BBW17 v Minister for Immigration
[2019] FCCA 3545
•9 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BBW17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3545 |
| Catchwords: PRACTICE & PROCEDURE – Application for leave to amend the substantive application – previous grounds abandoned – proposed ground has no requisite merit – leave refused. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Cases cited: Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 |
| Applicant: | BBW17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 753 of 2017 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 7 November 2019 |
| Date of Last Submission: | 7 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 9 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Bodisco |
| Solicitors for the Applicant: | Rasan T Selliah & Associates |
| Counsel for the Respondents: | Ms N. Laing |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Leave to amend the application made on 7 November 2019 is refused.
The application made on 14 March 2017 is otherwise dismissed.
The applicant pay the first respondent’s costs set in the amount of $7467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 753 of 2017
| BBW17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 14 March 2017 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Immigration Assessment Authority (“the IAA”), made on 7 February 2017 which affirmed the decision of the Minister’s delegate to refuse the grant of a protection visa to the applicant.
The evidence before the Court is contained in a bundle of relevant documents filed by the Minister and tendered by the applicant (Court book – “CB” – “AE1”), and the applicant’s affidavit of 1 November 2019.
Background
The applicant is a Sri Lankan national of Tamil ethnicity. He arrived in Australia on 13 November 2012 and was interviewed as an “Irregular Maritime Arrival” by an Australian Government official (CB 1). He subsequently applied for a Safe Haven Enterprise Visa (“protection visa”) it was received by the Minister’s Department on 29 February 2016 (CB 68–CB 119). He was assisted in completing the application (CB 77).
The applicant provided a statement of his claims with his application for the protection visa (CB 105–CB 111).
In essence, he claimed to fear harm if he returned to Sri Lanka from the Sri Lankan authorities because of his Tamil ethnicity and that he would be “imputed” with links to the Liberation Tigers of Tamil Eelam (“LTTE”).
In his written statement the applicant set out claimed instances of past harm that he said had occurred to him, his father and other members of his extended family. The applicant was interviewed by the Minister’s delegate (CB 133–CB 135; CB 145.1 and CB 158.3). The delegate refused the grant of the visa on 9 December 2016 (CB 154–CB 168).
The IAA
The applicant’s matter was subsequently referred to the IAA for assessment (CB 169–CB 171). The applicant made submissions to the IAA through a migration agent (CB 173–CB 299 with annexures). Further written submissions were made by the same migration agent on 3 January 2017 (CB 300) but drafted on 3 January 2016 (CB 300–CB 325 with annexures).
The Minister’s written submissions provide a comprehensive, and importantly a fair, summary of the IAA’s decision. Before the Court the applicant did not dispute this summary:
“6. The IAA observed that it had received submissions sent on behalf of the applicant:
(a) To the extent that those submissions simply responded to the Delegate’s decision and provided legal argument, the IAA did not consider them ‘new information’ and had regard to them.
(b) However, the IAA declined to have regard to country information that was not before the Delegate and pre-dated the Delegate’s decision. The IAA was not satisfied that the information was credible personal information or that it could not have been provided to the Delegate. Enclosed HSC and course reports were also not taken into account, as they were not considered relevant: [4]-[8].
(c) The IAA took into account a Psychological Assessment Report, which post-dated the Delegate’s decision. The IAA was satisfied that this could not have been made available to the Delegate, that it contained credible personal information and that exceptional circumstances justified its consideration: [8].
(d) The IAA also obtained new information, contained within a DFAT country information report dated 24 January 2017: [9].
7. The IAA accepted that:
(a) The applicant’s family cooked meals and provided shelter for LTTE personnel from around 1989 to 1995 ([15]);
(b) The applicant’s father was arrested in April 1995 on suspicion of involvement with the LTTE, was the subject of an arrest warrant dated August 1995 and has been missing since 1995. He may have socialised with high ranking LTTE personnel, although the IAA did not accept that he was a financier or high ranking member of the LTTE: [18]; and
(c) The applicant’s maternal aunt and cousins were killed in 1990 by the SLA on account of their perceived involved with the LTTE: [18].
8. However, the IAA did not accept that the SLA harassed the family in 2002 or 2004. It found the applicant’s evidence in this regard to be “vague and unconvincing”. The IAA also did not accept the applicant’s claim to have come to the adverse attention of the authorities or the Karuna Group in 2009. The applicant’s evidence in this regard had been inconsistent and, as the Karuna Group was aligned with the government at the time, the IAA did not accept that he would have come to the adverse attention of the government on account of providing them with assistance. The IAA also did not accept that the applicant and his mother were harassed in 2010, or were the subject of an arrest warrant, on account of their family’s LTTE links some 15 to 20 years previously: [19]-[25].
9. In respect of the applicant’s tiger tattoo, the IAA was not satisfied that it depicted the LTTE flag as suggested. In any event, the IAA did not consider there was sufficient evidence to support the proposition that having an LTTE tattoo was a risk factor. The IAA observed that the tattoo did not appear to have caused the applicant any harm in the years that followed his obtaining it in 2004 or 2005: [28], [33].
