CCJ16 v Minister for Immigration
[2020] FCCA 1717
•26 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CCJ16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1717 |
| Catchwords: MIGRATION – Application to review decision of Immigration Assessment Authority – whether the Authority misconstrued or otherwise erred in considering s.473DD of the Migration Act 1958 (Cth) – whether failure to apply the real chance test or to consider a claim. |
| Legislation: Migration Act 1958 (Cth), s.473DD |
| Cases cited: AppellantS395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 |
| Applicant: | CCJ16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2050 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 24 July 2018 |
| Date of Last Submission: | 2 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 26 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Taylor |
| Solicitors for the Applicant: | Kah Lawyers |
| Counsel for the Respondents: | Mr Kay Hoyle (post-hearing submissions only) |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 8 July 2016 into this court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2050 of 2016
| CCJ16 |
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) dated 8 July 2016 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 born in 1990, arrived in Australia in August 2012. On 22 October 2015 he lodged an application for a SHEV. In essence, he claimed to fear harm by reason of his Tamil ethnicity, imputed political opinion and perceived association with the Liberation Tigers of Tamil Eelam (LTTE) based on his connection to his cousin, who was said to be suspected of involvement with the LTTE, and also as a returned failed asylum seeker who had departed Sri Lanka illegally.
The application was refused by a delegate of the First Respondent on 19 May 2016. As the delegate’s decision was a fast-track reviewable decision, the matter was referred to the Authority for review under Part 7AA of the Migration Act 1958 (Cth) (the Act).
The Applicant’s migration agent provided a submission and what was described as “fresh” supporting evidence to the Authority on 20 June 2016, including statements from the Applicant and other people.
The Authority’s decision
The Authority made the following findings in relation to the agent’s submission and the accompanying documents:
4. On 20 June 2016, the IAA received a submission on behalf of the applicant. In part, the submission re-states aspects of the applicant’s claims and evidence and outlines the history of his application for protection which I do not consider “new information” and have had regard to it.
5. The submission also re-iterates Australian legal principals in the consideration of claims for protection and their applicability to the applicant’s matter and provides argument in respect of the delegate’s reasoning. I consider this to be legal argument rather than “information” and have had regard to it.
6. The submission further claims that “the Applicant’s involvement with the UNP should be found to be credible”. The applicant has not made any claims of involvement with the “UNP” so I consider this statement be a typographical error and have not had regard to it.
7. Attached to the submission were a number of documents including:
a. the birth certificate of the applicant’s cousin [named] and translation
b. a statement in English from “Rev. Father [named]” in relation to the applicant’s residence with him between 2008 and 2011 and the continued threats the applicant has received
c. a statement from the applicant’s father in both English and Tamil about being questioned about his son at his mother-in-law’s funeral held on 20 November 2015
d. a statement from the applicant’s uncle [named] (the father of his cousin) in relation to his son’s activities between 2008 and 2012
e. a statement from a witness [named] who attended the funeral on 20 November 2015 where the applicant’s father was allegedly interrogated
f. a copy of the register of death of the applicant’s grandmother in both English and Tamil dated 4 December 2015.
8. The above documents were not before the delegate and are “new information”. The above documents attest to events the applicant claims to have occurred between 2008 and November 2015. I have taken into account that the applicant was represented at the primary stage and the protection visa interview was held on 9 December 2015. At the conclusion of the interview the delegate advised the applicant and his representative that any further information the Department will receive before the delegate makes its decision will be taken into account. The delegate did not finalise his decision until 19 May 2016. The applicant has not provided reasons why the above documents were not and could not have been provided to the Minister before its decision or why the documents should be considered credible personal information. I am not satisfied s.473DD(b) has been met and I have not had regard to the above documents.
9. Also attached to the submission was a new statement from the applicant written in Tamil and translated to English. In part, the statement re-states the applicant’s original claims for protection in detail which I do not consider to be “new information”. The statement provides some further new detail in respect of his original claims which I consider to be “new information”. The applicant has not provided reasons why this information was not and could not have been provided to the Minister before its decision or why it should be considered credible personal information. I am not satisfied s.473DD(b) has been met and I have not had regard to the information.
As it did not have regard to any of the new information provided to it by the Applicant’s agent, the Authority considered the Applicant’s claims as contained in the information that had been referred to it by the Secretary under s.473CB of the Act.
The Authority summarised the Applicant’s claims to be an ethnic Tamil of the Catholic faith who was born and raised in a village in Batticaloa district in the eastern province of Sri Lanka. It recorded that the Applicant claimed that his (named) cousin had lived with his family and in 2001 had opened a timber shop on the family’s land. The cousin sold timber to buyers in former LTTE controlled areas. The Applicant, who claimed that he was not an informer or member of the LTTE, started to work part-time with his cousin in 2007.
The Authority recorded the Applicant’s claim that in August 2008 a number of armed men in a white van had approached the shop and asked for his cousin. The cousin was away on business. He claimed that when the men were told that the cousin was not there, they beat him, took him away in the van and held him for two days. He claimed that he was questioned about his cousin, who the men accused of being involved with the LTTE. He was released after his father paid money to the men.
The Applicant also claimed that in October 2008 a number of armed men who came to his family home searching for his cousin, mistreated and threatened him in relation to concealing information about his cousin. The Applicant claimed that he then went to live at a church for two years. He later worked for a few months in Colombo, before returning to Batticaloa in December 2011.
According to the Applicant, on or about 24 July 2012 his cousin appeared at his place of work and asked for money, which the Applicant gave him. The Applicant claimed that he then heard that armed men and the Sri Lankan army had been searching for him at his office and at his home and so he fled to stay with a friend of his uncle and then left Sri Lanka in late July 2012. His cousin has remained missing since July 2012. The Applicant claimed that while he was in hiding, his brother was arrested in Colombo by the Sri Lankan army, held in prison and released in about August 2013. He also claimed that his father was detained in a Tamil Makkal Viduthalai Pulikal (TMVP) camp for two weeks.
In addition, the Applicant claimed that men attended his grandmother’s funeral in 2015 and questioned his father about his whereabouts and that of his cousin and whether he had sent his father any parcels, USBs, CDs or emails. His uncle was interrogated at the airport.
The Applicant claimed, in essence, to fear harm on the basis of his Tamil ethnicity, his cousin’s activities, suspected LTTE links, his father’s support for the TNA and because he left Sri Lanka illegally and claimed asylum in Australia.
The Authority accepted that the Applicant was a Catholic Tamil from Batticaloa, that his cousin had lived with the family from a young age and that (as recorded in a business registration document) the cousin had opened a timber shop on the family property in approximately 2001. It accepted the Applicant’s consistent claim that his cousin sold timber to buyers from former LTTE controlled areas and would have been exposed to LTTE cadres because all goods sold in those areas had to go through the LTTE. The Authority also accepted that the Applicant started to work part-time in the timber shop in 2007 and would often travel with his cousin to former LTTE areas to deliver timber, but that he (the Applicant) was not an informer or member of the LTTE.
In considering the nature of the cousin’s claimed involvement with the LTTE, the Authority had regard to the fact that in the Applicant’s original statement of claims dated 2 August 2013 he had claimed that, as far as he knew, his cousin was not a LTTE cadre. In a supplementary statement dated 7 October 2015 the Applicant had claimed that he thought that his cousin was an LTTE sympathiser and that he suspected that he used to go to the LTTE camp to give them money and information about people who may have been helping or supporting the authorities or the army. The Authority acknowledged that in a post-interview submission provided to the delegate on 27 January 2016, the Applicant’s agent had claimed that the cousin was “likely” a member of the LTTE, sympathiser or cadre due to his rapport with LTTE cadres, his business activities in LTTE controlled areas and because he went missing in 2008 and only re-appeared in July 2012.
The Authority did not accept that the Applicant’s cousin was an LTTE member or cadre or that he was acting as an informant for the LTTE. It considered that this was speculation on the part of the Applicant and his agent. It had regard to the fact that the first time that the Applicant had claimed that his cousin was an LTTE informant was in his supplementary statement of 7 October 2015. The Authority was satisfied that the Applicant had only included this claim to further enhance his cousin’s profile. The Authority gave more weight to the Applicant’s original (2013) claim that his cousin was not an LTTE cadre. However, given the cousin’s “purported business activities in LTTE controlled areas”, the Authority was “willing to accept” that the cousin was an LTTE sympathiser.
The Authority accepted some aspects of the Applicant’s claims about his kidnapping and assault in June 2008. It accepted that a number of men approached the timber shop in June 2008, asked the Applicant for his cousin and when told the cousin was not there, beat the Applicant, blindfolded him and pushed him into their van, during which time the Applicant’s arm was broken. It accepted that the Applicant was taken away, held for two days and beaten and questioned about his cousin who the men accused of being involved with the LTTE. The Authority gave weight to the fact that the Applicant had provided a considerable level of consistent detail in respect of this event and documentary evidence (an extract from a police station information book) in relation to a statement by his father to the police about this incident. It found that as it had accepted that his cousin did business in LTTE controlled areas, it also accepted “the possibility that he would have drawn adverse attention to himself for this reason”. The Authority had regard to country information about the circumstances in Batticaloa at that time, including in relation to frequent incidents of kidnappings for ransom during the civil conflict and “disappearances” in white vans. It noted that in his arrival interview the Applicant claimed he did not know who his kidnappers were, but in his protection visa application he claimed that the men later identified themselves as members of the TMVP and in his departmental SHEV interview he had claimed that people from the TMVP had called his father and told him to give them money and then he could take his son. The Authority was willing to accept the Applicant’s claim that he was unsure of who kidnapped him, but that (consistent with his evidence and country information) he was held in a TMVP “space”.
In assessing the motives of the abductors, the Authority gave weight to the Applicant’s claim in his arrival interview of 12 January 2013 that the men who abducted him had previously come to the shop and threatened his cousin, accused the cousin of helping the LTTE and giving money to them and had demanded money from the cousin (which the cousin had provided on a number of occasions). The Authority found that the Applicant’s claim that when his cousin finally refused to give these people any more money, they threatened to beat, torture and kill him, was consistent with country information about systemic extortion of Tamils involved in business by the Karuna group. It also found that the Applicant’s claim in the SHEV interview that he “initially” thought that he was being targeted for money was consistent with comments he had made in his 2013 arrival interview.
