Ciq17 v Minister for Immigration
[2020] FCCA 2679
•25 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CIQ17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2679 |
| Catchwords: MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the Immigration Assessment Authority (Authority) affirming a decision not to grant a Safe Haven Enterprise visa – whether the Authority failed to consider evidence - whether the evidence important – whether failure to consider evidence serious – relief granted. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36(2)(aa), 36(2A), 473CC, 476 |
| Cases cited: Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3 |
| Applicant: | CIQ17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1693 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 21 April 2020 |
| Date of Last Submission: | 21 April 2020 |
| Delivered at: | Sydney |
| Delivered on: | 25 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Mostafa, by video |
| Solicitors for the Applicant: | Varess |
| Counsel for the First Respondent: | Mr G Johnson, by video |
| Solicitors for the First Respondent: | Mills Oakley Lawyers |
ORDERS
The decision of the Authority made on 8 May 2017 affirming the decision (delegate’s decision) of a delegate of the first respondent made on 21 February 2017 not to grant the applicant a Safe Haven Enterprise visa is quashed.
The Authority review the delegate’s decision according to law.
Subject to order 4 the first respondent pay the applicant’s costs as agreed or assessed.
The parties have liberty to apply within 21 days from the day these orders are pronounced for an order varying or discharging order 3.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1693 of 2017
| CIQ17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, a national of Sri Lanka, applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV).
Claims for protection
The applicant stated his claims for protection on a number of occasions. I begin with the claims the applicant made in a statutory declaration that formed part of his application for a SHEV;[1] and they are as follows:
[1] CB70-76
a)The applicant is a Tamil, and a Hindu. He was born in Batticaloa, Eastern Province before the start of the civil war in Sri Lanka. The applicant lived with his parents for almost twenty years.
b)The area in which the applicant grew up (Home Area) was controlled by the Liberation Tigers of Tamil Eelam (LTTE). The applicant attended school but, having started his A-Levels at secondary school, he was unable to complete his studies because of the civil war.
c)In 2001 the applicant moved to his uncle’s residence in Vanni District, Northern Province, to complete his studies. The applicant moved to Vanni principally because the LTTE had started to forcibly recruit Tamils in the Home Area. The applicant’s parents also moved to separate locations at this time. The applicant, however, was unable to enrol again in A-Levels. He instead studied a computer course, after which he commenced working for a consultancy.
d)In 2008, after violence between the Sri Lankan Army (SLA) and the LTTE escalated, the applicant and his family were displaced and constantly moved around the Vanni District. In 2009 the SLA brought the applicant and his uncle’s family to Camp X, where they stayed for three years.
e)The applicant and his uncle’s family were not allowed to leave Camp X. Every so often people in plain clothes, whom the applicant presumes were associated with the Sri Lankan government, “came to question us about whether or not we were supporters of the LTTE”.
f)In August 2012 the applicant was released from Camp X and he was allowed to return to the Home Area, but on the condition that after his return to the Home Area he would report to Camp X every Sunday. The travel time between the Home Area and Camp X was 10 hours.
g)On his release from Camp X soldiers of the SLA escorted the applicant to the Home Area leaving him approximately 300 metres from his house. As the applicant walked to his house he saw six armed members of the SLA. The soldiers followed the applicant and questioned him for about three hours about where he had been, what he had been doing, and whether the applicant had any LTTE involvement. The soldiers threatened to beat the applicant if he did not disclose his LTTE connections.
h)About 15 minutes after the soldiers left, the Sri Lankan Police (SLP) turned up at the applicant’s house and took the applicant to the police station. The SLP questioned the applicant about his involvement with the LTTE, and threatened the applicant harm if he would not disclose his LTTE links. The applicant was “allowed to go home at about midnight or 1:00am”.
i)The next morning, four people in civilian clothes came to the applicant’s house and said they had to investigate him. They came in a white van. The applicant was taken to a room at Camp Y. The applicant suspects the SLP organised the unidentified individuals to come and take him away.
j)The applicant was tortured at Camp Y. On the fourth day he was “tied upside down by [his] big toes”, and beaten until he became unconscious. He regained consciousness in a hospital, and was discharged four days later.
k)When he was released from hospital the applicant was asked to return to Camp Y after three days for further investigations. The applicant did not do so; and he did not return to his house. The applicant instead went to his brother’s house (Brother’s House) where he lived in hiding.
