BWO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 3025

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3025

File number(s):	SYG 1316 of 2017
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	11 November 2020
Catchwords:	MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to decision of Immigration Assessment Authority (Authority) affirming decision not to grant Safe Haven Enterprise visa – whether Authority misunderstood or failed to consider evidence of threats – no jurisdictional error.
Legislation:	Migration Act 1958 (Cth), ss.36(2)(aa), 36(2A), 476
Number of paragraphs:	45
Date of hearing:	4 March 2020 & 6 May 2020
Place:	Sydney
Counsel for the Applicant:	Mr G Foster, by telephone
Solicitor for the Applicant:	Sentil Solicitor
Solicitor for the First Respondent:	Ms A Wong of Mills Oakley Lawyers, by telephone

ORDERS

SYG 1316 of 2017

BETWEEN:

BWO17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE MANOUSARIDIS
DATE OF ORDER:	11 NOVEMBER 2020

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs set in the amount of $5,000.

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant, a citizen of Sri Lanka, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming the decision of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV).

   BACKGROUND

2. The applicant arrived in Australia on 10 October 2012 as an unlawful maritime arrival. On 8 January 2016 he lodged an application for a SHEV, and the delegate interviewed the applicant on 24 May 2016 (SHEV interview). The delegate refused the applicant’s application on 21 September 2016. The delegate’s decision, together with other documents, was then referred to the Authority for review under Part 7AA of the Act. The Authority made its decision affirming the delegate’s decision on 18 April 2017.

   CLAIMS FOR PROTECTION

3. The applicant stated his claims for protection on a number of occasions. It would be convenient first to set out the claims the applicant made in a document titled “Claims for protection by [the applicant’s name]” that formed part of his application for a SHEV (Statement).[1] The applicant there claimed as follows:

   [1] CB61-62

   (a)The applicant was born in the Eastern Province. After he completed his schooling he wanted to have a trade of his own. He got a job as a barber. The applicant made a shop on his father’s land, and he became a self-employed barber.

   (b)The applicant’s barbershop was located near the Sri Lankan Army (SLA) camp. SLA soldiers and officers used to come to the applicant’s barbershop to “get their hair done/dressed”, but they would not pay the applicant wages. When there were many customers waiting, the applicant would have to close his shop and go into the army camp to do hairdressing for the army chief. The applicant felt his trade was going “backward a s [sic] a result”.

   (c)The applicant realised that the correct decision would be for him to travel abroad. The applicant, however, was required to go to Colombo to do a diploma course in his trade. In 2002, after he received his certificate, the applicant travelled to Saudi Arabia. The applicant could not get work in Saudi Arabia as a barber; he instead worked as a car cleaner.

   (d)In 2005 the applicant returned to Sri Lanka. The applicant expanded his shop and began a business under a particular name. The applicant obtained a very good income from the shop.

   (e)In 2008, after his wife gave birth to a daughter, the “army [sic] interest turned towards” the applicant’s shop. Army soldiers came to his shop carrying weapons, and the applicant and customers were fearful of them. The applicant had to give priority to the army soldiers. He was compelled to do so.

   (f)Members of “other groups” also came to the applicant’s shop. There was a relative the applicant employed in the shop whom the applicant called “uncle”. There was some respect for the applicant and he had a good name in the village. The applicant participated in social activities. The applicant also received death threats and threats of abduction.

   (g)In early 2010 unknown persons broke into the applicant’s shop. The applicant made a complaint to the police but no action was taken.

   (h)In 2012 the applicant reconstructed his shop and, “amid fear”, traded again. The applicant received threats from unidentified armed groups who threatened to kill and abduct him. When these threats increased, the applicant “undertook a plan to come to Australia”.

   (i)After the applicant arrived in Australia his wife, child, and uncle received threats.