The Authority continued at paragraph 20 of its reasons:
Country information confirms that Tamil paramilitary groups cooperated closely with Sri Lankan security forces during the war but that they also acted on their own, settling scores with the LTTE or abducting persons for ransom. In 2008 Human Rights Watch reported that in the eastern districts of Batticaloa different groups (including the Karuna Group and EPDP) engaged in abductions as a way of extorting funds to fund their forces whilst the police look the other way. Numerous cases in Batticaloa from 2005 and 2006 also point to persistent cases of the Karuna Group using white vans to abduct people. Given the above, and the applicant’s evidence that he was released after his father paid money to his abductors and that he feared that he was (and will be) targeted for money, I am satisfied that the applicant’s cousin had been previously subject to extortion by his abductors as a Tamil business owner and, when he refused to pay them more money and was not present at his shop on 22 June 2008, these armed men kidnapped the applicant for the primary purpose of seeking a ransom.
(footnotes omitted)
The Authority accepted the Applicant’s claim that his father was a Tamil National Alliance (TNA) supporter who, due to his connections, was able to secure his release after paying a sum of money to the armed men. It found that this claim was corroborated by the police report lodged by his father in which it was claimed that the abductors had demanded “ransom money”.
However the Authority did not accept the claim in the Applicant’s supplementary statement of 7 October 2015 that he suspected that part of the ransom paid to the armed men made its way to the Sri Lankan army. It was of the view that this appeared to be “mere speculation”.
Further, as the Applicant had not claimed to have been questioned by the Sri Lankan authorities, the military or the police in relation to his cousin during this time, the Authority did not accept that the armed men who kidnapped him did so as a result of direction from the Sri Lankan authorities. Rather, it was of the view that the armed men were seeking the Applicant’s cousin and had kidnapped the Applicant for “the sole purpose of extortion”. The Authority considered that if the Sri Lankan authorities had directed the kidnapping because of a genuine interest in finding the Applicant’s cousin, the Applicant would not have been released after a short period as a result of a ransom being paid. The Authority also had regard to the fact that despite the large number of arrests and detentions of people suspected of having LTTE links in the wake of the conflict in Sri Lanka, there was no information to indicate that the Applicant’s cousin had ever been detained or arrested because of suspected links to the LTTE. The Authority was not satisfied that the Sri Lankan authorities suspected the Applicant’s cousin of being a LTTE member, cadre or sympathiser.
The Authority accepted that in October 2008 a number of armed men came to the family home in search of his cousin, assaulted his mother, burnt the Applicant’s hand, struck him on the head with a gun and threatened him and his mother that if they concealed information about the cousin they would be harmed. It had regard to the consistent detail provided by the Applicant in this respect and the fact that he appeared to display genuine emotion when describing this incident in the departmental interview. The Authority accepted that the timber shop was subsequently shut down and that the cousin remained missing.
The Authority also accepted that the Applicant had lived with a priest at a particular church residence between October 2008 and September 2011. It was willing to accept that armed men had approached the Applicant’s family on two more occasions in 2008/2009 shortly after he moved to live at the church. However it did not accept the Applicant’s claim that armed men had approached the priest or bishop or they had searched for him several times at the church. The Authority found that the Applicant had given inconsistent evidence in relation to how many times the armed men came searching for him during this time and also as to whether they came to the church as well as to his family home. It observed that prior to the SHEV interview the Applicant had not claimed that the armed men had approached the priest and bishop. It had regard to the fact that none of the letters of support from priests provided to the Department had referred to the authors having been approached directly by armed men in relation to the Applicant. The Authority considered that this aspect of the Applicant’s claims was exaggerated. It also did not consider it credible that the armed men would seek out the Applicant in 2011, after not taking any interest in him for two years.
The Authority accepted that the Applicant moved to Colombo and worked there for approximately three months from September to December 2011. It was of the view that he had moved as the result of a job offer organised by the priest (as he had told the delegate and confirmed in post-interview submissions), not because his mother had revealed his whereabouts and he feared for his life.
Having regard to country information about registration requirements for Tamils, the Authority accepted that the police visited the Applicant in Colombo, questioned him about his work and required him to report to their office. It did not accept that the police took an interest in the Applicant because they were still looking for his cousin and watching the Applicant’s movements, having regard to the fact that, on his evidence, the police only questioned him as part of the Tamil registration process and he had not claimed that they questioned him about his cousin.
The Applicant claimed he returned to Batticaloa in December 2011. The Authority addressed his claim that in 2012 his cousin visited his workplace asking for cash for an urgent matter. It found that the Applicant’s version of events (including whether this occurred in May or July 2012 and when and where his father was later detained) had changed considerably since his original 2013 statement of claims. The Authority also had regard to the fact that the Applicant had not raised the claimed visit by his cousin (and the subsequent abduction and detention of his father) during his two arrival interviews. While it accepted that arrival interviews were not for the purpose of assessing an applicant’s claims for protection and were conducted in a short period of time, the Authority observed that the Applicant had been able to give considerable detail of his 2008 kidnapping during his arrival interviews. However, in his application for protection he had claimed that it was the events of July 2012 that led him to leave Sri Lanka. The Authority was of the view that if the events of 2012 had actually occurred, the Applicant would have raised this in his arrival interview of 12 January 2013 when asked by the departmental officer why he left Sri Lanka.
The Authority considered the agent’s submission (in explanation for inconsistencies) that the Applicant had trouble remembering dates and numbers due to trauma and had reported severe memory issues to a psychologist, but was of the view that during his SHEV interview the Applicant had been able to recall events of 2008 in relatively consistent detail.
The Authority observed that even if it were to accept that the Applicant’s cousin had visited his workplace in July 2012, it was “unclear” why the armed men would not have detained the cousin directly “had they been aware of his whereabouts”. It did not consider plausible the Applicant’s suggestion that possibly an informer in his office who was aware of the fact that the cousin was of interest to the Sri Lankan army or paramilitary groups had told the armed men of the visit.
The Authority also noted that while the Applicant had provided a number of supporting letters to the Department in relation to the events in 2008, none of those letters referred to the 2012 incident. It did not accept the agent’s “speculation” in the post-interview submission that this was because the authors were not aware of the incident, were too frightened to mention it or thought that it was not as important.
While the Authority accepted that country information indicated that Tamil paramilitary groups were still operating in Sri Lanka in 2012 and were still reportedly engaged in abductions and extortions, it found that the Applicant’s cousin was “only of former interest to possible paramilitary groups for the purpose of extortion as a result of his former business activities before the end of the civil war”. It was of the view that as the cousin’s business had shut down in 2008 and it had found that he was not suspected of being a member or cadre of the LTTE, there appeared to be no reason for Tamil paramilitary groups or the Sri Lankan authorities to have a continued interest in his whereabouts in 2012. It also took into account the fact that the Applicant did not claim that he was questioned or harassed in relation to his cousin by the police in Colombo or that he was harassed by the Sri Lankan authorities, armed men or Tamil paramilitary groups at his family home from December 2011 to July 2012.
The Authority did not accept the Applicant’s claim that his cousin visited him on 24 July 2012 at his workplace and that armed men and the Sri Lankan army subsequently searched the workplace and the family home in search of the cousin.
The Applicant claimed that when he was in hiding (in July 2012) his brother was arrested by the Sri Lankan army, tortured and imprisoned until August 2013. He also claimed that when the armed men and the army could not find him, they detained his father in a TMVP camp for two weeks. The Authority considered his claimed belief that his father and brother had been targeted by the authorities because of his cousin, who was accused of being an LTTE member, and because the Applicant had disappeared. However the Authority had regard to the lack of detailed evidence in relation to the detention of the Applicant’s father and brother. It was of the view that, given the significance and relevance of these arrests in relation to the Applicant’s claims and the fact that he had remained in contact with his family, it was reasonable to expect that he would have been able to provide more information in that regard. It noted that the Applicant had claimed that his father had sent him supporting letters and documents in respect of his kidnapping in 2008, but had provided no information, or even a statement, in relation to his own detention or that of the Applicant’s brother.
Given these concerns and the Authority’s finding that “armed men” and the Sri Lankan army did not search for the Applicant and his cousin in 2012 and did not suspect his cousin of being an LTTE member or cadre, the Authority did not consider it credible that the Applicant’s father and brother were detained because of the cousin or because the Applicant had disappeared.
The Authority addressed (on the material referred to it under s.473CB of the Act) the Applicant’s claims to the delegate that at the 2015 funeral of his grandmother (who he claimed had died two weeks before the protection visa interview), his father had been asked by several people about his whereabouts and that of his cousin and also whether he had sent his father any parcels, CDs, USBs or emails. He also claimed that his maternal uncle had been interviewed at the airport about his whereabouts and that of his cousin.
The Authority acknowledged that DFAT had reported that the Sri Lankan authorities remained sensitive to the potential re-emergence of the LTTE and maintained sophisticated intelligence on former LTTE members and supporters and that paramilitary groups such as the TMVP continued to be active. However it had regard to the fact that there was no information (in the referred material before it) to indicate who the “people” at the funeral were who supposedly asked questions, how they knew the Applicant was in Australia, and, if so, why they expected him to return to Sri Lanka for his grandmother’s funeral. It also took into account the absence of any explanation of the relevance of whether he had sent his father any parcels, USBs, CDs or emails. The Authority was of the view that if the Applicant and his cousin were of continued interest, the Sri Lankan authorities or Tamil paramilitary groups/armed men would not have waited three years after the alleged incidents of 2012 to question the Applicant’s family about his whereabouts and that of his cousin.
As it had not accepted the Applicant’s claims that his father and brother were detained in 2012, the Authority found that there was no information before it that the Applicant’s family had been questioned about the Applicant or his cousin since 2008/2009. Further, as it did not accept that the Applicant or his cousin were of continued interest to the Sri Lankan authorities or to Tamil paramilitary groups, the Authority did not accept as credible the Applicant’s claim that his family was questioned about his whereabouts at his grandmother’s funeral in 2015.
