BMQ16 v Minister for Immigration
[2017] FCCA 150
•22 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BMQ16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 150 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a Safe Haven Enterprise Visa – applicant claiming a fear of harm in Sri Lanka – whether the Authority overlooked an element of the applicant’s claims or improperly excluded information considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5AA, 5J, 473CC, 473DD |
| Cases cited: Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473, [2003] HCA 71 SZWCO v Minister for Immigration [2016] FCA 51 |
| Applicant: | BMQ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1547 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 31 January 2017 |
| Delivered at: | Sydney |
| Delivered on: | 22 February 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondents: | Mr H Bevan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application as amended by leave on 31 January 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1547 of 2016
| BMQ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 23 May 2016. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Safe Haven Enterprise Visa (SHEV).
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Sri Lanka, of Tamil ethnicity and Hindu faith[1]. On 7 August 2012 the applicant departed from Sri Lanka by boat[2].
[1] As the Authority found (see Court Book (CB) at 266 [11])
[2] Court Book (CB) 31, 141
On 28 August 2012 the applicant arrived in Australian waters at Cocos Islands as an irregular maritime arrival within the meaning of s.5AA of the Migration Act 1958 (Cth) (Migration Act)[3], following which he was transferred to Christmas Island[4].
[3] CB 18, 31, 141
[4] CB 31, 115
On 11 January 2013 and 15 January 2013 the applicant participated in “arrival interviews” with a “departmental case officer”[5]. According to a migration agent acting for the applicant in 2015, the applicant was also interviewed on 1 September 2012 and 3 October 2012[6].
[5] CB 173
[6] CB 179
In February 2013 the applicant, having been transferred to the Australian mainland, was released into the community[7] and granted a bridging visa[8].
[7] CB 62, 115
[8] CB 47
On 18 July 2013 the applicant applied for a protection visa[9]. The application included a statutory declaration in which the applicant set out his claims[10].
[9] CB 1-39
[10] CB 35-39
In August 2015 the Minister’s Department sent a letter to the applicant informing him that his protection visa application was invalid, but he could apply for a subclass 785 temporary protection visa or a subclass 790 SHEV[11].
[11] CB 85-91
On 24 September 2015 the applicant applied for a subclass 790 SHEV[12]. The application included a statement in which the applicant again set out his claims[13].
[12] CB 92-142
[13] CB 135-142
It appears that the applicant attended an interview with the Minister’s delegate On 16 December 2015 at 9:15am [14].
[14] CB 164
On 16 December 2015 the Minister’s Department sent a letter to the applicant (by email to his migration agent) inviting him to comment on adverse information[15].
[15] CB 171-176
By letter dated 7 January 2016 the applicant’s migration agent responded to the invitation to comment[16].
[16] CB 177-195
On 21 April 2016 a delegate of the Minister refused to grant the applicant a subclass 790 SHEV[17].
[17] CB 196-242
That decision was referred to the Authority for review under Pt 7AA of the Migration Act[18]. On 22 April 2016 the Authority sent the applicant a letter which, among other things[19]:
a)stated that the decision of the Minister’s delegate had been referred to the Authority for a review;
b)stated that the Minister’s Department “has provided us with all documents they consider relevant to your case” and that “the IAA will proceed to make a decision on your case on the basis of the information sent to us by the department”;
c)invited a submission of “no longer than 5 pages” within 21 days.
[18] CB 245-250
[19] CB 245-250
By letter dated 10 May 2016 the applicant’s migration agent provided a five page submission[20].
[20] CB 254-258
On 23 May 2016 the Authority made a decision affirming the decision of the Minister’s delegate[21].
[21] CB 262-288
The Authority accepted much, although not the entirety, of the applicant’s factual claims.
The Authority accepted that the applicant may have provided assistance (especially food), when asked, to the Liberation Tigers of Tamil Eelam (LTTE) in the period 2002-2004, although the applicant himself was not a member despite sharing their political opinion[22]. Further, the Authority accepted that he was also required to report to an army camp and perform various jobs[23]. The applicant’s brother-in-law was convicted and imprisoned (between November 1999 and March 2001) for helping the LTTE[24].
[22] CB 267 [14]
[23] CB 267 [15]
[24] CB 267 [17]
Earlier, in 1996, the applicant witnessed the detonation of a roadside explosive device which killed both members of the army and civilians, although the Authority found that the attack was not specifically aimed at the applicant or other workers[25].
