BQU17 v Minister for Immigration
[2020] FCCA 1139
•13 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BQU17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1139 |
| Catchwords: MIGRATION – Safe Haven Enterprise visa application – review of Immigration Assessment Authority decision – whether the Authority erred in failing to consider information put forward by Applicant regarding “white vans” he feared would abduct him – whether Authority erred in misunderstanding or not addressing all the Applicant’s claims – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 473CB, pt.7AA |
| Cases cited: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 219 ALR 27 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 SZRKY v Minister for Immigration and Citizenship & Anor [2013] FCA 352; 141 ALD 328 |
| Applicant: | BQU17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 800 of 2018 |
| Judgment of: | Judge Baird |
| Hearing date: | 17 October 2019 |
| Date of Last Submission: | 17 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 13 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Foster |
| Solicitors for the Applicant: | Sentil Solictor & Barrister |
| Solicitors for the First Respondent: | Ms K Morris, Clayton Utz |
ORDERS
The name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The Amended Application filed 3 July 2019 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.00.
The Applicant pay the First Respondent’s costs pursuant to paragraph 5 of the Orders made 19 July 2019, quantified further to paragraph 6 of those Orders in the fixed sum of $5,107.18.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 800 of 2018
| BQU17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth), in which the Applicant seeks judicial review of a decision of the Second Respondent, the Immigration Assessment Authority, made on 26 February 2018, by which it affirmed a decision of the Delegate of the First Respondent, the Minister for Home Affairs (now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs) dated 5 October 2016, to refuse to grant the Applicant a Safe Haven Enterprise (subclass 790) Visa.
On 19 July 2019, this Court made orders reinstating the Applicant’s judicial review application filed 11 December 2018, and granting the Applicant leave to rely upon the amended application filed 3 July 2019. In that amended application, the Applicant abandoned grounds 1 to 11 of his previous application, and relied on three additional grounds, numbered 12 to 14 inclusive.
On 19 July 2019, I made procedural orders and listed the matter for final hearing. The Applicant is represented by Mr Foster of counsel, and the Minister by Ms Morris, solicitor, both of whom also appeared before me on the reinstatement application.
Background
The Applicant is a citizen of Sri Lanka, a Tamil from the Eastern Province, who arrived in Australia by boat on 26 September 2012. He met the requirements of the definition of a “fast track applicant” (see sub–ss.5(1)(a)(i) – (iii) of the Act). The application was accordingly subject to, and governed by, Part 7AA of the Act.
The Applicant participated in an Arrival interview on 6 October 2012, and a maritime arrival entry interview (IMA interview) on 22 January 2013. He then made an application for a protection visa dated 12 August 2013, with the assistance of a representative, and attached a signed written Statement of claims by the Applicant dated 12 August 2013. The Statement included a signed interpreter’s declaration that the Statement had been interpreted back to the Applicant in Tamil. That application was invalid. It was returned to the Applicant.
The Applicant, again with the assistance of a representative, made a valid application for the Visa by application acknowledged by the Department of Immigration and Border Protection as dated 22 December 2015. The Delegate noted that the Application was lodged at the Sydney City office on 22 December 2015.
Attached to that application was the Statement (see above, [5]). The Applicant also provided a further statement identifying some mistakes in his initial application. The Applicant was interviewed by the Delegate in relation to the Visa application on 21 April 2016 (Visa interview), with the assistance of an interpreter in the Tamil language. It does not appear that his representative attended the Visa interview. By Delegate’s decision dated 5 October 2016, the Delegate refused to grant the Visa.
The Delegate’s decision was referred to the Authority on 14 October 2016. By letter dated 26 October 2016, the Applicant’s solicitor and migration agent made submissions to the Authority. The Authority received that submission as legal argument. On 5 April 2017, the Authority affirmed the decision under review (First Authority decision).
On 22 January 2018 this Court, by consent, declared the First Authority decision void and of no effect, quashed that decision, and remitted the matter to the Authority for redetermination according to law.
The Authority (differently constituted) had regard to the material given by the Secretary under s.473CB of the Act, and received the written submission from the Applicant’s then representative dated 26 October 2016 (see [8] above), and noted that submission as argument.
The Authority obtained new information, the “DFAT Country Information Report – Sri Lanka” of 24 January 2017, published after the Delegate’s decision. The Authority was satisfied there were exceptional circumstances to justify considering this new information.
On 26 February 2018, the Authority sent by email to the Applicant the Authority’s decision, affirming the Delegate’s decision not to grant the Applicant a protection visa.
The proceeding in this Court
On 23 March 2018, the Applicant filed an application for judicial review in this Court. The Applicant’s application was dismissed by a Registrar of this Court on 11 December 2018 pursuant to r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 due to the Applicant’s failure to appear at a callover.
The Applicant filed an application for reinstatement, which, as I have said, was ultimately granted.
Applicant’s claims
At the hearing before me, Mr Foster accepted that, save for some matters specific to the claims now pressed, the Minister’s solicitor in her submissions accurately and sufficiently set out the Applicant’s claims. Save for certain redactions with that concession, I set out the Applicant’s claims below, taken from the Minister’s written submissions, and by reference to the Authority’s decision.
