan authorities were aware that the father supplied or transported goods for the LTTE. The IAA at [14] found that it was “satisfied that [the father] was not identified as having supplied/transported goods for the LTTE.” This finding, and the IAA’s reasons in support of the finding, indicate that the IAA made this finding on the balance of probabilities, and the IAA had a real doubt as to whether this finding was correct. ln the circumstances, the IAA was required to consider the possibility that the Sri Lankan authorities identified the applicant's father as having supplied or transported goods for the LTTE. The IAA's failure to do so involved jurisdictional error.
The only evidence I have before me is the court book filed on 16 May 2019.
CONSIDERATION
It should be stated at the outset that there are humanitarian considerations in this case deserving of attention by the Minister. As was noted by the Authority in its decision at [7][24] the applicant’s father and brother were concerned for their safety in Sri Lanka in 2009 and came to Australia. They were granted protection in Australia and the applicant’s brother has since become an Australian citizen. Further, in 2010 the applicant’s father sponsored remaining family members in Sri Lanka to migrate to Australia under the Global Special Humanitarian Programme. The sponsored family members who were granted visas under that Programme were the applicant’s mother and younger brother. That decision was made in 2011. The applicant’s sister was not included as she was already married (apparently to a man in Sri Lanka) and the applicant was refused as he was at that time over 18 years of age.
[24] CB 171
Since then, the applicant has married an Australian citizen[25] and they have had a child together who is an Australian citizen. Because of his immigration status, the applicant is unable to apply for waiver of the condition on a partner visa application that would require the applicant to apply offshore. Having regard to the applicant’s family circumstances it would, in my opinion, be appropriate for the Minister to give consideration to permitting the applicant to make an application for a partner visa onshore.
Ground 1 – did the Authority fail to consider a claim arising from its own reasoning?
[25] apparently after the decision of the delegate
Applicant’s contentions
The applicant claimed in his statement dated 12 October 2017 that about two to three months after his mother and younger brother left Sri Lanka “in the second half of 2011” to join the applicant’s father in Australia, the applicant:[26]
(a)commenced receiving extortion threats;
(b)paid money in response to one threat; and
(c)continued receiving further threats.
The threats continued over eight months.[27] The applicant fled Sri Lanka in fear of the extortion threats.[28]
[26] CB 98, [14]-[17]
[27] CB 98, [16]
[28] CB 98, [17]
It is clear from the applicant’s claims that he believed the extortion threats were from the Sri Lankan authorities. Consistent with this belief, the applicant stated in his statement at [19]-[20] that, if required to return to Sri Lanka, he feared further extortion “at the hands of the CID, army or government”. The applicant added at [22] that he “fear[ed] that I will suffer significant economic hardship due to extortion if returned to Sri Lanka”. While it could be argued that the applicant did not limit his claim in this paragraph to extortion by the authorities (in contrast to extortion by criminal groups), it is acknowledged that, in context, the applicant’s focus involved a fear of extortion by the authorities. To similar effect, the applicant, in his protection visa application lodged in March 2017, attributed the extortion threats to “paramilitary groups”[29] and “the Sri Lankan authorities and their associated paramilitary groups”.[30]
[29] CB 68
[30] CB 69
The Authority at [19], subject to a significant qualification explained in the next sentence, accepted the applicant’s claims concerning extortion demands in the eight months in 2011 and 2012 after the applicant’s mother and younger brother travelled to Australia. The qualification is that the Authority at [19] was not “persuaded that … [the extortionists] … were from the government”. Instead, the Authority “consider[ed] it equally possible” that the information which the extortionists told the applicant was “generally known”. On a fair reading of this finding at [19], the Authority found there was an equal possibility that the extortionists:
(a)were connected to the government (ie a branch of the Sri Lankan authorities or a paramilitary group); or alternatively
(b)were a criminal group not connected to the government.
