BKR16 v Minister for Immigration
[2018] FCCA 2623
•21 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BKR16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2623 |
| Catchwords: MIGRATION – Application for judicial review of decision by Immigration Assessment Authority (IAA) affirming decision not to grant applicant Safe Haven Enterprise visa; whether IAA failed to consider essential integer of claim for protection – whether IAA actively engaged in assessing risk of harm having regard to findings it had made – whether IAA failed to consider claim arising on the material before it – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5H(1), 36(2)(a), 476 |
| Cases cited: DDK16 v Minister for Immigration and Border Protection [2017] FCCA 353 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 |
| Applicant: | BKR16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1473 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 4 August 2017 |
| Date of Last Submission: | 4 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 21 September 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Hodges of Hodges Legal |
| Counsel for the First Respondent: | Mr B Kaplan |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1473 of 2016
| BKR16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant applies for a remedy under s.476 of the Migration Act 1958 (Cth) (Act) in a relation to a decision made by the second respondent (IAA) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (Sub class 790) visa (SHEV).
The applicant claims the IAA made a jurisdictional error in three ways: the IAA failed to consider an essential integer of the applicant’s claims for protection; the IAA failed to consider its own findings when assessing whether the applicant had a well-founded fear of persecution; and the IAA failed to consider a claim that was “clearly evident on the facts”.
To be in a position to consider these claims it will be necessary to set out the applicant’s claims for protection, and the reasons for which the IAA did not accept the applicant’s claims for protection.
Claims for protection
The applicant stated his claims for protection on five occasions – on 10 October 2012 in a “biodata interview” with an officer of the Department of Immigration and Border Protection (as the Department of Home Affairs was then known) (Department);[1] on 17 January 2013 at an “Irregular Maritime Arrival Entry Interview” (IMAE Interview);[2] in a statement dated 21 August 2013 which formed part of a purported application for a Protection (Class XA) visa the applicant lodged on 21 August 2013, [3] in a statutory declaration that formed part of the application for a SHEV (Statutory Declaration);[4] and in an interview with the delegate on 8 December 2015 (SHEV Interview).[5]
[1] CB19-29; CB372-373, [9]
[2] CB1-CB18
[3] CB67-72; CB
[4] CB167-173
[5] CB279-286
It would be convenient to set out the claims as stated in the Statutory Declaration; and these are as follows:
a)The applicant is a citizen of Sri Lanka, a Tamil, and a Hindu. The applicant belongs to a wealthy Tamil caste known as “Potkollar/Asariyar”; and such caste is considered and perceived to be wealthy because of their involvement in making gold and silver jewellery. The applicant’s mother’s and father’s extended families have been involved in making jewellery for many generations.
b)The applicant was born in a village (Village) in the Batticaloa district, Eastern Province Sri Lanka. The Village “is a former LTTE controlled area” (“LTTE” being a reference to the Liberation Tigers of Tamil Eelam).
c)Sometime in March 2007, as the Sri Lankan Army (SLA) was advancing towards the Village, the applicant and his family fled the area and sought refuge at a refugee camp where they stayed for seven weeks “while the LTTE who were controlling [the Village] withdrew towards the jungles”.
d)After having captured the Village the SLA set up two Special Task Force (STF) camps at the entrance of the Village; and after the war the applicant, his family, and other villagers were allowed to return to their lands.
e)Approximately three days after returning to the Village, STF personnel came home in search of the applicant. He was taken to the STF camp where he was interrogated and physically assaulted because the applicant was suspected of being an LTTE cadre or a person who had links with the LTTE. The applicant was detained for one day until he was released due to the intervention of the head of the Village. After he was released the applicant continued to reside in the Village area. He opened a grocery store, and continued to work as a farmer.