The Applicant claimed to fear harm from the Karuna Group and Sri Lankan authorities (SLA) (decision at [1], [6]). In particular the Applicant claimed that:
(a)he resided in the Eastern District of Sri Lanka, in a government controlled territory close to territory that had been controlled by the Liberation Tigers of Tamil Eelam (LTTE) and where the Karuna group was active. The Applicant further claimed that he had been detained in “security round up exercises” conducted in his village during the war and that, on one occasion in 2008 or 2009, he was detained for 14 days but then released after the Criminal Investigation Department (CID) questioned him and checked his identity;
(b)his father was beaten by the Sri Lankan army during the war and subsequently died in 2009 from a medical condition attributed to the beating;
(c)on [a specific date in the middle of 2018], one of his relatives was taken by men who he believed to be from the Karuna Group because that relative had been involved in campaigning for a Tamil political party. The Applicant claimed that his relatives sought his assistance in locating that relative and that he accompanied them to the Karuna group offices, police, Human Rights Commission Sri Lanka (HRCSL), International Committee of the Red Cross (ICRC), and to a number of detention centres and camps but could not locate him. The Applicant further claimed that, after visiting the named detention centre, the Karuna group visited his home and warned him off searching for his relative, after which the Applicant stopped assisting (but the family continued to search) but that despite this the Karuna group visited him again in [month redacted] 2009;
(d)on [a specific date in early 2010], the HRCSL wrote to the relative’s parents to enquire about him, after which the HRCSL and ICRC became “more active” in looking for the relative;
(e)in [a month in mid] 2010, the Karuna group visited the aplicant’s home and spoke to his wife to enquire about the Applicant, and left a letter requiring him to attend their offices on [a specific date in mid–2010]. The Applicant claimed that he was scared for his safety and so did not attend, and then went into hiding, including fishing at night and staying with friends. The Applicant stated that he believed the Karuna group was still looking for him because he saw people on motorbikes in the vicinity and people told him they saw people on motorbikes looking for him. The Applicant claimed that he managed to evade the Karuna group until he departed illegally for Australia in September 2012;
(f) he feared harm if returned because of his assisting in enquiring after his missing relative and for failing to attend the Karuna group offices in 2010 and that there was an absence of protection for witnesses of past human rights violence and war crimes;
(g)he also feared harm as a Tamil from the Eastern Province who would be imputed as being a LTTE supporter and harmed by the authorities; and
(h)he feared harm as an illegal departee from Sri Lanka and as a returning failed asylum seeker.
The Authority’s decision
New information
The Authority noted that it had received the review material from the Secretary pursuant to s.473CB of the Act, and that it had also received the 26 October 2016 submission from the Applicant’s then–representative to the first Authority. The Authority in the present decision under review had regard to that submission as “argument rather than new information”. The Authority also obtained new country information “DFAT Country Information Report – Sri Lanka”, 24 January 2017, and found that there were exceptional circumstances to justify considering it (at [5]).
Protection claims
The Authority at [6] summarised the Applicant’s claims. Relevantly to the grounds of review, the Authority in that summary stated as follows:
·In May 2010 the Karuna group came to the Applicant’s home and spoke to his wife. They asked her if the Applicant had gone to Vavuniya to enquire about his missing relative and she told them he had not but that he was at work. They left a letter advising the Applicant to attend their offices at 10.00am on 1 June 2010. The Applicant has provided an untranslated copy of this letter.
·The Applicant was scared for his safety and decided not to attend the appointment as people who receive these letters and go to the Karuna group offices do not return. The Applicant stayed in hiding to avoid being taken by the Karuna group; he went fishing at night which was the usual time the Karuna group abducted people and so was able to avoid them. He also stayed with friends to evade detection by the Karuna group. He believes the Karuna group continued to look for him because they usually travelled on motorbikes and he saw motorbikes parked in the vicinity and people told him they saw people on bikes looking for him. He remained in hiding and evaded the Karuna group until he departed Sri Lanka illegally in September 2012 and came to Australia.
·The Applicant fears that because of his role assisting in the enquiries about his missing relative and because he did not attend their offices in 2010 the Karuna group will harm him on return to Sri Lanka. The Applicant provided a letter from a Justice of the Peace known to his family in which the writer outlined the abduction and the Applicant’s role assisting with the complaints and the subsequent threat received.
·His representative drew attention to the UNHCHR, "Comprehensive report of the Office of the United Nations High Commissioner for Human Rights on Sri Lanka”, and concerns about the lack of protection for witnesses of past human rights violations and war crimes and put forward that the Applicant is vulnerable to harm from his relative’s abductors because of his past role and also should there be a re–opening of any investigation into the abduction.
·The Applicant further fears that as a Tamil from the Eastern Province he will be imputed as being an LTTE supporter and harmed by the authorities on return. He also fears harm because of his illegal departure and as a returning failed asylum seeker. He is aware of media reports of the torture and disappearance of Tamil returnees and Tamils are being killed every day in Sri Lanka.
·His fear extends to all of Sri Lanka and he cannot obtain the protection of the authorities.