10. Country information indicated that the situation for Tamils had improved significantly since the end of the conflict. Although the applicant may encounter some degree of discrimination, the IAA was not satisfied this would amount to the relevant level of harm. The IAA did not accept the applicant’s claim that the government ceased providing his family with benefits, and refused his passport in 2011, based upon LTTE links. Whilst country information indicated that persons suspected of certain LTTE links may be in need of protection, this depended on individual circumstances of each case. The IAA was not persuaded that, in the applicant’s case, he would face a real chance of harm on account of his ethnicity or any actual or imputed LTTE connections (including familial connections): [29]-[33], [46].
11. The IAA found that the applicant would not face a real chance of the relevant harm as a failed asylum seeker. It accepted that the applicant may be questioned, fined and face a brief period of detention in poor and unsanitary conditions. However, it found that this treatment would be pursuant to a law of general application. It did not amount to the death penalty, arbitrary deprivation of life or torture, and was not intended to inflict pain or suffering, or extreme humiliation: [34]-[50].
12. For the above reasons, the IAA was not satisfied that the applicant was a person to whom protection obligations were owed. Accordingly, it affirmed the Delegate’s decision: [42], [51].”
Before the Court
The applicant applied for judicial review of the IAA’s decision on 14 March 2017. There were three stated grounds of review said to have been prepared by the applicant.
Orders were made by a Registrar of this Court on 29 June 2017 and 17 November 2017 for the conduct of this case. This matter was set down for final hearing on 7 November 2019. These orders were made with the consent of both parties.
The applicant’s evidence before the Court reveals that when the applicant received notice of the IAA’s decision on 7 February 2017 he could not afford a lawyer’s assistance.
He said he was assisted by an interpreter in the Tamil language in making his application to the Court. Following what he says was a directions hearing before the Registrar he again approached this interpreter and explained his financial difficulties. No date is given for this Court event, although the first court date in this matter was 29 June 2017. The interpreter told him to wait until one month before the final hearing before engaging a lawyer.
He commenced looking for a lawyer in September 2019 and approached a solicitor on 23 September 2019 who subsequently agreed to represent him.
On 28 October 2019 the solicitor filed written submissions in this matter. The orders made by the Registrar required written submissions to have been filed 14 days before the final hearing. Amongst other things, the submissions indicated that the applicant sought leave to amend his application and to rely on the following grounds:
“Ground One
1. Immigration Assessment Authority (IAA) made a jurisdictional error in that it did not consider all the claims of the applicant cumulatively that arose either expressly or clearly on the information before it.
Particulars
IAA failed to consider cumulative aspects of the Applicant’s claims under s 36(2) and s 36(2)(aa) of the Migration Act 1958 (Cth).
a) The IAA accepted at paragraph 18 that the applicant’s father was arrested in April 1995 on suspicion of involvement with the LTTE and he was subject to an arrest warrant dated August 1995. The IAA also accepted that the applicant’s father has been missing since 1995. In the same paragraph, the IAA accepted that the applicant’s maternal aunt and three cousins were killed in 1990 by the Sri Lankan Army on account of their actual or perceived involvement with the LTTE.
b) At paragraph 28, the IAA accepted that the applicant has a tattoo of a tiger on his arm and that country information reports one instance where a person with an LTTE tattoo come to harm in Sri Lanka.
c) At paragraph 37, the IAA accepted that as the applicant departed Sri Lanka without a passport, he may be found to have committed an offence under the Immigrants and Emigrants Act.
d) The IAA failed to consider and make findings on whether the cumulative effect of discovering the tiger tattoo may lead to him being subject to serious harm within the meaning of section 5J(4)(b) of the Migration Act, in the event of the applicant being detained and stripped in the background of all the above accepted facts.
e) The IAA also failed to consider cumulatively whether the applicant will suffer significant harm when assessing the complementary protection claims.
Ground Four
The IAA fell into jurisdictional error by misapplying and misunderstanding the test contained in s473DD of the Migration Act when determining whether it could consider the “new information” provided to the IAA by the applicant and it failed to apply the aspect of s473DD of the Migration Act.
Particulars
a) While the IAA merely stated the law at paragraph 6, there is no finding at paragraph 7 under s473DD(a) and it failed to make a finding on whether exceptional circumstances existed in all the circumstances (CB 328).
b) On 1 January 2017 the applicant’s Representative provided a country information (CAT report) and quoted from the report; that “ The committee notes the information received that numerous individuals suspected of having a link, even remote, with the Liberation Tigers of Tamil Elam (LTTE) have been abducted and then subjected to brutal torture, often including sexual violence and rape of men and women” and requested the IAA to consider the contents of the more recent report published by a reliable source (Committee Against Torture) (CB 173-187). Although this report was adopted by the Committee at its fifty –ninth session between 7November-7December 2016, the delegate made the SHEV decision on 9 December 2016 (CB154). This report is also a response to the Delegate’s decision (155-163) and provided to the IAA for the assessment of the applicant’s protection visa.
c) IAA described at paragraph 7 that this report predates the delegate’s decision and is a new information.
d) IAA concluded that it did not satisfy s473DD(b) in substance, because the submission did not provide reasons as to why this information could not have been provided to the delegate or why it may be considered credible personal information.
