CAY16 v Minister for Immigration
[2020] FCCA 1423
•5 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAY16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1423 |
| Catchwords: MIGRATION – Application to review decision of Immigration Assessment Authority – whether the Authority erred in failing to consider whether the Applicant would refrain from certain action due to a fear of harm – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J |
| Cases cited: AKQ16 v Minister for Immigration & Anor [2019] FCCA 90 |
| Applicant: | CAY16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2021 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 22 March 2019 |
| Date of Last Submission: | 6 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jones (direct access) |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2021 of 2016
| CAY16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Immigration Assessment Authority (the Authority) affirming a decision of a delegate of the First Respondent not to grant the Applicant a Safe Haven Enterprise visa (SHEV).
The Applicant, a Sri Lankan Tamil, arrived in Australia in August 2012. In September 2015 he lodged an application for a SHEV. In support of his application he relied on an earlier statutory declaration, dated 14 August 2013, in which he claimed to fear harm in Sri Lanka due to his ethnicity, political opinion and as a member of the particular social group of young Tamil men targeted by the Tamil Makkal Viduthalai Pulik (TMVP).
He claimed that when he was young, his brother had disappeared and was killed and that thereafter the Sri Lankan CID had regularly visited his family home and asked whether his brother had been a member of the Liberation Tigers of Tamil Eelam (the LTTE). He also claimed that on one occasion the Sri Lankan army had threatened to kill the family if they did not tell the “truth” that they were members of the LTTE who were holding weapons.
The Applicant claimed that in 2009 the TMVP had tried to recruit him. They stopped him on the road and asked him to get into their vehicle. He ran away. He claimed that they threatened his parents and sent increasingly threatening letters to his home.
He claimed that in August 2011 TMVP men captured him, took him away in a van and held him for three days. He claimed that they beat him and asked him to join them, to work for them, to support them or to give them money or else he would be killed. He claimed that one of the TMVP guards took pity on him and let him go, but that subsequently his parents received threatening letters from the TMVP. He claimed that he stayed with family members for the next three months. He then went to work with his uncle, who thought it was safe as the TMVP had not come looking for him again.
The Applicant claimed that in July 2012 he had assisted the Tamil National Alliance (TNA) in organising meeting venues and that after one of these meetings, men in a TMVP van had stopped, kicked and threatened to shoot him. According to the Applicant, after this incident the TMVP had threatened his parents that he would be killed, as they were angry that he had been working with their opponents, the TNA.
The Applicant claimed to fear that he would be targeted because he had rejected the TMVP and had been associated with the TNA. He also claimed that his family remained under the eye of the authorities because of his brother’s death and that the CID would detain him and may torture him on return to Sri Lanka.
The Applicant was invited to and attended an interview with a delegate of the First Respondent. The only evidence of what occurred in the interview are the accounts in the reasons of the delegate and the Authority.
The Applicant’s representative provided supporting documents and a written submission to the Department. The Applicant’s claim to fear harm based on past events was reiterated. The representative submitted that the Sri Lankan security forces and the TMVP had valid reasons to perceive him as an LTTE supporter based on his profile and past activities, including the fact that he had worked for a political party (the TNA) which had been an opponent of the TMVP.
The delegate refused to grant the Applicant a SHEV. The delegate accepted that the Applicant had received threatening letters from the TMVP, that he was assaulted by men associated with the TMVP in 2011 and that there was a further incident in 2012. However the delegate had regard to the Applicant’s evidence that the only work that he did for the TNA in 2012 was to organise two pre-election meetings at a local school for approximately 20-30 people. The TNA was introducing new members to their party and describing what would be developed for the Applicant’s village. He had also explained to the delegate that he became involved in the TNA because he wanted to assist a particular (named) fellow village member who was a candidate in the provincial elections. He did not know the election results.