The Tribunal at [20] set out an upfront finding (the Extortion Finding), for reasons explained in the remainder of [20] and the first part of [21], that:
I am not satisfied that there is a real chance the applicant would be subject to extortion demands should he return to Sri Lanka.
The applicant’s complaint to the Court is that the Extortion Finding, when one considers the underlying reasoning at [20]-[21] in support of the upfront finding, involves jurisdictional error. An explanation of the error is as follows.
Extortion in a country can be carried out by a variety of actors. Extortion is often carried out by criminal groups. The Authority at [20] stated:
Extortion as a feature of the civil war and post-war environment was largely conducted by paramilitary groups ...
It is implicit from the word “largely” that extortion in Sri Lanka in the relevant period, although “largely” carried out by paramilitary groups, was also carried out by criminal groups, even though the extortion activities of criminal groups might be notably smaller in scope than the extortion activities of paramilitary groups.
The Authority, in the remainder of [20], focused on the decline of influence of paramilitary groups between 2011/2012 (when the applicant experienced the extortion demands which the Authority accepted) and 2017/2018.
The Authority, in the first few sentences of [21], continued to focus on the role of the Sri Lankan authorities in extortion.
The Authority then found at [21]:
Overall the country information, considered together with the general improvement in the security situation as discussed below, does not indicate the applicant faces a real chance of harm from extortionists, either from the police or paramilitary groups, in the foreseeable future.
(applicant’s emphasis retained)
This finding is limited to a risk to the applicant of extortion by “the police or paramilitary groups” and does not address the risk to the applicant of extortion by criminal groups.
The Authority continued at [21]:
Nor am I satisfied that because of his extended residence in Australia the applicant would be viewed as having a lot of money and thereby be vulnerable to extortion demands.
While this finding on its face is not limited to extortion by groups related to the government, it only addresses one minor limb of the applicant’s extortion claim, being extortion demands arising from the applicant’s extended residence in Australia. This finding does not deal with the principal limb of the applicant’s extortion claim, that his family was, and people in Sri Lanka knew that his family was, wealthy: “My family was quite a wealthy family so they knew we would have money to give.”[31]
[31] see at CB 97 [12]
It follows, in the applicant’s submission that a problem with the Extortion Finding is that, when one considers the underlying reasoning, the Extortion Finding does not properly address the risk to the applicant of extortion by criminal groups if he is required to return to Sri Lanka.
The applicant anticipated a response that, since the applicant did not expressly claim a fear of harm of extortion by criminal groups, there was no error by the Authority if it did not properly deal with this claim. However, there are said to be two problems with this response as follows.
First, in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2)[32] at [55]-[63] the Full Federal Court stated in part:
[55] … Where the Tribunal fails to make a finding on “… a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction …
…
[58] The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: …. There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated … It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 ; 199 ALR 265 ; [2003] FCAFC 120 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the tribunal when it is apparent on the face of the material before the tribunal…
[63] … 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.
[32] (2004) 144 FCR 1
In the present matter, once the Authority accepted that the applicant had experienced the extortion attempts he claimed but the extortion may have been carried out by criminal groups rather than the Sri Lankan authorities or paramilitary groups, the claim of risk of extortion by criminal groups clearly arose on the material.
Secondly, in any event, the Authority, aware that the claim arose on the material, purported to deal with the claim by making the Extortion Finding. However, as explained above, once one considers the reasoning underlying the upfront finding, the reasoning indicates an error.
The applicant also anticipated a response that the Minister relies on the Extortion Finding and the underlying reasoning which follows the upfront finding is immaterial. In reply, s 473EA(1) of the Migration Act provides:
If the Immigration Assessment Authority makes a decision on a review under this Part, the Authority must make a written statement that:
(a) sets out the decision of the Authority on the review; and
(b) sets out the reasons for the decision; and
(c) records the day and time the statement is made.