[25] CB 268 [19]-[20]
From around 2006, the applicant was forced to give lifts to members of a paramilitary group and was threatened by them if he failed to comply[26]. In 2008, the applicant was the victim of an extortion attempt from members of the same group who sought to take his motorbike. The applicant did not report the incident to the police because he believed they would not assist Tamils[27].
[26] CB 268 [21]
[27] CB 268 [22]
Another extortion attempt occurred in 2011. The Authority found that he was visited in July or August 2011 by members of a paramilitary group who were seeking money. They made subsequent visits when the applicant was not home and they threatened his wife. They returned in 2013 and found and took his passport[28].
[28] CB 267 [36]
The Authority did not accept, however, that the 2011 incident was connected to the applicant’s support of the LTTE between 2002 and 2004. Rather, the Authority found that the men came to extort money because they were aware that he had returned from working overseas and may have money[29].
[29] CB 271 [37]
Having regard to the applicant’s inconsistent evidence, the Authority found that he did not attempt to report the 2011 extortion attempt to the police[30]. It did, however, accept that he complained about it to the Sri Lankan Tamil Party, a temple and the Holy Cross Shine, when he was in hiding[31].
[30] CB 271 [40]
[31] CB 272 [44]
The Authority also found that the applicant would be considered a failed asylum seeker who departed Sri Lanka illegally[32].
[32] CB 272 [45]
It was against that background that the Authority then considered the applicant’s claims to be a refugee[33].
[33] Commencing at CB 272 [46]-[47]
The Authority:
a)was not satisfied that the applicant faced a well-founded fear of persecution as a result of the roadside bomb incident in 1996[34];
b)reviewed the country information concerning Sri Lanka and the position of ethnically Tamil males from the Eastern Province[35], gave greater weight to a report from the Department of Foreign Affairs and Trade (DFAT)[36], and, having done so, did not accept that he would be targeted upon return to Sri Lanka because of his Tamil ethnicity or because he is a Tamil from the east, or that he faced a real chance of persecution on those grounds[37];
c)did not consider that the applicant’s assistance to the LTTE in 2002-2004, nor his relationship to his brother-in-law, would give him a profile of interest to the authorities or to a paramilitary group and noted that he had not been questioned, detained or tortured because of his real or imputed connected to the LTTE[38] and was not satisfied that he faced a real chance of persecution on this ground[39];
d)was not satisfied, having regard to the country information, that the applicant was still of interest to any paramilitary group and considered the possibility of his being visited by them in the future as purely speculative[40];
e)rejected a claim that he faced harm from the LTTE for helping the paramilitary group[41];
f)considered the position of failed asylum seekers who return to Sri Lanka[42], found that the applicant would be charged under Sri Lankan immigration laws but that these were laws of general application that were not enforced selectively[43], that any (brief) period of detention would not constitute serious harm[44], that he would likely be fined (which would also not constitute serious harm)[45], and therefore did not face a real chance of persecution on this basis[46];
g)was not satisfied, based on the applicant’s cumulative circumstances, that he faced a real chance of persecution in Sri Lanka.
[34] CB 273 [48]
[35] CB 273 [49]-[58]
[36] CB 275 [59]
[37] CB 275 [60]
[38] CB 277 [71]-[72]
[39] CB 277 [73]
[40] CB 278 [78]
[41] CB 278 [81]-[82]
[42] CB 278 [83]-[94]
[43] CB 281 [95]-[96]
[44] CB 281 [97]
[45] CB 281 [98]
[46] CB 281 [98]
The Authority therefore found that the applicant was not a refugee[47].
[47] CB 282 [100]
The Authority then turned to an assessment of complementary protection[48] but, having considered the applicant’s circumstances both individually and cumulatively, was not satisfied that he faces a real risk of significant harm[49].
[48] Commencing at CB 282 [101]-[102]
[49] CB 282 [103]-[110]
The Authority accordingly affirmed the delegate’s decision[50].
[50] CB 283
The present proceedings
These proceedings began with a show cause application filed on 20 June 2016. The applicant now relies upon an amended application tendered in court by leave at the trial of the matter on 31 January 2017. There are two grounds in the amended application:
1.The [Authority] accepted the applicant’s claim that he “was visited by armed men from a paramilitary group who attempted to extort money from him in July or August 2011”, and these men made subsequent visits to the applicant’s home up to 2013: at [36]. The [Authority] added that it was “likely that these men were aware that the applicant had recently returned from working overseas and that he may therefore have money which they could attempt to extort from him”: at [37] and [72]. If the applicant is required to return to Sri Lanka, there is a real chance he would again be perceived by paramilitary groups as having money earned from working overseas. This would form the basis for fresh extortion attempts against the applicant by paramilitary groups. The [Authority] failed to consider this issue. This is a jurisdictional error in connection with the IAA’s finding at [78] that “the possibility of the applicant being visited by a paramilitary group in the future is purely speculative”.