The Authority considered the Applicant’s claimed fear of harm due to his Tamil ethnicity or as a young male Tamil from Batticaloa. It had regard to country information, the fact that the Applicant had not claimed to have suffered past harm for either reason and the fact that he had been able to complete his education and secure work. The Authority accepted that the Applicant was questioned by police while living in Colombo in 2011 and that country information suggested that such practice applied only to Tamils. However it also found that country information confirmed that there had been an overall decrease in monitoring since 2015. In light of its rejection of the Applicant’s claims that he had been sought by “armed men” since 2008/2009 and its finding that he was never of interest to the Sri Lankan authorities, the Authority did not consider that the Applicant had a profile that would be of interest to the Sri Lankan authorities or to Tamil paramilitary groups in his area if he were to return to Sri Lanka. It was not satisfied that he would face a real chance of serious harm from Tamil paramilitary groups, the CID, the Sri Lankan army or other Sri Lankan authorities on the basis of his Tamil ethnicity or because he was a young Tamil male from Batticaloa.
The Authority addressed the Applicant’s claim that he was at risk of being harmed and possibly killed by members of Tamil paramilitary groups and the Sri Lankan authorities because he was closely connected to his cousin who was suspected of being a LTTE member and because he was aware of his cousin’s business activities in former LTTE controlled areas. The Authority had regard to the fact that it had found that the Applicant’s cousin and the Applicant were previously “being targeted by armed men for the primary purpose of extortion due to the cousin’s former business” and that they had not been further targeted by any group since 2008/2009. It was not satisfied that the Applicant faced a real chance of serious harm from armed groups/Tamil paramilitary groups because his cousin was extorted in the past and the Applicant was kidnapped and released for ransom by armed men, or due to his knowledge of his cousin’s former business activities.
The Authority accepted that the Applicant was questioned by police when he moved to Colombo, but not that the police took an interest in him because they were still looking for his cousin. It had regard to his evidence that he was only questioned about his work and not about his cousin and that there was no further questioning, mistreatment or detention by the police or other authorities after that occasion.
Having regard to country information, the Applicant’s ability to apply for a driver’s licence and the fact he had worked openly, had been questioned by the police in Colombo without consequence and the Authority’s view that he had never been questioned by the police or army about his cousin and that his family had never been questioned by the authorities about him or his cousin, it concluded that the Applicant was of no interest to the Sri Lankan authorities as a result of his cousin’s former business activities.
For these reasons, the Authority was not satisfied that the Applicant faced a real chance of serious harm from the authorities or armed men/Tamil paramilitary groups:
… because of his knowledge of his cousin’s former business activities in former LTTE-controlled areas or because his cousin was formerly extorted by armed men for this reason or because the applicant was previously captured by armed men and released for ransom in 2008.
While the Applicant had not particularised a claim to fear harm as a result of his father’s support for the TNA, the Authority considered this issue. It had regard to country information about the TNA’s political position and the fact that a letter of support which claimed that the Applicant was targeted because he was a supporter and had a leadership role in the TNA was inconsistent with his evidence. The Authority gave no weight to the letter of support. It was not satisfied that low-level supporters of the TNA in Batticaloa or their family members had been targeted by the Sri Lankan authorities or Tamil paramilitary groups. The Authority was not satisfied that the Applicant faced a real chance of serious harm on return to Sri Lanka because of his father’s support for the TNA or because he had assisted his father to organise meetings for the TNA.
The Authority addressed the Applicant’s claim to fear “being arrested at the airport as he left Sri Lanka illegally and claimed asylum in Australia and because he left Sri Lanka by disappearing when he was being targeted by the army and the TMVP”. It accepted that the Applicant had departed Sri Lanka illegally, that he would return to Sri Lanka as a failed asylum seeker and that he would be identified as such by the Sri Lankan authorities. It considered, in some detail, country information in relation to the treatment of returned asylum seekers (particularly Tamils), including those with actual or perceived links to the LTTE.
It continued:
66. In 2012, UNHCR claimed that some sources have reported cases of former Sri Lankan (in particular Tamil) asylum-seekers who were allegedly detained and ill-treated or tortured after having been forcibly returned to Sri Lanka upon rejection of their asylum claims or who voluntarily returned to Sri Lanka. In the same period a number of non-government organisations claimed that some failed Tamil asylum seekers from the United Kingdom and other countries have been subjected to arbitrary arrest and torture upon their return to Sri Lanka due to actual or perceived links to the LTTE or due to their political activities abroad. Human Rights Watch further claimed that the Sri Lankan security forces have long used torture against people deemed to be linked to the LTTE, and growing evidence indicates that Tamils who have been politically active abroad in peaceful opposition to the government may be subject to torture and other ill-treatment. More recent reports of Tamil returnees who have been detained on arrival had actual or perceived links to the LTTE. I am not satisfied that the applicant fits within these profiles as he has no actual or perceived links to the LTTE and the men who kidnapped him have shown no further interest in him since 2008/2009. As I have not accepted that the applicant was being sought by the TMVP (or other Tamil paramilitary groups) or the Sri Lankan army when he departed Sri Lanka, I am not satisfied that he will be arrested on return at the Sri Lankan airport or in his home area on this basis.
67. In its December 2015 report, DFAT noted that returnees are treated according to standard procedures regardless of their ethnicity and religion. For this reason I am not satisfied the applicant will be deemed to be viewed as a LTTE member/sympathiser for having sought asylum abroad or as a result of his Tamil ethnicity.
(footnotes omitted)
Having regard to country information, the Authority accepted that there was a real chance the Applicant would be questioned by the Sri Lankan authorities on return and charged with an offence under the Immigrants and Emigrants Act 1949 (I&E Act) for departing Sri Lanka illegally. It was of the view that if he pleaded guilty he would be fined and then released. It did not accept that such questioning or the imposition of a fine would amount to serious harm. The Authority accepted that if the Applicant pleaded not guilty he may be granted bail, but may need to wait for a family member to come to court to collect him. It observed that the Applicant had provided evidence that the majority of his family members remained in Batticaloa and that there was no evidence to indicate that a family member would be unable to collect the Applicant from court if required.
The Authority accepted in this context that there was a possibility that the Applicant may be held by police at the airport and that, if a magistrate was not immediately available, he could be held on remand at a nearby prison for several days. It gave weight to DFAT’s assessment that returnees were not subject to mistreatment during processing at the airport and that the risk of torture or mistreatment for the majority of returnees was low, including for those suspected of an offence under the I&E Act. The Authority accepted that returnees with suspected or actual links to the LTTE or who had been politically active overseas were more at risk of mistreatment, but found that the Applicant did not have this profile. It was not satisfied that the Applicant would face a real chance of serious harm while being detained and questioned by the authorities upon return to Sri Lanka.
The Authority considered whether being detained for several days in a Sri Lankan prison amounted to persecution. It acknowledged that there was country information about overcrowded and unsanitary prison conditions, but found that if the Applicant was detained for a few days, this would be for a brief period and that such detention would not rise to the level of serious harm within s.5J(5) of the Act. Nor did it accept that being questioned, fined and detained for a short period cumulatively rose to the level of serious harm. The Authority also found that the I&E Act was a law of general application to Sri Lankans who had departed unlawfully and that there was no evidence that it was applied or enforced in a discriminatory manner. The Authority was not satisfied that the loss of liberty the Applicant may endure for a few days on return to Sri Lanka amounted to persecution within s.5J(4) of the Act.
The Authority stated at paragraph 74:
I have also considered the applicant’s claim cumulatively in respect of his profile of a young Tamil male from Batticaloa, who had been previously kidnapped for ransom by armed men and further assaulted in 2008, cousin had been conducting business in former-LTTE controlled areas prior to the end of the war and was previously the subject of extortion, that his father is a TNA supporter and that he had left Sri Lankan illegally and will be returning as a failed asylum seeker. Assessing his claims cumulatively I find they do not give rise to a real chance of serious harm.
In considering the complementary protection criterion the Authority had regard to its previous findings. It found at paragraph 78:
I do not accept that the applicant will face a real risk of significant harm on the basis of his Tamil ethnicity, or because he originates from Batticaloa or for his cousin’s former business activities in former LTTE controlled areas prior to the end of the war, or because he as previously kidnapped for ransom by armed men and released in 2008, or for being a young male Tamil or for his father’s support of the TNA. As noted above, I have not accepted that paramilitary groups have shown any further interest in the applicant or his cousin since 2008/2009 and I am not satisfied the applicant or his cousin were of any interest to the Sri Lankan authorities. I, therefore, find that the applicant does not have a current profile of someone that Tamil paramilitary groups or the Sri Lankan authorities would take an interest in regarding any potential former connection to the LTTE due to his cousin’s previous business activities.
Based on the country information cited and the “particular circumstances” of the Applicant, the Authority did not accept that he would face a real risk of significant harm on the basis of being a failed asylum seeker or because of his illegal departure from Sri Lanka. It accepted that there was a real risk that the Applicant would be questioned by the Sri Lankan authorities at the airport and may be charged for illegal departure and that if he pleaded guilty he would be likely to be fined. However it did accept that being questioned and fined rose to the level of significant harm.
Having regard to the fact that it had accepted that there was a “real chance” that the Applicant may be detained for up to several days in prison on the basis of being charged for illegal departure, the Authority accepted that there was a “real risk” in this respect. The Authority acknowledged that, in general, Sri Lankan prison conditions did not meet international standards, but in assessing whether the potential period of stay in such conditions amounted to significant harm it took into account the “particular circumstances” of the Applicant and the fact that relevant definitions of conduct amounting to significant harm in s.5(1) of the Act required an element of intention. It found that the poor conditions in Sri Lankan prisons were not a consequence of the authorities’ deliberate attempt to inflict suffering on the prison population, but were a result of a lack of space and resources. The Authority was not satisfied that if the Applicant were to spend several days in a Sri Lankan prison on return, this would amount to significant harm.