The delegate was not satisfied that the Applicant would be harmed on account of any links to the LTTE. He accepted that the Applicant arranged two meetings for the TNA in 2012 and that this low level administrative assistance over a two month period was the only work he had done for the TNA. The delegate did not accept that the Applicant had any political profile apart from this low level administrative support for the TNA. The delegate was not satisfied that the Applicant would be targeted by paramilitary groups, such as the TMVP, or by the Sri Lankan authorities on this basis.
The delegate concluded that the Applicant would not be at risk of harm based on his Tamil ethnicity, his administrative work for the TNA or because he would be returning to Sri Lanka as a failed asylum seeker who had departed illegally.
On 31 May 2016 the matter was referred to the Authority. On 18 June 2016 the Applicant’s solicitor sent a brief submission to the Authority. It was claimed that the delegate had suggested that the Applicant’s subjective fear was credible, but had found that there was no evidence to objectively support his fear. The submission attached country information said to “evince his subjective and objective fear”.
The Decision of the Authority
On 12 July 2016 the Authority affirmed the decision not to grant the Applicant a SHEV. It had regard to the country information provided to it by the Applicant’s solicitor (which it found appeared to be extracts from a 2015 DFAT Country Information Report that was before the delegate when the decision was made).
The Authority summarised the Applicant’s claims for protection based on his Tamil ethnicity, his political opinion and as a member of a particular social group of young men targeted by the TMVP.
The Authority recorded that the Applicant claimed that the past persecution he had suffered had been perpetrated by agents of the government, that the TMVP was very powerful and carried out its activities with impunity and that he feared for his future safety “because he has rejected the TMVP and has been associated with the TNA”. He feared that he would be targeted because of his political opinion and that the CID would detain him because of the death of his brother and because he had left Sri Lanka.
The Authority accepted that the Applicant was a Hindu of Tamil ethnicity and a citizen of Sri Lanka who would be considered a failed asylum seeker who had left Sri Lanka illegally.
In considering the Applicant’s claims based on a perceived association with the LTTE, the Authority accepted that the Sri Lankan authorities suspected that his brother (who had died in 1992) had been involved with the LTTE and that for that reason the CID had visited the Applicant’s home following the brother’s death and had questioned the Applicant and his family for a number of years thereafter. However the Authority did not accept that the family had been subject to regular monitoring, that the authorities visited the home five months before the Applicant left Sri Lanka, or that the Applicant was threatened in this respect as he had claimed at the SHEV interview. It took into account DFAT advice as to the monitoring of close relatives of LTTE members and at paragraph 13 of its reasons concluded that it was:
… implausible that more than 20 years after the death of his brother the authorities would continue to regularly monitor and question the applicant without taking any further action if they genuinely suspected the applicant of any connection with the LTTE. The applicant’s evidence is that, despite this alleged attention from the authorities, he has never been detained or arrested on the basis of imputed links to the LTTE nor has any other member of his family.
The Authority found that the Applicant was not perceived by the Sri Lankan authorities as ever having been involved in Tamil separatism or as having any past involvement with the LTTE. It was not satisfied that at the time he left Sri Lanka he was subject to regular monitoring and questioning by the authorities.
Under the heading: “TMVP Harassment, support for the TNA” the Authority considered the Applicant’s claim to fear harm from the TMVP. It referred to the split in the LTTE in 2004, the formation of the Karuna group and the paramilitary and political role of the associated TMVP. The Authority outlined the Applicant’s evidence about claimed past incidents in 2009, 2011 and 2012 involving the TMVP.
The Authority had regard to country information about the TMVP’s involvement in illegal activities in the east of Sri Lanka in the years immediately following the end of the civil war, including extortion, abduction, assault and killing citizens, and to contemporaneous documents the Applicant had provided in support of his claim to have been beaten and detained, including pro forma threatening letters said to have been sent to him by the TMVP. It also had regard to some inconsistencies and contradictions in his evidence, which it outlined.
