CGK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 231
•6 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CGK17 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR | [2020] FCCA 231 |
| Catchwords: MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether the Immigration Assessment Authority erred in its assessment of whether the applicant met the complementary protection criterion in section 36(2)(aa) – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 31, 36 Treaties: Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Art 1A. |
| Cases cited: MIAC v SQRC (2013) 210 FCR 505 |
| Applicant: | CGK17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1633 of 2017 |
| Judgment of: | Judge Emmett |
| Hearing date: | 6 February 2020 |
| Date of Last Submission: | 6 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 6 February 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Stephen Hodges (Hodges Legal) |
| Solicitors for the Respondents: | Ms Ada Wong (Mills Oakley) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1633 of 2017
| CGK17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 21 April 2017 (“the Authority”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 22 September 2016 refusing the applicant a Safe haven Enterprise Visa (Class XE) visa (“SHEV”).
The applicant is a citizen of Sri Lanka and of Hindu faith and Tamil ethnicity, who fears harm from the Sri Lanka Government and authorities in Sri Lanka.
Background
On 15 February 2016, the applicant lodged an application for a SHEV with the Department of Immigration and Border Protection (“the Department”).
On 22 September 2016, the Delegate refused the applicant’s application for a Protection Visa.
On 29 September 2016, the Delegate’s decision refusing the applicant a Protection Visa was referred to the Authority.
On 21 April 2017, the Authority handed down its decision affirming the decision of the Delegate not to grant a Protection Visa.
On 25 May 2017, the applicant filed an application in this Court seeking judicial review of the Authority’s decision.
Legislative framework
Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Safe Haven Enterprise Visa (Class XE) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2)(a) of the Act relevantly provides that a criterion for a SHEV is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 5J of the Act defines the meaning of well-founded fear of persecution.
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Applicant’s claims and decision of the Authority
The applicant’s claims and the Authority’s decision are accurately summarised in the submissions of the first respondent as follows:
“Background
2. The applicant is a male citizen of Sri Lanka who arrived in Australia on 11 September 2012 as an unauthorised maritime arrival (CB 89). The applicant participated in an entry interview on 18 October 2012 in which he made brief claims to fear harm from the army in Sri Lanka (CB 1-16).
3. The applicant applied for a SHEV on 15 February 2016 (CB 18-55). Accompanying his SHEV application was a statutory declaration from the applicant dated 4 February 2016 (CB 56-60), as well as an undated character declaration (CB 61-62), a Form 956 appointing Mrs Chandrani Buddhipala as his migration agent (CB 63-65), a copy of his Sri Lankan driving licence (CB 66), and a translated copy of his birth certificate (CB 67).
4. In the statutory declaration dated 4 February 2016, the applicant claimed he suffered discrimination and hardship as a Tamil in Sri Lanka. He claimed his family were displaced by the Sri Lankan civil war. The applicant claimed that, in April 2009, when living in Mullaitivu, an area controlled by the Sri Lankan Army (SLA), he went to a local checkpoint and was taken in for questioning by the SLA, tortured and detained for six months. The SLA tried to get him to admit he was an LTTE supporter but he refused. In September 2009, he was released and sent to Jaffna to live with his aunt and uncle. In February 2010, the Criminal Investigation Department (CID) came to his house and attempted to detain him. His uncle intervened and promised to take the applicant to the camp the next day, which he did. At the camp he was interrogated about his involvement with the L TTE, beaten and only released after his uncle "interfered with them". Upon his release he was told he must be available for questioning at any time (CB 56-57).
5. The applicant claimed that, in January 2011, while he was at work, four CID officers came to his house and questioned and threatened his wife. One officer tried to have sex with her, but was stopped when the applicant's aunt and uncle intervened. The following day the applicant went to the CID camp and signed a paper in Sinhalese, which he did not understand. On that same night he left his home and went to live in a different area in Jaffna. In December 2011, the SLA beat him because he failed to attend a rally in support of the SLA. The applicant claimed that, since his departure, the CID visited his mother-in law's home on three occasions after his departure asking about him. The CID interrogated his younger brother about the applicant's L TTE connections and as a result the brother fled to Malaysia. The applicant also claimed to feared harm from the Sri Lankan authorities and the SLA because of his illegal departure and as a failed asylum seeker (CB 57-59).