f)When the LTTE was controlling “the area”, the applicant was actively involved in various community work which included being vice president, and holding an advisory role in a particular sports club (Sports Club), being treasurer and assistant secretary of a temple, and being treasurer of a particular society (RDS). The applicant was also appointed a member of the public vigilance committee during June 2007 to June 2009 after the LTTE had withdrawn. “During this period”, the applicant also had close interactions with Tamil politicians who were members of the “TNA political party”.[6]
[6] The TNA being the Tamil National Alliance
g)Because he held senior positions before and after the LTTE had withdrawn, the applicant “used to handle a lot of money that was routed to (by overseas donors) the various organisations” to which the applicant was attached; and he closely liaised with “foreign NGOs”. In addition to large amounts of overseas moneys being routed into the various organisation accounts, large sums of money were also routed to the applicant’s personal bank account.
h)When the LTTE was in control of the Village the applicant got involved in organising LTTE functions, and assisted in carrying out propaganda activities for the LTTE through the Sports Club. The LTTE used the Sports Club and its members to achieve “some of its objectives”.
i)On 23 April 2012 a photograph of the applicant standing alongside three TNA members of Parliament was published in a Tamil newspaper.
j)On 10 May 2012 the applicant received a threatening letter from the Tamil Makkal Viduthali Pulikal (TMVP), being a Tamil paramilitary group that continues to operate in the Eastern province, and which works closely with the Sri Lankan government. The threatening letter stated the applicant needed to report to the TMVP office for questioning, that he should not disclose to anyone he had received the letter, and that if the applicant did not report to the TMVP he would face serious consequences.
k)During this period the applicant was one of the two main TNA organisers of a series of meetings in “the Batiticaola town”. One day before a meeting that was scheduled to take place on 24 May 2012, members of the TMVP burnt down the hall where the meeting was due to take place. A series of meetings were held at a different venue.
l)A few days after these meetings concluded, the committee that organised these meetings gathered at a house “in a secret location” at the Village. On the day they met, members of the TMVP burned three motorcycles (including the applicant’s), and a three-wheeler.
m)On 2 June 2012 the applicant received a second warning letter from the TMVP. It noted the applicant had ignored the previous letter and had continued to work for the TNA; and stated that the applicant was required to report to the TVMP office immediately, failing which there would be serious consequences.
n)Sometime in August 2012 Mr T, one of the main organisers, was abducted, and the applicant believes he was abducted by the TVMP. On the day Mr T was abducted, a group of armed Tamil men had come to the applicant’s home looking for him, but the applicant was not at home.
o)On being informed by his wife that armed men had come in search of the applicant, he went into hiding at a relative’s place. While in hiding, the applicant learnt that the armed Tamil men had gone in search for the applicant at his home, at the applicant’s grocery store, the temple, and at places the applicant frequently visited. It “was for this reason that” the applicant fled Sri Lanka in August 2012 eventually reaching Australia by boat.
p)While in Australia the applicant met a Sri Lankan TNA Member of Parliament who travelled to Australia; and a photograph of the applicant with a group of TNA supporters “along with one of the TNA MPs” was published on a Tamil website.
q)After arriving in Australia the applicant learnt through the RDS that Sri Lankan police had inquired about the applicant, and about his involvement with the RDS, his role with the Sports Club, and how “some of the funds from overseas were routed to” the applicant through the RDS and the Sports Club. The Sri Lankan police also presented senior RDS members with several photographs of the applicant and “questioned them intensely with regard to” the applicant’s involvement with Tamil politicians.
r)The applicant fears that if he returns he could be harmed by members of the Tamil paramilitary and the Sri Lankan authorities because the applicant:
i)would be perceived as an LTTE supporter due to his previous involvement “as mentioned above”;
ii)would be branded an LTTE supporter with links to the LTTE because he “had involvement with Tamil foreign donors”;
iii)would be perceived to a person who supports the TNA and the LTTE;
iv)comes from a wealthy family; and
v)departed Sri Lanka illegally.