Section 25D of the Acts Interpretation Act 1901 (Cth), titled “Content of statements of reasons for decisions”, provides:
Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression "reasons", "grounds" or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.
As stated in Minister for Immigration and Multicultural Affairs v Yusuf [33]at [69] in the context of the similar s 430 of the Migration Act:
Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.
[33] (2001) 206 CLR 323
The applicant contends that, for the reasons explained above, the reasons underlying the upfront finding reveal jurisdictional error in the upfront finding.
Minister’s contentions
The first ground contends that the Authority “did not properly address or deal with” the risk to the applicant of extortion attempts by “criminal groups”. The applicant contends that this claim clearly arose on the materials.[34]
[34] Citing NABE
Relevantly the Authority:
(a)was willing to accept, notwithstanding some concerns around the veracity of his account, that the applicant was subject to an extortion demand (which he paid) and that he was threatened with arrest and abduction and told by the extortionists that they had information that would implicate his father;[35]
(b)was not persuaded that because the extortionists knew information about the applicant’s personal circumstances this indicated they were from the Sri Lankan government. As the applicant had claimed that it was “known” that his family was wealthy, the Authority found it was “equally possible” that the applicant’s personal circumstances were “generally known”;[36] and
(c)was not satisfied that there was a real chance the applicant would be subject to extortion demands should he return to Sri Lanka. It referred to country information that indicated extortion was largely conducted by paramilitary groups during the civil war and in the post-war environment, but that the influence of paramilitary groups had subsided.[37]
[35] CB 174-175, [19]
[36] CB 175, [19]
[37] CB 175, [20]
The Authority accepted that the country information supported a finding that during the civil war and in the immediate aftermath the authorities allowed extortionists to act with impunity. However it found that when considered together with the general improvement in the security situation, the country information did not indicate the applicant faced a real chance of harm from “extortionists, either from the police or paramilitary groups, in the foreseeable future”.[38]
[38] CB 175-176, [21]
A summary of the relevant principles relating to the duty to consider claims and issues arising from material was outlined by the Full Federal Court in AYY17v Minister for Immigration and Border Protection[39] at [18]:
(a)the Authority is only required to consider claims that clearly emerge from the materials;
(b)a finding that a claim clearly emerges on the material is not to be made lightly, and that it “might” be said to emerge from the materials is not enough;
(c)for a finding to clearly emerge from the materials, it must be based on “established facts”;
(d)a Court will be more willing to draw the line in favour of an unrepresented party; and
(e)understanding whether a claim has clearly emerged from the materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
[39] (2018) 261 FCR 503
In light of these principles, the Minister submits that the applicant’s contention under this ground cannot succeed for the following reasons.
With reference to the Authority’s finding that extortion in the civil war and post-war environment was “largely” conducted by paramilitary groups, the applicant contends that it implicitly recognised that extortion was also carried out by other (undefined) “criminal groups”. However, the applicant does not identify where such a claim clearly emerges “from the materials”. The Authority referred to country information that indicated paramilitary groups often working in co-ordination with security forces had increasingly taken on the characteristics of “criminal gangs” in the post-war environment[40] and found the country information supported a finding that during the war and the immediate aftermath the authorities allowed extortionists to act “with impunity”.[41]
[40] CB 175, [20]
[41] CB 175-176, [21]
The Minister submits that if any inference can be drawn from the Authority’s reasoning at [19]-[21] it ought to be that it was prepared to accept that the applicant may have been subjected to extortion by criminal elements that were operating with impunity in Sri Lanka in the aftermath of the civil war, but it was not satisfied the risk of extortion was an ongoing concern, given the improved security situation in Sri Lanka and the fact that the paramilitary groups were not working with the current government.