·The Applicant provided a medical report dated 9 December 2015 stating a past history of post–traumatic stress disorder and depression in 2009, back pain and hypertension in 2014 and an upper respiratory tract infection in 2015.
The Authority accepted that the Applicant was a Tamil from the Eastern Province of Sri Lanka, that he had lived in a government–controlled territory and was subject to questioning during security roundup exercises (decision at [7] – [8]). However, the Authority did not accept that the Applicant had on one occasion been detained for 14 days. As this claim is a significant one, the Authority deemed it surprising that it had not been mentioned in the otherwise comprehensive Statement in 2013.
The Authority did not accept the Applicant’s explanation that he may have given incorrect information at his Arrival interview because he was newly arrived in Australia, noting that he had been in the country for some 3 months at that stage. The Authority found instead that the Applicant was likely detained for a period of 1–2 days, and that he was released following investigation by the CID. This is consistent with the information given at the Applicant’s Arrival interview (at [8]).
The Authority further accepted that the Applicant’s father had been beaten during the war, but found the Applicant’s claims regarding the cause of his father’s death to be speculative (at [9]). As to the claim regarding the abduction of the Applicant’s relative in [mid–2008], the Authority accepted that the incident occurred but had “Some concerns” as to the Applicant’s level of involvement (decision at [10] – [11]).
In particular, the Authority noted the different accounts given by the Applicant (at [11]) in his Visa interview, his Statement of claims, and the implausibility of certain claims (at [12]), ultimately finding that his was not a “genuine account” of his involvement in the enquiries regarding the abduction of his relative (at [13]). Whilst the Authority accepted that the Applicant may have accompanied his relatives to the police station and offices of the HRCSL and the ICRC, he did not accept that he visited [redacted camp/centre], other camps, or the Karuna Group offices.
At [14] – [15] of its decision, the Authority accepted that the Karuna Group may have become aware of the assistance that the Applicant provided to his relatives in visiting certain agencies. The Authority noted a letter from the political wing of the Karuna Group, and the Authority was willing to accept that the Karuna Group attended the Applicant’s home to deliver the letter, enquired about the whereabouts of his wife, and that the letter summoned the Applicant to an appointment at the Karuna Group/TMVP office (at [15]).
Given the Applicant’s evidence that none of his relatives had come to harm, or been harassed, despite the ongoing enquiries, the inconsistencies and implausibility of the Applicant’s claims regarding the letter, and the fact that the Applicant had not come to harm despite remaining in the country for more than two years after the letter, the Authority was not satisfied that the Karuna Group had an ongoing interest in the Applicant. The Authority said at [16], a paragraph to which both advocates have drawn my attention, as follows:
[16]I am willing to accept that the Applicant did not attend the appointment with the Karuna group, but I do not accept that the applicant was in hiding from the Karuna group from that time until he departed Sri Lanka because they were looking for him to harm him. The applicant did not leave Sri Lanka until September 2012, more than two years after the appointment time, and if the Karuna group was interested in locating him or harming him I consider they had ample opportunity to do so. I accept that the applicant worked at night and stayed on occasion with friends or other fishermen, but there is no indication that the Karuna group attempted to pursue him when leaving or arriving home from work, or when heading out to fish or on return from fishing. Nor is there any indication that they asked about him at his home, or enquired with neighbours or fellow fishermen. The applicant’s belief that they continued to have an interest in him is based on people on motorbikes being in the area. I note his claim that people told him they saw men on motorbikes looking for him, but there is no indication that these men asked about the applicant and I consider it is speculation that the men on motorbikes were looking for the applicant. I do not accept that the Karuna group were looking for the applicant after he failed to attend the appointment in June 2010, or that they had an ongoing interest in him.
Having set out the Applicant’s claims for protection in the decision at [6], under the heading “Factual findings” from [7] through to [17] the Authority considered and made findings on the Applicant’s claims and evidence. The Authority, commencing at [18] under the heading “Refugee assessment”, then from [19] – [37], assessed and determined the Applicant’s claims, further to having made the findings in relation to the requirements of the definition of refugee in s.5H(1) of the Act, and the criteria at s.36(2)(a) of the Act.
In relation to the claim regarding the abduction of his relative, to which I have previously adverted, the Authority also noted that the Applicant had not claimed that there was an ongoing investigation into his relative, or that he would be involved in any investigation if returned, and no harm had come to his relatives in respect of the investigation (as to the first matter, see decision at [26]). In the light of the findings and country evidence (see decision at [25]), the Authority was not satisfied that the Applicant faced a real chance of harm in connection with the events regarding the abduction of his relative and his assistance (at [26] and [37]).
The Authority also considered the Applicant’s claim to fear harm as a Tamil from the Eastern Province who would be imputed with LTTE support. The Authority noted country information regarding the situation in Sri Lanka (see decision at [20]–[24]), and that the Applicant had not claimed to have any links with the LTTE, or to have been suspected prior to his departure (decision at [20]). By reference to that information, and noting its earlier findings, and the Applicant’s evidence, the Authority was not satisfied that the Applicant would be perceived or imputed as having LTTE connections or be at risk of harm (decision at [24]).