Considering the evidence as a whole, the Authority had significant concerns about the Applicant’s credibility and the reasons he said he feared harm from the TMVP. It accepted that he may have been stopped on the road by the TMVP in 2009, but did not accept that the TMVP followed him to his home or continued to try to recruit him by writing to him requesting his attendance at their office. It found that it was not credible that if the Applicant feared the TMVP on the basis that it was trying to recruit him, he would have failed to mention those claims in his SHEV interview. Instead, when asked by the delegate what had happened as the result of the TMVP’s interest in him, his evidence was that nothing had happened before the kidnapping incident of 2011. In so far as the Applicant claimed that he was “in hiding” in the family home, the Authority noted that he had completed two English courses in 2010 and did not accept this claim.
In addition, the Authority found it implausible that a group as powerful as the TMVP would send letters threatening punishment to the Applicant over an extended period of time and not follow them up, particularly as, on the Applicant’s evidence, the TMVP knew where he lived. The Authority also had regard to DFAT information as to the prevalence of document fraud in Sri Lanka and attempts by asylum seekers to use fraudulent documents. Given this and its other concerns about inconsistencies in the Applicant’s evidence, the Authority placed no weight on the letters as evidence of the TMVP’s continuing interest in the Applicant.
On the basis of the Applicant’s generally consistent account of the 2011 incident, contemporaneous medical evidence and a record of a complaint lodged with the Sri Lankan Human Rights Commission, the Authority accepted that he was beaten by the TMVP in 2011. It noted that despite the threatening letters (on which it placed no weight), the TMVP had not pursued the Applicant between 2009 and 2011 when they could have found him at his family home. It also noted that four months after this claimed incident, the Applicant’s uncle considered it safe for him to work in his shop because the TMVP had not come looking for him again. It had regard to the fact that the Applicant had worked in his uncle’s shop and at the beginning of 2012 had commenced studies in Batticaloa. These factors, together with the implausibility of the Applicant’s account of how he escaped from the TMVP, led the Authority to conclude that he was not detained by the TMVP for three days. It found that after he was beaten in 2011, the Applicant was of “no ongoing interest” to the TMVP. The Authority found that this incident was associated with the TMVP’s criminal activities and was to compel the Applicant’s support, either financially or by the Applicant working for the group. It found that the Applicant had exaggerated this claim.
The Authority accepted that the Applicant had organised two meetings for the TNA in his town in the context of the 2012 provincial elections and that he was kicked and threatened by five or six men associated with the TMVP after one of these meetings. It had regard to his detailed evidence about what had happened at the meetings and his convincing explanation for his motivation for supporting the TNA at that time (the fact that it was the first time a good Tamil candidate from his village was standing and because the TNA opposed the TMVP he thought the TNA could do something for him).
The Authority did not accept that the TMVP was interested in the Applicant in 2012 because they were angry with him over the 2011 incident. It referred to his varying accounts of the reasons why he was targeted by the TMVP and the fact that it had placed no weight on the alleged threatening letters. It had regard to a letter from a TNA member of parliament which confirmed that the Applicant had worked for the TNA and to the consistent reasons he had provided for supporting the TNA. The Authority found that the most plausible explanation for the Applicant’s encounter with the TMVP after a TNA meeting organised by him in 2012 was that it was a result of the TMVP’s attempt to disrupt meetings of its political rivals. It found that, on the Applicant’s evidence, the TMVP knew that he was helping the TNA by organising a meeting to support a local TNA candidate. The Authority found that this incident was unrelated to the 2011 incident and was associated with a campaign by the TMVP of disruption and intimidation of supporters of rival political groups, such as the TNA.
In considering the Applicant’s claim to fear future harm because of his Tamil ethnicity and imputed links to the LTTE, the Authority referred to its earlier findings and had regard to country information in relation to the current situation in Sri Lanka. It found that the evidence before it, including in relation to the role of the TNA, did not support the view that Tamils were being systematically targeted and subjected to serious harm on the basis of ethnicity alone. It concluded that the Applicant did not face a real chance of any harm from the Sri Lankan authorities on the basis of his Tamil ethnicity.