The IAA’s reasons
The IAA accepted the applicant is a supporter of the TNA, that his photos appeared on Tamil websites and newspapers, and that he openly assisted the TNA during the 2012 election campaign in Batticaloa.[7] Although the IAA noted the TMVP ceased operating as a paramilitary group after the LTTE’s defeat in 2009, their leader (Pillayan) held the position of Chief Minister of the Eastern Province from 2008 until 2012. For that reason the IAA accepted as plausible that the applicant received two letters demanding that he attend the TMVP office for questioning. The IAA therefore accepted that the applicant went into hiding in August 2012 until he departed Sri Lanka in September 2012; and that “his fear of harm from TMVP was the reason he departed Sri Lanka”.[8]
[7] CB375, [18]
[8] CB375, [18]
Claims based on fear of TMVP
The IAA was not satisfied, however, there is a real chance the applicant will face serious harm from the TMVP or from any of its members if the applicant returns to Batticaloa, either now or in the reasonably foreseeable future. The IAA relied on country information that showed that in 2015 the TNA won a majority of seats in the Northern Provincial Council; that a “Sri Lankan Muslim Congress (SLMC) Chief Minister took over the Eastern Provincial Council”; that in October 2015 Pillayan was arrested in association with the murder of a TNA Member of Parliament; and that the TMVP currently holds no power, it no longer acts in a paramilitary capacity, and it does not have the support of the current government.[9] The IAA referred to country information that shows TNA members and supporters have also gained significant power, now leading the opposition and holding the majority of seats in the Northern Province. The IAA also referred to a report by the Department of Foreign Affairs and Trade (DFAT) which reported that TMVP has engaged in criminal activity. The IAA noted, however, that DFAT said reports of criminal activity are difficult to verify; and there is no indication of the criminal activity in which the TMVP has engaged.[10]
[9] CB375, [19]
[10] CB375, [19]
The IAA was not satisfied the Sri Lankan authorities had any interest in the applicant on the basis of his involvement with the TNA, either while he resided in Sri Lanka or in Australia; and it did not accept the authorities will gain an interest in the applicant because of his involvement with the TNA, now or in the reasonably foreseeable future.[11] The IAA relied on the country information on which it had earlier relied in concluding the applicant did not face a real chance of suffering serious harm from the TMVP or from any of its members; it also relied on the President of Sri Lanka having elected the leader of the TNA to lead the opposition, and the current President of Sri Lanka having demonstrated open and willing cooperation with the TNA.[12]
[11] CB375, [20]
[12] CB375, [20]
Claims based on real or perceived association with LTTE
The IAA accepted that, given the LTTE’s presence in Batticaloa until 2006 to 2007, the applicant would have had interactions with the LTTE and its cadres “on a frequent basis”;[13] the applicant was involved in supporting propaganda activities for the LTTE through the Sports Club, and, through his activities with the temple and the RDS, was perceived to have supported LTTE activities;[14] and that in 2007 the applicant moved to a refugee camp for seven weeks and on his return he was arrested on suspicion of being a LTTE cadre and that he was released. The IAA, however, was not satisfied the applicant faces a real chance of serious harm on the basis of his having a real or perceived association to the LTTE;[15] and that although the applicant did have money transferred to his personal account, potentially from overseas donors, they were not used to fund LTTE activities.[16]
a)First, the IAA was not satisfied the applicant was released “on the basis of a village leader intervening”.[17] The IAA found it was more likely the applicant was released because he was of no interest to the Sri Lankan authorities, and he was not linked to the LTTE. The IAA relied on two things. The first is country information which showed that towards the end of the conflict a number of suspected LTTE members were arrested and detained by the Sri Lankan security forces; that a majority of those arrested were sent to rehabilitation camps; in addition to those arrested, many civilians were also questioned or monitored towards the end of the conflict; those arrested included individuals who were recruited in the days and weeks before the defeat, as well as individuals who carried out official functions in LTTE administered areas and received a salary from the LTTE, but without participating in hostilities. The second thing is the applicant’s not claiming he had been sent to any rehabilitation camp. In short, the IAA found the applicant was released because he was of no interest to the authorities because of any actual or perceived link with the LTTE because had he been so perceived he would have been arrested and sent to a rehabilitation camp.[18]