The Minister contends that the applicant has otherwise identified no basis to assert that there were “criminal groups”, apart from those groups identified above, that engaged in extortion. Nor has the term “criminal groups” been prescribed any real meaning; any “group” engaging in extortion would be committing a crime and would be a “criminal group”. If the applicant intends to refer to “criminal gangs”, this threat was considered at [20]. The applicant is effectively arguing that the Authority, even after considering the risk of extortion that the applicant faced from numerous groups, needed to further consider the risks faced by other undefined “criminal groups”. Contrary to the applicant’s assertion, it is not apparent from the materials that there were any other such groups.
The Minister submits, further, that the way that the applicant’s claims have developed over time should be considered. The applicant claimed that he believed he had been extorted by “the CID or another state body”.[42] In the Authority submission (prepared by his representatives), he reiterated that he was vulnerable to extortion because of his claimed previous harassment from “the authorities” and that there remained open “the possibility that [the applicant] was threatened by police”.[43] At no stage did the applicant indicate that a “criminal group” other than those considered by the Authority could have extorted him. To the contrary, he consistently argued that he believed it was a state-supported act of extortion.
[42] CB 97, [12]
[43] CB 162
The Minister contends that, in all the circumstances, this ground ought to fail. The Authority is not required to excavate any possible claim or to sift carefully through a morass of material in order to determine whether a claim has been made or arose on the material.[44] That is said to be precisely what the applicant is inviting the Court to infer must be done.
[44] SZUOK v Minister for Immigration & Anor [2015] FCCA 1429 at [20]
Resolution
I find that this ground has been established. The consideration required by the Authority was not complicated. The applicant claimed to have been extorted by persons associated with the Sri Lankan authorities. That was rejected by the Authority but the Authority reasoned that those now involved in extortion in Sri Lanka were criminal gangs. The Authority’s reasoning is relevantly at [20] and [21]:[45]
However, I am not satisfied that there is real chance the applicant would be subject to extortion demands should he return to Sri Lanka. Extortion as a feature of the civil war and post-war environment was largely conducted by paramilitary groups and the country information indicates the influence of paramilitary groups has subsided. In its 2015 report, covering the 2014 year, the US Department of State referred to the EPDP and paramilitary activities in the north and noted "there were persistent reports of close ties between progovernment paramilitary groups such as the Eelam People's Democratic Party (EPDP) and government security forces. Whereas during the war these groups served more of a military function, often working in coordination with security forces, in the post-war environment they increasingly took on the characteristics of criminal gangs as they sought to solidify their territory and revenue sources."[46] The US Department of State report published in 2018 and commenting on the 2017 year, does not make reference to the EPDP or paramilitary groups and it does not indicate that paramilitary groups are working with the current government.[47] The 2018 DFAT report,[48] similar to the US Department of State report, does not indicate that paramilitary groups are working with the current government. I note the International Truth and Justice Project report and while this report noted the involvement of the EPDP in brokering a number of ransom for release cases in 2015, these are few in number and involved people with suspected LTTE links.[49]
I have had regard to the comments in the submission to the IAA about "limited occurrences" and that "limited instances do not abrogate a real chance" and the contention that the police may be those responsible for the past extortion and that this considered together with his wealthy background renders the applicant vulnerable to the whim of the police. The country information supports a finding that during the civil war and in the immediate aftermath the authorities allowed extortionists to act with impunity but I am not persuaded it supports a finding that the police would extort the applicant should he return to Sri Lanka. Overall the country information, considered together with the general improvement in the security situation as discussed below, does not indicate the applicant faces a real chance of harm from extortionists, either from the police or paramilitary groups, in the foreseeable future. Nor am I satisfied that because of his extended residence in Australia the applicant would be viewed as having a lot of money and thereby be vulnerable to extortion demands. DFAT addressed the practical challenges faced by returning asylum seekers and did not report such extortion demands of asylum seekers returned from Australia, although it noted that from 2008 to 2017 over 2,400 Sri Lankan nationals departed Australia for Sri Lanka.[50] I take into account that in its fact finding mission conducted in 2016 the UK Home Office spoke to a wide range of agencies about conditions for Tamils returning to Sri Lanka and discussed a range of reintegration issues but their informants did not report extortion as a concern.[51]