e) The IAA therefore, misconstrued and misapplied s 473DD(a) in adopting an inappropriately narrow interpretation and understanding of the reach of the term “exceptional circumstances”, by treating as decisive of the requirements that the circumstances be exceptional in its finding that “ the submission does not provide reasons as to why this information was not and could not have been provided to the Minister…”
f) For the reasons provided in paragraph 7, IAA failed to apply subsections (a) and (b) of s473DD of the Migration Act cumulatively.
g) The IAA failed to apply the correct test under 473DD(a) of the Migration Act to determine whether there were exceptional circumstances to justify considering the new information.
h) The IAA conflated the test applicable under s473DD(a) of the Migration Act with that applicable under s473DD(b)(i).”
[Underlining Removed.]
At the final hearing both parties were represented by respective counsel. The applicant sought leave to proceed by way of the proposed amended application.
The Minister opposed leave being granted for this purpose. I agree with the Minister that the applicant’s evidence did not provide a complete explanation for the attempt at seeking leave, at such a late stage in these proceedings.
For example, the applicant’s evidence is that his initial difficulty in engaging a lawyer involved a lack of funds because he was not working. He concedes however, that it would not have been “impossible” for him to have afforded a lawyer at that time (see [6] of his affidavit).
In any event, on his own evidence he did obtain employment seven months prior to the date of the making of his affidavit (1 November 2019). The only explanation offered as to why he did not approach a lawyer at that time was that the interpreter had told him to wait until one month before the final hearing.
Further, even as at 23 September 2019 when the applicant said he had his “first conference” with his lawyer, there is no evidence whatsoever, let alone explanation, as to why the lawyer waited until 28 October 2019 to put the Minister on notice of his intention to seek leave to rely on the amended application.
Order 9 made by the Registrar on 29 June 2017 gave the parties liberty to apply on three days notice for further directions. The applicant’s solicitor chose not to exercise this liberty in the period available to him from 23 September 2019 to 28 October 2019, or indeed at any time up to the final hearing.
In any event, while the Minister opposed the leave being granted to the applicant to amend his application, the Minister submitted that the primary reason for opposing such a grant of leave was that the grounds of the proposed amended application lacked sufficient merit to warrant leave being granted in the interests of justice.
The hearing proceeded on the basis that the parties would argue the merits of the proposed amended application, and the Court would then consider whether there was sufficient merit to grant the leave. This judgment is concerned with that issue.
The applicant also advised that he abandoned the grounds of the substantive application and did not press the second ground of the proposed amended application, labelled as ground four.
The Applicant’s Argument
The sole ground of the proposed amended application asserts that the IAA failed to consider all of the applicant’s claims cumulatively.
The particulars explain as follows. The IAA accepted a number of the applicant’s claims. These were with reference to [18], [28] and [37] of the IAA’s decision record:
1. His father had been arrested in April 1995 on suspicion of being involved with the LTTE.
2. His father was subject to an arrest warrant dated August 1995.
3. The applicant’s father has been missing since 1995.
4. The applicant’s maternal aunt and three cousins were killed in 1990 by the Sri Lankan authorities because of actual or perceived involvement with the LTTE.
5. The applicant has a tattoo of a tiger on his arm. Country information reports one instance where a person with an LTTE tattoo came to harm.
6. The applicant departed Sri Lanka without a passport. He may be found to have committed an offence under Sri Lankan law for departing illegally.
To argue that the proposed ground has requisite merit the applicant’s counsel read, extensively, comprehensively, and with emphasis, large parts of the evidence before the Court.
These references included:
1. The report of the applicant’s interview with an Australian Government official on arrival (at CB 18):
“WHY WERE YOU WORRIED?
In my family, my mum’s older sister’s husband and children were all shot and killed by the army saying they were involved with the Tamil Tigers – also my Dad was taken saying he belonged to the Tigers. They have come to the house and said that we have ammunition and they search the house and they beat me.
In April 2010 I had a runny nose and was trying to stay away from the family and they came and asked for me and my Mum said I don’t know where I was and they tried to beat my mother. I was hiding there. Because they were being nasty to my Mother I came out and they were hitting me and they were saying ‘why were you hiding in this place?’ and they push me up against the door *client showed scar along the top of left eye* I fell unconscious and they took me while I was unconscious. When I woke up they asked me a lot of questions about helping the Tamil Tigers.
WHO IS THEY?
In the beginning it was the Army in a jeep. Later on, people would come one a bike and had masks on so I couldn’t identify who they were.
When I came home they again came and asked me ‘where is your father, tell me the truth, where is he?’ As I was working in masonary and building houses I had bits of plumbing lying around and they took some and filled it with sand and they started beating me with it. I broke my hand. The people in the Jeep would pretend to be nice and good people and they took me to the hospital for treatment for my hand *client showed medical certificates for x-rays at the District Hospital at Batticoloa which states ‘The above mentioned patient had undergone treatment for history of assault…. He didn’t wish to undergo any legal action, since he wanted to avoid the unnecessary consequences. He was warded about a week and later he recovered fully.’