4. In addition to the Statement, the applicant submitted a number of documents, including the following:

   (a)A letter purportedly from a member of a provincial council stating that the applicant is known to the author of the letter; the applicant is a strong supporter of “my party T.N.A” (that is, the Tamil National Alliance (TNA)), having taken the leadership of the party and public meetings with great enthusiasm, and having acted a “polling agent” for the author; due to his political activities “he had life threatening [sic] from the opposition and some other groups”.[2]

   (b)A letter purportedly from a member of parliament stating the applicant is an active supporter of the TNA; that during the 2010 parliamentary election, the applicant worked hard for the victory of the TNA, and that he has been the subject of intimidation “and very often searches for him and threat [sic] to his life by unknown opponent groups”.[3]

   (c)A letter purportedly from a justice of the peace stating that the applicant operated a hairdressing establishment but that business was very often the subject of disturbances by unidentified groups who dominated the area; the groups paid visits to the establishments demanding money and warning of abduction of the whole family and killing them; that the applicant’s establishment was burgled in 2010; the law enforcement agencies moved slowly in their investigation, but eventually dropped it; there was no improvement from the side of the unidentified groups after the applicant rehabilitated his business; and the applicant was successful in his escape from the village.[4]

   (d)A letter purportedly from a minister of a church certifying the applicant is a member of that church; the applicant possessed a shop; in 2010 some unknown persons looted his shop and demolished it; as a result the applicant has no other means to resume his business, so he decided to migrate to Australia.[5]

   [2] CB76

   [3] CB77

   [4] CB79

   [5] CB80

5. At the SHEV interview the applicant was asked about the threats the applicant claimed he received. The applicant said he took as a personal threat the damage done to his shop, when someone broke the door and some glass. The applicant was also asked whether he received any threats by phone, letter, or in person. The applicant said he received the threats of the damage to his shop; an incident when someone on a motorbike hit him, and another incident where people threw rocks at his house.[6]

   [6] CB199, [15]

6. Also at the SHEV interview, the applicant said he had forgotten to mention in the Statement that in 1999 he received a letter from the Liberation Tigers of Tamil Eelam (LTTE) to visit their camp; that when he visited the LTTE he was asked why the applicant had visited the SLA camp; because of his questioning, the applicant found himself under pressure from both the LTTE and the SLA; and it was for this reason that in 2002 he went to Colombo to obtain his diploma in hairdressing, and in 2003 travelled to Saudi Arabia.[7] The applicant also claimed he had left Sri Lanka illegally.

   [7] CB108

   DELEGATE’S DECISION

7. The delegate accepted the applicant is a Tamil; that in 1999 the applicant was threatened by the LTTE because he visited the SLA camp and cut the officers’ hair; the applicant was a barber and his barbershop was attacked and damaged by unknown people in 2010, and he reopened his shop in 2012; the applicant was a low level supporter of the TNA; and the applicant departed Sri Lanka illegally and, if he returned to Sri Lanka, he would be considered a failed asylum seeker. The delegate did not accept that the SLA or any paramilitary group wanted to harm him, or that he was of adverse interest to any groups in Sri Lanka. Relying on country information, the delegate was not satisfied the applicant faced a real chance of harm because he is a Tamil, or because he is a Tamil shop owner, or because he has been a low level TNA supporter, or because he would be considered a failed asylum seeker. For these reasons, the delegate was not satisfied the applicant was a “refugee” within the meaning of s.5H of the Act, or a person who satisfied the complementary protection criterion prescribed by s.36(2)(aa) of the Act.

   BEFORE THE AUTHORITY

8. After the matter was referred to the Authority the applicant, through his representative, provided the Authority with a written submission which relied on further information.[8] The further information consisted of country information in the form of two reports, a Department of Foreign Affairs and Trade (DFAT) Country Report Sri Lanka dated 16 February 2015 (first DFAT report), and a DFAT Thematic Report People with links to the Liberation Tigers of Tamil Eelam dated 3 October 2014 (second DFAT report). The submissions particularly relied on first DFAT report.

   [8] CB129

9. By letter dated 21 March 2017 the Authority invited the applicant to comment on the information it identified in the letter, being information contained in the “DFAT Country Information Report Sri Lanka” dated 24 January 2017 (third DFAT report).[9] The Authority described the information as follows:

   (a)The political environment in Sri Lanka has significantly changed since 2015.

   (b)The security situation in Sri Lanka dramatically improved since the end of the war.