6. On 13 July 2016, the applicant attended an interview with a delegate (CB 91).
7. On 22 September 2016, the delegate refused the application for a SHEV (CB 89-101). The delegate accepted that the applicant was detained for around six months by the SLA during the final stages of the civil war and was assaulted, but did not accept that the applicant was involved with the LTTE or targeted for any particular association (CB 92). The delegate did not accept that the CID went to the applicant's house in 2011, or any other claims stemming from that claimed event (CB 93). The delegate found that the applicant did not face harm in Sri Lanka on the basis of being a failed Tamil asylum seeker from a former LTTE controlled area, or for departing Sri Lanka illegally.
8. The matter was referred to the Authority on 28 September 2016 (CB 102-103).
9. On 16 December 2016, the applicant's representative provided to the Authority a statutory declaration of the applicant dated 16 December 2016 (CB 110-114), as well as various articles of country information (CB 115-158). The statutory declaration dated 16 December 2016 took issue with the delegate's finding that the applicant was not involved with the LTTE. It also repeated the applicant's claims and referred to the country information provided with it.
10. On 3 January 2017, the applicant's representative provided a submission to the Authority (the 3 January 2017 submission) which, among other things, argued that country information supported the applicant's claims to fear harm of the basis of an imputed connection to the LTTE (CB 163-164). The 3 January 2017 submission made reference to a "World Report 2016" and indicated that report was attached to the submission, however the IAA did not receive any attachment (see [15] below).
11. On 14 March 2017, the Authority invited the applicant to comment on extracts from a DFAT country information report dated 24 January 2017 pursuant to s 473DE of the Act. The applicant was invited to comment on the information by 28 March 2017 (CB 166-175).
12. On 28 March 2017, the applicant's representative requested an extension of one week to respond to the Authority's invitation (CB 176).
13. On 29 March 2017, the Authority responded to the applicant's representative's email. The Authority stated it had no capacity to extend the deadline, but that if it received a response before its decision was made, it may consider the response subject to it “meeting the requirements of the Act” (CB 177).
14. On 18 April 2017, the applicant's representative provided a submission to the Authority dated 12 April 2017 (the 12 April 2017 submission) (CB 179-183), as well as various articles of country information (CB 184-297). The 12 April 2017 submission responded to the Authority's invitation to comment on the 24 January 2017 DFAT report, and argued that other sources of country information supported the applicant's claims. The 12 April 2017 submission made reference to an SBS News article and indicated that report was attached to the submission, however the IAA did not receive that attachment (see [15] below).
15. On 20 April 2017, an officer of the Authority made a file note detailing a telephone conversation with the applicant's representative. The Authority informed the representative that neither the “World Report 2016” referred to in the 3 January 2017 submission nor the SBS News article referred to in the 12 April 2017 submission had been received by the Authority. The representative told the officer she would provide copies of those documents that night (CB 300). No documents were subsequently received by the Authority (CB 306, [8]).
The Authority's decision
16. On 21 April 2017, the Authority affirmed the delegate's decision not to grant the applicant a SHEV (CB 304-325).
17. In relation to the applicant's statutory declaration dated 16 December 2016 and country information provided on 16 December 2016, to the extent that the statutory declaration and submission comprised argument responding to the delegate's decision, the Authority found it was not new information. The Authority found that the Canadian Immigration and Refugee Bureau Report provided on 16 December 2016 (CB 115-121) was before the delegate and was therefore not new information (CB 305, [4]).
18. Regarding the other country information reports provided on 16 December 2016, the Authority found these were not before the delegate and were new information. The Authority found the reports pre-dated the delegate's decision and no reasons were given as to why they could not have been provided to the delegate or why they might be considered credible personal information. For these reasons, the Authority was not satisfied there were exceptional circumstances that justified consideration of this material pursuant to s 47300 (CB 305, [4]).
19. The Authority noted that it had obtained new information under s 473DC(1) of the Act in the form of the DFAT country information report dated 24 January 2017. The Authority found there were exceptional circumstances to justify considering that report pursuant to s 473OD of the Act (CB 305-306, [5]).