WHAT INVOLVEMENT DID YOU AND YOUR FAMILY HAVE WITH THE LTTE/TAMIL TIGERS?
None – as far as we are aware my father didn’t have any involvement. I know he was moving people away who were with the LTTE.
WERE ANY OF YOUR OTHER FAMILY MEMBERS INVOLVED?
I think so. The whole family (mother’s older sister and husband and children) who were shot. I think they must have been involved because they were shot.
First they took the three sons from the family – because they took the three sons there, the father went to the camp to check what was happening and they took him and then the mother came to see what was going on and they took her too. After that they gave out the death certificates.
IS THERE ANY OTHER REASON WHY YOU LEFT SRI LANKA?
No, this is the reason.”
[Error in the Original.]
2. The applicant’s statement of his claims dated 22 February 2016 (at CB 105–CB 111, and in particular CB 105–CB 106):
“1. The following is a summary of my claims for protection. It is not an exhaustive statement of what has happened to me in the past or the reasons why I cannot return to my country of origin. I will provide further information in relation to my claims during any interview with the Department of Immigration.
2. I fear that if I was forced to return to Sri Lanka, I would be seriously harmed because of my ethnicity as a Tamil and my imputed links to the LTTE.
3. I fear this harm from the authorities such as the Sri Lankan Army, government, and Karuna group.
…
10. I have faced problems in Sri Lanka from a young age. My father was abducted by the Sri Lankan army in 1995. My mother tells me that my father had been close with high-ranking members of the LTTE. My father was a contractor rather than a real member but he occasionally fought for the LTTE and as very close with them. After struggling to find him for six months, and filing a case using a lawyer, my mother was told that he was imprisoned for being a member of the LTTE. My mother was told that he had escaped from jail and given a warrant for his arrest dated 18/08/1995. We still do not know what happened to my father.
11. My mother told me that the lawyer who helped her file a case for my father’s disappearance was also shot dead by the Sri Lankan army. This occurred within one or two months of my mother receiving the letter. I am not sure of the exact details of the incident as I only know this through my mother.
12. After my father was abducted, my mother and I lived with my mother’s sister, husband and her three sons as our house was being built and we did not have a place to live. My mother and aunt often cooked for the LTTE and offered shelter to members of the LTTE in the house we lived in.”
3. The Minister’s department requested the following information from the applicant (at CB 145):
“Request Detail
Other Requirements
Following the conclusion of your Safe Haven Enterprise visa interview on Tuesday, 12 July 2016, you noted to the interviewing officer that you had a tattoo on your left forearm depicting and emblem associated with the Liberation Tigers of Tamil Eelam (LTTE).
Please provide a clear, colour photograph of your tattoo, and answers to the following questions.
· What does the tattoo depict?
· What is the significance of this tattoo?
· At what age did you receive the tattoo?
· Who gave you the tattoo?
· Where did you live when you received this tattoo?
· Do other members of your family also have similar tattoos?
· Are tattoos depicting LTTE emblems common in Sri Lanka?
· How would authoritiues react should they see such a tattoo?”
[Errors in the Original.]
4. The applicant responded (at CB 147):
“1. I am sending tattoo photo, 3 my house damage photo and my photo so now I will talk about tattoo.
The tattoos is indicate I am prefer to LTTE and it encourage to follow the requlation towards also it proof that I am a Tamil.
2. Tattoo will be given at least one member of the family support LTTE to all of the member in
the family.
3. around 10 or 11 years old
4. In the place where LTTE live and I got this by my dad friends but I can not remember the place name after that one week I
came to home in batticalo
5. Yes all the men have similar tatoos
6. Yes
7. They will deviation from the community because government doesn’t allow this tatoos also Muslim and Sinhala people does not like this tattoo and if they see it then they will start to attack that people and if the government see this tatoo and they identify easily he is a terrorist or Tamil Tiger (LTTE) or prefer to LTTE then they should put in jail or they should kill the guy also they can not get government offer.
I got this tatoos from my dad friend when my dad gone that time they told me your dad gone so you have to take care of our self and you have to help and build Tamil society that’s why we are giving this symbol of tatoo.”
[Errors in the Original.]
5. The delegate’s decision (at CB 161):
“Applicant’s Tiger tattoo
The applicant claimed that his tattoo was significant as it demonstrated his preference for the LTTE. The applicant further claimed that the Sri Lankan government would easily identify him as a Tamil Tiger or a terrorist and he would be harmed because of this.
Country information does not support this claim. The UK Home Office reports that there is only once case in the press in which a person with an LTTE tattoo came to harm and further, that tattoos, as a form of scarring, are only relevant when a person is detained for other reasons.11 Country information notes that examinations to identify LTTE suspects through their scars may have been used in the past, however this practice has ceased or become less frequent. Further, there is no recent evidence to suggest that these examinations are routinely carried out on immigration returnees.12”
[Footnotes Omitted.]