[45] CB 175-176
[46] Austrian Centre for Country of Origin & Asylum Research and Documentation, “Sri Lanka: COI Compilation”, 31 December 2016, CIS38A80123251
[47] US Department of State, “Sri Lanka 2017 Human Rights Report”, 20 April 2018, OGD95BE927333
[48] DFAT, “DFAT Country Information Report – Sri Lanka” 23 May 2018, CIS7B839411064
[49] International Truth and Justice Project, “Silenced: survivors of torture and sexual violence in 2015”, 7 January 2016, CIS38A801275
[50] DFAT, “DFAT Country Information Report – Sri Lanka”, 23 May 2018, CIS7B839411064
[51] UK Home Office, "Report of a Home Office Fact-Finding Mission Sri Lanka: treatment of Tamils and people who have a real or perceived association with the former Liberation Tigers of Tamil Eelam (LTTE)”, March 2017, CISEDB50AD3780
The Authority dealt effectively with the risk that the applicant might, on return to Sri Lanka, be extorted by the police or paramilitary groups (or by extension, someone else associated with the authorities). However, the Authority, having recognised that there was at least some risk of extortion by ordinary criminals, needed to consider whether that risk rose to the level of a real chance or real risk and, if so, whether state protection was available. The Authority did not do so.
It follows, in my view, that the Authority’s consideration of the review was in this respect incomplete and the Authority thus fell into jurisdictional error. I appreciate that the consideration required of the Authority might have extended to considering whether Tamils were more at risk of extortion from ordinary criminals than other Sri Lankans but that would not have been a particularly onerous enquiry.
Ground 2 – did the Authority make a finding concerning the applicant’s father that was both firm and open to it?
Applicant’s contentions
The applicant claimed, and the Authority accepted at [12]-[13], that “the applicant’s father transported goods for the LTTE” and in 2008 “the applicant’s father and his brother were stopped and arrested ... and the authorities made a follow-up visit to the home to question or caution them after this incident and they were physically mistreated in these interactions with the authorities”.
A more controversial question is whether the Sri Lankan authorities identified the applicant’s father as having supplied or transported goods for the LTTE. The Authority stated “No” with a finding in the following terms at [14]:
I am satisfied that [the father] was not identified as having supplied/transported goods for the LTTE.
Whether or not the father was so identified was an important matter in the applicant’s claim for a protection visa based on his father’s association with the LTTE. The applicant’s complaint about the finding in the above paragraph is as follows.
In Minister forImmigration and Multicultural Affairs v Rajalingam[52] Sackville J stated at [60], [62], [63] and [67]:
[60]It follows from the observations of the High Court in Wu Shan Liang and Guo that there are circumstances in which the RRT must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur ... The RRT must not foreclose reasonable speculation about the chances of the hypothetical future event occurring.
[62]In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant's claimed fear of persecution ...
[63] …The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute “an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found”.
[67]In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued ... Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred ... If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.
[52] (1999) 93 FCR 220
A “material question of fact” was whether the Sri Lankan authorities identified the applicant’s father as having supplied or transported goods for the LTTE. On a fair reading of the Authority’s reasons at [14], the Authority found on the balance of probabilities that the authorities did not so identity the father. Thus the Authority stated a few times in its findings at [14] “I am not satisfied that ...”. The applicant contends that this language suggests a balance of probabilities approach. If the court agrees, it follows that the Authority “had a real doubt” as to whether its finding was correct, and it ought to have considered the possibility that the Sri Lankan authorities identified the applicant’s father as having supplied or transported goods for the LTTE. The Authority’s failure to consider this issue is said to have involved jurisdictional error.