2.The submission of the applicant’s migration agent to the [Authority] dated 10 May 2016 referred to an article titled “Sri Lanka must immediately release Sivakaran and other Tamils held under the PTA” (CB 257) which, among other things, queried the reform efforts in Sri Lanka under President Sirisena: at [8]. The [Authority] found that the article was not relevant to the applicant’s case ( at [9]), and then excluded the article from its consideration. The article was clearly relevant to the applicant’s case. The [Authority’s] finding that the article was not relevant was perverse and irrational, and also excluded relevant current country information from the [Authority’s] consideration. This was a jurisdictional error.
In addition to the court book filed on 15 September 2016, I have before me as evidence a bundle of correspondence between the Minister’s Department and the applicant[51]. I received those documents over the objections of counsel for the Minister, subject to relevance. As matters transpired during oral argument, the only relevance of the documents is that they establish that, while the applicant was initially denied work rights, his bridging visa was amended to permit him to work.
[51] exhibit A1
The applicant and the Minister, through their counsel, both made pre-trial written submissions as well as extensive oral submissions at the trial of the matter. I found those submissions to be of assistance.
Consideration
Ground 1 – did the Authority overlook an integer of the applicant’s claims?
Applicant’s contentions
The applicant claimed that in the second half of 2011, about two months after he returned from Iraq (where he had been since 2008), some men from an armed paramilitary group came to his house and threatened him and demanded 20,000 rupees[52]. The applicant claimed the men returned a number of times, again asking for money. The manner in which the applicant wrote his statutory declaration dated 18 July 2013[53] and statement dated 16 September 2015[54] indicates that this extortion attempt was a principal reason the applicant departed Sri Lanka in August 2012.
[52] CB 36-37 (statutory declaration dated 18 July 2013), 140 (statement dated 16 September 2015), 269 [23]
[53] see CB 36-38
[54] see CB 140-141
The Authority accepted the applicant’s claim by making the following finding:
I find that the applicant was visited by armed men from a paramilitary group who attempted to extort money from him in July and August 2011. I also consider it plausible that the same men made subsequent visits to the applicant’s home, but he was not there and they spoke to his wife in a threatening manner instead. I accept that these men came to his home again in 2013 and found and took his passport.
The Authority added at [37]:
I consider it likely that these men were aware that the applicant had recently returned from working overseas and that he may therefore have money which they could attempt to extort from him.
If the applicant is required to return to Sri Lanka, he will have been away from Sri Lanka (in Australia) for five years – between August 2012 and the date of his return to Sri Lanka in 2017. The applicant has had permission to work in Australia for a period of time since September 2015[55].
[55] see letters from the Minister’s Department to applicant dated 17 October 2014, 12 September 2015 and 20 October 2015
In the above circumstances, the following questions arise:
a)whether the Authority considered the question of whether the applicant might face fresh extortion attempts based on the perception that he earned money while in Australia (“the Australia-based Extortion Issue”);
b)if not, whether the Authority’s failure to consider the Australia-based Extortion Issue was a jurisdictional error.
Whether the Authority considered the question whether applicant might face fresh extortion attempts based on the perception that he earned money while in Australia
The Authority dealt in its decision with the applicant’s claim that he had a well-founded fear of persecution from the extortionists under the headings:
a)“Persecution due to affiliation with LTTE”[56]; and
b)“Persecution from paramilitary groups”[57].
[56] see [61]-[73]
[57] see [74]-[79]
When the Authority dealt with the issue under the heading “Persecution due to affiliation with LTTE”, the Authority’s single point was that the motivation for the extortion was “not because of any real or imputed connection to the LTTE”, but because the extortionists “were aware that [the applicant] had just returned from working overseas and was likely to have money”[58].
[58] at [72]
The Authority dealt with the issue under the heading “Persecution from paramilitary groups” with the following finding at [78]:
However, simply making a finding about what occurred in the past is not enough to satisfy the real chance test … On the basis of country information discussed in this decision, particularly in relation to the Sirisena government which was elected in January 2015, there has been a substantial change in country conditions since the applicant left Sri Lanka in August 2012. Given that three years have passed since the men last visited the applicant’s home, I am not satisfied that the applicant is still of interest to them. I consider the possibility of the applicant being visited by a paramilitary group in the future is purely speculative.