6. A “Psychological Assessment Report” prepared by a psychologist (at CB 318):
“[The applicant] advised that growing up he felt the influence of LTTE in his life. He advised that he and his mother went to live with his mother’s sister and her family, which was comprised of three sons and husband. He advised that this mother and aunt would cook and offer shelter to the LTTE. [The applicant] advised that at a young age he was taken by his father’s friend to an LTTE training ground and on one of these occasions he was tattooed on his lower left arm with the LTTE flag. He advised that this occurred when he was around 10 or 11 years of age. [The applicant] advised that he believed that he was taken to the training grounds as he was being groomed to later join the movement. [The applicant] advised that his two cousins were forcefully recruited by the LTTE and in 2001, they were shot by the SLA. He advised that they only came to know about their deaths when they reported them missing to the police at which time the police produced their death certificates. He advised that his aunty and his one remaining cousin was also taken by the SLA as they tried to flee from their home town to Colombo. He advised that he later found out that his aunty and his cousin had also been killed although the death certificate for his cousin has not been sighted.”
7. The IAA’s decision record (at CB 333–CB 334 and CB 336):
“Tiger tattoo/Tamil ethnicity/ Denial of government benefits and services
26. I have accepted that prior to the applicant’s birth in 1994 his extended family may have had an actual or perceived involvement in the LTTE prior to their death in 1990. I have also accepted it as plausible that the applicant’s father was arrested in 1995 on suspicion of LTTE involvement and following his escape from SLA custody an arrest warrant was issued for him at that time. However, I am not satisfied that the applicant has since come to the adverse attention of the Sri Lankan authorities or any other group on that basis. I have rejected the applicant’s clams that the SLA came to the applicant’s home in 2002 looking for his father and to see whether the applicant or his family were engaging in LTTE related activities. I have also rejected the applicant’s claim that he and his mother came to the adverse attention of a group opposed to the LTTE in or around 2004. Further, I have rejected the applicant’s claim that he had his mother came to the adverse attention of an unknown group in 2010 on account of their perceived LTTE involvement or perceived familial links.
27. The applicant advised the delegate that if he returned to Sri Lanka he and his mother would be killed by the Sri Lankan authorities. However, I note the applicant has had several interactions with the Sri Lankan authorities prior to his departure indicating he was not a person seeking to avoid the authorities for fear of harm as claimed. For example, the applicant obtained National Identity Card (NIC) from the Sri Lankan government. While the NIC issue date is not clear, country information confirms that NIC's are only issued to persons over 16 years of age,6 which indicates that he applicant applied for the NIC in or after November 2010. I also note the applicant lodged a passport application with the police in 2011, which further suggests he was not in hiding from the authorities at that time as claimed. The applicant also advised the delegate that aside from the Sri Lankan authorities, he also feared the enemies of his father, former LTIE cadres or members of the public who might have been affected by the LTTE. The applicant further stated he is at risk because of his family's involvement in terrorism in Sri Lanka. As noted above, while I have accepted it as plausible that the applicant's family were involved or perceived to be involved with the LTTE some 20 to 25 years ago now, there is no credible evidence that establishes that the applicant has come to the adverse attention of the authorities or any other group on account of his imputed or his family's involvement with the LTIE. On this basis I am not satisfied that the applicant is a person who is at risk of harm on account of his or his family's past experiences in Sri Lanka.
28. Although not specifically raised as a claim in his SHEV application, according the Psychological Assessment Report of Ms Takeshima, the applicant reported that he fears returning to Sri Lanka on the basis of his ethnicity. The applicant also advised Ms Takeshima that when he was around 10 or 11 years old, he was taken to an LTTE training ground where he had his lower left arm tattooed with the LTTE flag. With is SHEV application, the applicant provided a photo of the tattoo. While I accept the applicant has a tattoo of a tiger on his arm, I am not satisfied the tattoo is one that depicts the LTTE flag. Country information reports one instance where a person with an LTTE tattoo came to harm in Sri Lanka, but the UK Tribunal opined that the issue of having a tattoo or 'scarring' was only relevant in circumstances where the person was being detained and stripped. Further, the Tribunal did not consider there was sufficient evidence to support that having an LTTE tattoo was a risk factor.7 There is no credible country information before me that indicates that having a tiger tattoo puts the applicant, a Tamil from the Eastern province, at risk of being perceived as pro LTTE by the Sri Lankan authorities. I further note that the applicant's tattoo, obtained in around 2004 or 2005, does not appear to have caused him any harm in the years that followed.
…
34. Although not specifically raised as a claim for protection, I note the applicant departed Sri Lanka illegally and if returned to Sri Lanka he would do so as a failed asylum seeker returned from Australia. The delegate turned his mind to this matter in his decision of 9 December 2016 and the migration agent assisting the applicant provided submissions on this matter in the IAA submission.
35. Having regard to the country information in the referred material and in particular in the 2017 DFAT report, I am not satisfied there is a real chance the applicant would be harmed by the Sri Lankan authorities by virtue of him being a returnee or a failed asylum seeker. DFAT reports that thousands of Tamils have been returned to Sri Lanka since the end of the Sri Lankan civil war, including from Australia. Although there have been reported instances of returnees being harmed, there have been relatively few allegations of mistreatment and DFAT assess the risk of mistreatment for the majority of returnees to be low.11 For these reasons I am not satisfied the applicant faces a real chance of serious harm due to being a failed asylum seeker from Australia, now or in the reasonably foreseeable future, if he returns to Sri Lanka.”