The Authority concluded at paragraph 84:
I have considered the applicant’s claims cumulatively and I do not find that he will face a real risk of significant harm. I have taken into account his Tamil ethnicity and young age, that he originates from Batticaloa, his cousin’s past business activities in former LTTE-controlled areas, that this cousin was subject to extortion, that the applicant was kidnapped and released for ransom by armed men and subsequently assaulted in 2008, that his father is a TNA supporter and that he departed Sri Lanka illegally and will be returning as a failed asylum seeker. Assessing his claims cumulatively I find they do not give rise to a real risk of significant harm.
The Authority affirmed the decision of the delegate of the First Respondent.
The review application
The Applicant sought review by application filed in this court on 1 August 2016. He now relies on a third amended application which is referred to for convenience as the application. There are three grounds in the application. The first two grounds relate to the Authority’s consideration of the Applicant’s extortion-related claims. There is a significant degree of overlap between various aspects of grounds 1 and 2. This was reflected in the Applicant’s submissions. It is convenient to consider ground 3 first.
Section 473DD issues
Ground 3 in the application is as follows:
3. The IAA committed jurisdictional error in failing to consider a relevant consideration, and/or constructively failing to exercise its jurisdiction, when it:
a. failed to consider and apply s 473DD(a);
b. misconstrued s 473DD(b) and thereby failed to consider and apply s 473DD(b)(ii);
c. incorrectly found that the applicant had not provided reasons with respect to s 473DD; and
d. incorrectly failed to consider the new information provided by the applicant.
Particulars
a. The applicant’s submissions to the IAA, read as a whole, provide reasons for:
i. the late provision of the “new information” (including Court Book (CB) 737, second paragraph; CB 739 at [8]);
ii. the credibility of the “new information” (including CB 740, second last paragraph; CB 741, last paragraph); and
iii. the importance of the “new information” to the applicant’s claims (including CB 738 final paragraph; CB 739 [8]).
b. The IAA referred only to s 473DD(b) in its reasons (at [8]-[9]).
c. The IAA, in substance, considered only s 473DD(b)(i).
In oral submissions, counsel for the Applicant advised that paragraph (a) of ground 3 (the allegation that the Authority failed to consider and apply s.473DD(a) of the Act) was not pressed. Nor does this ground involve any contention that the Authority erred in its consideration of s.473DD(b)(i) of the Act. The asserted error is said to relate to the Authority’s consideration and application of s.473DD(b)(ii) of the Act.
Section 473DD is as follows:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
As counsel for the Applicant did not receive the First Respondent’s written submissions until the day before the hearing, the parties were given (and took) the opportunity to make post-hearing submissions. The parties also provided further submissions addressing Federal Court decisions of relevance in relation to s.473DD(b)(ii) of the Act. I have taken all the submissions into account.
The Applicant acknowledged that the requirements of s.473DD(a) and s.473DD(b) were cumulative, but may overlap. It was pointed out that only one of subparagraphs (i) and (ii) in s.473DD(b) had to be satisfied. The Applicant submitted that while subparagraph (b)(i) required a factual inquiry as to whether previously unknown information could have been provided to the Minister before the departmental decision, subparagraph (b)(ii) required “an evaluation of the significance of the new information in the context of an applicant’s claims more generally” (see BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221; [2017] FCA 958 at [50]-[51] and [57]-[58]).
The Applicant referred to the fact that in addition to his submission to the Authority, he had provided various items of new information, including a statement sworn by him on 18 June 2016 in which he claimed that the Intelligence Unit of Sri Lanka had been informed that he was communicating with his cousin; that his cousin had given others information about the genocide at the end of the war; that he (the Applicant) had communicated such information to his family members; and that the Army Intelligence Unit and the police were kidnapping and arresting people in the eastern province of Sri Lanka who had connections with the LTTE or who were giving others information about the genocide. It was also pointed out that the Applicant gave the Authority a copy of his cousin’s birth certificate, a record of his grandmother’s death and various statements in support of his claims, including in relation to what occurred during his residence at the church, the appearance of his cousin to ask for money in 2012 and the claimed questioning of family members at his grandmother’s 2015 funeral.
Counsel for the Applicant noted that the documents provided to the Authority included originals and translations of official documentation such as a birth certificate and extract from the death register, notarised statements and a letter from a priest. It was submitted that on their face these documents appeared to have been obtained through the assistance of legal representatives in Australia and to have been translated by official translators. They were all said to be indicia of credibility. The Applicant submitted that this material potentially corroborated his claims in relation to matters such as his kidnapping, his residence at a church and events that had occurred at his grandmother’s funeral and were capable of being accepted by the Authority as truthful.
The Applicant contended that, as Bromberg J found in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41], the bar for meeting the “credible personal information” test in s.473DD(b)(ii) was not high and all that the “credible” element required was “the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine)”.
In post-hearing submissions the Applicant pointed out that Bromberg J’s approach in CSR16 at [41] to the meaning of “credible” had been cited with apparent approval by the Full Court of the Federal Court in Minister for Immigration and Border Protectionv CLV16 (2018) 260 FCR 482; [2018] FCAFC 80 at [17]. The Applicant also referred to several other decisions which had considered the construction of s.473DD(b) of the Act, including CMY17 v Minister for Immigration and Border Protection [2018] FCA 1333; AYK17 v Minister for Immigration and Border Protection [2019] FCA 1053 and EPT17 v Minister for Home Affairs [2019] FCA 570. In particular AYK17, in which Farrell J referred (at [38]) with apparent approval to the remarks of Bromberg J in CSR16 at [41]-[42], was said to support the Applicant’s contention.
The Applicant submitted that it appeared that the Authority had considered that the new information accompanying the submission to it may be “relevant” within s.473DC(1)(b) of the Act. The Authority had observed that the information attested to events the Applicant claimed had occurred between 2008 and November 2015 and had found that the supporting documents and part of the Applicant’s statement constituted “new information”.
However, it was submitted that while the Authority’s reasons (in particular at paragraphs 8 and 9 which are set out at [5] above) appeared to be an attempt to consider both s.473DD(b)(i) and (ii), in substance it had considered only s.473DD(b)(i) of the Act.
The Applicant contended that the Authority had not engaged in any “evaluation” of the material annexed to his submission and, in particular, had not given reasons why the new information should not be considered “credible personal information”. Rather, its conclusion in respect of s.473DD(b)(ii) was said to be premised entirely on its view that the Applicant had not provided reasons why this information should be considered “credible personal information”.
It was submitted that the Authority had incorrectly proceeded on the basis that the Applicant had not provided reasons with respect to s.473DD(b)(ii). The Applicant pointed out that his submission to the Authority had set out the identity of the persons who provided the various items of new information and the nature of that information. The submission had also explained that documents and translations had only recently arrived from Sri Lanka (in other words, that they were not previously in the Applicant’s possession). In addition, the submission had claimed that it had taken “much effort and pains” to obtain crucial supporting new evidence from the priest to “prove” the Applicant’s claim that he had lived under the protection of the church. The Applicant also drew the court’s attention to the claim in the submission to the Authority that he had provided strong, credible evidence of his claims that was supported by sworn documents and reports. Counsel for the Applicant submitted that these aspects of the Applicant’s submission to the Authority provided some reasons why the new information should be considered to meet the s.473DD(b)(ii) precondition (including the requirement that it be considered “credible” personal information).
In any event, it was contended that it was not mandatory for an applicant to provide reasons to satisfy s.473DD(b), as this may be apparent from the new information itself (see Mortimer J in AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [30]-[31]).
The Applicant submitted that in this case the potential importance of the new information to the Authority’s credibility findings was apparent from the information itself, so that even if there had been no explanation or reason given for why the information should be considered credible personal information, this should not have been treated as determinative. It was also contended that it was only if the Authority was satisfied that the information was “evidently not credible” that it would fail to meet the credibility requirement in s.473DD(b)(ii) (see CSR16 at [42]).
While the Applicant accepted that the Authority did not have to give a comprehensive account of its assessment for the purposes of s.473DD of the Act, it was submitted that in this case it had embarked on the exercise of considering s.473DD(b) and that such consideration “must proceed by reference to correct legal principles, correctly applied” (as observed in Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319; [2010] HCA 41 at [78]). However it was contended that in its consideration of s.473DD(b)(ii), the Authority had misapplied the statute.
The Applicant contended that the Authority had misconceived what the exercise of its statutory power entailed in considering whether it was satisfied that the new information was credible personal information within s.473DD(b)(ii) of the Act and hence had failed to determine, on a proper understanding of the meaning and the scope of s.473DD of the Act, whether it should consider any of the new information provided to it.
This failure was also said to have been likely to have given rise to additional and related errors to the extent that the Authority failed to take into account material that was relevant to the Applicant’s protection claims.
The Applicant disputed the First Respondent’s proposition that it was “evident” that the Authority had considered the new information provided to it was not credible. It was submitted that the Authority had not evaluated the credibility of the new information at all.
The Applicant also disputed the propositions that the new information did not materially add to the Applicant’s claims, could not have affected consideration of his case and that any error in relation to s.473DD(b)(ii) was not material. It was submitted that as cogent information with a logical bearing on the Applicant’s claims and credibility, the new information had the clear potential to support the truthfulness of aspects of his claims and thus affect the consideration of his claims within s.473DD(b)(ii). In particular, it was submitted that the new information about events of 2015 was not too vague or insufficiently cogent to be rationally probative (see CQW17 at [52]-[54]) and that on its face it had a logical bearing on both the claims of a continued threat of harm as well as on the Applicant’s credibility generally.
The Applicant submitted that the Authority’s misconstruction of the Act deprived him of the “possibility” of a successful outcome and that the error could not be described as so insignificant that it could not have materially affected the decision in the sense considered in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34.
It was contended that where, as here, credibility findings played a role, it was impossible to exclude as a matter of logic the possibility that the new information could have affected the Authority’s decision (and see Lu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 141 FCR 346; [2004] FCAFC 340 at [6]).