The Authority considered the Applicant’s claim to fear persecution from the TMVP on the basis of his political opinion and as a member of a particular social group of young Tamil men being targeted by the TMVP. It found that, leaving aside the fact that the posited social group appeared to be impermissibly defined by the shared characteristic of a fear of persecution, it was not satisfied that the Applicant faced a real chance of harm from the TMVP on return to Sri Lanka as a young Tamil male or because of any actual or imputed political opinion or connection.
In reaching this conclusion, the Authority referred to the fact that it had accepted the Applicant’s claim that in 2009 he was stopped on the road by the TMVP and that while it also accepted that he was assaulted by TMVP members in 2011, it had found that this incident was not related to the 2009 incident, but was because of the TMVP’s criminal activities, which included extortion.
The Authority referred to country information about the TMVP and DFAT’s assessment that the security situation in Sri Lanka had greatly improved and that the influence of the TMVP and the associated Karuna group had waned. On the basis of country information before it, the Authority was not satisfied that there was a real chance that the Applicant would face any harm from the TMVP in relation to the 2009 and 2011 events in the reasonably foreseeable future.
The Authority continued at paragraphs 50 to 52 of its reasons:
50. I have accepted that the applicant was kicked and threatened in 2012 by TMVP members in connection with his involvement with some TNA meetings. I have also accepted that his political involvement was confined to organising two meetings in his village four years ago. DFAT information is that since then, the TNA has won 16 seats in the national parliament and the TNA leader was sworn in as the Opposition Leader in September 2015. In the applicant's home district of Batticaloa, the TNA won three out of five seats in provincial elections in 2015. Country of origin information indicates that with the defeat of the Rajapaksa government in January 2015, the influence of the Karuna group of the TMVP has waned; Karuna himself declined to run in the general election for the Batticaloa district because “the political situation of the [Batticaloa] district has completely changed after the January 8 Presidential election”.
51. The applicant also provided a document after his SHEV interview. The document is dated 18 November 2015 and purports to be a police report about a violent incident at an election office allegedly perpetrated by the TMVP in December 2014. The applicant states this supports his contention that the TMVP continues to operate in the district with impunity and immunity. While I have accepted that the TMVP was previously involved in incidents of electoral disruption and intimidation, I note that this document also pre-dates the country information referred to above. For that reason I consider it has limited relevance to the political situation in Sri Lanka now.
52. It is not impossible that the applicant, if he resumes working with the TNA, might become involved in clashes during future election campaigns. However, this assumes the applicant would still support the TNA if he returns to Sri Lanka and, if so, that he might be involved in future clashes with the TMVP during an election campaign. This possibility will depend on the applicant's level of involvement and the overall electoral environment at the time. The possibility of such an eventuality is speculative. On the basis of the evidence before me, including the information relating to the changes in the political situation since the applicant's departure from Sri Lanka, I am not satisfied that the applicant will face a real chance of harm from the TMVP on return to Sri Lanka on the basis of either his Tamil ethnicity or his political opinion.
(footnotes omitted)
The Authority accepted that the Applicant had departed Sri Lanka illegally and that he would be returning as a failed asylum seeker. However it found that he would not be suspected of having an actual or imputed connection to the LTTE and that the evidence did not support that he would be viewed as having committed a serious crime (such as a terrorism offence) that would lead to harm on return, including during processing at the airport on arrival. The Authority was not satisfied that the Applicant faced a real chance of any harm on return to Sri Lanka for reasons of being a Tamil failed asylum seeker from a western country.
The Authority accepted that the Applicant would likely be charged under the Immigrants and Emigrants Act and fined for illegally departing Sri Lanka, but found that this would not amount to serious harm and would be the result of a law of general application that was neither discriminatory in its terms nor selectively enforced. Accordingly, the Authority was of the view that any punishment the Applicant faced under this law would not be persecution for the purposes of ss.5H(1) and 5J(1) of the Act. The Authority had regard to the possibility that the Applicant would be held in detention for a brief period and to the poor conditions in detention, but was not satisfied that he faced a real chance of serious harm because of his illegal departure, during the investigation process or during any brief period spent in detention.