l)Four days later (early September 2012) the applicant’s mother informed the applicant that some people were looking for him at his house. Fearing for his life the applicant decided to flee Sri Lanka. He left Sri Lanka illegally by boat and arrived in Australia in September 2012. The applicant’s father helped him arrange and fund his travels.
m)One month after the applicant arrived in Australia his mother was threatened by unknown individuals at the applicant’s house. They questioned the applicant’s mother about his whereabouts, and they threatened to abduct the applicant’s brother instead of the applicant unless the applicant’s mother disclosed to the individuals the applicant’s whereabouts. The applicant’s brother received some verbal threats over the telephone.
n)The applicant’s brother works for a newspaper. In October 2012 the applicant’s brother published an article about the applicant’s family problems, and about the applicant’s mother having been threatened. The article was released online. After he published the article, the applicant’s brother received additional threats over the telephone and in person at the Brother’s House by persons who warned the applicant’s brother not to publish any further articles “of this nature”.
o)The applicant fears he will be harmed if he returns to Sri Lanka because of his Tamil ethnicity; his Hindu religion; his imputed political opinion in support of the LTTE; his imputed political opinion against the Sri Lankan government and its organs because he failed to return to Camp Y, and the applicant’s brother’s publication of the newspaper article; and the applicant’s membership of a particular social group, namely, “failed Tamil asylum seekers returning to Sri Lanka”. The applicant also claimed that, because of the applicant’s brother’s publication of the newspaper article, the applicant fears he “will be disproportionately punished for illegally departing Sri Lanka on return, for making political claims abroad, against the Sri Lankan government”, if he returns to Sri Lanka.
Before the delegate
Before the delegate the applicant gave evidence about two subjects that are relevant to the grounds of application. The first relates to threats made by people smugglers. The applicant gave evidence about this subject in answer to the delegate’s questions. The delegate directed the applicant’s attention to a claim he made in the entry interview that there was a question of money, where the people smuggler had asked for 13 lakhs, but he was only given 6 lakhs, and to the applicant’s also claiming that “[t]hey are threatening my elder brother for the money. . . . media published a threat online toward my brother, threatening to kill him”.[2] The delegate asked the applicant what that meant and, without waiting for an answer, said that that made the delegate think the people who are approaching the applicant’s brother and the applicant’s parents had nothing to do with the applicant’s release conditions; instead it “was to do with the money, which your father was or you or whoever own [sic] to . . . the smuggler”.[3] The applicant said:[4]
There are two separate incidents, one by the authority they went to my home, the-they threatened my parents uh-as I was not in the country; and by the time these people also-the smugglers also threaten my family as we did not pay the balance money.
[2] CB12
[3] T26.10 (A transcript of the interview is annexure A to the affidavit of L Thomas.)
[4] T26.10
The applicant also said the two incidents occurred within one month of each other. Although the applicant said he did not know the exact time frame, the incident with the people smuggler occurred after the first incident. The applicant said that, when threatened, his parents paid only 6 of the 13 lakhs the people smuggler demanded, and the balance remains unpaid. The people smuggler last made a threat to the applicant’s parents in October 2016. The applicant’s parents made a complaint to the police, but “still uh those people went to my home and threatened my parents . . . to ask them to make the balance payment”. The police responded by calling both parties for a solution, and they instructed the applicant’s parents to make payments by instalments, but the applicant’s parents could not do that. The people smugglers then again threatened the applicant’s parents.[5]
[5] T25.30-T27.20
The second subject about which the applicant gave evidence before the delegate concerns an incident the applicant said occurred in May 2016. It will be necessary to set out the evidence in its entirety (applicant’s evidence of the May 2016 incident):[6]
[6] T15.1-T15.20
DELEGATE: Okay and more recently . . . . any additional visits or anything recently?
INTERPRETER: Recently uh they-they came again uh but uh they not threaten at this time, but they came looking for me whether still I am there.
DELEGATE: And when was that?
INTERPRETER: So Ma-May last year.
DELEGATE: 2016?
INTERPRETER: Yes.
DELEGATE: What kind of people?
INTERPRETER: Either they come in a trishaw, three-wheeler or in a motorcycle, and uh they uh come and uh threaten my parents, or they went to my uh brothers [sic] and uh they threaten my brother, uh especially they ask about me.
DELEGATE: By motorcycle?
INTERPRETER: Yes.
DELEGATE: And so do you think these people could be from a-a criminal gang? Knowing that you are overseas and uh your brother in law is also overseas? They would be interested in getting some money?