   (c)Incidents of extra-judicial killing, disappearances, and abductions for ransom, have significantly reduced since the end of the war.

   (d)Although prison conditions in Sri Lanka do not meet international standards, that is due to lack of resources, overcrowding, and poor sanitary; and the Sri Lankan government is working on the issues in conjunction with the International Committee of the Red Cross.

   [9] CB179

10. The Authority attached to the letter the relevant extracts from the third DFAT report, and said this information is relevant to the applicant’s case because it may lead the Authority to conclude that country conditions in Sri Lanka have improved to such an extent that the applicant does not face a real chance of serious harm or a real risk of significant harm on his return. The applicant responded with submissions sent by email on 2 April 2017.[10] The applicant submitted his refugee claims are consistent with the third DFAT report.

    [10] CB188

    AUTHORITY’S REASONS – NEW INFORMATION

11. The Authority first identified the information before it. It noted that the first DFAT report was considered by the delegate and does not constitute new information. The Authority found the second DFAT report was not before the delegate and is new information. The Authority noted, however, that the delegate had considered a DFAT Country report dated 18 December 2015, and that report had superseded the first and second DFAT reports. The Authority, therefore, was not satisfied there are exceptional circumstances to justify its considering the second DFAT report.[11] The Authority found the third DFAT report was new information, and there were exceptional circumstances to justify its considering it.[12]

    [11] CB196, [3]

    [12] CB197, [6]

    AUTHORITY’S REASONS

12. The Authority:

    (a)found the applicant is a Tamil and a Christian;

    (b)found there were some discrepancies between the claims the applicant made in the Statement and the evidence he gave at the SHEV interview; but, to the extent of any inconsistency, the Authority preferred the evidence the applicant gave at the SHEV interview, and, therefore, accepted the claims the applicant made at the SHEV interview and the claims the applicant made in the Statement to the extent they are not inconsistent with the claims the applicant made at the SHEV interview;[13]

    (c)accepted that when the applicant worked in his father’s shop, and when he opened his own shop in 2006, members of the SLA regularly required the applicant to close his shop and go to the SLA camp to give them haircuts; that members of the SLA whose hair the applicant cut did not pay well for the haircuts, and sometimes did not pay at all; and that a similar problem could arise if the applicant were to return to Sri Lanka and resumes hairdressing;[14]

    (d)accepted the claims the applicant made at the SHEV interview about his dealings with the LTTE, and about the threats the applicant claimed he received in Sri Lanka;

    (e)noted the applicant did not claim at the SHEV interview that he received any threats in writing, by telephone, or in person; and he did not repeat at the SHEV interview the claims he made in the Statement that he received death threats, and threats of abduction, or that his wife, child and uncle were threatened after the applicant departed Sri Lanka;

    (f)found the applicant suggested at the SHEV interview that the threats he received were in the form of damage to his shop, someone on a motorbike hitting him, stones being thrown at the applicant’s house, and the SLA having asked the applicant’s father about the applicant’s whereabouts after the applicant left Sri Lanka;[15]

    (g)accepted the applicant had provided some support for the TNA, including making donations and putting up flyers, and that the applicant may continue to support the TNA if he were to return to Sri Lanka;[16]

    (h)although the four purported letters on which the applicant relies tend to corroborate some aspects of the applicant’s claims, there were issues with them; and these related to matters which the applicant did not claim;[17] and

    (i)accepted the applicant left Sri Lanka to travel to Australia on a boat organised by a smuggler; he does not have a passport with him in Australia, and, for these reasons, the Sri Lankan authorities would consider the applicant to be a failed asylum seeker who  departed Sri Lanka illegally.[18]

    [13] CB199, [18]

    [14] CB202, [29]

    [15] CB199-200, [19]

    [16] CB203, [40]

    [17] CB200, [20]

    [18] CB200, [21]

    Whether applicant is a refugee

13. The Authority then considered whether, given these findings, the applicant is a “refugee” within the meaning of s.5H of the Act. The Authority considered that question by reference to: (a) the applicant’s being a young Tamil male barber in the east and any imputed political opinion; (b) the applicant’s interactions with paramilitary groups; (c) the applicant’s support for the TNA; and (d) the applicant’s returning to Sri Lanka as a failed asylum seeker who had departed Sri Lanka illegally.