[Footnotes Omitted.]
[Errors in the Original.]
The applicant then read extensively from the remainder of the IAA’s decision record for the proposition that even though the IAA considered what would likely occur to the applicant on return to Sri Lanka, there was no mention whatsoever to the tattoo and what impact this may have on the applicant on arrival in the context of complementary protection.
In all, the applicant’s assertion of legal error appears to be as follows. The IAA accepted certain aspects of the applicant’s family’s history and how they had variously come to the attention of the Sri Lankan authorities.
The IAA accepted that he feared harm on return to Sri Lanka because he was a Tamil who had departed Sri Lanka illegally. He had a tattoo of a tiger on his arm. On return the applicant would likely be detained and be of adverse interest to the authorities because of his family’s history. He would be stripped and then the tattoo would be exposed.
When it came to consider complementary protection the IAA failed to consider these matters in a cumulative fashion. In that sense the IAA failed to properly consider the applicant’s claims to fear harm.
The Minister’s Response
The Minister’s position was that when read properly, if not fairly, the IAA’s decision record reveals that the IAA did not need to proceed to make any “cumulative” findings, given the factual findings it did make in relation to the applicant’s claims. Further, and in any event, the IAA did make “that kind of assessment”.
The Minister relied on two authorities to support the efficacy of these propositions in the current circumstances.
One, Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 (“DDK16”) at [32]–[34]:
“32. Counsel appearing for the respondent ultimately, and quite properly, did not seriously dispute the Minister’s submission that no obligation to make a “cumulative assessment” arises where individual claims have been rejected as a factual matter, or have been the subject of findings that they did not or would not lead to ongoing problems for the visa applicant were he or she to return to a receiving country (and no claim is made that any of those individual findings were the subject of appellable error): see SZNKO v Minister for Immigration and Citizenship [2013] FCA 123; 140 ALD 78 at [135]-[136]; W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]; Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31].
33. Counsel for the respondent adopted as correct the following submissions made on behalf of the Minister:
Broadly speaking, it can be accepted that there is an obligation to consider the parts of a Visa applicant’s claim for protection cumulatively. It can also be accepted that the same principles as to whether a visa applicant meets the criteria for protection as a refugee apply, by analogy, to the complementary protection criteria in s 36(2)(aa) of the [Act] [citing MZZUG v Minister for Immigration and Citizenship [2015] FCA 1151 at [47]].
The obligation to give cumulative consideration to a visa applicant’s claims arises as part of the decision-maker’s obligation to consider the case before them. In that context, a decision-maker is required to consider each integer of a visa applicant’s claims, whether they are raised expressly or arise clearly on the material [citing Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at 139 [7]]. Further, as part of the decision-maker’s duty to address the case raised by the material before them, the decision-maker must consider the whole of the case put forward by the visa applicant [citing Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31]]. There may be a combination of factors that create the profile of the person who meets (relevantly here) the complementary protection criteria [citing MZZUG at [47]], or causative factors that may not give rise to the relevant risk on their own, but may do so collectively [citing W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]].
34. In our view, however, such considerations have no application in a case such as this and are of no assistance to the respondent. It seems to us, as a matter of inexorable logic, that if, as is common ground here, all individual claims or bases for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result. It follows, in our respectful view, that the primary judge was wrong to hold otherwise.”
Two, CKL16v Minister for Immigration & Anor [2019] FCCA 2184 at [66]:
“66. In any event, when reading the IAA Decision as a whole, the IAA has assessed all of the relevant findings of fact in a cumulative way: SZQFC v Minister for Immigration and Citizenship [2012] FCA 409; (2012) 126 ALD 530 at [65] per Yates J. On its face, the findings at both CB 281 at [52] and 282 at [59] are express acknowledgements that the IAA has done so.”
Consideration
When reduced to its core, the essence of the applicant’s proposed ground is that the IAA did not consider, cumulatively, the applicant’s claims that he would suffer significant harm on return to Sri Lanka because he would be of adverse interest to the Sri Lankan authorities by reason of his family’s history, which involved LTTE connections, his Tamil ethnicity and the tattoo on his arm.
The IAA did accept, as the applicant now submits, that the applicant was a Tamil, whose extended and immediate family had some actual or perceived involvement with the LTTE, whose father was arrested in 1995 on suspicion of LTTE involvement ([26] at CB 333), that the applicant had a tattoo of a tiger on his arm ([28] at CB 334), and that the applicant departed Sri Lanka without a passport, which may lead to him being found to have committed an offence under the relevant Sri Lankan emigration law ([37] at CB 336).
These findings, must be properly understood in the entirety of the IAA’s analysis, and the findings that arose from that analysis. Two things must be said about the applicant’s argument now.
One, the relevant parts of this analysis in the IAA’s decision record involved, but are not limited to, those parts to which the applicant referred to before the Court. The IAA’s decision must be read fairly, holistically, and its findings understood in context.
Two, the relevant test for the IAA in assessing the likely risk of harm is one of reasonable foreseeability. While past events may obviously assist in that analysis they are not determinative (Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22).