INTERPRETER: No they are not the criminals but uh-uh according to my knowledge I think they are from the government support uh paramilitary group or you know organisations.
DELEGATE: Which one?
INTERPRETER: I do not know exactly from which group uh but surely they are from the government support uh paramilitary group.
DELEGATE: So the last time it was in May 2016?
INTERPRETER: Yes.
After the hearing the applicant’s representative provided to the delegate written submissions dated 15 February 2017 (Delegate Submission). Relevant to two of the grounds on which the applicant relies is the following (footnotes omitted):[7]
[7] CB110-116
Concerns put forward at interview noted that some of the threats made against the applicant’s family have been in relation to the money owed by the family to the people smugglers who facilitated the applicant’s journey to Australia. This is not for a refugee related reason, and does not amount to serious harm for defined reasons as required under s 5J of the Migration Act 1958 (Cth) (Act).
The applicant conceded that the most recent harassment faced by his family was on account of the money owed. However, the applicant has also given information about other events or harassment faced by his family and not on account of the money owed, including:
a.on [sic] or around . . . 2012, the applicant’s mother was threatened by unknown individuals about the applicant's whereabouts;
b.around the same time the applicant’s brother received verbal threats over the telephone by unknown individuals in relation to the applicant’s whereabouts;
c.the applicant’s brother also published an article in the . . . Newspaper regarding threats the applicant’s family had received in relation to the applicant’s whereabouts. The applicant’s brother’s threats increased after the publication of the article;
d.in around . . . 2016 unknown individuals came to the applicant’s parent’s [sic] home looking for the applicant and threatened the applicant’s brother. These threats were delivered by actors for the state, and approached the applicant’s family on account of his failure to report to the authorities; and [sic]
The applicant confirms that some of the harassment faced by his family is on account of the fact that they cannot afford to repay the people smugglers. However, this is not the sole reason for the threats delivered to the family.
The applicant is not claiming protection on the grounds of the harassment experienced by his family in relation to money owed, although initially mentioned in his arrival interview. The applicant has not perpetuated this claim in his application for a Safe Haven Enterprise visa.
Also relevant to one of the grounds of application is the following finding the delegate made in his reasons for decision:[8]
I have also considered his family’s experiences of harassment and death threats from a group of people in relation to money owed by the applicant to the people smugglers with the last threat made in . . . 2016 and whether the applicant is able to obtain protection from an authority in Sri Lanka against criminal acts. . . . I relevantly find that his parents reported the threats to the police and police called both parties to compromise and to find the middle ground and asked his parents to repay the balance owing on instalment basis. Consequently, there is evidence the applicant is able to obtain protection from an authority in Sri Lanka, and that there is not a real risk that the applicant will suffer the harm. I am not satisfied that there are extremely widespread conditions of violence and systematic breakdown of law enforcement in Sri Lanka.
[8] CB133-134
Authority’s reasons
The Authority accepted or found the following:
a)During the civil war the applicant spent significant time in LTTE-controlled areas; he was displaced in 2008 and 2009; he sustained scarring to his legs as a result of shrapnel from a bomb explosion; and when the conflict ended the applicant and his uncle’s family were taken by the SLA and placed in Camp X where they remained until August 2012.[9]
b)After his release from Camp X the applicant was required to comply with two separate sets of reporting conditions, although this was not necessarily indicative of a long-term reporting requirement, or of an interest by the authorities of the applicant’s activities; the applicant would have been subjected only to occasional questioning over the years he had been placed in Camp X; but, given the applicant’s personal history, and the nature of his treatment while at Camp X, the authorities did not regard the applicant as a person linked with the LTTE or otherwise as a security or political risk.[10]
c)The applicant’s return to the Home Area “may have raised some initially intense interest from the local army and local police”.[11] The applicant reported to the police station, and that may have been done to meet the applicant’s reporting requirements.[12]
d)In the morning after his return to the Home Area the applicant was taken by the “CID” (that is, the Criminal Investigation Department) for questioning, where he was questioned and mistreated for four days.[13] The Authority did not accept the claim the applicant made before the delegate that the CID officers had taken the applicant to hospital with a direction that the doctor advise them before the applicant was discharged, but the doctor failed to advise the CID resulting in the applicant being discharged from hospital without the CID’s knowledge. The subsequent treatment of the applicant by the CID at that time indicates that, following their questioning of the applicant, the applicant did not warrant the same level of suspicion for involvement with the LTTE as the CID initially had.[14]