20. With regard to the submission and country information provided to the Authority on 18 April 2017 in response to the Authority's invitation to comment, the Authority found it was new information that could not have been provided to the delegate and that there were exceptional circumstances to justify considering that report pursuant to s 47300 of the Act (CB 306, [7]).
21. The Authority noted its telephone conversation on 20 April 2017 with the applicant's representative regarding two items of country information that had not been provided to the Authority despite being referenced by the representative. The Authority noted that, despite the representative saying that material would be provided later that day, the material was never received by the Authority (CB 306, [8]).
22. The Authority accepted the applicant's identity (CB 307, [10]), but had “serious concerns about the credibility of the applicant and the truthfulness of some of his evidence” (CB 310, [19]). The Authority did not accept the applicant's claims that: he was forced to sign a document by the CID; the CID interrogated him in January 2011; or his wife was threatened with sexual assault (CB 310, [20]).
23. The Authority cited several reasons for finding the applicant's claims were a “fabrication” (CB 310, [20]). It found his evidence at the SHEV interview that he had to report to the SLA camp and sign in every 15 days was not mentioned earlier in the protection process and the failure to mention “such significant reporting” led the Authority to conclude that the claim was a fabrication (CB 310, [21]). The Authority also rejected the claim that the CID attended his mother-in-law's house on a number of occasions following his departure from Sri Lanka as it was premised on his earlier rejected claim that he was required to report to the CID (CB 310-311 , [22)).
24. However, the Authority (CB 311, [23]) accepted a number of the applicant's claims that it considered were “free of fabrication or embellishment”. The Authority accepted that: the applicant lived in LTTE controlled areas during the civil war; he and his family were not involved with the LTTE; and he had avoided recruitment by the LTTE. The Authority also accepted that the applicant was interrogated in April 2009, tortured and placed in a camp until September 2009, questioned upon his release and beaten by the SLA and CID in February 2010. The Authority accepted further that the applicant was beaten by the SLA in December 2011 when the SLA was trying to gather people to attend a rally and that the applicant would be considered a failed asylum seeker who departed the country illegally (CB 311, [24]).
25. The Authority cited extensive country information about changed country circumstances and the improved situation for Tamils in Sri Lanka (CB 312-315, [27]-[36]). The Authority accepted the applicant's claims of past harm but found the applicant would not suffer harm in the future for reason of any imputed links to the LTTE. The Authority relied on country information to find that mere residence in a LTTE controlled area did not give rise to a need for protection. Further, the Authority found that although he was previously detained and interrogated about LTTE links, the applicant was released and no further action was taken against him after January 2011 , apart from the beating in December 2011, which was “a discrete incident” where the SLA were gathering people to attend a rally. The Authority found the authorities had not enquired about the applicant since his departure and had no adverse interest in him (CB 315, [37)).
26. While acknowledging articles provided by the applicant indicated there were moderate levels of societal discrimination between ethnic groups, the Authority preferred the DFAT 2017 report that indicated the situation had greatly improved (CB 316, [39]).
27. The Authority found that protection was no longer presumed to be required on the basis of Tamil ethnicity alone and given the applicant's accepted profile, was not satisfied that he faced a real chance of serious harm as a Tamil or any actual or imputed LTTE connections, including familial connections. It was not satisfied he faced a real chance of serious harm now or in the reasonably foreseeable future due to any real or perceived links to the LTTE or for any imputed political opinion as a young Tamil from the North (CB 316, [40]).
28. The Authority accepted the authorities would consider the applicant to be a failed asylum seeker who departed illegally (CB 317, [47]), but did not accept he faced a real chance of serious harm on his return as a Tamil asylum seeker (CB 318 [48]). The Authority noted ICI about the likely processes faced by returnees who had departed Sri Lanka illegally (CB 316-317 [42]-[46]), and accepted that the applicant would be found to have committed an offence under the Immigrants & Emigrants Act 1949 (I&E Act) (CB 318, [48]), and would be charged, fined and then released (CB 318, [50]). In the event he pleaded not guilty to the I&E Act offence, the Authority found the applicant would either be granted bail on personal surety or with a family member acting as guarantor but did not accept he faced any chance imprisonment. It noted DFAT information indicated that the risk of mistreatment for people suspected of an offence under the I&E Act was low. Although it accepted the applicant may be subject to a brief period of detention in poor prison conditions, it did not accept the prison conditions, or the imposition of any fine, surety or guarantee constituted serious harm (CB 318, [52]-[53]).