    Young Tamil male barber in the east and any imputed political opinion

14. The Authority accepted the behaviour of the SLA and paramilitaries had an economic impact on the applicant and his business, and that a similar problem could arise on the applicant’s return to Sri Lanka if he resumes hairdressing. The Authority, however, noted the applicant did not claim he was unable to support his family while this occurred, or that he was unable to subsist. The Authority, therefore, was not satisfied that, if the applicant returned to Sri Lanka, any problems the he might encounter in being required to give haircuts to the SLA or paramilitaries would threaten his capacity to subsist, or would otherwise constitute serious harm.[19]

    [19] CB202, [29]

15. The Authority did not consider the authorities would have had any adverse interest in the applicant had he remained in Sri Lanka, or that he would be of any adverse interest to the Sri Lankan authorities on his return because of his involvement with the LTTE since 1999.[20] The Authority relied on the following matters:[21]

    (a)The applicant’s only involvement with the LTTE was from 1999 when the LTTE questioned him about his attending the SLA camp, and the explanation the applicant gave to the LTTE.

    (b)The applicant said his family had no involvement with the LTTE or other groups.

    (c)Although the applicant lived in an LTTE controlled area during the civil war, residence alone in an LTTE controlled area does not give rise to a need for protection.[22]

    (d)The applicant had not been arrested, detained, or questioned by the Sri Lankan authorities for any reason.

    (e)Apart from the local SLA members getting haircuts from the applicant, the Sri Lankan authorities did not show any interest in the applicant while he was in Sri Lanka.

    (f)Although the Tribunal accepted the SLA asked the applicant’s father-in-law about the applicant and his whereabouts, the Tribunal was not satisfied the enquiries were directed to anything other than the applicant’s role as a barber.

    (g)The applicant does not have a profile that country information suggests would place him at risk of harm from the Sri Lankan authorities, now or in the reasonably foreseeable future.

    [20] CB204, [25]

    [21] CB204, [35]

    [22] The Authority relied on the “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka”, 21 December 2012.

    Paramilitary groups

16. The Authority accepted the applicant cut the hair of members of paramilitary groups in the same manner as the SLA, and that this may reoccur on the applicant’s return. The Authority, however, was not satisfied this would “threaten the applicant’s capacity to subsist” or would constitute serious harm. Further, although the Authority accepted the applicant was pressured by the LTTE because he attended the SLA camp, it referred to country information that shows the LTTE no longer exists as an “organised force”, and former members have minimal capacity to exert influence on Sri Lankans. For these reasons the Authority was not satisfied the applicant faced a risk of harm on return because of his previous adverse interest to the LTTE.[23]

    [23] CB204, [37]-[38]

17. The Authority referred to the applicant believing he was threatened because his shop was damaged, stones were thrown at his house, someone on a motorbike once hit him, and that the threats came from paramilitary groups. The Authority noted it had found the applicant was never threatened by a paramilitary group over the phone, in person, or by letter. The Authority also noted the applicant does not claim he suffered any harm from paramilitary or other armed groups “except in relation to the provision of haircuts, the threats he received by way of the three events and his general fear as a result”. The Authority found that, other than the applicant’s suspicions, there was nothing to connect the “three incidents” to each other or to paramilitary or other armed groups. The Authority, therefore, was not satisfied that the three incidents were anything other than random acts of violence or criminality, and was not satisfied the applicant is at risk of harm from paramilitary or other armed groups now or in the reasonably foreseeable future. [24]

    [24] CB205, [39]

    Risk of harm based on support for the TNA

18. Although the Authority accepted the applicant provided some support for the TNA in the form of donations and putting up flyers, and that the applicant may continue to support the TNA on his return to Sri Lanka, the Authority found there is not a real chance the applicant will experience harm for this reason if he returned to Sri Lanka, either now or in the reasonably foreseeable future.  The Authority relied on the applicant’s not having claimed he had been harmed for providing support to the TNA, and on country information that suggests the political situation for Tamils and the participation of the TNA in Sri Lankan politics have generally improved in Sri Lanka.[25]