Minister’s contentions
The second ground refers to the Authority’s finding at [14][53] that the father was not identified as having supplied/ transported goods for the LTTE and alleges that the Authority needed to ask itself: “what if I am wrong?”[54]
[53] CB 173-174
[54] applicant’s submissions 6, [35] citing Rajalingam
The Minister submits that this ground cannot succeed. Contrary to the applicant’s assertion, the Authority did not express any doubt about this finding. The applicant’s assertion that “whether or not the father was so identified was an important matter in the applicant’s claim”[55] has no bearing on this ground.
[55] applicant’s submissions 6, [34]
Relevantly, in finding that the father was not identified as having supplied/ transported goods for the LTTE:[56]
(a)the Authority found there was no indication that the father’s permission to fish was rescinded or curtailed. It was not satisfied that someone who was being imputed as having links to the LTTE would be allowed to continue to fish openly;
(b)while it accepted that the father would have been questioned about LTTE activities and this would have been common practice during the civil war, the Authority found the fact that he was able to continue in his fishing role indicated that there was no ongoing interest in him;
(c)the Authority found that the father would not have been released from detention if the authorities believed that he had been working with the LTTE;
(d)the Authority found it was “simply not plausible” that a fisherman suspected of supplying or transporting goods to the LTTE would have been released into the community and be able to continue fishing as claimed, particularly noting that country information indicated the ease at which Sri Lankan authorities could detain people on mere suspicion;
(e)the Authority placed “significant weight” on the fact that the father and brother were able to leave Sri Lanka in 2009 legally on their own passports. It did not accept that the authorities would have allowed them to leave at such a critical time in the context of the civil war; and
(f)accordingly, while the Authority accepted that the father and brother came to attention in 2008, it found this was in the context of breaking a curfew breach for fishing at night.
[56] CB 173-174, [14]-[15]
In Rajalingam, Sackville J held that[57]:
If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” to use the language in Guo that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.
[57] Rajalingam at [67]
The Minister submits that plainly, considering the findings above, the Authority had no real doubt that the father was not identified as having supplied/ transported goods for the LTTE. Most relevantly, the Authority found it was “simply not plausible” that the father would have been allowed to continue fishing if he was so identified. The inescapable inference from this finding is that the Authority held no doubt that the applicant was not identified by the authorities as being linked to the LTTE.
Resolution
While the applicant’s claim on this ground is clearly arguable, on balance I am not satisfied that jurisdictional error has been established. It is a mystery why the applicant did not call his father and his brother to give evidence on his behalf at the interview before the delegate. The applicant could also have invited either the delegate or the Authority to have regard to the departmental file concerning the applicant’s father’s claim for protection. He did not do so. The Authority was thus left to deal with the applicant’s claim of a fear of harm by reason of association with his father by reference to the information provided by the applicant himself.
The applicant concedes that the Authority was not under a duty to obtain the protection file of the applicant’s father and consider it. Further, although there is some tension between [15] and [16] of the Authority’s reasons[58] those paragraphs can be reconciled. The Authority, on the basis of the information before it, was not satisfied that the applicant’s father was of any interest to the authorities when he left Sri Lanka. While the Authority accepted that the applicant’s father and brother came to Australia and had been granted protection, the Authority did not know on what basis protection had been granted. That is a matter of speculation. It may be that there was information available in respect of the applicant’s father and brother which the applicant did not know. It may be that the decision maker in their cases was concerned about the risk of harm in the immediate aftermath of the civil war or because of extortion demands. Whatever the case, the Authority did not need to speculate and was entitled to draw the conclusions it did from the information furnished by the applicant. In that regard, the Authority was left in no doubt.
[58] CB 174
I reject Ground 2.
CONCLUSION
The applicant has established that the decision of the Authority is affected by jurisdictional error. He should receive the relief he seeks.
The parties agreed that the appropriate costs outcome in favour of the successful party would be a costs order fixed in the sum of $6,500. I will make a costs order accordingly.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 15 June 2021
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