Within the assessment of findings that the Authority considered at [20] – [24], I note that at the conclusion of [21] the Authority states:
… According to the UNHCR guidelines, being of Tamil ethnicity alone does not give rise to protection needs. Noting the country information before me and that the applicant was able to live and work openly throughout and after the civil war I do not accept that he was, or would be, imputed with an LTTE profile or that he was of adverse interest to the authorities.
Turning to the Applicant’s departure from Sri Lanka, the Authority accepted that the Applicant had departed illegally (at [17], and [27]). The Authority had regard to country information as to the circumstances he would face on return (at [27] – [36]). The Authority was not satisfied that the Applicant would have an adverse profile, that he would come to the authorities’ attention by reason of his illegal departure, or failed asylum seeker status (at [34]), or that any questioning he would face would amount to serious harm under s.5J of the Act.
From [39] – [45] the Authority turned to consider the complementary protection criteria, and assessed the Applicant’s claims under the criteria. By reference to the findings earlier made in the decision noting the “real risk” test and “real chance” test, based on the same information, and for the reasons set out above in the decision, the Authority was not satisfied that there is a real risk that the Applicant would face significant harm for the reasons posited by the Applicant (at [41]).
The Authority then considered the Applicant’s circumstances, accepting that the Applicant will be identified on return as a person who departed illegally [42] – [44]. For the reasons stated, the Authority was not satisfied that the Applicant had met the criteria in s.36(2)(a) (decision at [18] – [19], and [38]) or s.36(2)(aa) (decision at [39] – [45]).
The Applicant’s grounds of review
The Applicant, by his amended application, pressed three grounds - grounds 12, 13, and 14. They are as follows (without alteration):
12.The IAA erred when it stated at [16]: "The Applicant's belief that they continued to have an interest in him is based upon people on motorbikes being in the area. I note his claim that people told him they saw men on motorbikes looking for him, but there is no indication that these men asked about the applicant and I consider it is speculation that the men on motorbikes were looking/or the applicant. "when the Applicant stated he was told they were coming and looking for him", and so there was an indication the Applicant was being specifically searched for and such claim was more than mere speculation.
Particulars.
•The Delegate recorded at [CB242] that the applicant: "was asked to explain how he knew the Karuna were searching for him and he advised that people from his home told him that he people on motorcycles drove through the village looking for him."
•The transcript* of the SHEV application interview dated 21 April 2016 at page 27 reads:
o"Q. But my question is how do you know when you saw them at night near the junctions how do you know that they were searching for you?
A.Not me but people from my home told me these people are coming on the bike and also looking for me. "
Accordingly the IAA misunderstood and/or misapplied the evidence, and/or came to a conclusion which was not open, and/or that the conclusion was unreasonable within the principles of legal unreasonableness.
* Affidavit of Balasingham Prabakharan 11 December 2017 Further, the IAA considered this claim to be of importance as it categorised the assertion that he was being searched for as a basis for his fear. Therefore, the error is of great significance to the Applicant's claims.
13.The IAA erred by not addressing an integer of his claims that he sought Australia's protection, such amounting to a constructive failure to address his claims.
Particulars
a. At Q 20 of the Arrival Interviews Record [CB3] the applicant was asked: "Q 20 Are you seeking Australia's protection?
A Yes
Q 21 Why did you leave your country of nationality (country of residence)?
A The White van is frequently abducting people and I don't know why they do this, because of this I have come.'
b.At Part C [CB24] the Applicant was asked: '1. Why did you leave your country of nationality (country of residence)?
The Applicant replied: 'Why did you leave Sri Lanka? I could not live there, there was fear and intimidation and abductions by people in white vans. What happened to you specifically to make you leave Sri Lanka? A boy that was working with me was taken by a white van, he was not released. I went and complained. I was part of the process of complaint to the Red Cross so they are angry with me as well. When did this happen? 30 June 2008. I went to the police on the 1st July. After that I went with his mother to every camp and searched, they said they have not taken him .... "
c.The IAA did not refer to address this aspect of the applicant's claims and did not address the claim that white vans abducted people causing the applicant to fear for his safety. The IAA misunderstood this aspect of the claim when it failed to note the fear the Applicant has of being abducted by a white van in the Applicant's claims (paragraph 6 [CB289–291]).
d.The failure to so address amounts to constructive Failure to address the applicant's claims and to a jurisdictional error. Accordingly the IAA misunderstood and/or misapplied the evidence, and/or came to a conclusion which was not open, and/or that the conclusion was unreasonable within the principles of legal unreasonableness.
14.The IAA erred by misunderstanding the nature of the evidence and of the applicant's claim when it stated at paragraph 6 [CB291J: ''Noting the country information before me and that the applicant was able to live and work openly throughout and after the civil war ... ", when the evidence of the applicant was: "The applicant stayed in hiding to avoid being taken by the Karuna group; he went fishing at night which was the usual time the Karuna group abducted people and so was able avid them. He also stayed with friends to evade detection by the Karuna group."