In considering the complementary protection criterion the Authority had regard to its finding that the Applicant did not face a real chance of harm from the TMVP. On the same basis it was not satisfied that his claims in relation to the TMVP gave rise to a real risk of significant harm.
Based on its earlier findings, the Authority was also not satisfied there was a real risk that the Applicant would face any harm from the authorities that would amount to significant harm on the basis of an actual or imputed connection to the LTTE, as a Tamil or a young Tamil male.
The Authority referred to the fact that it accepted that the Applicant would be identified on return to Sri Lanka as an illegal departee and a failed asylum seeker and that there was a real risk he would be investigated and detained for several hours at the airport and potentially detained on remand for some days pending bail and a fine. However it was not satisfied that such treatment amounted to significant harm. Nor was it satisfied that there was a real risk that the Applicant would be subjected to mistreatment amounting to significant harm during any possible brief period of detention on re-entry to Sri Lanka. It found that the possible exposure of the Applicant to poor prison conditions would not be the result of an intention to inflict pain or suffering or extreme humiliation and did not otherwise meet the definition of significant harm within the Act.
The Authority affirmed the decision of the delegate not to grant the Applicant a SHEV.
These Proceedings
The Applicant sought review of the Authority’s decision by application filed in this court on 28 July 2016. At that time he was self-represented. He filed an amended application and written submissions, but subsequently obtained representation on a direct access basis. Two days before the hearing counsel for the Applicant emailed supplementary written submissions to chambers in which he sought leave to rely on a further amended application. In the absence of opposition from the First Respondent, leave was granted.
There is one ground in the further amended application. It is as follows:
The Authority made a jurisdictional error at paragraph 52 of its decision by failing to consider whether the Applicant would refrain from resuming work with the TNA due to fear of harm.
Paragraph 52 of the Authority’s decision is set out at [31] above.
The Applicant submitted that the Authority fell into jurisdictional error in that it had failed to consider whether if he returned to Sri Lanka he would refrain from resuming work with the TNA and, if so, the reasons why he would do so, in particular, whether he would refrain from doing so on account of a fear of harm and the foundation for such fear.
The Applicant referred to Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111; [2017] FCAFC 176 at [82]-[83], in particular the reference therein to the observations of McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473; [2003] HCA 71 at [43] and, to similar effect, Gummow and Hayne JJ at [82].
The Applicant submitted that in BBS16 the Full Court of the Federal Court had found that, based on the Authority’s own findings which flowed from the material before it, the Authority had to consider whether the visa applicant would not practice his faith more often or be more politically active on return to his home country because he feared the harm that would follow. The Authority’s failure to address these matters was found in BBS16 to involve jurisdictional error.
It was submitted that in this case the Authority had dismissed the eventuality of further work by the Applicant with the TNA as “speculative”, but that it had erred in not asking the question which was said to logically follow from the absence of such work: namely, whether the absence of such work or possible modification of the Applicant’s conduct would be caused or influenced by a threat or fear of harm.
The First Respondent submitted that in paragraph 52 of its reasons the Authority had engaged in its statutory task to make findings as to what might happen to the Applicant in the future and what he might do in relation to any future engagement with the TNA, having regard to the factual context which it had accepted. It was contended that the Authority had not made any assumption that the Applicant would or would not behave in a particular way in that context (see Appellant S395/2002 at [82]-[83] per Gummow and Hayne JJ).
The First Respondent acknowledged that while in this context a decision-maker was permitted to make findings about what a person will do or was likely to do or possibly might do, it could not impose a requirement as to how the person must behave in order to avoid particular persecutory treatment. However it was submitted that in its findings at paragraph 52 of its reasons the Authority had not made any such assumption or imposed any requirement on the Applicant to behave in a particular way and that it had not adopted an expectation that the Applicant would behave in a particular way to avoid feared harm.