b)Second, after the LTTE’s defeat until his departure from Sri Lanka in 2012 the applicant did not face any adverse interest from the authorities, apart from his arrest for one day in 2007.[19]
c)Third, during “this period”, namely the period commencing when the LTTE were defeated to the applicant’s departure from Sri Lanka in 2012, the positions the applicant held with the Sports Club, the RDS, and the temple were administrative functions which are “government sanctioned structures of elective community members to channel public and international assistance”.[20]
d)Fourth, in June 2007 the applicant became a senior member of a public vigilance committee, having been so appointed by a divisional secretary. In that role the applicant was responsible for communicating information he received from the government to the people.[21]
e)The IAA did not accept the applicant’s involvement with money transfers has led the Sri Lankan authorities to suspect the applicant of any involvement in LTTE funding or LTTE activities.[22]
[13] CB376, [24]
[14] CB376, [24]
[15] CB376, [23]
[16] CB378, [28]
[17] CB377, [25]
[18] CB376-377, [25]
[19] CB377, [26]
[20] CB377, [26]
[21] CB377, [26]
[22] CB378, [28]
Claim based on being Tamil from Eastern Province
The IAA found the applicant will not face a real chance of serious harm on the basis of his being a Tamil from the Eastern Province. The IAA relied on a DFAT report that refers to laws that protect against discrimination; and the current government taking a more proactive approach to human rights and reconciliation, engaging constructively with the TNA and the international community.[23]
[23] CB378, [29]
Claim based on perceived wealth
Although the IAA accepted the applicant belonged to a caste that is associated with jewellery making or gold or silver, or all three, it was not satisfied there is a real chance the applicant will face harm on that basis.[24] The IAA relied on the applicant’s not having claimed to have suffered any harm in the past on this basis, and there being no evidence before the IAA to indicate the applicant will face harm on that basis now or in the reasonably foreseeable future in Batticaloa.[25]
[24] CB378-379, [32]
[25] CB379, [32]
Claims based illegal departure and failed asylum seeker
The IAA accepted the applicant departed Sri Lanka illegally; that on his return to Sri Lanka he will be charged under the Immigration and Emigration Act; there is a chance the applicant may be detained for up to 24 hours if a magistrate is not available; the application of a fine or the process the applicant will undergo is not applied in a discriminatory manner; the brief detention the applicant may face does not rise to the level of threat to his life or liberty, or to significant physical harassment or ill treatment; if the applicant pleads guilty he will be required to pay a fine and subsequently released. Based on these findings, the IAA was not satisfied the applicant will face serious harm on the basis of his illegal departure from Sri Lanka now or in the reasonably foreseeable future.[26]
[26] CB379-381, [33-41]
Claims based on being refugee
The IAA concluded that given its findings, it was not satisfied the applicant fell within the definition of “refugee” given in s.5H(1) of the Act and, therefore, did not satisfy the criterion provided for by s.36(2)(a) of the Act.
Claims based on complementary protection
The IAA repeated findings it had already made. It also set out the effect of country information to which the IAA had already referred. The IAA then concluded it did not find there is a real risk the applicant will suffer significant harm.
Grounds of application
The applicant relies on the grounds stated in the amended application filed on 19 July 2017. It amends the application that was originally filed by deleting grounds 1 and 2. The remaining three grounds have not been renumbered. In these reasons for judgment, I will identify the grounds contained in the amended application by the number the amended application gives to each ground.
Ground 3
Ground 3 is as follows (emphasis in original):
The IAA failed to consider an essential integer of the Applicant’s claims for protection [10]
PARTICULARS
(i) At [9] the IAA referred to an incident that the Applicant had occurred in 2002 where the Applicant states he was detained for a period of 16 days. The applicant referred to the 2002 incident during two interviews conducted by the Immigration department (i.e. bio data interview and arrival interview). The IAA reviewer at [10] states.