29. The Authority also found the provisions and penalties of the I&E Act were laws of general application that were not discriminatory in their terms or enforcement. Accordingly, it was not satisfied that any process or penalty the applicant may face on his return because of his illegal departure constituted persecution or that he faced a real chance of serious harm due to his illegal departure (CB 318, [54]).
30. Having considered the applicant's claims individually and cumulatively, the Authority was not satisfied he had a well-founded fear of persecution within the meaning of s 5J of the Act (CB 319, [56]), and found he did not meet the criterion in s 36(2)(a) of the Act (CB 319, [57]).
31. In its assessment of complementary protection obligations, the Authority relied on its earlier findings that the applicant did not face a real chance of serious harm due to any perceived LTTE links, as a young Tamil from the North, as a failed asylum seeker, or a combination of those things, and found that as “real chance” equalled “real risk” it was also not satisfied he faced a real risk of significant harm on this basis (CB 319, [60]).
32. The Authority accepted that the applicant on his return would be identified as having departed illegally and may be detained for several hours at the airport and potentially detained on remand for a number of days pending bail. However, on the basis of ICI that indicated detainees were not routinely mistreated during processing at the airport, the Authority was satisfied that the risk of torture or mistreatment for returnees and suspected offenders under the I&E Act was low. The Authority was not satisfied the applicant would face significant harm during the investigation process at the airport (CB 319, [61]).
33. The Authority accepted returnees may be held for a short duration in prison while waiting to appear before a magistrate or on remand awaiting bail, and that ICI indicated the poor prison conditions were due to overcrowding, poor sanitation and lack of resources. It found this did not amount to the death penalty, severe pain or suffering or extreme humiliation and there was no intention to inflict this form of harm. It was therefore not satisfied the prison conditions to which the applicant may be subjected constituted significant harm or that the applicant faced a real risk of significant harm during any brief time spent in detention. Similarly, the Authority found that although the applicant may be questioned, required to pay a fine or provide surety, it was not satisfied this amounted to significant harm, considered either individually or cumulatively. Nor was it satisfied there was an intention to inflict pain or suffering, severe pain or suffering or cause extreme humiliation (CB 320, [62]).
34. Accordingly, the Authority was not satisfied the applicant met the complementary protection criterion in s 36(2)(aa) of the Act (CB 320, [64]).”
The proceeding before this Court
The applicant was represented before this Court by his solicitor, Mr Hodges.
By consent, leave was granted to the applicant to rely on the grounds identified in an Amended Application filed in Court as follows:
“1. The
AssessorAuthority committed jurisdictional error by failing to apply the “complementary protection criteria” pursuant to section 36(2A) of the Migration Act 1958.PARTICULARS
(a) The IAA failed to consider that the applicant faced a real risk of significant harm if he returned to Sri Lanka.
(b) The same standard is to be applied regarding ‘real chance’ and ‘real risk’ MIAC v SZQRB (2013) 210 FCR 505.
(c) In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. At 575 it was said:
“Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.”
(d) The IAA made the following findings in relation to what the applicant claimed occurred in the past:
(i) At [23], the assessor accepted from April 2009 the applicant was interrogated, tortured and beaten several times by the Sri Lanka authorities who suspected he was involved with the LTTE;
(ii) At [23], the assessor accepted that the applicant was placed in an IDP camp until September 2009 and during that time he was frequently interrogated and beaten by the authorities;
(iii) At [23] the assessor accepted upon release from the IDP camp he was occasionally questioned and beaten by the SLA and CID. At [13] this includes the February 2010 incident where the applicant claims the CID pushed him against a wall with a table, hit his head against the wall and about the ears.