e)Given that, after his discharge from hospital, the applicant had not reported to the police station and he had not returned to Camp Y (or, presumably, Camp X), it is plausible that the authorities made enquiries of the applicant’s whereabouts.[15]
f)The applicant departed Sri Lanka illegally, and, if he returns to Sri Lanka, he will do so as a returned asylum seeker, and is likely to be so identified.[16]
[9] CB164, [17]
[10] CB164, [18]
[11] CB165, [19]
[12] CB165, [20]
[13] CB165, [21]
[14] CB165, [22]
[15] CB165-166, [23]
[16] CB168, [33]
The Authority had “considerable doubt” the authorities would pursue the applicant for failing to comply with his reporting conditions; but if the applicant were to be questioned about his compliance with the reporting conditions, the Authority did not consider that would constitute serious harm.[17] The Authority relied on its finding that “after the initial enquiry with the applicant’s parents, there is no credible information . . . to indicate that authorities pursued any further questioning of the applicant’s family about the applicant since then”.[18]
[17] CB166, [24]
[18] CB166, [24]
The Authority was not satisfied there is a real chance that on his return to Sri Lanka the applicant would be considered to hold anti-government opinions because of the article the applicant’s brother had published.[19]
a)Although the Authority accepted that people had threatened the applicant’s mother, and that the applicant’s parents continue to receive threats from people smugglers for the payment of outstanding amounts and had engaged with police to a mediated resolution, there was no credible information to indicate the unidentified individuals were linked with the Sri Lankan government.[20]
b)The translated version of the article does not refer to the applicant, questioning by the individuals about the applicant’s whereabouts, or comments that imply any government involvement.[21]
c)The applicant’s brother continues to reside at the Brother’s House, and continues to work as a journalist; and there is no information the applicant’s brother has come to the adverse attention of the Sri Lankan authorities for his reporting of the news.[22]
[19] CB166-167, [27]
[20] CB166, [26]
[21] CB166, [27]
[22] CB166, [27]
The Authority was not satisfied the applicant would face a real chance of serious harm because of his Tamil ethnicity, or because he originated from the Batticaloa District, or because he would be imputed with being associated with the LTTE. Even though the Authority accepted that, because of the applicant’s absence from Sri Lanka, his having been questioned by the CID and the police, and his having scarring on his legs, the applicant’s return to Sri Lanka might trigger some interest in him, the Authority was satisfied that, in light of the applicant’s overall profile, this would be resolved quickly, and without giving rise to serious harm.[23] The Authority was not satisfied that, should the applicant’s non-compliance with his reporting conditions in 2012 come to the attention of the authorities, he would be penalised in a way that would amount to serious harm.[24]
[23] CB167, [31]
[24] CB167, [31]
Although the Authority accepted there is a possibility that the applicant’s non-compliance with reporting conditions may come to the attention of the officials processing the applicant as a returnee, and that this may be of initial interest to the authorities in Sri Lanka, it would not lead to adverse attention giving rise to serious harm. The Authority relied on the applicant’s having been able to leave the hospital and “potentially return for further questioning of his own volition”; and there was no apparent follow up by the authorities about compliance with reporting conditions except for a single enquiry in 2012.[25]
[25] CB168, [35]
The Authority accepted that on his return to Sri Lanka the applicant would be processed as a person who had committed an offence under the Immigration and Emigrants Act 1949 (IE Act); and that he would be charged under the IE Act, be detained until brought before a magistrate; and that he would be penalised for his breach of the IE Act. The Authority was satisfied, however, the applicant would have the financial capacity to pay the fine, despite the debt owing to the people smugglers.[26]
[26] CB168-170, [37]-[45]
On the basis of these findings the Authority was not satisfied the applicant was a “refugee” within the meaning of s.5H of the Act.[27] Relying on these findings, and on additional matters it is unnecessary to set out, the Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka there is a real risk the applicant will suffer significant harm.[28]
[27] CB170, [46]
[28] CB171, [55]
Ground 1
The applicant relies on the three grounds stated in the amended application filed on 4 March 2013. Ground 1 is as follows:
The Authority left its jurisdiction to review the Delegate’s Decision under s 473CC of the Act constructively unexercised by failing to review the Delegate’s finding that the applicant, upon return to Sri Lanka, would not face a real risk of significant harm from the people smugglers to whom the applicant owed money.