It was pointed out that this was not a case in which there had been any past modified conduct on the part of the Applicant in the sense considered in Appellant S395/2002 and that the Authority had found that it did not know whether the Applicant would engage with the TNA in the future, so that the possibility of such an eventuality was “speculative”.
Consideration
The ground of review relates to the Applicant’s claim to fear future harm from the TMVP based on his association with the TNA. As the First Respondent submitted, it is necessary to consider the Authority’s findings in paragraph 52 of its reasons in light of the factual context in which it was considering this claim.
The impugned aspect of the Applicant’s claims to fear future harm was based on his past involvement with the TNA. It was more limited than his claim that he would be targeted because of a perception that he had imputed links to the LTTE, which the Authority rejected.
In his entry interview the Applicant had claimed that he left Sri Lanka because he was being threatened by the TMVP which needed to recruit people and to obtain financial support. In this respect he relied on his past rejection of and failure to support the TMVP. Relevantly, he also claimed that he “was doing some work for the TNA … during [the 2012] election, and TMVP didn’t like that”. The Applicant explained that his involvement with the TNA was that he had worked for the TNA during the 2012 election, in that he had arranged meetings for them in his town. He was not paid for this work. He claimed that the last time people from the TMVP saw him, they said they would shoot and kill him the next time they saw him. He suggested that “they are angry because I didn’t do what they asked me before, and I worked for TNA”.
In his statutory declaration in support of his SHEV application, the Applicant claimed that the TMVP had attempted to recruit him in 2009 and threatened and abducted him in 2011. At that time he had been asked to join and work for the TMVP, to support them in their activities or to give them money or they would kill him. The Applicant’s claim about his activities with the TNA was as follows:
There was a candidate from my village from the TNA for the 2012 elections. They asked me to give them some help organising meetings. I arranged the venues for them. One day after a meeting in July 2012 I was walking to my house. A TMVP van stopped and five people got out. And one of them came up and kicked me from behind. He told the other guys to get a gun and shoot me. I managed to get up and ran away through the cemetery. I went to my sister’s house. The TMVP went to my parent’s (sic) house and they told them whenever they saw me again, they’d kill me. They were angry I had been working with their opponents the TNA. My parents told me I needed to leave the country.
He claimed to fear the TMVP because he had rejected it and had been associated with the TNA and that he would “be targeted for [his] political opinion and as a young man targeted by the TMVP”.
According to the delegate, in the SHEV interview the Applicant claimed that he had never supported or been approached by the LTTE to support their cause, although his brother (sometimes referred to as his step-brother) had been associated with the LTTE. His claim to fear the TMVP was presented as based on his past failure to support the TMVP and his work for the TNA in 2012. He confirmed that his work for the TNA had been limited to organising two meetings at a local school for approximately 20-30 people at which the TNA introduced new members to their party and discussed what would be developed for the village.
As indicated, the Applicant also explained to the delegate that he became involved with the TNA because he wanted to assist a (named) fellow villager in the then upcoming provincial elections. He did not know the results of the election, which he believed was held in July or August 2012. He explained his lack of knowledge that the election was in fact held in September 2012 on the basis that he was not good with dates.
The Applicant had provided an untranslated letter of support from a local TNA member of parliament. A departmental officer had translated it. According to the delegate this letter merely stated that the Applicant was a worker for the TNA, that he had been threatened by the TMVP, that his father had declared that the Applicant had been kidnapped and then ran away from the TMVP and required protection, and that the TNA supported the Applicant.
In a post-interview submission to the delegate, the Applicant’s representative claimed generally that the Applicant had repeatedly refused to join or co-operate with the TMVP which increased their suspicion that he might be an LTTE supporter and that he “worked for a political party (TNA) which has been an opponent of the TMVP”. The delegate accepted that the Applicant had carried out low level administrative functions for the TNA when he arranged two meetings for them in 2012.
The submission to the Authority did not address this aspect of the Applicant’s claims.