On a fair reading of this paragraph:
a)the paragraph addresses the question of whether the applicant, if required to return to Sri Lanka, would still be of interest to the extortionists who searched for him between the second half of 2011 and 2013 based on his three year stay in Iraq between 2008 and 2011. The applicant accepts the Authority’s finding that “Given that three years have passed since the men last visited the applicant’s home, I am not satisfied that the applicant is still of interest to them.”;
b)this paragraph is said not to address the question of whether the applicant, if required to return to Sri Lanka, might face fresh extortion attempts based on his five year stay in Australia between 2012 and 2017.
Whether the Authority’s failure to consider the Australia-based Extortion Issue was jurisdictional error
In NABE v Minister for Immigration(No.2)[59] at [55], [58] and [63] the Full Federal Court stated:
[59] (2004) 144 FCR 1
[55] … Where the tribunal fails to make a finding on “… a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction …
…
[58] … It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 ; 199 ALR 265 ; [2003] FCAFC 120 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the tribunal when it is apparent on the face of the material before the tribunal …
…
[63] … It is plain enough, in the light of Dranichnikov, that a failure by the tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.
These principles apply to the Authority which, like the former Refugee Review Tribunal, has a statutory obligation to “review” a decision of the Minister’s delegate[60].
[60] see s.473CC(1) of the Migration Act 1958 (Cth)
The following matters are said to be relevant in considering whether the Authority’s failure to address the Australia-based Extortion Issue was a jurisdictional error.
First, the applicant’s claim that he feared persecution by extortionists was not a peripheral claim. To the contrary, it was a central claim in his statutory declaration dated 18 July 2013[61] and his statement dated 16 September 2015[62]. On a fair reading of the applicant’s claims, his claim was not limited to a claim that the people who sought to extort money from him between 2011 and 2013 based on their belief that he had earned money in Iraq would resume seeking to extort money from him based on their belief that he had earned money in Iraq. Instead, the applicant’s claim was, more generally, that he feared extortion attempts by paramilitary groups. This encompassed a claim (by implication – it was not expressly stated) that he feared extortion attempts by paramilitary groups following his return from Australia based on their perception that he earned money in Australia.
[61] see CB 36-37
[62] see CB 140-141
Secondly, the country information before the Authority indicated that paramilitary groups continue to engage in extortion in Sri Lanka. Specifically:
a)based on country information from a number of sources accepted by the Authority, in 2012 paramilitary groups engaged in criminal activities, including extortion, in some cases supported by government forces[63];
b)a US Department of State report published in June 2015 reported that “pro-government paramilitary groups” continue to engage in criminal activity and seek “to solidify their territory and revenue sources”[64]. The Authority added that “DFAT is also aware of credible reports that these groups continue to be active in Sri Lanka, including in criminal activity”[65]. The DFAT report was published in December 2015;
c)the Authority, at [78] of its decision, stated that “On the basis of country information discussed in this decision, particularly in relation to the Sirisena government which was elected in January 2015, there has been a substantial change in country conditions since the applicant left Sri Lanka in August 2012”. This country information is discussed by the Authority at [51]-[57]. There is nothing in this country information which suggests that paramilitary groups are not continuing to operate in the eastern part of Sri Lanka (where the applicant comes from), or are not engaging in criminal activities including extortion.
[63] CB 270 [33]-[36]
[64] at [75]
[65] at [76]
Taking into account these matters, the applicant submits that the Australia-based Extortion Issue arose squarely and clearly on the materials before the Authority. The applicant submits that the Authority’s failure to deal with or address the claim was a jurisdictional error.
Minister’s contentions
The Authority is not required to consider claims that have not been made, nor is it obliged to deal with claims that are not articulated and which do not clearly arise from the materials before it[66].
[66] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1, [2004] FCAFC 263 at [60]-[63] and [68]
A judgment that a tribunal has failed to consider a claim not expressly advanced is not lightly to be made as the claim “must emerge clearly from the materials” before the tribunal[67].
[67] NABE at [68]
The Full Court in NABE quoted, with apparent approval[68], Gleeson CJ’s observations in Appellant S395/2002 v Minister for Immigration[69]:
… Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.[70]
[68] NABE at [62]
[69] (2003) 216 CLR 473, [2003] HCA 71
[70] Appellant S395 (at 478 [1], at 479.4). Footnote omitted
Contrary to the broader suggestion at [32] of the applicant’s submissions, the applicant’s claims related to the extortion incident in 2011 were based on his Tamil ethnicity and his perceived association with the LTTE. This is clear from:
a)the applicant’s declaration[71];
b)his representative’s response to the delegate[72];
c)his representative’s submission to the Authority[73].