    [25] CB204, [40]-[42]

1. After referring to its having accepted the applicant provided support to the TNA by making donations and putting up flyers, the Authority accepted the applicant may continue to support the TNA if he returns to Sri Lanka. The Authority noted the applicant does not claim he has been harmed on account of providing support to the TNA, and referred to country information that shows the political situation for Tamils in Sri Lanka and TNA participation in Sri Lankan politics have generally improved. The Authority concluded there is not a real chance the applicant will face harm given his support for the TNA. [26]

   [26] CB40-42

   Risk of harm as a failed asylum seeker who departed Sri Lanka illegally

2. The Authority accepted that it is an offence under the Sri Lankan Immigration and Emigrants Act 1949 (IE Act) for a person to leave Sri Lanka otherwise than from an approved port of departure; that the penalties for infringing the IE Act include imprisonment of up to five years, although in practice, penalties are applied on a discretionary basis, and most cases result in a fine, and not imprisonment.

3. The Authority also referred to advice from DFAT that involuntary returnees are processed by officials from the Sri Lankan Department of Immigration and Emigration; the State Intelligence Service; a unit of the Criminal Investigation Department who are based at the airport; police investigate the identity of those returnees who travel on temporary travel documents, and such investigation often involves the returnee’s being interviewed; where a suspicious illegal departure is suspected the returnees are arrested under the IE Act, they are fingerprinted and photographed, and are transported to the nearest magistrates court after which custody and responsibility of the returnees shifts to the courts or prison service; those who are arrested can remain in police custody at the airport for up to 24 hours; if no magistrate is immediately available, returnees are held at a nearby prison until a magistrate is available; if a returnee pleads guilty he or she will be fined and then is free to go; and if a person pleads not guilty, he or she is granted bail, either on a personal surety or on the basis of a guarantee from a family member.

4. The Authority found that, on his arrival at an airport in Sri Lanka, the applicant will be detained, questioned, and charged under the IE Act at the airport; he will then be taken by the police to the nearest magistrate’s court; once brought before the magistrate’s court, the applicant will be fined and released, if he pleads guilty or, if he pleads not guilty, will be granted bail on the basis of a personal or third party surety. The Authority found that the applicant might be detained for up to 24 hours at the airport, and he may also be held in a prison until such time as a magistrate is available. On those findings, the Authority was not satisfied the applicant faces a real risk of persecution because he is a failed Tamil asylum seeker who departed Sri Lanka illegally, now or in the reasonably foreseeable future.[27]

   [27] CB207, [57]

   Cumulative assessment and conclusion

5. Having assessed each of the bases on which the applicant claimed he had a well-founded fear of persecution, the Authority considered whether, having regard to the applicant’s circumstances as a whole, the applicant faced a real chance of persecution, now or in the reasonably foreseeable future, if he were to return to Sri Lanka. The Authority found the applicant does not have a well-founded fear of persecution within the meaning of s.5J of the Act.

   Complementary protection

6. The Authority then considered whether the applicant satisfied the complementary protection criterion provided for by s.36(2)(aa) of the Act. The Authority repeated findings it had already made in relation to whether the applicant had a well-founded fear of persecution; set out the effect of country information to which it had previously referred; and considered material that was relevant to whether the prison conditions the applicant was likely to face, or the penalties that are likely to be imposed on the applicant, on his return, would amount to significant harm within the meaning of s.36(2A) of the Act. The Authority concluded there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia by a receiving country, there is a real risk the applicant will suffer significant harm; and, for that reason, the Authority concluded that the requirements of s.36(2)(aa) of the Act have not been met.

   COURSE OF JUDICIAL REVIEW HEARING

7. The matter first came before me for hearing on 4 March 2020. At that hearing the applicant, who appeared on his own behalf with the assistance of an interpreter, applied for an adjournment. The applicant sought the adjournment for the purpose of obtaining legal representation. With the consent of the Minister, I adjourned the hearing to 6 May 2020.