Particulars
a.In assessing the applicant against the s 36(2)(aa) criterion, the Delegate accepted that the applicant’s family experienced “harassment and death threats from a group of people in relation to money owed by the applicant to the people smugglers with the last threat made in October 2016”: Delegate’s Decision p 12.
b.The Delegate found that, because the applicant would be able to obtain protection from an authority in Sri Lanka in relation to this issue, there was not a real risk that the applicant would suffer harm in relation to this issue: Delegate’s Decision p 12.
c.The Authority accepted that “the applicant’s family is being pursued by people smugglers for payment of monies owed”: at [26].
d.[The] Authority failed to consider whether the applicant satisfied s 36(2)(aa) of the Act on the basis of facing a real risk of significant harm from the people smugglers or relating to the money owed to the people smugglers.
In his counsel’s written submissions the applicant submits the Authority was required to consider whether the applicant faced a real risk of significant harm from the people smugglers because it was a question the delegate had considered; and the Authority’s duty under s.473CC of the Act to review the “fast track reviewable decision” - in this case the decision of the delegate – included the delegate’s findings in relation to the people smugglers. The applicant submits the delegate correctly understood the Delegate Submission “to be conceding only that the smuggler issue was not capable of engaging the refugee criterion in s 36(2)(a)”.[29] The Minister, on the other hand, submits that the statutory role of the Authority is not to review the findings made by the delegate; its task is to conduct a de novo review of the decision.[30] The Minister further submits the applicant had in any event abandoned any claim based on threats having been made by the people smugglers.
[29] Applicant’s Submissions, [33]
[30] Submissions of the First Respondent , [7], [8], referring to Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 174
I do not accept that the Delegate Submission submitted the applicant intended to maintain a complementary protection claim based on the threats the people smugglers made to his parents. First, the Delegate Submission states the applicant “is not claiming protection on the grounds of the harassment experienced by his family in relation to money owed, although initially mentioned in his arrival interview”, and that the applicant “has not perpetuated this claim in his application for a Safe Haven Enterprise visa”. Second, the Delegate Submission submitted that the threats made against the applicant’s family by the people smugglers did not amount to “serious harm for defined reasons as required under s 5J of the [Act]”. Having submitted that the threats by the people smugglers did not constitute “significant harm” within the meaning of s.5J of the Act, the Delegate Submission cannot reasonably be read as intending to submit that the harassment nevertheless constituted “significant harm” within the meaning of s.36(2A) of the Act.
That I am not satisfied the Delegate Submission did not convey that the applicant intended to maintain a complementary protection claim based on the threats the people smugglers made to his family does not mean no such claim was before the Authority. The Authority was aware the applicant had claimed before the delegate that people smugglers had threatened his family, and the Authority accepted that “the applicant’s family is being pursued by people smugglers for payment of monies owed”.[31] The question, however, is whether, on the material before the Authority, there was a claim clearly or sufficiently made to the effect that, because of the threats the people smugglers made to the applicant’s family, there were substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm.[32] That the delegate may have considered the applicant’s evidence that people smugglers had threatened his parents was capable of giving rise to a claim under s.36(2)(aa) of the Act has no bearing on whether such a claim was clearly or sufficiently made on the material that was before the Authority.
[31] CB166, [26]
[32] NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695, at [15]: “From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]”.
In my opinion, the applicant’s evidence that people smugglers had threatened the applicant’s family did not clearly or sufficiently state a claim for protection under the complementary protection criterion provided for by s.36(2)(aa) of the Act based on the threats the people smugglers made to the applicant’s family. First, the applicant did not claim he entered into any arrangements with people smugglers for the payment of his trip to Australia. In his statutory declaration the applicant said no more than that his father helped arrange and fund the applicant’s travels.[33] Second, the applicant did not claim the people smugglers had threatened harm against him. Third, the applicant claimed his parents had reported the matter to the police, and the police responded by attempting to mediate the matter. Fourth, there was no evidence of the harm the people smugglers had threatened against the applicant’s parents.
[33] CB73, [23]
Thus, the Authority did not consider whether the applicant’s evidence that people smugglers had threatened his parents satisfied s.36(2)(aa) of the Act, first, because, as I have found, it was not a claim that was expressly made and, second, because, as I have also found, such claim did not clearly or sufficiently arise from the material that was before the Authority. The Authority, therefore, made no jurisdictional error by not considering whether the applicant’s evidence gave rise to such a claim and, if so, consider such claim.
Ground 1, therefore, fails.