[71] See CB 140 [45] (“… I believe they were associated with the government”), CB 140 [49] (and the letter from Holy Cross Shrine at CB 147, which was written at the applicant’s request and which asserts that the applicant was “affected by the war and by the political problems”), and CB 141 [52]-[53].
[72] CB 179: “The applicant maintains that he is at real risk of serious harm from the authorities and from associated armed groups in Sri Lanka for reason of his ethnicity and (imputed) political opinion.”
[73] CB 254-258, especially at CB 255: “It is maintained that the Applicant is at real risk of persecution for reasons considered by the Delegate. In particular it is submitted that there is a real risk that the Applicant will suffer serious harm from the Sri Lankan authorities and affiliated paramilitary groups for reason of his Tamil race and his political opinion i.e. as someone who is perceived to support the LTTE.”
That claim was considered and rejected by the Authority:[74]
However, I consider it implausible that these men came to his home in 2011 to ask for money because of the assistance the applicant gave to the LTTE between 2002 and 2004, when he took them food. Given the applicant’s description, in the SHEV interview, of how everyone in his village would talk about other villagers and know their business, I consider it likely that these men were aware that the applicant had recently returned from working overseas and that he may therefore have money which they could attempt to extort from him. I find that the men came to his home to extort money, but not because of the low-level assistance the applicant, along with many other villagers, gave to the LTTE in 2002 to 2004.
[74] CB 271 [37]
The Minister submits that, in this way, the Authority rejected any relevant Convention nexus with the attempted extortion.
It is to be remembered that extortion based on a perception of the victim’s personal wealth, or otherwise aimed at the victim as an individual, will not amount to persecution for a Refugees Convention reason[75]. This is not a case in which the extorted party may also have been chosen for a Convention reason[76]. Further, the state is not required to guarantee the safety of its nationals from harm occasioned by private individuals[77].
[75] Ram v Minister for Immigration (1995) 57 FCR 565 at 568-569, [1995] FCA 1333
[76] See the discussion in Rajaratnam v Minister for Immigration (2000) 62 ALD 73, [2000] FCA 1111 at [46] and [48]
[77] Minister for Immigration v Respondents S152/2003 (2004) 222 CLR 1, [2004] HCA 18 at [26] and [117]
This is said to reveal the fundamental flaw in the applicant’s formulation of the (implied) claim. There is no relevant Convention nexus. Even if the applicant were perceived to have earned money while in Australia (which the Minister does not concede[78]), the applicant must still demonstrate that he has a well-founded fear for one (or more) of the Convention reasons[79] and that such a claim emerged clearly from the material before the Authority. The Minister submits that he has not done so in the amended application or in his submissions with respect to this claim. The passages of country information to which the applicant refers at [33] of his submissions do not elucidate or otherwise identify the link[80]. This underscores the point that the “claim” now put forward was not one that the Authority was obliged to consider in accordance with the principles set out in NABE.
[78] The Minister objected to the tender of the letters, foreshadowed at [3] and [27] of the applicant’s submissions, on the ground of relevance but I accepted them
[79] See s.5J(1)(a) of the Migration Act
[80] Bearing in mind, of course, that the Authority rejected the links to the Convention based on the applicant’s Tamil ethnicity and his perceived association with the LTTE
In any event, the Minister submits that the Authority relied upon country information and the “substantial change” in conditions in Sri Lanka since the applicant’s departure in 2012 as the basis for its finding that the “possibility of the applicant being visited by a paramilitary group in the future is purely speculative”[81]. For the same reasons, the Authority also found that there was no real risk of harm under the complementary protection criterion[82].
[81] CB 278 [78]
[82] CB 282 [104]
Resolution
By Ground 1, the applicant alleges that the Authority[83] erred by failing to consider a claim. The “claim” is formulated in different ways.
[83] defined terms in these submissions adopt those in the first respondent’s submissions filed 24 January 2017
In the amended application, it is put in the following way:
… If the applicant is required to return to Sri Lanka, there is a real chance that he would again be perceived by paramilitary groups as having money earned from working overseas. This would form the basis for fresh extortion attempts against the applicant by paramilitary groups.
In the submissions, it is repeatedly advanced more particularly[84]:
… the applicant might face fresh extortion attempts based on the perception that he earned money while in Australia.