It was in the context of these claims that the Authority accepted that the Applicant had in the past been engaged, to a degree, politically with the TNA, which was the largest or most prominent Tamil political group in Sri Lanka. It accepted (as he claimed) that he was involved in organising two TNA meetings in 2012 in connection with the provincial elections. It also accepted that he was kicked and threatened by people associated with the TMVP in connection with that involvement. However the Authority found that the Applicant’s political involvement with the TNA was confined to organising the two meetings in the village four years prior to its decision.
As discussed at paragraph 50 to 51 of its reasons, the Authority had regard to country information about clashes, including violent clashes, between political groups in Sri Lanka. It considered the Applicant’s claim to fear future harm from the TMVP, based not only on the 2012 incident, but also on his other claimed encounters with the TMVP. It also expressly considered the possibility that the Applicant may resume an association with the TNA (despite the fact that there is no evidence that he made such a claim).
The Applicant took issue with paragraph 52 of the Authority’s reasons. This paragraph amounted to a set of findings by the Authority, in light of the factual context it accepted, in relation to what the Applicant might do by way of any future involvement with the TNA. Notwithstanding the absence of any claim to that effect, the Authority accepted that it was not impossible that if the Applicant resumed working with the TNA, he might become involved in future clashes, in particular with the TMVP, during a future election campaign.
However, unremarkably, the Authority found that this assumed not only that the Applicant would still support the TNA if he returned to Sri Lanka, but also that, if so, he might be involved in future clashes with the TMVP during an election campaign. As the Authority pointed out, such a “possibility”, “will depend on the applicant’s level of involvement and the overall electoral environment at the time”.
It was in those circumstances that the Authority found that the possibility of such an eventuality was “speculative”. On this basis, on the evidence before it, including information as to changes in the political situation since the Applicant’s departure, the Authority was not satisfied he “will face a real chance of harm from the TMVP on return to Sri Lanka” on the basis of his political opinion or his Tamil ethnicity.
The passage relied on by the Applicant in the judgment of McHugh and Kirby JJ in Appellant S395/2002 at [43] is as follows:
The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
(emphasis in original)
This passage was cited at [82] in BBS16. The Federal Court found that the Authority in BBS16 should have asked why the Iranian visa applicant had not in the past practiced his religion more extensively or been more politically active and also why he would not alter his past behaviour if he returned to his home country. It found (at [82]) that:
… The IAA needed to inquire, and make relevant findings, as to whether this was because of the very harm which the IAA accepted confronted more prominent and active religious and political proponents. …
As the Federal Court also explained at [81] in BBS16, that was in circumstances where the visa applicant was a member of a minority religion which had faced “intensifying official harassment” in which he had not previously been prominent or active.
It was in this context that the Federal Court found in BBS16 that the Authority must consider whether the visa applicant would not practice his faith more often and be more politically active on return to Iran because he feared the harm that would follow in such circumstances. The Authority’s failure to do so was described as an “S359 error” as discussed in Appellant S395/2002 per Gummow and Hayne JJ at [82] (see BBS16 at [82] – [84]).
In Appellant S395/2002 at [82] Gummow and Hayne JJ stated:
Saying that an applicant for protection would live “discreetly” in the country of nationality may be an accurate general description of the way in which that person would go about his or her daily life. To say that a decision‑maker “expects” that that person will live discreetly may also be accurate if it is read as a statement of what is thought likely to happen. But to say that an applicant for protection is “expected” to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do. The Tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection. …
However this is not such a case. First, there is no evidence or suggestion that the actions of the TMVP had caused the Applicant to modify his past conduct and/or any political opinion or support for the TNA in the past such as to raise the need for the Authority to consider whether he had modified his conduct because of the threat of harm as described by McHugh and Kirby JJ in Appellant S395/2002 at [43] and BBS16 at [82]. The Authority did not make any assumption that the Applicant’s past conduct in relation to the TNA had been influenced by the conduct or fear of the TMVP or any other fear or threat of harm.