(iv) At [23] the assessor accepted in December 2011 the applicant was beaten by the SLA when the SLA were trying to gather people to attend a rally they were organising;
(e) Despite accepting that the applicant was previously interrogated, tortured and beaten and that he had suffered harm on several occasions in the past, the IAA considered that the applicant did not face a real risk of harm upon return.(f) It is submitted, when assessing whether the applicant faces a real risk of harm, that these past events should be considered.(g) Although the assessor accepted the past events, they failed to consider them when concluding that the applicant did not face a real risk of harm and therefore committed jurisdictional error.(e) The Authority failed to address whether there was a real risk of future harm arising in an incident similar to the December 2011 incident, as this incident was not based on a Convention reason and so was not permissibly encompassed with prior findings on the future risk of Convention related harm.”
The applicant’s solicitor contended that the Authority had failed to consider whether there was a significant risk of harm to the applicant as required by the complementary protection criteria in s.36(2A) of the Act arising out of past harm to the applicant in December 2011 at the hands of the SLA by reason of the applicant’s refusal to join a rally. The applicant’s solicitor submitted that the only reason the applicant gave for not complying with the order was because he was scared, rather than because of any anti-government political opinion. The applicant’s solicitor submitted that it should be inferred that the applicant was scared of further mistreatment from authorities and that in December 2011 the SLA beat the applicant because he refused to comply with the request to attend the rally. The applicant’s solicitor submitted that that fear by the applicant was not Convention based.
The applicant’s solicitor submitted that the Authority should have assessed the risk of significant harm to the applicant in situations similar to the December 2011 events.
The applicant’s solicitor submitted that the Authority should have considered the context and circumstances of the past harm to the applicant arising from the December 2011 incident. The applicant’s solicitor submitted that the motivation for the harm by the SLA was the applicant’s failure to attend a rally and it was therefore necessary for the Authority to consider the risk of similar events and the consequence of harm in the future.
In considering whether the applicant met the complementary protection criterion, the Authority referred to s.36(2A) of the Act that a person would suffer “significant harm” if the person would be subjected, inter alia, to torture, cruel or inhuman or degrading treatment or punishment.
The Authority found there was not a real chance of significant harm to the applicant now or in the reasonably foreseeable future for any LTTE links or imputed political opinion, as a young Tamil from the Northern Province, as a returned Tamil failed asylum seeker from Australia, or a combination of these.
The Authority referred to MIAC v SQRC (2013) 210 FCR 505 in support of the proposition that “real chance” and “real risk” involve the same standard. In considering whether the applicant met the Convention criteria under s.36(2)(a) of the Act and whether the applicant had a well-founded fear of persecution within the meaning of s.5J of the Act. Relevantly, the Authority found that the applicant did not face a real chance of persecution now or in the reasonably foreseeable future for any links to the LTTE or imputed political opinion as a young Tamil from the Northern Province or any combination of these.
That conclusion was arrived at following a detailed consideration by the Authority of the applicant’s claims to fear harm from the authorities in Sri Lanka by reason of being perceived to be a LTTE supporter, his imputed political opinions of LTTE support and by reason of his race as a Tamil from the Northern Province and therefore perceived to be involved or associated with the LTTE.
In the course of his evidence of past harm, the applicant denied any involvement with the LTTE but continued to be labelled as an LTTE supporter.
The rally in 2011 in which the applicant refused to participate and which resulted in his harm, was organised by the Sri Lankan Army.
In considering whether the applicant was at risk of harm by reasons of his links to the LTTE, or any imputed political opinion now or in the reasonably foreseeable future, the Authority found the applicant not to be at risk. In reaching that conclusion, the Authority had regard to various factors including referring to the incident in December 2011 as follows:
“Fifthly, although the applicant was beaten up by the SLA in 2011, he was not beaten in relation to any LTTE support but because of a discrete incident where the SLA were gathering people to attend a rally.”
The Authority went on to find that the Sri Lankan authorities had not enquired about the applicant’s whereabouts since he had left Sri Lanka and that he did not have a profile that country information suggested placed him at risk of harm from the Sri Lankan authorities now or in the foreseeable future for any links to the LTTE or for any imputed political views. The Authority found that the Sri Lankan authorities would not have had any adverse interest to the applicant had he have remained in Sri Lanka, nor would he be of any adverse interest upon his return.
It was those findings, inter alia, that grounded the Authority’s finding that the applicant did not face a real chance of serious harm based on Convention grounds, or a real risk of significant harm in relation to the Authority’s complementary protection assessment.