[84] Applicant’s submissions at [24(a)]. See also [28(b)]: “the applicant, if required to return to Sri Lanka, might face fresh extortion attempts based on his five year stay in Australia between 2012 and 2017”; [32]: “… a claim … that he feared extortion attempts by paramilitary groups following his return from Australia based on their perception that he earned money in Australia”.
The applicant concedes that the claim was not express. Rather, he says that it arose by implication[85]:
… Instead, the applicant’s claim was, more generally, that he feared extortion attempts by paramilitary groups. This encompassed a claim (by implication – it was not expressly stated) that he feared extortion attempts by paramilitary groups following his return from Australia based on their perception that he earned money in Australia.
[85] See applicant’s submissions at [30]
The applicant’s claim in this ground fails on the basis of the Minister’s alternative contention. It is plain from [37] of the Authority’s decision record that the Authority considered and rejected the claim that the applicant had been harassed by extortionists because of some imputed association with the LTTE. In other words, the Authority considered and rejected the claim insofar as it was based on the applicant’s imputed political opinion. There is some force in the applicant’s contention that the Authority neglected to consider an integer of the applicant’s claim, namely that he presented a “soft target” because of his Tamil ethnicity. In other words, the proposition was that, while the applicant was perceived as having money because he had recently returned from working in Iraq, he was singled out for attention because, as a Tamil, he was less likely to complain or to receive state protection if he did. This integer of the extortion claim was not expressly considered by the Authority. The Authority reasoned that there was a simple criminal motive for the extortion attempt but, as the applicant contends, there may be more than one motive for the extortion.
In my view, however, it does not matter that the Authority did not expressly address this integer of the applicant’s claims, because it was subsumed in the Authority’s more general reasoning at [78][86]:
However, simply making a finding about what occurred in the past is not enough to satisfy the real chance test; the essence of that test is the process of looking to the future. While past events will often provide a reliable means of predicting future persecution, that will not always be the case. On the basis of country information discussed in this decision, particularly in relation to the Sirisena government which was elected in January 2015, there has been a substantial change in country conditions since the applicant left Sri Lanka in August 2012. Given that three years have passed since the men last visited the applicant’s home, I am not satisfied that the applicant is still of interest to them. I consider that the possibility of the applicant being visited by a paramilitary group in the future is purely speculative.
[86] CB 278
In short, the Authority reasoned that while the applicant had suffered harm in the past (for whatever reason) the governance of Sri Lanka had improved since the election in January 2015 and the lapse of time since the extortion attempt meant that it was unlikely that the applicant would be of any continuing interest to the extortionists.
Counsel for the applicant contended in oral argument (supplementing his written submissions) that the applicant would be at risk of further extortion attempts on return to Sri Lanka because he would be perceived as being wealthy, having worked in Australia as he had done in Iraq. In my view, no such claim was ever made by the applicant prior to these court proceedings. On the contrary, the applicant claimed that he would be perceived as a failed asylum seeker on return to Sri Lanka from Australia and at risk of harm for that reason, not for reason of any perception of wealth. I find that no such claim was expressly made by the applicant and neither did it squarely arise from the materials.
I reject Ground 1.
Ground 2 – did the Authority act unreasonably in refusing to consider a news article bearing upon the reputation of the Sirisena government?
Applicant’s contentions
The submission of the applicant’s migration agent to the Authority referred to an article titled “Sri Lanka must immediately release Sivakaran and other Tamils held under the PTA”[87]. The article queried the reform efforts in Sri Lanka under President Sirisena[88]. The Authority noted that the article “post-dates the delegate’s decision”[89]. Hence, the article must have been published after 21 April 2016.
[87] CB 257
[88] at [8]
[89] at [9]
The Authority found that the article was not relevant to the applicant’s case[90].
[90] at [9]
Section 473DD of the Migration Act provides in part that the Authority “must not consider any new information unless … (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information”.
The applicant submits that, on a fair reading of the Authority’s decision at [4]-[9], the Authority implicitly found that it was not satisfied that there were exceptional circumstances to justify considering the article. The Authority then had a statutory obligation not to consider the article.