… I find the applicant is no longer pursuing the claim that he was detained in 2002 for 16 days on suspicion of LTTE involvement
(ii) The 2002 incident was not a separate claim that was raised by the Applicant but rather a particular incident that was an essential integer of the Applicant’s core claim, that claim being “Real and/perceived association to the LTTE” [21-30]
This ground arises from what the IAA recorded the applicant said both at the biodata interview and at the IMAE Interview. The IAA noted that at the biodata interview the applicant stated “that in 2002 he was arrested due to suspicion of LTTE involvement”, that he “was in Colombo at the time and was detained for 16 days”, and that the applicant “claimed that his case was taken to court and he was found to be not guilty”.[27] (I will refer to this claim as “the Asserted Claim”.) The IAA further noted that “[n]o further information about this incident was raised”, and that the “claim was reiterated in the Applicant’s interview held on 17 January 2013”. (That is a reference to the IMAE Interview. The applicant did there repeat the Asserted Claim, but he is recorded as having stated that he was detained in 2000, not 2002.[28]) Ground 3 is directed to what the IAA said and did in relation to Asserted Claim.
[27] CB373, [9]
[28] CB14
The IAA noted that in his purported application for a Protection visa, and in his application for a SHEV, “the applicant has not mentioned his earlier claimed detention in 2002 for a period of 16 days”, that during his PV interview, the applicant did mention his claimed detention in 2002 and that, at “the conclusion of the interview, the applicant was asked if he had raised all his claims for protection to which he responded yes”.[29] The IAA then found – and this is the passage to which ground 3 is particularly directed – that “the applicant is no longer pursuing the claim that he was detained for 16 days on suspicion of LTTE involvement and therefore this will not be assessed”.[30]
[29] CB373, [10]
[30] CB373, 10
The applicant makes what he says are two submissions, one alternative to the other. One is that the Asserted Claim was not an asserted claim that was raised by the applicant, but rather a “particular incident that was an essential element of the Applicant’s core claim, that claim being “Real and/or perceived association to the LTTE”.[31] The alternative submission is that the Asserted Claim arose from the material that was before the IAA. The applicant relies on the following passage from the judgment of Merkel J in Htun v Minister for Immigration and Multicultural Affairs:[32]
While it may be convenient for the Tribunal to deal separately with each element of the claim, that does not relieve it of the task of addressing, cumulatively, all of the essential elements of the claim raised by the material or evidence. In that regard, the Tribunal, in conducting its review of the decision of the delegate under s 414 of the Migration Act 1958 (Cth), is under a duty to address or deal with the case (ie the claim) actually raised by the material or evidence . . .
[31] Applicant’s outline of submissions, page 8, paragraph (c).
[32] [2001] FCA 1802, at [7]
The applicant also relies on the following passage from the judgment of the Full Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (applicant’s emphasis):[33]
[61] . . . consistent with the proposition that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it . . . .
[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. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal.
[33] [2004] FCAFC 263
In effect, the applicant submits the Asserted Claim was a claim that was explicitly made by the applicant or was a claim that arose from the material that was before the IAA.
The Minister, on the other hand, submits the IAA was entitled to treat the Asserted Claim as not being a matter on which the applicant relied in support of a SHEV; and, therefore, it made no jurisdictional error by not considering it. The Minister relies on the applicant’s not having included the Asserted Claim in the statement that formed part of a purported application for a Protection visa, and the statutory declaration that formed part of the application for a SHEV; and the Minister also relies on the applicant’s not being silent, but in having positively stated to the delegate that he had raised all of his claims which did not include the Asserted Claim.
The question that arises on ground 3 is whether there was before the IAA a claim to the effect of the Asserted Claim the IAA ought to have considered. The principles for determining that question are not in doubt; and in addition to the passages on which the applicant relies it would be useful to refer to the following passage from the judgment of Allsop J (as his Honour then was) in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs:[34]
From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
[34] [2004] FCA 1695, at [15]
The IAA appears to have assumed, and the Minister in his submissions appears to assume, that the Asserted Claim was a matter on which the applicant had relied in his claim for protection, but on which he ceased to rely by the time of the SHEV Interview. In my opinion, however, such assumption would be incorrect.