In post-hearing submissions the Applicant also responded to an assertion in the First Respondent’s submissions with respect to the Federal Court’s interpretation of “credible” in CSR16 at [41]. The First Respondent had disclosed that it had filed a notice of contention in an appeal from a decision of Judge Smith in DLB17 v Minister for Immigration & Anor [2018] FCCA 1299 and had suggested this may affect the position in relation to the meaning of “credible” in s.473DD(b)(ii). In DLB17 at [41] Judge Smith had followed the approach taken in CSR16 to the meaning of “credible” in s.473DD(b)(ii), observing that this meant that “in assessing the threshold issue in sub-s.473DD(b)(ii), the Authority is not to determine whether it believes the new information. The question is posed at a much lower threshold”. The Applicant also pointed out that CSR16 had been cited with apparent approval in the Federal Court, including in CLV16.
I note that in a subsequent submission the First Respondent advised that the appeal from DLB17 was dismissed (see DLB17 v Minister for Home Affairs [2018] FCAFC 230). The Full Court recorded that it was not asked to address the notice of contention (see DLB17 (Federal Court) at [26]).
The First Respondent submitted that, contrary to the Applicant’s submission, the explanation offered in the submission to the Authority related not to why the documents were not and could not have been provided to the delegate before its decision, but only to the fact that the submission itself was outside the 21 day period allowed for in the Practice Direction. Accordingly it was submitted that to the extent that ground 3 involved a contention that the Authority had failed to consider an explanation provided by the Applicant as to why the s.473DD(b)(i) requirements were met, it must fail.
The First Respondent also contended that the submission to the Authority was devoid of any attempt to directly address s.473DD and that it required a fair degree of creative reading to suggest that the Applicant’s submission was addressing the statutory requirements in s.473DD(b)(ii) of the Act. On this basis it was submitted that to the extent that this ground contended that the Authority had failed to consider the Applicant’s explanation as to why the s.473DD(b)(ii) requirements were met, it must also fail.
The First Respondent accepted that the court was bound by the Federal Court’s interpretation of “credible” in CSR16 at [41] as meaning “open to be or capable of being accepted by the Authority as truthful”, but formally submitted that CSR16 was wrongly decided.
In addition to drawing the court’s attention to the fact that the correctness of the approach taken in CSR16 had been raised in a notice of contention on appeal from DLB17, as discussed below it was subsequently suggested by the First Respondent that the correctness of CSR16 would be the subject of argument in the Full Court of the Federal Court on appeal from BDY18 v Minister for Home Affairs & Anor [2019] FCCA 195.
In any event, the First Respondent submitted that on the approach to “credible” taken in CSR16, the error identified by Bromberg J at [41] would not arise if it was evident that the Authority had considered the material not to be credible in the sense of open to be or capable of being accepted by the Authority as truthful. It was suggested that in this instance it was apparent that the Authority was of this view.
The First Respondent pointed out that s.473EA did not require the Authority to give a comprehensive account of its assessment for the purposes of s.473DD (see BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [38]-[52] and CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 at [26]-[30]). It was observed that, as the High Court explained in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50 at [25], where a decision-maker is not obliged to give reasons for a decision, “it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said” (emphasis in original).
The First Respondent submitted that while in paragraphs 8 and 9 of its reasons the Authority had not provided any express reasons for finding the information in question was not credible personal information (apart from the view that the Applicant had not provided reasons why it should be so considered), it was open to the Authority to conclude (as it was said to have done) that the new information was not “credible” as defined in CSR16.
The First Respondent observed that the Applicant’s case had been rejected on the basis of the Authority’s concerns about his inconsistent evidence in relation to a range of matters, including events in 2012 and exaggeration of aspects of his claims. It was contended that it was open to the Authority to find that the provision of “some further new detail” in relation to the Applicant’s claims was not “credible” in light of the fact that the Applicant could have provided such information at another time. It was also suggested that it could be inferred, in light of the nature of the material it had considered, that the Authority had concluded that the new information could not have made a difference to the decision.
The First Respondent pointed out that it had not been suggested in CSR16 that the Authority could not consider matters other than the information itself in making the requisite assessment. It was also submitted that any notion that the court should assess whether the information was “credible” and on that basis conclude that the failure of the Authority to be so satisfied involved jurisdictional error should be rejected. Whether new information was “credible” within s.473DD(b)(ii) was said to be a matter which called for an evaluative judgement which was for the Authority to make.
In any event, the First Respondent submitted that even if the court accepted that the Authority had erred in its construction, consideration or application of s.473DD(b)(ii) of the Act it was necessary to consider what could have occurred had the Authority not made such an error. It was submitted that the Applicant had not demonstrated that, if the Authority had “turned its mind” to the matters in s.473DD, a possible conclusion could have been that the documents or information in question met the other requirements in s.473DD(b)(ii), in particular that had the new information been known, it may have affected consideration of the Applicant’s claims.
It was further submitted that even if the preconditions in s.473DD(b)(ii) may have been met, the nature of the new information was such that it could not realistically have made any difference to the outcome of the decision so that any legal error would not be jurisdictional (see Hossain at [30] per Kiefel CJ, Gageler and Keane JJ and at [72] per Edelman J; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45] per Bell, Gageler and Keane JJ; and EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 299; [2019] FCAFC 20).
The First Respondent pointed out that materiality was a question of fact in respect of which the onus was on the Applicant (SZMTA at [46]). It was submitted that speculation as to how information “may” have affected the consideration of the Applicant’s claims was not enough to discharge the onus on the Applicant to demonstrate materiality and that what must be shown was whether the decision “could realistically have been different” (see Minister for Immigration and Border Protection v CPA16 (2019) 268 FCR 379; [2019] FCAFC 40 at [32]).
Consideration
Paragraphs 7 to 9 of the Authority’s decision, the subject of this ground, are set out at [5] above.
First, I note that as the Applicant did not press paragraph 3(a) of this ground or plead any issue in relation to the Authority’s approach to s.473DD(a) of the Act, it is unnecessary to consider the relevance of s.473DD(b) factors to the issue of whether there are exceptional circumstances justifying consideration of new information within s.473DD(a). Nor did this ground suggest jurisdictional error in relation to s.473DD(b)(i) of the Act (although it is understandable that the First Respondent initially addressed that possibility). The Applicant did not maintain any contention that the Authority fell into jurisdictional error in failing to consider an explanation for why the subparagraph b(i) precondition was not met. Further, in so far as the Applicant’s submission appeared to suggest that the Authority’s approach to s.473DD involved a lack of procedural fairness which amounted to a jurisdictional error, such a contention was not pleaded and was not developed in any way. I have not considered it further.
However that leaves the essence of the Applicant’s argument concerning the correctness and adequacy of the Authority’s construction, consideration and application of s.473DD(b)(ii) of the Act, in particular, its approach to the issue of whether the new information provided to it was “credible personal information”.
The Applicant’s argument was not confined to a contention that the Authority had failed to consider “reasons” provided by him as to why the new information should be considered credible personal information. Rather, the Applicant submitted that in considering only what it saw as his failure to provide reasons why the new information should be considered credible personal information, the Authority had failed to evaluate the significance of the new information in the context of his claims more generally and to consider whether that information was open to be or capable of being accepted as truthful or accurate or genuine in the sense referred to in CSR16 at [41], CLV16 at [17] and AYK17 at [38].
The Authority accepted that the documents provided to it and also the parts of the Applicant’s new statement which provided some further new details in respect of his original claims constituted “new information”. Such a finding involved an acceptance by the Authority that such documents or information may have relevance to the review within s.473DC(1)(b) of the Act (see the definition of “new information” in s.473BB of the Act and Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [24]).
As explained in AYK17 at [38], the assessment required under s.473DC(1)(b) in relation to whether information is “new information” is an initial evaluative judgement by the Authority, while its assessment of whether the preconditions in s.473DD to its consideration of the information are met is a “further filter”. It is not in dispute that s.473DD limits the circumstances in which the Authority can consider new information in making its decision. The Authority must not consider new information unless paragraph (a) and one of the subparagraphs in paragraph (b) in s.473DD are met (see M174/2016 at [31]).
In M174/2016 Gageler, Keane and Nettle JJ explained the s.473DD(b)(ii) precondition as follows (at [33]-[34]):
33. … In that provision, the term “personal information” takes its defined meaning within the Act of “information or an opinion about an identified individual, or an individual who is reasonably identifiable”. Unaided by considerations of legislative history, the reference in s 473DD(b)(ii) to personal information which was not previously “known” might have been read as confined to personal information not previously known to the referred applicant. Legislative history, however, is against that reading. The provision is the result of an amendment to the Bill for the 2014 Amendment Act made in the Senate. The purpose of the amendment was explained at the time as being to “extend the types of ‘new information’ that a referred applicant may present to [the Authority] to include, for example, evidence of significant torture and trauma which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant's asylum claims by the Minister”. The Full Court of the Federal Court has correctly recognised that the identified purpose is best achieved by reading the reference to personal information which was not previously known as encompassing personal information which, although previously known to the referred applicant, was not previously known to the Minister.
34. Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims.
(footnotes omitted)
However, as the Applicant submitted, it is not mandatory for an applicant to provide an explanation to meet the requirement that an applicant “satisfy” the Authority that the new information meets either subparagraphs (i) or (ii) in s.473DD(b) of the Act.
In itself, an applicant’s failure to provide any explanation or reasons why information should be considered credible personal information (or as to why it should otherwise be considered to meet the requirements of s.473DD(b)(ii)) would not necessarily entitle the Authority to refuse to consider the information on the basis that s.473DD(b) could not be satisfied. As Mortimer J stated in AUH17 at [30]-[31]:
30. There may be circumstances where it is so plain that there is, on the material, an explanation, that the Immigration Assessment Authority should consider it even if not expressly proffered by the applicant. …
31. In other words, an applicant may “satisfy” the Immigration Assessment Authority about the matters in s 473DD(b) by what she or he says, or the documents she or he produces, without clothing it in a specific submission or specific evidentiary topic directed at s 473DD(b). …
I accept that, as the Applicant submitted, in this case the description in the submission to the Authority of the identity of the persons providing the information, the nature and dates of the documents attached, their suggested relevance to the Applicant’s claims, as well as the content of the documents, can be seen as plainly addressing the requirement of “credible personal information” as well as the other requirements in s.473DD(b)(ii). That is so notwithstanding the fact that the submission to the Authority did not refer specifically to s.473DD(b)(ii) or to the requirement of “credible personal information”.