The Authority, in other parts of its decision, placed significant weight on the reform efforts of the government of President Sirisena who was elected in January 2015 – see:
a)at [59] and [60] – “I give greater weight to the DFAT report” and “After considering … the country information discussed above”;
b)at [78] – “On the basis of country information discussed in this decision, particularly in relation to the Sirisena government which was elected in January 2015 …”;
c)at [86] and [87] – “monitoring and fears about mistreatment have reduced under the Sirisena government” and “The weight of the above country information …”
The applicant submits that, in circumstances where:
a)the Authority expressly relied in parts of its decision on country information which spoke positively about the reform efforts of President Sirisena; and
b)the article the subject of this ground of review “related to current circumstances in Sri Lanka”[91] and was more current than country information on which the Authority relied,
it was perverse or irrational of the Authority to find that the article the subject of this ground of review (which was critical of the reform efforts) was not relevant, following which the Authority was required to exclude the article from consideration. A perverse or irrational finding, and one which excluded relevant current information from the Authority’s consideration, involves jurisdictional error.
[91] at [9]
Minister’s contentions
The Minister submits that the applicant’s criticism of the Authority’s reasoning is one of emphatic disagreement[92], but it does not demonstrate perversity or irrationality in the sense required by the authorities[93].
[92] Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, 198 ALR 59, [2003] HCA 30 at [5] per Gleeson CJ, quoted with approval by an unanimous Court in Minister for Immigration v SZJSS (2010) 243 CLR 164, [2010] HCA 48 at [34]
[93] As to which, see Minister for Immigration v SZMDS (2010) 240 CLR 611, [2010] HCA 16 at [130]-[131] per Crennan and Bell JJ and the summary collected by Wigney J in SZWCO v Minister for Immigration [2016] FCA 51 at [60]-[65] and Minister for Immigration v SZUXN (2016) 69 AAR 210, [2016] FCA 516 at [52]-[56] (referred to with approval by the Full Court in CQG15 v Minister for Immigration [2016] FCAFC 146 at [60])
The applicant is said to have “skipped over” the Authority’s reasoning and failed properly to deal with the Authority’s considered analysis of the report insofar as it may be relevant to the applicant’s claims.
The whole of the relevant passage is[94]:
… An article entitled ‘Sri Lanka must immediately release Sivakaran and other Tamils held under the PTA’ reports that a ‘recent spate of arrests and abductions raise [sic] further doubt about Sri Lanka’s reform efforts’. The article reports on the arrest, under the PTA, of a man who is a ‘Tamil activist and journalist from the North-East’. It states, ‘The ongoing climate of fear in the North-East makes it difficult, and even unsafe, for civil society actors, journalists and human rights activists to work’ and calls on Sri Lanka to stop arresting and detaining Tamils ‘under the false pretenses of national security’ and to release all who are currently detained under the PTA.
The representative did not explain how these articles pertain to the applicant’s claims or why they should be considered. The applicant has not made any claims of involvement in the storing of explosives or other weapons or that he was abducted by security forces in the past or that is or was a civil society actor, journalist or human rights activist. I note that the second and third articles post-date the delegate’s decision and that all three of the articles relate to current circumstances in Sri Lanka, however, I do not consider that any of the three articles are relevant to the applicant’s case.”
[94] CB 264 [8]-[9]
As is clear from the entirety of the passage, the Authority carefully considered the detail and content of the report and concluded that the facts outlined in the report were not analogous or relevant to the particular circumstances of this applicant (noting also that the applicant’s representative did not give any relevant explanation or submission). While the Authority recognised (in the final sentence of the quoted passage) that the articles “relate to current circumstances in Sri Lanka”, this was not sufficient and it was nevertheless not persuaded that any of the reports were relevant to the applicant’s case.
The Minister submits that, while the applicant may disagree, perhaps even strongly, with the Authority’s reasoning, it cannot be characterised as perverse or irrational. Having regard to the differences in the facts in the report and the applicant’s claims (as identified by the Authority and which the applicant does not criticise or challenge), and the lack of any explanation by the applicant’s representative of the article’s relevance to the applicant’s claims, it was open to the Authority to reach the conclusion that it did on the material before it. Its finding was neither perverse nor irrational and does not reveal jurisdictional error.
Resolution
By Ground 2, the applicant challenges the Authority’s finding concerning an article which was referred to by the applicant’s representative to the Authority but which was not before the delegate[95].
[95] See CB 257, the penultimate dot point and footnote 7
For reasons that the Authority gave[96], the Authority did not consider that this, and two other articles, were relevant to the applicant’s case. The Minister agrees with the applicant[97] that the Authority implicitly found that it was not satisfied that there were exceptional circumstances to justify considering the article. The Tribunal did not consider them, by reference to s.473DD.
[96] CB 264 [8]-[9]
[97] applicant’s submissions at [38]
The applicant says that the Authority’s finding was “perverse and irrational”[98] or “perverse or irrational”[99] such that it involved jurisdictional error.