8. The matter came back before me for hearing on 6 May 2020. Mr Foster appeared on behalf of the applicant, by telephone, and Ms Wong appeared on behalf of the Minister, also by telephone. Mr Foster, counsel for the applicant, sought leave to rely on an amended application filed on 7 April 2020. This was outside the time for filing an amended application that was provided for by the orders made on 10 August 2017. The Minister did not oppose the Court granting the applicant leave to rely on the amended application, and I granted the applicant leave to rely on the amended application. The amendment replaced ground 1 of the application with three grounds headed “New Ground 2”, “New Ground 3”, and “New Ground 4”.

   NEW GROUND 2

9. New ground 2 is as follows:

   1.The IAA erred when it was not satisfied the applicant is at risk of harm or of serious harm, if he returns to Sri Lanka, now or in the foreseeable future, from paramilitary or other armed groups.

   Particulars

   i.        Paragraphs 37 [CB204]; 39 [CB205];

   ii.The IAA accepted, if the applicant returns to Sri Lanka, the same behaviour in relation to haircuts may occur [CB204];

   iii.The Applicant’s [sic] claimed that on many occasions when he operated his hair cutting business in Sri Lanka, he was subject to threats [CB61] – CB[62];

   iv.Bases upon past history, it is likely that the Applicant will face similar threats should he return to Sri Lanka and resume his hair cutting business[;]

   v.The threats he experienced included death threats, threats of abduction, and threats he will be killed or abducted [CB61] – [CB62];

   i.These threats would clearly amount to ‘serious harm’ under the Migration Act,

   Accordingly, the IAA’s lack of satisfaction that the applicant is at risk of serious harm, if he returns to Sri Lanka, now or in the foreseeable future, from paramilitary or other armed groups was illogical and irrational, and/or was otherwise unreasonable, such that the IAA thereby committed jurisdictional error.

10. This ground is directed to the Authority’s conclusion at paragraph 39 of its reasons that is was not satisfied the applicant is at risk of harm, now or in the foreseeable future, from paramilitary or other armed groups. On its face, this ground claims that, given the findings the Authority made, it was irrational or unreasonable for the Authority to so conclude.

11. The ground is expressed more broadly in the applicant’s written submissions. The applicant there submits the Authority “misunderstood the material before it in respect of the manner of threats committed”.[28] The material the applicant submits the Authority misunderstood is the claims the applicant made in the Statement about the threats the applicant received. The Statement contains four instances or series of instances of threats: threats made by members of the SLA forcing the applicant to close his barbershop to attend the SLA camp; the applicant’s receiving “death threats and threats of abduction”; the applicant’s receiving “threats by unidentified armed groups which threatened that they will kill, abduct me”; and, after the applicant came to Australia, the applicant’s wife, child, and uncle receiving threats.[29]

    [28] Applicant’s Outline of Submissions, [8]

    [29] CB60-61

12. At the hearing before me, counsel for the applicant submitted that the Authority did not in fact reject the claims of harm the applicant made in the Statement in favour of the claims of threats the applicant made at the SHEV interview. Counsel also submitted that the claims of harm the applicant made at the SHEV interview are not inconsistent with the claims of threats the applicant made in the Statement. The Minister, on the other hand, submits the Authority found the claims of threats the applicant made in the Statement were inconsistent with the claims of threats the applicant made at the SHEV interview.

13. The true, or at least principal, question that arises is not whether the Authority acted irrationally or unreasonably, but whether the Authority considered the claims of threats the applicant made in the Statement to be inconsistent with the claims of threats the applicant made at the SHEV interview and, if so, whether the Authority accepted the claims the applicant made at the SHEV interview to the exclusion of the claims of threats the applicant made in the Statement. That question is to be determined by reference to the following passages from paragraphs 18 and 19 of the Authority’s reasons (emphasis added).

    There were some discrepancies between the applicant’s written statement and his evidence at the SHEV interview, such as his encounters with the LTTE in 1999 and the nature of the threats he faced. As he generally delivered his evidence at the SHEV interview in a natural and responsive manner I prefer that evidence over his written statement to the extent of any inconsistencies. I accept the applicant’s claims from his SHEV interview and, to the extent they are not inconsistent with his evidence at the SHEV interview, I accept the claims in his statement.