a)First, the Asserted Claim went no further that claiming the applicant was detained in 2000 because of suspected involvement with the LTTE; that he was brought before a court; and that the court found the applicant not guilty of being involved with the LTTE. That by itself is incapable of suggesting the applicant claimed he feared harm from the authorities or any other organisation or person based on his being perceived to have been associated with the LTTE. On the contrary, the Asserted Claim implies the Sri Lankan authorities were willing to have their suspicions concerning the applicant’s association with the LTTE determined by a court following due process of law.
b)Second, in the document recording the IMAE Interview the Asserted Claim is made in answer to a specific question, namely, whether the applicant was ever detained by the police or security organisations; and in answer to the question that immediately follows that question, namely, whether “the police and security or intelligence organisations impact on your day to day life”, a tick is placed in the “No” box. That suggests that not only did the applicant claim the Sri Lankan authorities were willing to have their suspicions concerning the applicant’s association with the LTTE presented for the determination by a court; but they were also willing to abide by the court’s determination because Sri Lanka’s police and security or intelligence organisations did not impact on the applicant’s day to day life.
c)Third, the reasons the applicant is recorded as giving in both the biodata interview and the IMAE Interview for leaving Sri Lanka is that he was approached by the Karuna group to support them in elections, and that the Karuna group targeted the applicant because of his involvement with the RDS, the Sports club, and the temple as treasurer and adviser. There is nothing to suggest the applicant left Sri Lanka because he feared being imputed with having an association with the LTTE.
Thus, the Asserted Claim, when considered in the context in which it was made, could not reasonably be taken as a claim that the applicant feared harm because he might be imputed with having an association with the LTTE.
Nor could the Asserted Claim be reasonably considered to be relevant to such a claim when read together with the claims the applicant made in the statement he included in the purported application for a Protection (Class XA), or the claims made in the statutory declaration included in his application for a SHEV. The events asserted in the statement and statutory declaration commenced in 2007, which is at least five years after, according to the Asserted Claim, the applicant had been detained for 16 days; and neither the statement nor the statutory declaration refer to the Asserted Claim or otherwise suggest any connection between the Asserted Claim and the matters asserted in the statement and the statutory declaration.
In these circumstances the IAA made no jurisdictional error by deciding it would not assess the Asserted Claim. If, however, contrary to this conclusion, at the times he made the Asserted Claim the applicant could reasonably be taken to have relied on the Asserted Claim in support of a claim based on his being imputed with an association with the LTTE, I am satisfied that, given: (a) the applicant did not in the statement or statutory declaration make or refer to his having made the Asserted Claim; (b) the applicant did not, during the SHEV Interview, made a claim to the effect of the Asserted Claim; and (c) at the conclusion of the SHEV interview, the applicant was asked if he had raised all his claims for protection to which he responded yes; no reasonable IAA would have considered that the applicant intended to continue to rely on the Asserted Claim in any way in support of any claim that was otherwise tolerably apparent from the material that was before the IAA.
Ground 3, therefore, fails.
Ground 4
Ground 4 is as follows (emphasis in original):
The IAA failed to consider its own findings when assessing if the applicant’s fear was well founded and when applying the real chance test
PARTICULARS
(i) The IAA accepted the following (subjective elements),
a. The Applicant is a supporter of the TNA and that his photographs have appeared on Tamil websites and newspapers [18].
b. The Applicant openly assisted the TNA during 2012 election campaign [18].
c. The Applicant received two letter demanding him to attend the TMVP office for the questioning [18].
d. The IAA reviewer found it plausible at [22] that the Sri Lankan authorities may perceive the Applicant to have funded LTTE activities.
e. The IAA reviewer accepted that the Applicant “would have had interactions with the LTTE and its cadres on a frequent basis” [24].
f. The IAA reviewer accepted that the Applicant was involved in supporting propaganda activities for the LTTE through the [Sports Club] and perceived to have supported LTTE activities through the temple RDS [24]. This was reiterated at [28].
g. The IAA reviewer accepted that the Applicant was arrested for one day in 2007 by the army [25].
h. The IAA reviewer accepted that the Applicant “did have money transferred to his personal account, potentially from overseas donors …” [28].