The Authority’s findings were open to it on the evidence and material before it, and for the reasons it gave. The Authority’s findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue of credibility. The Authority’s findings were not tainted by any failure to afford procedural fairness; reaching a finding without a logical or probative basis; or unreasonableness; and, were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).
Having made findings of fact concerning the preconditions required for a real chance of harm to exist, the Authority was entitled to apply those findings of fact to its consideration of a real risk of significant harm (see SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774, per Robertson J at [54]-[57]; MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [31] per Marshall J).
In the circumstances, the Authority concluded that the applicant was not at a real risk of significant harm. That conclusion was based on the findings of fact made by the Tribunal in considering whether the applicant met the refugee criteria in s.36(2)(a) of the Act. The Authority found that the applicant made no other claims. It is well established that the Authority is entitled to rely on its findings that there was no real chance of the relevant harm alleged for Convention reasons, in assessing whether there was a real chance of significant harm under s.36(2)(a) of Act when the same essential claims and facts are relied upon.
The applicant’s solicitor referred to the Court to SZSXE v Minister for Immigration and Border Protection [2014] FCA 847 at [54], where Wigney J accepted that where an appellant experienced past harm it was appropriate for the reviewer to consider the consequences of that past harm, including the perpetrators, when undertaking the prospective assessment of whether there were substantial grounds for believing that there was a real risk that a person will suffer significant harm if removed from Australia.
As stated above, the applicant’s solicitor submitted that the sole motivation for the beating of the applicant in 2011 by the SLA was because he refused to take part in a rally. In the context and circumstances of that harm it is clear that based on the applicant’s claims that part of the motivation for that harm was because the applicant was perceived to be an LTTE supporter, a young Tamil from the Northern Province or any combination of those. Otherwise, there was no claim by the applicant to fear harm of being forced to take part in other rallies, nor was there any evidence before the Court of any other rallies involving forcible participation by the SLA.
In support of their submissions, the first respondent’s solicitor referred to CDY15 v Minister for Immigration and Border Protection (2018) FCA 175 (“CDY15”), per Derrington J in the following terms:
“43. In CDY15, Derrington J rejected the appellants' argument that the Tribunal erred by applying findings relating to the appellants' claims on Convention grounds to their claims based on the complementary protection criterion. In particular, the appellants argued that a question of the motivation for past attacks on the first appellant was an issue relevant to the determination of the claim based on a Convention ground because the motivation identified that the persecution was for a Convention reason. The appellant submitted that the question of motivation was irrelevant to the consideration of whether there was a real risk of harm for the purposes of s 36(2)(aa). The appellant contended the Tribunal erred by relying on its irrelevant findings on the question of motivation in its complementary protection assessment.
44. In rejecting those arguments, Derrington J said of the Tribunal's complementary protection assessment (emphasis added):
Highly relevant to that inquiry is whether the applicant has suffered any previous infliction of harm and the circumstances in which it occurred. If it were the case that third parties inflicted harm on the applicant and had reasons and motivation for doing so and those reasons and motivations remained extant at the time when the decision is made, the decision maker might rightly assume that there exists a propensity for harm to be suffered by the applicant at the hands of those third parties in the future. Conversely, if the motivation or reasons behind the infliction of the initial harm have expired or lapsed, a decision maker might rightly consider that the prospect of the applicant suffering harm in the future from the identified third parties does not exist.
45. In the present case, the relevant motivation may be identified as the motivation of the Sri Lankan authorities to harm a young Tamil with suspected LTTE links. Central to the Authority's reasons was its dispositive finding, based on country information, that the reasons behind past harm to the applicant had subsequently expired or lapsed at the time of its decision. It was appropriate for the Authority to consider that finding both in relation to its assessment of Convention-based harm as well as harm based on complementary protection criteria, and CDY15 endorses that approach.”
I accept those submissions as correct in their entirety. The applicant’s solicitor conceded that CDY15 did not assist the applicant’s case.
In the circumstances, the Authority’s consideration of complementary protection and its findings thereon are without error.
Conclusion
A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant; and, had regard to all material provided in support. The Authority identified independent country information to which it had regard.
The Authority then made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 6 February 2020
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