    In particular, I accept his evidence at the SHEV interview in relation to his dealing with the LTTE, that weren’t mentioned in his statement, and about the threats he faced in Sri Lanka which varied significantly from his statement. At the SHEV interview the applicant did not claim he received any threats in writing, by phone or in person, nor did he repeat the claims in his statement that he received death threats and threats of abduction or that his wife, child and uncle were threatened after he left Sri Lanka. Instead, at the SHEV interview he suggested that the threats were in the form of the damage done to his shop, someone on a motor bike hitting him and stones thrown at his house and that the SLA asked his father-in-law, who re-opened his shop, about him and his whereabouts after he left Sri Lanka.

14. This passage invites a number of observations.

    (a)The Authority was aware that in the Statement the applicant claimed he had received threats.

    (b)The Authority was also aware that at the SHEV interview the applicant was asked about the threats he claimed in the Statement to have faced, and that the applicant gave evidence about what he claimed were the threats he received.

    (c)The Authority considered there were discrepancies between the evidence of the threats the applicant identified in the Statement, and the evidence of the threats the applicant identified at the SHEV interview.

    (d)The Authority identified the discrepancies. These were, on the one hand, the applicant not repeating at the SHEV interview that he had received death threats or threats of abduction, and his not repeating that his wife, child, and uncle were threatened after the applicant left Sri Lanka; and, on the other hand, the applicant stating, in response to a specific question, that the threats the applicant claimed he received were in the form of damage done to the applicant’s barbershop, someone on a motorbike hitting the applicant, stones being thrown at his house, and the SLA asking the applicant’s father-in-law about the applicant’s whereabouts after the applicant left Sri Lanka.

    (e)The Authority found that the threats the applicant identified in the SHEV interview, and not the threats the applicant identified in the Statement, reflected the threats the applicant in fact encountered in Sri Lanka. The Authority relied on three matters for so finding. First, the Authority found the applicant gave his evidence at the SHEV interview in a “natural and responsive” manner. Second, the applicant did not claim in the Statement that he had been threatened in person, or by letter, or by phone, whereas at the SHEV interview the applicant gave evidence of the particular matters which he identified as threats. Third, the applicant did not repeat at the SHEV interview the threats the applicant identified in the Statement. That was a basis for inferring that the matters stated in the Statement the applicant did not repeat at the SHEV interview did not occur because, had they occurred, the applicant would have mentioned them when asked at the SHEV interview.

15. I am satisfied the Authority considered the claims the applicant made in the Statement about the threats he received. The Authority, however, did not accept the applicant’s claims as he stated them in the Statement; the Authority instead found the applicant received the threats, and only the threats the applicant identified at the SHEV Interview. It was reasonably open for the Authority to so find, and for the reasons it gave.

16. The next question is whether, given the findings the Authority made, whether it was irrational or unreasonable for it not to be satisfied the applicant is at risk of harm, now or in the reasonably foreseeable future, from paramilitary or other armed groups. That turns on the matters on which the Authority relied for not being satisfied. These are the applicant’s not having claimed he suffered any harm from any paramilitary or other armed groups, except in relation to the giving of haircuts; and the Authority’s finding there is nothing that connected the three events the applicant identified as threats at the SHEV interview with any paramilitary or other group which, in turn, led the Authority to find it was not satisfied that the three events were anything other than random acts of violence or criminality. It was not irrational or unreasonable for the Authority to rely on these matters for concluding it was not satisfied the applicant is at risk of harm, now or in the reasonably foreseeable future, from paramilitary or other armed groups.

17. New ground 2, therefore, fails.

    NEW GROUND 3

18. New ground 3 of the amended application is as follows:

    2.The IAA committed jurisdictional error when it found there is no real risk of significant harm to the Applicant or that there is not a real chance of harm to the applicant, now or in the foreseeable future, for any LTTE links or imputed political opinion, because of his support for the TNA, because he provided haircuts to the SLA and paramilitaries, as a young Tamil male barber from the east, as a returned Tamil failed asylum seeker from Australia or a combination of these.