Particulars
The description of the applicant's working in this period that he was able to work 'openly' is not in accordance with the claim nor with the finding by the IAA at paragraph 16 ([CB293]): "I accept that the applicant worked at night and stayed on occasion with friends or other fishermen .. ". The IAA did not find adversely to the applicant that he did not work in such a way so as to avoid being taken by the Karuna group; rather the IAA focussed upon the issue of whether or not the Karuna group was looking for him. The description of the applicant working openly misdescribes the true nature of events and so amounts to an error of law. Accordingly the IAA misunderstood and/or misapplied the evidence, and/or came to a conclusion which was not open, and/or that the conclusion was unreasonable within the principles of legal unreasonableness
The Applicant, by these three grounds, contends that:
(1)the Authority at [16] misdescribed the Applicant’s evidence in relation to his fears he was being looked for by the Karuna Group, and on that misdescription reached an erroneous finding, which I apprehend to be asserted to be a legally unreasonable conclusion (ground 12).
(2)the Authority failed to address a separate claim made by the Applicant that he claimed to fear being abducted by persons in white vans, not being limited to the Karuna Group or the SLA, and this claim not being addressed, the Authority fell into jurisdictional error (ground 13).
(3)the Authority, at its decision at [6], [16], and [21], misunderstood and/or misapplied the Applicant’s evidence concerning his ability to work by asserting a claim that the Applicant worked “openly” meant that the Applicant had no concern about being apprehended, when the evidence was he did not so work, as he claimed he worked mostly at night to avoid being caught.
At the hearing before me, in support of his claims for judicial review, the Applicant relied on a transcript of the Visa interview on 21 April 2016, in evidence. In oral submissions, Mr Foster drew my attention to the transcript, particularly at pages 26 and 27, and I refer to those extracts during the course of my consideration below.
Ground 12
Mr Foster drew attention to the following passage of the Authority’s decision at [16]:
... The applicant’s belief that they continued to have an interest in him is based on people on motorbikes being in the area. I note his claim that people told him they saw men on motorbikes looking for him, but there is no indication that these men asked about the applicant, and I consider it is speculation that the men on motorbikes were looking for the applicant. (Note that I have reproduced [16] in its entirety above at [24])
Mr Foster points to the transcript of the Visa interview, which evidence was before the Authority concerning the above passage. That evidence is in the context of the following exchanges on the transcript at page 27 (note that P refers to the Applicant, O indicates the Delegate, and I indicates the interpreter):
0:How do you know they started searching for you?
P:They come in motorbike and wait and my wife has seen they come in the night very fast in motorbikes and watch the movements if they see anyone they will grab them and go
I:They ride motorbike very fast at night and I saw some of the motorbikes parked so based on that
0:Where did you see parked?
P:Like nearby the junctions they just come like a civilian and if they see people over there they will just take them away
0:So how do you know they are searching for you? They could have been searching for anyone
P:Because they gave the letter and I didn't go and because of that they will consider that as a crime and they usually abduct people after that
0:But my question is how do you know when you saw them at night near the junctions how do you know that they were searching for you?
P:Not me but people from my home told me these people are coming on the bike and also looking for me
Mr Foster submits that it was not open to the Authority to conclude that it was speculation that the men on motorbikes were looking for the Applicant. The mere fact that there was no indication that the men had asked about the Applicant leaves open other alternatives. It does not follow that because the men on motorbikes did not ask, that they were not looking for the Applicant.
Ms Morris, on behalf of the Minister, submits that the Applicant is asking the Court to draw an inference that “looking for” is a claim that the persons had “asked about him” but the evidence does not permit that inference.
In its decision at [6], the Authority refers to the Applicant’s evidence (see above at [18]) that “he believes the Karuna Group continued to look for him because they usually travelled on motorbikes and he saw motorbikes parked in the vicinity and people told him they saw people on bikes looking for him”. This summary is consistent with the evidence that the Applicant gave at the Visa interview (see transcript page 27) set out above (see [36]). Specifically, the last sentence of the extract: “People from my home told me these people are coming on the bike and also looking for me”.
The Minister further submits that the Authority’s summary is consistent with the manner in which the Delegate summarised the evidence given at the Visa interview, which was “the Applicant was asked to explain how he knew the Karuna Group was searching for him and he advised that people from his home told him that people on motorcycles drove through the village looking for him.”
Consideration
A comparison of the Applicant’s Visa interview (the transcript extracted at [36] above), the summary of that evidence by the Delegate (see at [40] immediately above), and the Applicant’s claim recorded in the Authority’s decision at [6] (see above at [18]), demonstrates that there is no relevant misdescription of the evidence by the Authority. The above passages demonstrate that the Authority was aware of the Applicant’s claim that he had been told that people on motorbikes were looking for him, who he in turn believed to be members of the Karuna Group.
The Authority did not accept this claim.
The evidence is consistent, but that consistency does not imbue the evidence with any level of specificity. It remains at the level of bare assertion. So too is the evidence that people on motorcycles were looking for him because he, or other people, saw motorcycles nearby.