Ground 2
Ground 2 is as follows:
The Authority erred in overlooking parts of the applicant’s evidence and submissions to the Delegate that went to the applicant’s claim to face a real risk of significant harm on return to Sri Lanka on account of his breach of reporting conditions to which he was subject prior to his departure from Sri Lanka.
Particulars
a.The Authority accepted that, after the applicant was released from [Camp X] [in] 2012, he was required to report every Sunday to a camp in . . . and to report daily to the police station in . . . : at [18].
b.The Authority accepted that, after being taken by the CID [in] . . . 2012 and detained and mistreated for four days, and after being released from hospital [in] . . . 2012, the applicant “was asked to return to [Camp Y] after three days for further investigation”: at [21]-[22].
c.The Authority accepted that the applicant “had not reported to the police station since . . . 2012 and had not returned to [Camp Y]”at [23].
d.At [24], the Authority held that there was “no credible information before me to indicate that the authorities pursued any further questioning of the applicant’s family about the applicant” since September 2012. The Authority found that the evidence regarding the applicant’s mother being visited by unknown individuals in October 2012 did not show that the individuals were linked to the Sri Lankan government: at [25]-[26].
e.The Authority overlooked the applicant’s evidence to the Delegate that his family had been threatened by persons associated with the Sri Lankan government as recently as May 2016, and submissions on the same point: eg, affidavit of Lisa Thomas made 15 January 2018 at p 14-15; CB 111 [6].
f.Had the Authority not overlooked the evidence and submissions referred to in the preceding particular, it may have come to a different conclusion on its review, as well as in relation to the conclusions reached at [24], [31] and [35].
This ground claims the Authority failed to consider the applicant’s evidence of the May 2016 incident. The applicant submits this evidence was important, having regard to the matters the Authority accepted, and the reasons on which it relied for not accepting the applicant was exposed to a serious risk of harm because of his failing to comply with his reporting conditions after his released from Camp X.
The Minister, in his counsel’s written submissions, accepts the Authority did not expressly refer to the applicant’s evidence of the May 2016 incident.[34] The Minister submits, however, that although the applicant had stated to the delegate that unknown people had visited his home in May 2016 “looking for him”, the applicant did not claim that on that later occasion the people had “enquired about him or threatened his parents as they had before”.[35] The Minister further submitted it was open to the Authority to reason, as it did, that the CID had no ongoing interest in the applicant having taken no particular interest in questioning the applicant when he was in hospital in 2012. The Minister also submitted that, in light of the Authority’s findings in relation to the applicant’s claims based on the applicant’s brother’s publication of a news article, and the applicant’s profile, any failure by the Authority to address the applicant’s claims of the visits to his home in May 2016, “having regard to the nature of the visit as described by the applicant in the interview with the delegate”, cannot have resulted in any different outcome.[36]
[34] Submissions of the First Respondent, [17]
[35] Submissions of the First Respondent, [17]
[36] Submissions of the First Respondent, [18]
In his oral address counsel for the Minister submitted that, although the Authority did not expressly refer to the applicant’s evidence of the May 2016 incident, it should be inferred the Authority did refer to it but did not accept that evidence to be credible. The basis of that submission is the Authority’s referring to their being “no credible information” to indicate that the authorities pursued any further questioning of the applicant’s family about the applicant since September 2012.
There is no dispute about the legal principles by reference to which I am to consider ground 2; and those principles were stated by Robertson J in Minister for Immigration and Citizenship v SZRKT. His Honour said that a tribunal’s failure to consider evidence may amount to jurisdictional error; and whether it does depends on the “importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error”.[37] Two questions therefore arise. Did the Authority fail to address or consider the applicant’s evidence of the May 2016 incident? If so, was the evidence and the error of sufficient importance to the Authority’s decision to warrant the conclusion that the Authority did not properly discharge its obligation to review the delegate’s decision?
[37] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, at [111]
Did the Authority consider the evidence?
The starting point is the Authority’s express finding that there was “no credible information . . . to indicate that authorities pursued any further questioning of the applicant’s family”.[38] There are two possible explanations for this finding. The first is the Authority believed or assumed there was no information before it that, if accepted, showed the authorities did not pursue any further questioning of the applicant’s family after September 2012. If that explanation is correct, it would follow the Authority failed to consider the applicant’s evidence of the May 2016 incident. The second possible explanation is the Authority was aware of the applicant’s evidence, but either did not appreciate it was evidence which, if accepted, showed the authorities did pursue further questioning of the applicant’s family about the applicant after September 2020; or the Authority did appreciate this, but found the applicant’s evidence not to be credible.