    Particulars

    i.        Paragraph 63 [CB208];

    ii.        Particulars ii. – v. above are repeated;

    iii. These threats amount to ‘significant harm’ under the Migration Act.

    Accordingly, the IAA’s finding there is no real risk of significant harm to the Applicant or that there is not a real chance of harm to the applicant, now or in the foreseeable future, for any LTTE links or imputed political opinion, because of his support for the TNA, because he provided haircuts to the SLA and paramilitaries, as a young Tamil male barber from the east, as a returned Tamil failed asylum seeker from Australia or a combination of these, was illogical and irrational, and/or was otherwise unreasonable, such that the IAA thereby committed jurisdictional error.

19. This ground is directed to the Authority’s finding at paragraphs 58 and 63 of its reasons.

20. It is apparent from the particulars, and the applicant’s written submissions – and this was confirmed by counsel for the applicant at the hearing – that new ground 3 relies on the same matters as new ground 2 relies. New ground 3 therefore fails for the same reasons I have concluded new ground 2 fails.

    NEW GROUND 4

21. New ground 4 of the amended application is as follows (emphasis in original):

    3.The IAA erred when it misstated and/or misunderstood the material before it (paragraph 39 [CB205]), when it stated “On my findings, the applicant was never threatened in person, over the phone or by groups, except in relation to the provision of haircuts, the threats he received by way of the three events and his general fear as a result.” (block added) when the material before the IAA including at [CB61]-[62] was that he received numerous threats on a continuing basis over the period when he was performing haircuts in addition to the ‘three events’, sometimes daily [CB62] ‘by the day’, and that the Applicant’s fears were not limited to or derived from merely the three events, but resulted from verbal threats as well.

    The error was repeated when the IAA stated [CB205] “Other than the applicant’s suspicions, there is nothing to connect the three events to each other or any of them to a paramilitary group or other armed group.”

    Particulars

    i.        Paragraph 39 [CB205];

    ii.the [sic] three events referred to at paragraph 39 [CB205] were not the only bases for the Applicant’s fears;

    iii.The Applicant was threatened in addition to the three events which caused him to greatly fear for his safety.

22. In his written submissions the applicant submits the Authority misunderstood the material before it. The material the applicant submits the Authority misunderstood is the Statement. The applicant submits that in the Statement the applicant claims he received numerous threats on a continuing basis over the period when he was performing haircuts.[30]

    [30] Applicant’s Outline of Submissions, [1] under “New Ground 4”

23. As I have already held, the Authority was aware of the claims of threats the applicant made in the Statement; it found there were discrepancies between the claims of threats the applicant made in the Statement, and the evidence of threats the applicant gave at the SHEV interview, but for the reasons I have already identified, the Authority found that the threats the applicant did face were those he identified at the SHEV interview, and not those he identified in the Statement. The Authority, therefore, did not misunderstand the claims the applicant made in the Statement; it simply preferred the evidence the applicant gave about threats at the SHEV interview. For this reason, new ground 4 fails.

24. In his oral submissions, counsel for the applicant referred to the following passage from the delegate’s reasons:[31]

    He stated as soon as he opened the shop he received threats from unknown groups. He was asked the nature of [the] threats and how he received those threats. The applicant stated rocks was [sic] thrown at his house and his shop was damaged.

    [31] CB109

25. Counsel submitted this constituted a further claim to which the Authority did not refer. I do not accept that submission. The Authority identified this incident as one of the events the Authority found the applicant claimed constituted a threat.

    CONCLUSION AND DISPOSITION

26. The applicant has not succeeded on any of the grounds on which he relies. I therefore propose to order that the application be dismissed.

27. Ms Wong, who appeared for the Minister, and counsel for the applicant agreed that costs should follow the event. Ms Wong indicated that if the Minister were to succeed the Minister would ask that costs be set in the amount of $5,000. I am satisfied that is a reasonable amount for which the Minister’s costs should be set. I will also, therefore, order that the applicant pay the Minister’s costs set in the amount of $5,000.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       11 November 2020