I find that when the Authority came to consider this claim and the above evidence in its decision at [16], that the Authority correctly noted the evidence before it that “I note his claim that people told him they saw men on motorbikes looking for him, but there is no indication that these men asked about the applicant and I consider it is speculation that that the men on motorbikes were looking for the applicant.”
Further, as I have set out above, in the review of the Delegate’s decision, the Authority at [10] – [16], assesses and makes findings on all of the Applicant’s claims regarding the Karuna Group. The Authority gives great attention in those paragraphs, rejecting the aspects of the Applicant’s claims regarding being of interest to the Karuna Group.
It is well established that the Authority is not obliged to accept, uncritically, claims made by applicants: see: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559, 596; Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437, 451.
Having correctly recorded and described the Applicant’s evidence, and making specific findings concerning the other aspects of the Applicant’s claims regarding the Karuna Group, the Authority concluded that it is merely speculation that the men on motorbikes were looking for him. It was within the Authority’s purview to describe that evidence as speculative. It was open to the Authority not to be satisfied as to the claims that the Karuna Group was looking for the Applicant.
I find that the Applicant has failed to demonstrate jurisdictional error in this regard, and Ground 12 is not established.
Ground 13
Mr Foster submits that the Applicant made a separate, and general claim regarding a fear of abduction by people in white vans, and that this claim is separate from his fear of abductors from the Karuna Group or the SLA. Mr Foster points to the following:
First, in the Applicant’s arrival interview on 6 October 2012, the Applicant states as follows:
21.Why did you leave your country of nationality (country of residence)?
The white van is frequently abducting people and I don’t know why they do this, because of this I have come.
Secondly, in the Applicant’s IMA interview, the Applicant states in response to question 1:
Why did you leave Sri Lanka? I could not live there, there was fear and intimidation and abductions by people in white vans. What happened to you specifically to make you leave Sri Lanka? A boy that was working with me was taken by a white van, he was not released. I went and complain, I was part of the process of complaint to Red Cross, so they are angry with me as well. When did this happen? [specific date redacted]. I went to the police on the [following day, redacted]. After that I went with his mother to every camp and searched, they said they have not taken him. When you say they are angry with you, who do you mean by “they”? Generally people from the government, specifically the army. How do you know they are angry with you? There was a letter placed outside my door, the letter said I should not interfere with these matters and that if I interfered my life would also be in danger. I took the letter to the GS but nothing was done. What date did you receive the letter? A month after we had made the complaint. Where is the letter now? It is at home. (I haven’t given it because the Case Manager said that if they inquire about that letter to give it at that time).
Thirdly, in the Applicant’s Statement of 12 August 2013 (accompanying and attached to both his invalid and subsequent Valid application), the Applicant states at [8], [11], and [12] as follows (without alteration):
8.Furthermore, booth the KARUNA group and SLA are against former LTTE members and those people who sympathise with the Tamil issue. For this reason they will abduct people who support the Tamil National Alliance (“TNA”). They usually come in a white and kidnap the person of interest. The kidnapped people have not returned and have been missing since they were kidnapped.
11.On or about [redacted date in mid 2008)] my maternal aunt’s grandson [redacted, name and age], was kidnapped by unknown people. It was about midnight when approximately 8 people came to [redacted]’s house in a white van, parked away from the house. They told [redacted]’s father that they are from KARUNA group and they are taking [redacted] for enquiries and that they can come to their office tomorrow morning.
12.[redacted] had worked for TNA during the parliamentary election by putting up posters and assisting with campaigns.
Mr Foster accepts that in [11] of the Statement, the Applicant identifies the Karuna Group as the people in the white van who kidnapped his relative. Nevertheless, Mr Foster says that because of the earlier references to white vans in the Applicant’s Arrival interview, and his IMA interview, the fear the Applicant expressed of being abducted by persons in white vans is not limited to abductors from the Karuna Group or the SLA. It follows that the Authority dealt with the specific instances of fear concerning harm from the Karuna Group, and not the separate generalised claim to fear harm. Mr Foster submits that the statement at paragraph 27 of the Statement “I fear I will be kidnapped and killed if I return to Sri Lanka” should be considered as a separate claim, a generalised claim which was not dealt with.
Ms Morris for the Minister submits that having regard to the short period of time in which the Applicant expanded upon the claims he made at his Arrival interview, within three months in his IMA interview, and six months later in his written Statement, and noting that the written Statement was prepared with the assistance of a representative, it is clear that the Statement crystallises the claim as a concern of being abducted by members of the Karuna Group in their white vans, and not a more generalised claim.
She submits the transcript links the Applicant’s concerns to the Karuna Group’s abduction of his [relative] (at pages 15 and 16 of the transcript), which make clear that the Applicant’s claim to be of interest was because he was a person assisting his relatives looking for their relative, and that it is because the relatives were creating trouble that they and the Applicant claimed to have come to the attention of the Karuna Group, and not that the Applicant himself is imputed of being a member of or connected to the TNA or LTTE.
Consideration
In the present case the Applicant was represented in the making of the Visa application, and the Statement with the invalid application, and in the making of submissions to the First Authority, and to the second Authority.