[38] CB166, [24]
The second possible explanation is unlikely. First, the applicant’s evidence of the May 2016 incident, if accepted, cannot reasonably be characterised as anything other than evidence that the authorities pursued further questioning of the applicant’s parents in May 2016, being after September 2012. Second, the Authority had accepted the applicant’s evidence on almost all of the central elements of his claims, particularly his having been tortured at Camp Y after his return to the Home Area. It is unlikely the Authority would have found the applicant’s evidence of the May 2016 incident not to be credible without having undergone some process of reasoning about why, having accepted as credible the applicant’s evidence of his central claims, it did not accept this part of the applicant’s evidence; and, having undergone such process of reasoning, set out the reasoning in its reasons for decision.
The more likely explanation for the Authority’s stating there was no credible information to indicate that authorities pursued any further questioning of the applicant’s family about the applicant after September 2012 is that the Authority overlooked the applicant’s evidence of the May 2016 incident. I find, therefore, the Authority overlooked that evidence and, to that extent, made an error.
Importance of error
The next task is to assess the importance of the error; and that is to be done by identifying the claims in the determination of which the Authority relied on the error. There are two claims.
The first is the applicant’s claim that his failure to comply with his reporting requirements exposed him to a real risk of significant harm if he were to return to Sri Lanka. The Authority was not satisfied the applicant faced such a risk because it found the applicant was not of any interest or of any substantial interest to the Sri Lankan authorities. The Authority relied on two matters. The first is the Authority’s finding that there was “an apparent absence of further enquiries about the applicant apart from a single occasion [in] September 2012”.[39] That finding, in turn, is directly based on the error. The second matter on which the Authority relied is its finding that the CID’s suspicion of the applicant had relaxed after they questioned him because they left the applicant unattended at the hospital, and allowing the applicant to return of his own volition for questioning. That is not based, or at least directly based, on the error.
[39] CB166, [24]
Had the Authority not made the error, it would have considered the applicant’s evidence of the May 2016 incident. Had it done so, there is a substantial prospect that it would have accepted that evidence, given the Authority had accepted most of the applicant’s evidence on the central elements of his claims, including his evidence of torture at Camp Y when he returned to the Home Area; and had the Authority accepted the applicant’s evidence, there is a substantial prospect that, given the other findings it had made, the Authority would also have found the applicant had a well-founded fear of serious harm because he failed to comply with his reporting requirements. In short, the Authority’s error was important and serious. It also necessarily follows the error was material; the Authority’s considering the applicant’s evidence of the May 2016 incident “could realistically have resulted in a different decision”.[40]
[40] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, at [45]
The second claim the Authority determined on the basis of matters that included the error is the applicant’s claim that he would be targeted when being processed on his return because of the applicant’s non-compliance with the reporting conditions imposed on the applicant in 2012 on his release from Camp X (and Camp Y). Although the Authority accepted this may come to the attention of officials responsible for processing the applicant, and the information may be of initial interest, it would not lead to serious harm or extended detention. The Authority relied on four matters: the applicant’s overall profile with the authorities for LTTE involvement; that following his hospital stay in August 2012 the applicant was able to leave and potentially return for further questioning of his own volition; there was “no apparent follow up from authorities about compliance with reporting conditions except for a single enquiry at his home in September 2012”; and the passage of time.[41] The error was directly relevant to the third and fourth matters on which the Authority relied.
[41] CB168, [35]
Had the Authority considered the applicant’s evidence of the May 2016 incident, there is substantial prospect that it would have accepted that evidence, given the Authority had accepted most of the applicant’s evidence on the central elements of his claims, including his evidence of torture at Camp Y when he returned to the Home Area; and had the Authority accepted the applicant’s evidence, there is a substantial prospect that, given the other findings it had made, the Authority would also have found the applicant had a well-founded fear he would be targeted when being processed on his return because of the applicant’s non-compliance with the reporting conditions and that he would face a real risk of serious harm. The Authority’s error, therefore, was important and serious in relation to the Authority’s consideration of this claim; and the Authority’s considering the applicant’s evidence of the May 2016 incident “could realistically have resulted in a different decision”.[42]
[42] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, at [45]
The applicant, therefore, succeeds on ground 2.
Ground 3
Ground 3 is as follows (errors in original):
The Authority failed to consider the applicant’s claim to fear harm on account of being a failed Tamil asylum seeker or being imputed as an individual with LTTE links on account of being a failed asylum seeker, or otherwise left its jurisdiction under s 473CC [of] the Act constructively unexercised in respect of this issue.