In CSR16 at [42]-[42] Bromberg J concluded in relation to the meaning of “credible” personal information within s.473DD(b)(ii) that:
41. In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
42. The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.
CSR16 was cited with apparent approval by the Full Court of the Federal Court in CLV16 at [17] and in other Federal Court decisions referred to by the Applicant (see for example AYK17).
In so far as the First Respondent suggested that the correctness of the approach taken in CSR16 may be considered on appeal from DLB17, as indicated, the Federal Court was not asked to address the notice of contention which raised this issue.
In subsequent post-hearing submissions the First Respondent suggested that the correctness of the approach in CSR16 to the meaning of “credible personal information” would be the subject of argument on appeal from BDY18. However the correctness of the finding in CSR16 at [41]-[42] that the relevant state of satisfaction to be formed by the Authority was whether new information was “open to be or capable of being accepted” as “truthful” was not determined by the Federal Court (see BDY18 v Minister for Immigration and Border Protection [2020] FCAFC 24 at [55]-[56]).
In these circumstances this court should follow the approach to the construction of s.473DD(b)(ii) suggested by Bromberg J in CSR16. The concept of “credible” in s.473DD(b)(ii) does not impose a requirement that the information be believed by the Authority or even that the Authority be satisfied that it is more likely than not to be true. Rather, the question for the Authority in the context of s.473DD(b)(ii) is whether the new information is capable of being believed. It has also been said that s.473DD(b)(ii) requires “an evaluation of the significance of the new information in the context of an applicant’s claims more generally” (see BVZ16 at [57]).
It is the case that the determination of whether the s.473DD preconditions to consideration are met is an evaluative judgement for the Authority to make (see M174/2016 at [34] and AYK17 at [38]). It is also the case that the Authority is not obliged by s.473EA to give a comprehensive account of its assessment for the purposes of s.473DD of the Act. However in this case the Authority gave reasons why it did not have regard to the new information which were limited to the absence of the provision by the Applicant of reasons why it should consider that the new information was credible personal information. This, and the list of the new information in the Authority’s reasons, revealed no evaluation of the potential significance of any of the items of new information in the context of the Applicant’s claims. There is no indication in the Authority’s reasons that it turned its mind to the issues of whether any of the new information was “credible personal information”, whether it was not previously known in the sense considered in M174/2016, or whether, had it been known, it may have affected consideration of the Applicant’s claims.
In these circumstances it is open to the court to draw an inference as to what the Authority considered. I bear in mind that such an inference should not be drawn too readily. However in this case much, if not all, of the new information related specifically to matters that were of concern to the Authority in its reasons. I am satisfied that it can be inferred that in proceeding in the way it did, the Authority failed to evaluate the significance of the various items of new information in the context of the Applicant’s claims and, in particular, failed to consider whether any of the new information was open to be or capable of being accepted as truthful or accurate or genuine.
I do not find persuasive the First Respondent’s submission that given the nature of the new information, the Applicant’s claims and the Authority’s approach to those claims, it could be inferred that the Authority had considered the new information, but concluded that it did not add anything to those claims. For the reasons that follow, having regard to its nature and potential relevance, I am not satisfied that all the new information was either clearly not capable of being believed or clearly not such that it may have affected consideration of the Applicant’s claims.
Even if the cousin’s birth certificate would not have added anything material to the Applicant’s claims (because the Authority accepted the existence of the cousin), it appeared, on its face, to be an official document, as did the extract from the register in relation to the grandmother’s death in 2015. In a sense, the availability of such official documents could be seen as supportive of the overall credibility of the Applicant’s claims.
In any event, it is not entirely clear whether the Authority accepted that the Applicant’s grandmother died or when that occurred. It merely found that “even” if it accepted that a photograph provided to the Department was of the Applicant’s late grandmother, it did not corroborate his claim that his father was questioned at the funeral, but rather that it “merely supports his claim that she passed away”.
In so far as this finding indicates that some doubt remained on the Authority’s part as to whether and when the Applicant’s grandmother died (relevant to the credibility of his claims about events at the funeral shortly before the SHEV interview), on its face the extract from the register of deaths supported the veracity of that claim and was corroborative in that respect.
The letter from the priest was, on its face, from one of the priests who had provided a supporting letter to the Department in 2012. At that time, this priest was described as a parish priest. In 2012 he had attested to his personal knowledge of the Applicant and his work with his cousin, the kidnapping in 2008 by an unknown armed group, as well as the fact that the Applicant had lived with him for two years. The Authority had regard to the priest’s 2012 letter in accepting that the Applicant had resided with this priest for two years after he was kidnapped.
The priest’s June 2016 letter (which post-dated the delegate’s decision) was from a different address. This may explain the claimed time and trouble taken to get the letter. The priest described himself as the administrator of diocesan properties in a particular diocese in Sri Lanka. Relevantly, the letter added to the information in the priest’s earlier letter in stating that the Applicant had been threatened (as well as abducted) in 2008 and that it was “due to fear and security reasons” that he had lived with him from 2008 to 2011. Moreover, the priest stated that since the Applicant was with him, he (the priest) had also faced “a lot of problems” but that he had not told the Applicant about this as he would have been affected mentally and physically. However the priest claimed that for security reasons he had not sent the Applicant out “alone” anywhere when he lived with him. The priest also explained there were no problems from 2010 to 2011 and that he then found a job for the Applicant, but that the Applicant’s family had told him that due to the problems the Applicant had faced on 24 July 2012 he had to leave Sri Lanka. Relevantly, the priest added that he was aware that the family “is still undergoing threats from unidentified armed group”.
The Applicant’s submissions proceeded on the basis that there were two main issues raised by these grounds.
First, the Authority was said to have failed to apply the real chance test in its approach to what counsel for the Applicant described as his “extortion-related claims”. The Applicant contended that the Authority had failed to appreciate the multi-faceted nature of extortion-related claims and thus did not consider the Applicant’s claim that “extortion had been practiced upon him” in 2008 for a Convention related reason. This “issue” was the subject of particulars (a) to (f) in ground 1.
The second issue was explained as the issue of whether the Authority had failed to consider whether the Applicant faced a real chance of harm on the basis of being targeted for extortion in the future for reason of his membership of the particular social group of failed Tamil asylum seekers who had paid money to seek asylum. This issue was the subject of particulars (g) to (i) in ground 1 and ground 2.
The first issue
In support of the proposition that the Authority had incorrectly applied the law in assessing his extortion-related claims, in particular because it did not address whether his underlying “vulnerability” made such extortion and kidnapping possible and whether this was founded in a Refugees Convention reason, the Applicant referred to Federal Court authority in relation to extortion-related claims (see Perampalam v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 274; [1999] FCA 165 per Burchett and Lee JJ at [9] and [15]-[18] and Moore J at [31]; Rajaratnam v Minister for Immigration & Multicultural Affairs [2000] FCA 1111 per Moore J at [10] and Finn and Dowsett JJ at [41]-[45]; and SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404; [2015] FCAFC 175 per Logan J at [15]). It was contended that a failure to grapple with why a person was targeted for extortion was an error of law involving an incorrect application of the law to the facts as found.
In particular, the Applicant noted that in SZTAP Logan J had referred with approval to the remarks of Finn and Dowsett JJ in Rajaratnam at [46] and [48] and had stated (at [15]) that:
Extortion related refugee claims require very particular care in the analysis of the underlying occasion for the claimed extortion. This may reveal that the occasion for the extortion is multi-factorial but nonetheless founded in part in a particular vulnerability to extortion for a Convention-based reason. …
The Applicant submitted that his detailed evidence concerning his kidnapping and later harassment in 2008 had generally been accepted by the Authority. It was contended that, as discussed in Perampalam, the systemic extortion of Tamils by the LTTE could itself demonstrate persecution for a Convention reason and that the Authority appeared to have accepted that such systemic extortion had been carried out. The Applicant submitted that this alone could have been sufficient for the Authority to have accepted that he faced persecution for a Convention related reason, but that it had not addressed this possibility in its application of the law to the facts.
It was submitted that while the Authority had considered extortion targeting Tamil business owners generally, it had failed to assess the Applicant’s specific claims and circumstances, including the claims he made in his arrival interview concerning threats to his life by his abductors. Such claims were said to make it clear that the Applicant’s fears went beyond the simple fear of being targeted for money.
The Applicant suggested that his evidence in his SHEV interview was to the effect that while his abductors may have demanded payment from his father for his release, he had also claimed that they had initially abducted him as a means of finding his cousin, rather than as a simple business transaction in which they merely sought funding.
It was submitted that the Applicant’s claim was that he was abducted, beaten and extorted for reasons having to do with his cousin’s status as an LTTE sympathiser, that is, not just the fact of his cousin’s business dealings (in which the Applicant was also involved), but also the fact that those business dealings involved travelling in LTTE areas and dealings with persons associated with the LTTE. It was suggested that the agent’s written submissions to the Authority had referred to this complexity in submitting that these matters should not be characterised as “purely business dealings in the traditional commercial sense”, in circumstances where the dealings required the cousin to have connections with the LTTE.
The Applicant contended that it was apparent that his claims related to a fear of extortion for multi-factorial reasons and were more complex than was said to have been acknowledged by the Authority. It was suggested that it was possible that the Authority’s failure to identify the type of harm the Applicant claimed to fear and whether he subjectively held those fears had exacerbated its failure to recognise and analyse the multi-faceted nature of extortion (see AppellantS395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 at [31]).
The Applicant contended that even if “extortion” was the primary purpose of the perpetrators, this should not have been the end of the Authority’s inquiry, given that the occasion for extortion may be multi-factorial and may be founded in part on a particular vulnerability to extortion for a Convention-based reason (see SZTAP at [15]). It was acknowledged that under s.5J(4)(a) of the Act, the reason for persecution must be the “significant” reason, but contended that it did not have to be the sole or even dominant reason for the persecution (see Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533; [2002] HCA 7 at [44] in relation to former s.91R of the Act). Hence it was submitted that even if the Authority’s conclusion concerning the “primary purpose” of the relevant extortion and kidnapping was not infected by an error of law, the Authority had nevertheless failed to consider the claimed additional reasons for extortion.