It is well settled that unless there are grounds to think otherwise, it may be assumed that the claims which a represented applicant wishes to make are the ones expressly articulated by the applicant and advisors, and that claims not expressly articulated nor arising clearly from the materials are not pressed: see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 219 ALR 27; SZULW v Minister for Immigration and Border Protection [2018] FCA 1335.
I accept that the evidence of the claims is that the references to white vans, abduction, and kidnapping were each in connection with the Applicant’s relative’s kidnapping. In that context, I reject that the Applicant ultimately advanced (or through his representatives advanced) that he was fearful that he would be picked up by the white vans. Rather, the claim advanced was that his relative had been kidnapped in a white van abduction by members of the Karuna Group, and the Applicant feared targeting by the Karuna Group, including, possibly, his own abduction, because of this assistance in inquiring after his relative.
I also note in the Applicant’s Statement in support of his Visa application, under the heading “The country to which I fear returning”, at [10], with the statement that, “I left because I feared I will be kidnapped and persecuted by the SLA and the CID”, and then set out the circumstances of his relative’s abduction, the assistance the Applicant gave to his relatives, his claim that Karuna Group’s members became interested in him. Under the heading “What I fear may happen to me, by who and why, if I return to that country”, the Applicant stated:
27.I fear I will be kidnapped and killed if I return to Sri Lanka.
28.I fear I will be harmed by the KARUNA group.
29.I fear I will be harmed because they suspect I have made the complaints to Police, HRCSL and the ICRC.
30.If I’m kidnapped I will be beaten and tortured. They might even shoot me.
31.Tamils are disproportionately affected by these kidnappings and extortion attempts.
32.Furthermore, if I was forced to return to Sri Lanka as a failed asylum seeker, the authorities at the airport will arrest me and interrogate me for leaving the country illegally. I will be targeted by CID as they will be suspicious that I may have links to the former LTTE.
Thereafter, in explaining under the heading “Why I think the authorities of that country cannot or will not protect me if I were to go back to that country”, the Applicant expressly expressed his concern as the government cannot protect him from the harm that he fears, which is:
…because the Karuna Group work with the government and SLA. Therefore, the government will not be able to protect me from the Karuna Group. Anyone detained by the Karuna Groups will be beaten, tortured and even possibly killed.
The Applicant then expressed concern of being a target as a Tamil by the SLA and the Sri Lankan Government because of the previous LTTE activities in Sri Lanka and on suspicion of links to the former LTTE. Thus, throughout the Statement, the Applicant makes his claims of kidnapping and abduction in the context of being of interest to the Karuna Group or the SLA or because of his activities or because of being a Tamil. The Applicant does not, in that Statement, save as has previously been identified, make any reference to a general claim of fear or concern of abduction by white vans.
Although the Authority does not in its decision expressly use the phrase “white van”, I consider it is plain that the Authority considered the claim of concern of abduction by members of the Karuna Group in white vans because of the Applicant’s assistance in inquiring after his relative: see decision at [6], [10] – [16], and [25] – [26].
I note that the Authority further accepted that the relative had been abducted as claimed (at [10]), and, therefore, that he had been abducted by persons using a white van, and that the Authority expressly noted a supporting letter which referred to the white van (see decision at [14]).
Ultimately, however, the Authority concluded that the Applicant was not of adverse interest to the Karuna Group, and therefore, did not face a real chance of harm in respect of those events, including a real chance of being abducted by the Karuna Group (at [11]–[16]).
I note the Minister’s further submission that to the extent that the Applicant did raise any claim to fear that he would himself be abducted (whether or not via a white van), such claim was dependent upon the Applicant’s claims concerning his relative, or were otherwise subsumed by the Authority’s consideration of the general security situation in Sri Lanka. I accept the Minister’s submission that whilst the Applicant claimed to fear that he would be kidnapped and killed by the Karuna Group, such a claim arose from his anterior claim of being of adverse interest to, and targeted by, the Karuna Group because of his involvement in looking for his relative, which is also reflected in the transcript of the Visa interview, where the Applicant submitted that:
My danger [in returning to Sri Lanka] could only be because of the search for that kidnapped boy. (See at page 36 .)
I also note that at [22], the Authority stated:
I note the Applicant’s concerns about ongoing arrests and disappearances in Sri Lanka and accept that there continue to be reports of arbitrary detention and harm perpetrated by the security forces in Sri Lanka, particularly of Tamils, however I am not satisfied that the Applicant’s fears are well–founded.
In that paragraph, the Authority proceeded to refer to country information, and concluded as I have noted. It thereby incorporated any claim that the Applicant made to a fear of kidnap or harm by persons in white vans, not being limited to the Karuna Group, in this more general finding.
Thus, I find that there is no fear of abduction by white vans claim, but rather, the Applicant’s claim, crystallising that initial reference to white vans when he arrived in Australia, was of the claim of fear of abduction by the Karuna Group, whether or not in a white van, but including a white van. I conclude that there was no claim articulated as now asserted by Mr Foster in Ground 13, and thus there was no claim overlooked.
I find that the Applicant’s Ground 13 is not made out. The Authority did not fall into jurisdictional error.