In the current case, the IAA clearly said, as the applicant now submits, that it accepted that the applicant is a Tamil who departed Sri Lanka illegally, that he had a tattoo of a tiger on his arm, and that he and members of his family had come to the adverse attention of the Sri Lankan authorities in the past.
However, with reference to the entirety of its decision record the IAA reasoned, and found, as follows.
One, in relation to his family’s LTTE connections, and what that likely meant for the applicant if he were to return to Sri Lanka in the reasonably foreseeable future. At the heart of the IAA’s relevant reasoning is that while it accepted that the applicant’s family were involved, or perceived to be involved, with the LTTE, that was “some 20 to 25 years ago” ([27] at CB 334).
In that light, the IAA looked at the applicant’s various claimed interactions with the Sri Lankan authorities since that time. The IAA gave as examples his obtaining a national identity card, and that he had lodged a passport application with the police in 2011.
The IAA concluded on the evidence before it, which included the applicant’s own evidence and country information, that (at [27] CB 334):
“…while I have accepted it as plausible that the applicant's family were involved or perceived to be involved with the LTTE some 20 to 25 years ago now, there is no credible evidence that establishes that the applicant has come to the adverse attention of the authorities or any other group on account of his imputed or his family's involvement with the LTTE. On this basis I am not satisfied that the applicant is a person who is at risk of harm on account of his or his family's past experiences in Sri Lanka.”
Further at [30] (CB 335):
“…The applicant's own evidence is that he has had no prior involvement with the LTIE and I have already determined that the applicant is not of interest to the authorities or any other group on account of his families actual or imputed past LTTE involvement."
In short, the IAA was properly focused on the reasonably foreseeable future, and gave intelligible reasons for finding that while it accepted the applicant’s historical claims, more recent events, including evidence of those events from the applicant himself, meant that the applicant would not likely suffer harm on return for reason of his and his family’s past experiences. Experiences which the IAA reasonably found on the evidence had occurred 20 to 25 years ago.
Two, in relation to the tattoo of the tiger on the applicant’s arm which the applicant claimed also depicted the LTTE flag, the IAA accepted the existence of such a tattoo, as the applicant now submits. However, that is not the end of the IAA’s reasoning, as is implicit in the applicant’s argument now.
First, the IAA found that it was not satisfied that the tattoo depicted the LTTE flag as the applicant claimed. This is a matter for the IAA to determine on what was before it.
There is a copy of a photograph of what is said to be the applicant’s arm with a tattoo on it in evidence before the Court (see at CB 153). It is trite however, to say that it is not for this Court to make findings of fact as, for example, whether the tattoo depicts the LTTE flag or not.
The relevant question now is whether, on what was before it, was it reasonably open to the IAA to find that it could not be satisfied that the tattoo also depicted the LTTE flag ([28] at CB 334).
On that question the applicant made no satisfactory argument before the Court, let alone pointed to any evidence, that the IAA’s finding was not probative of the evidence before it, or in some way contributed to revealing illogicality or unreasonableness in its decision.
Second, the IAA’s relevant reasoning also reveals that it had regard to country information in relation to the tattoo and found as follows ([28] at CB 334):
1.That “[c]ountry information reports one instance where a person with an LTTE tattoo came to harm in Sri Lanka”.
2.The IAA referred to the same source of country information (a UK Tribunal) which “…opined that the issue of having a tattoo or ‘scarring’ was only relevant in circumstances where the person was being detained and stripped”.
The IAA found however, that the same UK Tribunal “… did not consider there was sufficient evidence to support that having an LTTE tattoo was a risk factor”. ([28] at CB 334 – UK Home Office “Country Information and Guidance Sri Lanka: Tamil separatism Version 3.0”, 1 August 2016, OGD7C848D77).
The IAA found:
“…There is no credible country information before me that indicates that having a tiger tattoo puts the applicant, a Tamil from the Eastern province, at risk of being perceived as pro LTTE by the Sri Lankan authorities. I further note that the applicant's tattoo, obtained in around 2004 or 2005, does not appear to have caused him any harm in the years that followed.”
As set out above the applicant now focuses on two findings made by the IAA. That is, its acceptance of family past harm and the tattoo. The IAA considered both these matters in the context as to whether in the applicant’s circumstances these would lead to serious or significant harm in the reasonably foreseeable future.
The IAA concluded that he would not face serious harm for these, and the other reasons advanced by the applicant (CB 335):
“33. Accordingly, I am not satisfied that the applicant faces a real chance of serious harm due to his ethnicity, his tiger tattoo, his imputed LTIE profile, or due to him being denied access to basic services that threatens his capacity to subsist upon his return to Sri Lanka, now or in the foreseeable future.”
In relation to significant harm the IAA relied on its earlier expressed findings of fact as to the risk of such harm in the foreseeable future, and in the context of the applicant returning as an illegal departee and failed asylum seeker, to find that the applicant would not likely suffer such harm.