The Applicant submitted that the Authority had focused on “extortion” as a purpose and end in itself, without addressing his claims concerning the reasons for the extortion. It was suggested that this “confusion and obfuscation” was plain in the Authority’s apparent acceptance that armed men “were seeking the applicant’s cousin and kidnapped the Applicant for the sole purpose of extortion” (emphasis added).
Similarly, it was submitted that the Authority’s finding that the cousin and the Applicant “were previously being targeted by armed men for the primary purpose of extortion due to the cousin’s former business” and would no longer be of such interest because the business had shut down, assumed that extortion was a purpose or end in itself directed at raising funds and that it would only be relevant if the cousin continued to run a business. It was submitted, however, that this approach did not address the more complex claimed reasons for the extortion or the vulnerabilities underlying it, grapple with the reason the business shut down or reflect the more nuanced factual findings the Authority had made concerning the events of 2008.
It was submitted that the Authority’s suggested error in addressing the Applicant’s claims concerning the reasons for the extortion in 2008 had also infected its later factual and legal findings about events of 2012 and 2015. While it was accepted that the Authority had appropriately looked at previous targeting of the Applicant and his cousin to inform its assessment of whether there was a real chance of serious harm from similar conduct in the future, it was submitted that in this case the Authority’s “improper” assessment of past events had infected its application of the real chance test.
The Applicant also submitted that to the extent that the Authority’s reasoning was founded on his cousin not having been targeted since 2008/2009, it was illogical. It was pointed out that before making this finding (at paragraph 56 of its reasons), the Authority had accepted that the cousin had been missing since that time and suggested that the cousin appeared to have acted in this way because of the threat of extortion (see SZTAP at [17] per Logan J and at [56] per Robertson and Kerr JJ).
The Applicant acknowledged that illogicality had not been raised as a separate ground of review, but submitted that these aspects of the Authority’s reasoning demonstrated the “larger” error of law, that is, that the Authority had failed to appreciate the multi-faceted nature of extortion and accordingly did not address the Applicant’s claims. It was submitted that in construing the Applicant’s claims relating to past persecution based on extortion without a proper understanding or analysis of his claims about the reasons for the past extortion, the Authority had misunderstood or misconstrued a claim advanced by the Applicant and had based its conclusion, at least in part, on the claim so misunderstood or misconstrued. This was said to be “tantamount” to a failure to consider a claim advanced by the Applicant and a jurisdictional error of the nature considered in NABE v Minister for Immigration(No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [63].
The First Respondent submitted that these arguments were misconceived and that, contrary to the Applicant’s submissions, the Authority had not failed to address whether the Applicant had a vulnerability to extortion that was founded in a Convention reason or failed to apply the real chance test to the Applicant’s extortion-related claims.
Consideration of the first issue
As the First Respondent submitted, the Authority addressed the circumstances in which the Applicant’s cousin came to be associated with the LTTE because of his timber business and how the Applicant came to be questioned about his cousin and detained as a result, leading to the payment of money by his father to secure his release. It had regard to the Applicant’s oral evidence and country information. The Authority also accurately stated the basis on which the Applicant made claims relating to the payment of money by his father to the armed men, who had some apparent association with the TMVP.
Contrary to the Applicant’s contention, the Authority’s findings about the past motivation of the abductors recognised what is now said to be the Applicant’s claimed vulnerability to extortion based on his connection with his cousin, the cousin’s suggested association with the LTTE and any consequential actual or imputed political opinion on the part of the Applicant, as well as whether the past extortion was for financial reasons. It grappled with why he was targeted for extortion. In considering the motivation of his abductors, the Authority stated:
19. In assessing the motives of the applicant’s abductors, I have given weight to the applicant’s claim, during the arrival interview held on 12 January 2013, that the men who abducted him had previously come to the shop and threatened his cousin accusing him of helping the LTTE and giving money to them and demanding that he give money to them which he did on a number of occasions. The applicant further claimed that when his cousin finally refused to give them any more money they threatened to beat and torture and kill him. This is consistent with country information which indicates that, during this period, Tamils involved in businesses suffered systematic extortion from the Karuna group in the East and would often have to provide a monthly percentage of their income, irrespective of the profit. During the protection visa interview the applicant also claimed that he initially thought he was being targeted for money. This is consistent with earlier comments the applicant made during his 2013 arrival interview where he said that “because they are looking for me and if I go they will arrest me and say you went to Australia by giving money so you have to give us money”.
20. Country information confirms that Tamil paramilitary groups cooperated closely with Sri Lankan security forces during the war but that they also acted on their own, settling scores with the LTTE or abducting persons for ransom. In 2008 Human Rights Watch reported that in the eastern districts of Batticaloa different groups (including the Karuna Group and EPDP) engaged in abductions as a way of extorting funds to fund their forces whilst the police look the other way. Numerous cases in Batticaloa from 2005 and 2006 also point to persistent cases of the Karuna Group using white vans to abduct people. Given the above, and the applicant’s evidence that he was released after his father paid money to his abductors and that he feared that he was (and will be) targeted for money, I am satisfied that the applicant’s cousin had been previously subject to extortion by his abductors as a Tamil business owner and, when he refused to pay them more money and was not present at his shop on 22 June 2008, these armed men kidnapped the applicant for the primary purpose of seeking a ransom.
…
22. … I do not accept that the armed men who kidnapped him did so as a result of direction from the Sri Lankan authorities but were seeking the applicant’s cousin and kidnapped the applicant for the sole purpose of extortion. If the Sri Lankan authorities had directed the kidnapping as a result of a genuine interest in finding the applicant’s cousin, the applicant would not have been released after a short period as a result of the ransom being paid. In the wake of the conflict almost 11,000 persons suspected of LTTE links were arrested and detained in high-security camps and yet there is no information before me to indicate his cousin has ever been detained or arrested as a result of suspected links to the LTTE. For this reasons I am also not satisfied the Sri Lankan authorities suspected his cousin of being a LTTE member, cadre or sympathiser.
(error in original, footnotes omitted)
In considering the events of 2012, the Authority referred to its earlier reasoning in finding at paragraph 37 of its reasons:
I accept country information which indicates that Tamil paramilitary groups were still operating in Sri Lanka in 2012 and were still reportedly engaged in abductions and extortions. However, as the applicant’s cousin was only of former interest to possible paramilitary groups for the purpose of extortion as a result of his former business activities before the end of the civil war, his business shut down in 2008, he was not suspected or being a member or cadre of the LTTE, there appears to be no reason for Tamil paramilitary groups or the Sri Lankan authorities to have a continued interest in the whereabouts of the applicant’s cousin in 2012. I have also take into account that the applicant was questioned by the police when he resided in Colombo the previous year but was not questioned in regards to his cousin nor was further harassed or detained by the police in this regard. I have also considered that the applicant returned to, and resided, in his family home from December 2011 until 24 July 2012 and has not claimed to have experienced any further harassment by armed men/Tamil paramilitary groups or the Sri Lankan authorities during that period.
(errors in original, footnote omitted)
The Authority relevantly concluded at paragraph 56:
As I have found that that the applicant’s cousin and the applicant were previously being targeted by armed men for the primary purpose of extortion due to the cousin’s former business, that the applicant and his cousin have not been further targeted by any group since 2008/2009, I am not satisfied that applicant faces a real chance of serious harm from armed groups/Tamil paramilitary groups because his cousin was extorted in the past and the applicant was kidnapped and released for ransom by armed men or due to his knowledge of his cousin’s former business activities.
(error in original)
In this way the Authority addressed the possible multi-factorial nature of the Applicant’s claims about extortion, the past motivation of his abductors and the bases on which he feared future harm. The contention that the Applicant raised an additional claim in his second arrival interview which was not considered is addressed below. Such contention is not made out.
The Authority took into account its view that the Applicant was of no further interest to Tamil paramilitary groups or to the authorities as a result of his cousin’s former business activities, before concluding at paragraph 59:
For these reasons I am not satisfied the applicant faces a real chance of serious harm from the Sri Lankan authorities or armed men/Tamil paramilitary groups because of his knowledge of his cousin’s former business activities in former LTTE-controlled areas or because his cousin was formerly extorted by armed men for this reason or because the applicant was previously kidnapped by armed men and released for ransom in 2008.
In proceeding in this way the Authority did not fail to recognise that the occasion for extortion could be multi-faceted. It addressed the asserted vulnerability of the Applicant and the claim based on his connection to his cousin. It also considered, but rejected, the claimed Convention nexus of a perceived political opinion of support for or association with the LTTE (or, indeed, any claimed fear of future extortion as a failed asylum seeker) in finding at paragraph 66 of its reasons that while the Applicant was a Tamil failed asylum seeker, he had no actual or perceived links to the LTTE and that the men who kidnapped him had shown no further interest in him since 2008/2009.
The case law cited by the Applicant is of no assistance in the present case. As discussed further below, the Applicant’s claims and the referred material before the Authority did not expressly or squarely raise possible Convention reasons that were not considered by the Authority.
As the First Respondent submitted, the Authority’s general finding that in the absence of further targeting of the Applicant by any group since 2008/2009, he and his cousin were no longer of any interest to paramilitary groups or to the authorities addressed and disposed of any basis on which he claimed to be vulnerable to or to fear future extortion or other harm from the TMVP.
The Authority considered the Applicant’s claims cumulatively in relation to both the Refugees Convention and the complementary protection criteria in light of its conclusion that he was no longer of any interest to the TMVP, in particular in paragraphs 74, 78 and 84 as set out at [48]-[49] and [52] above. It addressed the claims about future harm based on the various asserted bases for such fear, including the cousin’s former business activities and the Applicant’s knowledge and involvement in that respect, the kidnapping and holding for ransom of the Applicant in 2008, his Tamil ethnicity, the claimed perceived LTTE association and the fact that he left Sri Lanka illegally and would be returning as a known failed asylum seeker.
This aspect of these grounds is not made out.