Additional consideration as to materiality
Finally in relation to Ground 13, and additionally as to materiality, given the context of the statement at question 21 made in the Arrival interview, and that there is no other statement to that effect, and no other evidence or claim, I consider that if there was any error by the Authority in not addressing that purported separate generalised claim, it could not possibly have made any difference to the Authority’s decision.
Ground 14
The crux of Ground 14 appears to be the conflict the Applicant asserts in the Authority’s decision between [16], and the last sentence of [21], and specifically, the Authority’s noting “that the Applicant was able to live and work openly throughout and after the civil war”. Mr Foster says that working openly must be understood as a finding that the Applicant has no concern with being apprehended, and submits that the Authority misunderstands the evidence.
Mr Foster refers to the Visa interview at pages 26 and 27, and draws attention to the Applicant’s evidence after receipt of a letter the Karuna Group left at his home. Mr Foster draws attention to the following exchange:
O:And did they come searching for you after you did not go?
P:Yes they were looking for me after that but ... they don't search for people during the day they search for people at night... l didn't get caught
O:How were you able to avoid being caught?
P:I worked at night and most of the time I worked at night so they couldn't catch me and also I try to stay in few other Sinhalese areas before coming here.
O:Ok now I am just going to check something ... So you have said that in your statement that you have made... you did not go to the Karuna office and that you would go to the sea fishing at night and stay at friends and other fisherman's places.
P:Yes and I was fishing
0:So when you did not report to the Karuna office what did they do?
P:They started searching for me after that ... They couldn’ t catch me
Mr Foster submits that the Authority’s acceptance at [16] that the Applicant worked at night and stayed on occasion with friends or other fisherman suggests that the Applicants was not working “openly” but, to the contrary, was working discretely and covertly. Mr Foster submits that because of that misdescription or misunderstanding, the Authority then simply gets the matter wrong when it concludes, at [21], it does not accept that the Applicant was, or would be imputed, with an LTTE profile, or that he was of adverse interest to the authorities. That latter finding incorporates the error he says in the Authority’s understanding of the evidence and renders the ultimate finding erroneous and demonstrates jurisdictional error.
Ms Morris in response submits that the passages to which Mr Foster refers are, in fact, dealing with different matters. At [16] of the decision, the Authority does not accept that the Applicant was in hiding from the Karuna Group from the time he did not attend the appointment with the Karuna Group required by the letter until he departed Sri Lanka because the Karuna Group were looking for him to harm him. The Authority then concludes its consideration in [16] with its non–acceptance that the Karuna Group were looking for the Applicant after he failed to attend the appointment [time in 2010], or that they had an ongoing interest in the interim.
Whatever the Applicant did, or his own belief that the Karuna Group was looking for him, the Authority rejected that he was in hiding or that the Karuna Group was looking for him. The Authority’s decision at [21] is consistent with that finding and with transcript evidence of him working.
The issue with which the Authority was concerned was the specific context in which the Applicant claimed he was working at night and staying with friends, and the Authority already dealt with that evidence in the context. I note that the Authority also expressed the view that, given the Applicant did not leave Sri Lanka until more than two years after the claimed appointment time, if the Karuna Group was interested in locating him or harming him, they could have. I consider, in these circumstances, that the Applicant has failed to establish the premise of ground 14 that there was any misunderstanding as to the nature of the Applicant’s evidence.
It is clear from the whole of [21] that the Authority’s findings that the Applicant had been able to live and work openly throughout and after the civil war (at [21]), arose in that context of the Authority’s consideration of the Applicant’s claim that he would face harm as a Tamil from the Eastern Province, because he would be imputed or suspected of having LTTE links (see at [6] and [20]).
Those findings were separate to the Authority’s earlier consideration of the Applicant’s claim to have been targeted by the Karuna Group and forced into hiding because of his involvement in inquiries after his relative (see at [11] through to [16]). The findings at [21] were findings made in the context where the Applicant had not claimed to be in hiding during the civil war, but only to have gone into hiding from mid–2010, more than a year after the end of the civil war, and where the Authority had already found that the Applicant was not, in fact, hiding from mid–2010. I accept the Minister’s submission there is no intrinsic conflict between the finding at [20] – [21] of the Authority’s decision that the Applicant was able to “live and work openly throughout and after the civil war”, and the finding at [16] that the Applicant “worked at night and stayed on occasion with friends or other fisherman”.
I consider that the Authority gave evident and intelligible justification for each of its findings sought to be impugned by the grounds of review and the ultimate conclusions as to the risk of harm faced by the Applicant.
I consider that the Applicant has not established Ground 14. The Authority did not fall into jurisdictional error.
Conclusion
For the above reasons, the Applicant’s grounds pressed in the amended application are not made out, and it follows the application as amended must be dismissed with costs.
At the hearing, I invited the parties to make submissions as to costs. I note that the costs order I make is a separate and additional order to the determination of quantum of the costs thrown away that I ordered be paid further to the grant of leave on 19 July 2019.
The amended application being dismissed, costs as fixed should follow the event. I will so order.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Baird
Associate:
Date: 13 May 2020
0
4
2