[98] Ground 2
[99] applicant’s submissions at [40]
In my view, there is no substance to this ground and I reject it. The Authority’s refusal to consider the article in issue was part of a broader consideration by the Authority of proffered new information. The Authority carefully considered each item of information and ruled on each one whether it could receive it. Relevantly, the Authority stated in its reasons at [4]-[9][100]:
On 10 May 2016, the applicant’s representative provided a submission which addressed the delegate’s reasoning and referred to a report which was before the delegate.[101] To the extent that the submission discusses evidence which was before the delegate and responds to some of the delegate’s reasoning in reaching a decision, I consider this does not constitute new information as defined in s.473DC(1) and I have had regard to this material.
The submission also refers to a Freedom from Torture report, dated 4 May 2016 and five news articles. The representative submits that this material could not have been provided to DIBP before the primary decision was made.
The Freedom from Torture report refers to claims of detention by a range of state actors and torture in Sri Lanka since January 2015.[102] An article, dated 12 May 2016, in Ceylon News, reports that “Another Tamil man who returned from a Middle Easter country early last week has been arrested by the Colombo Terrorism Investigation Department (TID) on Tuesday”.[103] An article from The Guardian on 7 May 2016 reports on a group of 12 asylum seekers who were deported from Cocos Islands and were taken into custody upon arrival in Sri Lanka.[104]
I accept that the information set out in paragraph 6 may be relevant in assessing the application and given that it post-dates the primary decision, I am satisfied that it was not, and could not have been, provided to the Minister before the Minister made the decision under s.65. I am satisfied that there are exceptional circumstances to justify considering it.
A Newsfirst article, dated 30 March 2016, reports that a suicide vest, explosives and ammunition were found in a home in Chavakachcheri, Jaffna district, Northern Province.[105] The representative did not explain why it was not provided to the Minister before the decision was made. An article entitled, “The return of the white van”[106] dated 28 April 2016 relates to recent abductions in Sri Lanka. It refers to two “white van abductions” which “seem to be connected to the discovery of explosives in the Jaffna suburb of Chavakachcheri”. It also refers to “three similar incidents in recent weeks” in which two former LTTE commanders and a Tamil man from Jaffna were reportedly abducted. These articles refer to events in Northern Province and the applicant comes from Eastern Province. An article entitled “Sri Lanka must immediately release Sivakaran and other Tamils held under the PTA”[107] reports that a “recent spate of arrests and abductions raise [sic] further doubt about Sri Lanka’s reform efforts”. The article reports on the arrest, under the PTA, of a man who is a “Tamil activist and journalist from the North-East”. It states, “The ongoing climate of fear in the North-East makes it difficult, and even unsafe, for civil society actors, journalists and human rights activists to work” and calls on Sri Lanka to stop arresting and detaining Tamils “under the false pretenses of national security” and to release all who are currently detained under the PTA.
The representative did not explain how these articles pertain to the applicant’s claims or why they should be considered. The applicant has not made any claims of involvement in the storing of explosives or other weapons or that he was abducted by security forces in the past or that he is or was a civil society actor, journalist or human rights activist. I note that the second and third articles post-date the delegate’s decision and that all three of the articles relate to current circumstances in Sri Lanka, however, I do not consider that any of the three articles are relevant to the applicant’s case.
[100] CB 263-264
[101] International Truth & Justice Project Sri Lanka (ITJP), “Silenced: survivors of torture and sexual violence in 2015”, 7 January 2016, CIS38A801275.
[102] >
Relevantly, the Authority reasoned that it could and should receive new information which bore directly on the applicant’s claims and which more generally supported the proposition that conditions in Sri Lanka under the Sirisena government were not necessarily better than those under the previous government. On the other hand, the Authority did not find it an exceptional circumstance that articles were critical of the new government without any direct bearing on the applicant’s claims. The basis upon which the Authority distinguished between the various articles was plainly reasonable and clearly open to it on the material before it. To the extent that the statutory consideration required of the Authority involved an exercise of discretion, that exercise of discretion by the Authority did not miscarry. Further, the Authority went on to consider the material critical of the Sirisena government in contrast to a report from DFAT which pointed to significant improvements in governance and human rights under the new government. The Authority explained at [58] and [59][108] why it preferred the country information available from the DFAT report.
[108] CB 275
I reject Ground 2.
Conclusion
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. I will order that the application as amended be dismissed.
I will hear the parties as to costs.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 22 February 2017
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