(ii) The IAA accepted the following (objective elements),
a. Excerpts of the DFAT report which states the TMVP, being a Tamil paramilitary group “has engaged in criminal activity” [17] appears . . . to have been accepted though the IAA at [19] notes that “There is no indication of the nature of the criminal activity with the TMVP have engaged in”.
b. At [27] the IAA accepted that “some RDS have been subjected to harassments by the occupying Sri Lankan military.
In his written submissions, the applicant submits the IAA did not consider the possibility that the applicant’s previous experiences, which it accepted, may increase the likelihood that the applicant has a real chance of significant harm if he returns to Sri Lanka. The applicant relies on the following passage from the judgment of Judge Driver in DDK16 v Minister for Immigration and Border Protection (emphasis added by applicant):[35]
The Authority’s rolled up cumulative assessment at the end of its reasons does not expressly deal with the possibility that, when considered cumulatively, these risks might become significant. . . . the bland assertion that the claims were considered cumulatively does not satisfy me that this was anything more than the application of a verbal formula. . . . The cumulative assessment of the claims needed to address the possibility of the interaction of the applicant’s condition, activities and circumstances leading him to the adverse attention of the Iranian authorities.
[35] [2017] FCCA 353, at [103]
The applicant submits the IAA did not adequately consider the “multi-faceted” risks the applicant might face if he were to return to Sri Lanka. The applicant submits that “when considering the applicant’s claims cumulatively, at [47], the IAA did not actively engage with the issues rather it merely stated that the above before finding that the totality of the applicant’s claims do not give rise to a real chance of serious harm”.[36]
[36] Applicant’s outline of submissions, page 11, paragraph (g)(ii).
I interpret ground 4, therefore, to claim, at least in part, that the IAA made the same error Judge driver found the IAA made in DDK16; that is, the IAA did not consider, or actively consider, whether the findings it made in relation to the applicant’s conditions, activities, and circumstances, taken cumulatively, give rise to a real chance of significant harm if the applicant were to return to Sri Lanka.
In assessing this submission, it is necessary to take into account the judgment the Full Federal Court delivered in the appeal the Minister brought against Judge Driver’s orders in DDK16.[37] The Full Federal Court held that Judge Driver erred to the extent that, in the passage on which the applicant in the proceeding before me relies, his Honour proceeded on the basis that the consideration on a cumulative basis of individual claims that had been dismissed is capable of producing a different result. The Full Federal Court said:[38]
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.
[37] Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188
[38] [2017] FCAFC 188, at [34]
The Full Federal Court further found that Judge Driver, in any event, erred in finding that the Tribunal did not actively consider the claims on a cumulative basis. The Full Federal Court said:[39]
In any event, it is, with respect to the primary judge, clear on the face of the IAA’s detailed and thorough reasons that it expressly considered each of the various risks relied upon by the respondent in respect of both his refugee and complementary protection claims on a cumulative basis.
[39] [2017] FCAFC 188, at [35]
In the proceeding before me the IAA considered each of the applicant’s claims; and in relation to each claim concluded it was not satisfied the applicant had a well-founded fear of persecution or that he faced a real risk of significant harm. The IAA also considered whether, when considered cumulatively or in their totality, the findings the IAA made in relation to each of the applicant’s claims satisfied it the applicant had a well-founded fear of persecution,[40] or that there was a real risk the applicant will suffer significant harm;[41] and the IAA answered both these questions adversely to the applicant. I am satisfied that in answering these two questions the IAA did not simply apply a mere verbal formula; it actively engaged with the questions.
[40] CB381, [42]
[41] CB383, [51]
In any event, given the IAA did not accept that any of the claims the IAA considered the applicant made gave rise to a well-founded fear of persecution or to a real risk of significant harm, what the Full Federal Court said in DDK16 in the passage I reproduced above also applies to the circumstances of this case. That is, the IAA’s having dismissed “all of the applicant’s claims or bases for establishing a visa . . . (here, dismissed as not giving rise a real or significant risk of harm upon return to the country of nationality or receiving country)”, as “a matter of inexorable logic” no “amount of “cumulative consideration” of those rejected claims [was] capable of producing a different result”.