Further, this is not a case in which the Authority imposed any requirement that amounted to a statement of what the Applicant was “expected” to do, in the sense of what he “must” do in relation to any future involvement with the TNA, to avoid future harm (cf. Appellant S395/2002 at [82]).
Rather, the Authority understood that in considering whether the Applicant had a well-founded fear of future harm and what it thought likely to happen, it could, and should, make findings on the evidence before it about what the Applicant would do, or was likely to do, or might possibly do. It did not impose a requirement as to how the Applicant must behave to avoid persecutory treatment because of work for or involvement with the TNA or otherwise. In circumstances where the Applicant had had very limited involvement with the TNA organising two meetings before 2012 elections and had not claimed to have been or to be an active supporter or member, the Authority considered the future in so far as it could do so on the limited information before it.
The Authority accepted that it was not impossible that the Applicant may resume working with the TNA in the future. It accepted that the Applicant may still support the TNA in the future and that, if so, he might be involved in future clashes with the TMVP during an election campaign, depending on his level of involvement and the overall electoral environment. However, given the assumptions referred to in paragraph 52 of its reasons and the absence of evidence from the Applicant about any possible future support for or involvement with the TNA, it was reasonably open to the Authority to find that the possibility of the Applicant being involved in future clashes with the TMVP as a supporter of the TNA was “speculative”. Such an approach did not amount to a requirement or assumption that the Applicant would or must behave in a particular way because of a fear of harm or to avoid persecutory harm. It has not been established that the Authority made a jurisdictional error of the nature considered in Appellant S395/2002 or BBS16 or otherwise.
The ground of review is not made out.
Section 473GB certificate issues
In this case the Department issued a certificate under s.473GB of the Act. The Authority had not disclosed to the Applicant the notification and existence of the certificate or the document it purportedly covered or, indeed, referred to the s.473GB certificate or explained the exercise of its discretion under s.473GB(3) in its decision.
There was no ground of review in relation to the s.473GB certificate in the amended application. However, the First Respondent addressed the s.473GB certificate in pre-hearing submissions and filed an affidavit in that respect at a time when the Applicant was self-represented.
In an email to chambers the day before the hearing, counsel for the Applicant advised that he would cite AKQ16 v Minister for Immigration & Anor [2019] FCCA 90 as relevant to the evidence the First Respondent had filed in relation to the s.473GB certificate. The email explained that the Applicant would not submit that AKQ16 was “plainly wrong”, but would make a formal submission that it was wrongly decided.
There is no ground of review in the further amended application in relation to the s.473GB certificate. Nevertheless, at the hearing counsel for the Applicant accepted that AKQ16 at [44] was dispositive before this court of “any conceivable consequence” of the First Respondent’s affidavit evidence in that respect, but formally submitted that AKQ16 was wrongly decided.
Despite these submissions, I was of the view that in the absence of a relevant ground of review it was neither necessary or appropriate for the court to engage with any issue in relation to the s.473GB certificate.
However, while judgment was reserved, this matter was one of those identified by the Minister for Home Affairs as a matter which might potentially be affected by the then anticipated judgment of the High Court in BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091; [2019] HCA 34.
In those circumstances, after the High Court delivered its judgment, the parties were given the opportunity to file and serve further written submissions. The First Respondent, who took that opportunity, submitted that the High Court in BVD17 had confirmed that procedural fairness did not oblige the Authority to disclose the fact of notification under s.473GB(1)(a) to a referred applicant under Part 7AA of the Act (BVD17 at [2]). It was also submitted that although the Authority had not referred to the certificate in its reasons, that did not provide a basis for an inference that the exercise of the discretion conferred by s.473GB(3)(b) was not considered.
In the absence of any contrary submissions from the Applicant, I have proceeded on the basis that no issue is raised or maintained in this case in relation to the s.473GB certificate.
As no jurisdictional error has been established, the application must be dismissed.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 5 June 2020
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