The second issue
In addition to the claim that the Authority failed to apply the “real chance” test, the Applicant asserted (in both grounds 1 and 2) that the Authority erred in failing to consider one or more of his claims, that is, that he feared future harm as “a person who had paid money to seek asylum” or as “a Tamil who had paid money to seek asylum” (see particulars (g) to (i) in ground 1 and ground 2). It was submitted that the Authority’s failure to consider the claimed particular social group was also a misapplication or misconstruction of the test under s.5J of the Act (see SZVWT v Minister for Immigration and Border Protection & Anor [2016] FCCA 2917 at [71]-[73] and Perampalam at [9]).
Counsel for the Applicant pointed to the fact that in his second arrival interview the following exchange had occurred (at pages 16 to 17 of the transcript of arrival interview of 12 January 2013 annexed to the affidavit of Michael Kah of 13 April 2017):
Interviewer: Okay. What do you think will happen to you if you return to Sri Lanka?
[the Applicant]: We can't live in Sri Lanka even if we want, we can’t bring the money to home and we can’t live in peace over there. I already have problem over there, armed groups come over there, due to that I can't be able to go and live over there.
Interviewer: Okay. What would happen to you specifically, not to your family, not to your cousin but what would happen to you specifically if you did not (sic) return to Sri Lanka?
[the Applicant]: Because of they’re looking for him, even if I go there they will harass me and they will say, “You went to Australia by giving money so you also have to give us money.”
It was also noted that in the Applicant’s submission to the Authority it was claimed that he feared persecution as a failed asylum seeker “coupled with” the previous threats and violent encounters and the fact that people had visited his home to locate him. The material before the Authority was said to raise squarely a claim based on a particular social group of failed Tamil asylum seekers who had paid money to seek asylum.
The Applicant acknowledged that the Authority had dismissed the possibility that paramilitary groups continued to have an interest in the whereabouts of his cousin in 2012, in part because he was “only of former interest to possible paramilitary groups for the purpose of extortion as a result of his former business activities before the end of the civil war” and because the cousin’s business had shut down in 2008. However it was submitted that this left a particular social group claim which was not limited to the Applicant’s involvement in his cousin’s business. The Applicant submitted that the Authority had not considered this claim, except to the extent that it considered whether he would be of interest to the authorities upon his arrival in Sri Lanka and during a detention of short duration.
The Applicant again submitted that by failing to consider the underlying reasons for his vulnerability to kidnapping and extortion, the Authority had also failed to extend such reasoning to his status as a returned asylum seeker (which was said to be a potential indicator of wealth) and to consider his claims in a cumulative fashion.
The First Respondent submitted that the court should not be satisfied that the posited particular social group claim was made expressly or arose clearly on the material before the Authority and that, in any event, the rejection of any “real chance” of persecution on the facts now said to underline the particular social group claim obviated the requirement to address the matters referred to in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [26] per Gummow and Callinan JJ, as the basis for the asserted claim was rejected.
Consideration of the second issue
As the First Respondent submitted, to the extent that this aspect of these grounds is premised on the contention that the Authority failed to consider or to apply the real chance test to the extortion-related claims, as that contention is not made out, this aspect of these grounds must also fail.
Beyond this, for the reasons that follow I am not satisfied that a claim to fear extortion as a member of a particular social group of (Tamil) asylum seekers who paid money to seek asylum arose clearly or squarely on the material before the Authority in the sense considered in NABE (No 2). Rather, the Applicant now seeks to raise such a claim.
It is apparent from the transcript of the Applicant’s second arrival interview that the Applicant claimed that he already had a problem in Sri Lanka, that he left because of a fear for his life and that he feared that armed men who had previously threatened and detained him (in particular as a result of his cousin’s work in LTTE controlled areas) continued to search for him. He claimed that as those armed men were in Sri Lanka he could not return. In that context, when the interviewer asked the Applicant specifically what would happen to him (not to his family and/or to his cousin) if he returned to Sri Lanka, he replied: “Because of they’re looking for him, even if I go there they will harass me and they will say, “You went to Australia by giving money so you also have to give us money””. In other words, this claim was connected with the Applicant’s claims about his cousin, past events and his fear of future extortion.
I am not satisfied that the Applicant’s response to the question of what he feared would happen specifically to him if he were to return to Sri Lanka raised clearly or squarely a distinct particular social group claim of the nature now contended for by the Applicant. Rather, he related his particular circumstances to those of his cousin (as the Authority recognised in paragraph 20 of its reasons), in that he claimed to fear that, as had occurred in the past, he would be targeted for extortion.
The Applicant’s evidence in the arrival interview is also to be seen in light of the fact that not only is there no evidence that in his subsequent written or oral claims, including in his SHEV interview, the Applicant claimed to fear harm as a member of a particular social group of Tamil asylum seekers who paid money to seek asylum, but also nothing to support a finding that the suggested claim arose squarely on the material before the Authority. It appears that in the interview with the delegate, the Applicant did not suggest that he feared extortion as a Tamil returnee from Australia who had paid money to seek asylum, even after he was given time to speak to his representative and given the opportunity to make final comments. The Applicant has not pointed to any evidence clearly raising such a claim.
The Applicant was given the opportunity to provide a written submission to the delegate after the SHEV interview. His agent provided written submissions in which he claimed the Applicant feared harm for the following reasons:
i. his Tamil ethnicity;
ii. his imputed political opinion, such opinion being pro-Liberation Tigers of Tamil Eelam (LTTE);
iii. his membership of the particular social group of Tamils with perceived links to the LTTE;
iv. his membership of the particular social group of returned asylum seekers;
v. the data breach;
vi. These issues should be dealt with individually and cumulatively.
In this submission the Applicant did not claim to fear future extortion on any basis, whether as a Tamil asylum seeker who had paid money to seek asylum or otherwise. The submission addressed matters such as issues of concern that had been raised by the delegate, country information about harm consisting of torture, violence, reprisals, abductions, disappearance or death of persons with actual or perceived links to the LTTE and the Applicant’s fear of harm as a returned asylum seeker who had departed Sri Lanka illegally. While one article cited did refer to persecution of Tamils through “loss of land, detention, torture, sexual violence, repeated extortion of ransom money, reprisals and the inability to seek justice”, the submission explained the Applicant’s future fear as a fear of harm “if he is identified as a suspect of a regular or LTTE terror crime either at Colombo airport or after entering Sri Lanka, or for any suspected crimes of his cousin”.
There was no suggestion in the submission or implication from it and/or in the cited country information that the Applicant claimed to fear persecution (including extortion) as a person who had paid money to seek asylum or as a Tamil who had paid money to seek asylum.
While it is not entirely clear which aspects of the Applicant’s statement of 18 June 2016 were regarded by the Authority as “new” information and which part was seen as merely a restatement of the Applicant’s original claims for protection, that statement does not raise, whether expressly or by inference, a claim to fear extortion as a Tamil person who had paid money to seek asylum.
Further, as ultimately presented, the particular social group claim in the submission to the Authority was that the Applicant was a member of a particular social group “due to him being socially and legally labelled as a failed asylum seeker and also linked to the LTTE”. The submission elaborated on such failed asylum seeker claim. The reference in the submission to the Authority to this claim being coupled with “previous threats and violent encounters along with persons visiting the Applicant’s home to locate him” did not squarely raise a claim that the Applicant feared future extortion as a Tamil person who had paid money to seek asylum.
I am not satisfied that such a claim arose clearly or “squarely” on the material before the Authority (see NABE (No 2) at [58]). As the Full Court stated in NABE (No 2) at [58] in relation to the then Refugee Review Tribunal:
… The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
A decision-maker such the Authority “is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it” (see NABE (No 2) at [60] and see the remarks of Gleeson CJ in S395/2002 at [1]).
Further, even if, contrary to my view, the posited particular social group claim did arise “squarely” on the material before the Authority, it made findings which considered the elements of any such claim in not being satisfied that the Applicant’s claims, considered cumulatively, gave rise to a real chance or real risk of serious or significant harm.
As discussed above, the Authority accepted that in 2008 Tamils involved in business had suffered systemic extortion from the Karuna group. It found that by 2012 the cousin was only of former interest to possible paramilitary groups for the purpose of extortion as a result of his former business activities before the end of the civil war. It had regard to the fact that the business had shut down in 2008, that the cousin was not suspected of being a member or cadre of the LTTE and its view that there appeared to be no reason for Tamil paramilitary groups or the authorities to have a continued interest in the whereabouts of the cousin in 2012.
The Authority also made it clear that it did not accept that the Applicant had a current profile that would be of interest to Tamil paramilitary groups or to the authorities for any reason, including as a result of his cousin’s former business activities, because his cousin was formerly extorted by armed men for this reason, or because he was previously kidnapped by armed men and released for ransom.
In light of these findings, in considering the risk of future harm to the Applicant as a failed asylum seeker who had departed Sri Lanka illegally, the Authority had regard to its finding that the Applicant did not come within the “profile” of a Tamil with suspected or actual links to the LTTE or a person who had been politically active overseas, such as to attract adverse attention on return.
Critically, as discussed above in relation to the first issue raised by these grounds, in paragraph 74 of its reasons (as well as in paragraphs 78 and 84) (set out at [48]-[49] and [52] above) the Authority considered the Applicant’s cumulative claims in relation to the chance or risk of future serious or significant harm. In that context it again considered the Applicant’s “profile” overall as a young Tamil male from Batticaloa who had been previously kidnapped for ransom by armed men and further assaulted in 2008, whose cousin had conducted business in former LTTE controlled areas prior to the end of the war, who was previously the subject of extortion, whose father was a TNA supporter, and who had left Sri Lanka illegally and would be returning as a failed asylum seeker. The Authority found that the Applicant’s claims, considered cumulatively, did not give rise to a real chance of serious harm.
As the First Respondent submitted, even if the suggested particular social group claim did arise squarely on the material before the Authority, its rejection of any “real chance” of persecution on the basis of the elements of the asserted particular social group claim obviated the need for it to engage in the kind of consideration referred to in Dranichnikov at [26]. The factual basis for any such claim had already been rejected (also see MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 and SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [78]).
Neither ground 1 or ground 2 is made out. However as ground 3 is established, the matter should be remitted to the Authority for reconsideration according to law.
I certify that the preceding one hundred and ninety-four (194) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 26 June 2020
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