In his oral submissions, Mr Hodges, who appears for the applicant, made a more particular submission, namely, that having made the findings in relation to the applicant and the TMVP, the IAA could have been satisfied the applicant did not have a well-founded fear of persecution or he did not face a real risk of significant harm only if there was evidence – which was absent – that the current government was taking steps to suppress, harness or stop the criminal activities of the TMVP. This submission necessarily implies it was not reasonably open to the IAA not to be satisfied the applicant did not have a well-founded fear of persecution based on his fears of the TMVP in the absence of evidence the current government was taking steps to suppress, harness or stop the criminal activities of the TMVP. Mr Hodges also appeared to have submitted that the IAA did not consider the risk the applicant would face from the criminal activities of the TMVP if he were to return to Sri Lanka.
I do not accept these submissions. The IAA specifically considered the applicant’s claim based on his fears of the TMVP and concluded it was not satisfied the applicant had a well-founded fear of persecution on account of the TMVP either now or in the reasonably foreseeable future, or that the applicant will suffer significant harm from the TMVP. The IAA identified in its reasons for decision the matters it took into account in so concluding; and the matters on which the IAA relied were reasonably capable of supporting the IAA’s conclusion.
Ground 4, therefore, also fails.
Ground 5
Ground 5 is as follows:
The IAA failed to consider a claim which was clearly evident on the facts, when assessing the Applicant’s claims against the refugee assessment (s36 (2)(a)) and complimentary protection assessment (s 36(2)(aa)
PARTICULARS
(i) At [17] the IAA appears to accept, at the very least considers DFAT information which states “TMVP has engaged in criminal activity” while also noting at [19] that the nature of the criminal activity committed by TMVP is unknown. It is submitted that once it is accepted or considered that the TMVP is [at the present time] engaged in “criminal activity”, the IAA did not have the need to explore the “nature of the criminal activity”. An assessment of this nature is contrary to s 36(2A) definition of significant harm.
The applicant said nothing about this ground in his written submissions.
The particulars appears to contain some error; because, if taken literally the claim that is there made is that the IAA did not need to explore the nature of the TMVP’s criminal activity. In his oral submissions, Mr Hodges, when making submissions in relation to ground 4, also made the submission that the IAA did not assess the risk to the applicant that might be caused by the TMVP’s criminal activities. I will take ground 5, therefore, to be a claim that there was before the IAA a claim that the applicant feared significant harm from the criminal activities of the TMVP, and the IAA did not consider that claim.
The IAA considered the applicant made a claim based on fear of harm from the TMVP; and the IAA assessed that claim. In assessing the claim, the IAA referred to country information. Part of the information was the DFAT report which reported that the TMVP has engaged in criminal activity. As I have already recorded, the IAA noted the DFAT report said reports of criminal activity are difficult to verify; and the IAA further noted there is no indication of the criminal activity in which the TMVP has engaged.[42]
[42] CB375, [19]
To the extent, therefore, that the information concerning the criminal activities by the TMVP to which the IAA referred can be considered to be a claim of fear based on the criminal activities by the TMVP, the IAA did consider it. The IAA found that the information before it did not permit it to identify the nature of the TMVP’s criminal activities. I do not understand ground 5 to claim, or the applicant to submit, there was material before the IAA which ought reasonably to have suggested the nature of the TMVP’s criminal activities, and the IAA failed to address that information. Nor do I understand ground 5 to claim, or the applicant to submit, it was not reasonably open to the IAA to find that the information before it did not permit it to identify the nature of the TMVP’s criminal activities.
Ground 5, therefore, also fails.
Conclusion and disposition
The applicant has not succeeded on any of the grounds on which he relies. I propose, therefore, to order that the application be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 21 September 2018
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