In particular the IAA stated:
“45. 1 have concluded that the applicant is not of interest to the Sri Lankan authorities due to his actual or imputed personal or familial links to the LTIE. I have also concluded that the applicant is not at risk of harm from the Karuna Group, the SLA, the Sri Lankan police or any other group. I have further concluded that the applicant is not at risk of harm for any other reason including in connection with him being a returning asylum seeker. The Full Federal Court held that the 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear'.18 Accordingly, for the same reasons set out above, I find that the applicant does not have a real risk of suffering significant harm on return to Sri Lanka.”
[Footnote Omitted.]
As set out above, the applicant’s proposed ground relies on the IAA’s limited acceptance of the applicant’s claims (the past familial matters and the existence of a tattoo). The applicant’s proposed ground and submissions did not satisfactorily explain, or consider, the IAA’s subsequent and nuanced reasoning that, in the circumstances, the events of 20 or 25 years ago would not likely lead to harm in the future, and that country information supported the proposition that a tattoo of a tiger (which did not have the LTTE flag) would not likely lead to harm in the future.
The applicant’s proposed ground suffers from a selective focus on those matters which the IAA accepted, and ignores subsequent reasoning and findings which revealed that the IAA did consider the applicant’s claims in full.
The complaint that the IAA failed to assess these claims on a cumulative basis would only have had some prospect of success if all that the IAA had done was to set out those matters which it accepted and went no further in relation to each of those matters.
As, with respect, the Full Court said in DDK16, so in the circumstances of this case:
“34. In our view, however, such considerations have no application in a case such as this and are of no assistance to the respondent. It seems to us, as a matter of inexorable logic, that if, as is common ground here, all individual claims or bases for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result. It follows, in our respectful view, that the primary judge was wrong to hold otherwise.”
Before the Court, the applicant’s submissions sought to emphasise that on return the applicant would be detained and stripped and the authorities would find the tattoo on his arm and scarring.
It must be said it was difficult to understand the relevance of counsel’s submissions, as to what occurs in the NSW prison system concerning strip searches, in relation to the applicant’s circumstances on return to Sri Lanka.
The argument that strip searches occur in the NSW prison system and may therefore occur in Sri Lanka, and in particular may occur to the applicant on his return, was based on no evidence, nor was there any such evidence before the IAA.
Further, the delegate’s reference in the delegate’s decision record (see [27.5] above) to LTTE suspects being identified by their scars, was said to be in the past and “…there is no recent evidence to suggest that these examinations are routinely carried out on immigration returnees” (CB 161.3 see also footnote at CB 161.10).
In any event, what would likely occur to the applicant on return to Sri Lanka as a failed asylum seeker who departed Sri Lanka illegally, was considered by the IAA (see [34]–[40] at CB 336–CB 337).
It appears, as set out above, that the reference to scarring in the applicant’s submissions emanated from what the delegate set out at CB 161.2 (see above at [27.5]), and the applicant’s claim that he had scars on his head from a beating in April 2010 from armed men who came to his house ([26]–[29] at CB 108).
It is important to note the IAA’s actual reasoning in relation to what would likely occur to the applicant upon return to Sri Lanka in the circumstances outlined above.
The IAA’s conclusion as to the likelihood of harm did not depend on some finding, or reasoning, that the tattoo would not be discovered, or that the tattoo and scarring would not be found because the applicant would not be strip searched.
Rather, the IAA, as did the delegate, relied on country information to find that in the applicant’s circumstances, and as those circumstances were understood in light of the findings made by the IAA (which were reasonably open to it to make on the material before it) was that the applicant on return would not have the profile that meant there was a real chance of serious or significant harm.
Ultimately the IAA found that:
1. In relation to s.36(2)(a) (at CB 337):
“41. After having regard to the applicant's claims individually and cumulatively, I find that he does not have a well-founded fear of persecution within the meaning of s.5J.”
2. In relation to s.36(2)(aa) (at CB 339):
“50. After having regard to the applicant's circumstances both individually and cumulatively, I find that he does not face a real risk of suffering significant harm.”
In both paragraphs the references to having regard to the applicant’s circumstances must be read holistically. That is, those circumstances are as found by the IAA, following its consideration of the applicant’s claims, as that consideration is comprehensively set out in the earlier parts of the decision record, and then based on the findings that arise from that consideration.
There was no dispute before the Court from the applicant that the findings made by the IAA in relation to the matters which are the subject of the proposed ground, were not of themselves reasonably open to the IAA on what was before it.
Rather, as set out above, the argument was that having accepted the claim of the family’s past harm, and the fact of the tattoo on his arm, the IAA fell into error in not considering the question of relevant harm on an accumulation of these accepted findings. For the reasons set out above that argument is rejected. There is nothing in the evidence before the Court to indicate that the IAA did not consider the applicant’s claims, as it said, “individually and cumulatively”.
Conclusion
When reduced to its essence the limited and unsatisfactory nature of the applicant’s proposed ground, as explained above, and the failure to take into account the entirety of the IAA’s reasoning, and findings, means that the proposed ground is without requisite merit such as to argue for the leave sought. Leave should be refused. I will make that order.
Given that the applicant expressly abandoned the grounds of the substantive application it is appropriate to dismiss the application. I will also make that order.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 9 December 2019
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