Particulars
a.The applicant claimed to fear harm on account of being a failed asylum seeker: Statutory Declaration [34].
b.The applicant claimed that, upon learning that he was a failed asylum seeker, the authorities would perceive him to be an individual with LTTE links: Statutory Declaration [36].
c.The applicant also claimed to face charges on account of his illegal departure from Sri Lanka: Delegate’s Decision p 4.
d.The Delegate found that:
i.there was not information to suggest that ethnic Tamils who had lived or stayed abroad were facing serious harm “in their home areas on their return to Sri Lanka simply due to the time spent out of Sri Lanka or for being a failed asylum seeker”. As such, the applicant did not hold a well-founded fear of persecution on account of being a Tamil failed asylum seeker (Delegate’s Decision p 10).
ii.If the applicant were charged in relation to his illegal departure, this would not involve persecution (Delegate’s decision pp 9, 11).
e.The Authority addressed the question of whether the applicant faced harm on account of the risk of him being charged with departing Sri Lanka illegally: [36]-[43], [52]-[53];
f.The Authority failed to consider whether the applicant was entitled to protection on account of being a failed Tamil asylum seeker or being perceived as an individual with LTTE links on account of being a failed asylum seeker.
This ground claims there was before the Authority a claim that the applicant feared harm because he formed part of a particular social group, namely, Tamil failed asylum seekers, and the Authority failed to consider that claim. The applicant submits he made that claim by stating in his statutory declaration that he feared harm or mistreatment “for reason of”, among other things, “[m]embership of the particular social group of “failed Tamil asylum seekers returning to Sri Lanka””.[43] The applicant also relies on the delegate’s decision which identifies as one of the applicant’s claims that he feared harm “for being a failed (Tamil) asylum seeker”.
[43] CB75, [34.e.]
It is true that, although the Authority considered whether the applicant had a well-founded fear of harm because he would be a returned asylum seeker, the Authority did not refer to whether the applicant faced a real risk of harm because he would be a returned Tamil asylum seeker. I am not prepared to find, however, the Authority was not aware the applicant had made such a claim, and that it did not consider it. First, when considering what would happen to the applicant because he had departed Sri Lanka illegally, the Authority referred to such persons being processed “in accordance with standard procedures regardless of ethnicity”.[44] That indicates the Authority was alive to the question whether there was information capable of suggesting discrimination on the basis of ethnicity, including Tamil ethnicity. That, in turn, is a basis for inferring, and I do infer, there was no information before the Authority that was reasonably capable of suggesting that Tamil returnees constituted a particular social class of returnees, having regard to the treatment they receive when processed by authorities compared to the processing of other returnees; and it is the absence of any such information before the Authority that explains its not having expressly considered any such claim.
[44] CB169, [38]
Second, in concluding it was not satisfied the applicant will face a real chance of serious harm “on the basis of being an asylum seeker and/or for illegal departure”, the Authority referred to the “DFAT Country Information Report – Sri Lanka 2017” which the Authority said assessed “the risk of torture or mistreatment for the majority of returnees is low and continues to reduce”.[45] The inference that is available to be drawn, and which I do draw, is that the country information did not suggest or identify that any particular class of returnees – Tamil or otherwise – received different treatment according to their ethnicity or any other type of class to which they belonged. That inference is strengthened by the delegate’s having referred to the same country information in concluding there “is no information to suggest that an ethnic Tamil who has lived or stayed abroad are facing serious harm at Colombo airport or in their home areas on their return to Sri Lanka simply due to the time spent out of Sri Lanka or for being a failed asylum seeker”.[46] Thus, the Authority’s not referring to Tamil returnees as a particular class of returnees is to be explained by there being no information before the Authority that suggested that Tamils constituted a particular class of returnees who were processed differently from other returnees; and it is the absence before the Authority of any such information that explains the Authority’s not having made a specific finding about Tamil returnees.[47]
[45] CB169-170, [44]
[46] CB131
[47] At the end of the hearing I granted the applicant liberty for his counsel to send an email to my associate identifying material in the evidence before me in relation to the claim that the applicant is a member of “the particular social group of “failed Tamil asylum seekers returning to Sri Lanka””. Counsel for the applicant sent an email on 21 April 2020. The only material the email identifies is the material counsel identified at the hearing, that being the claim made in the applicant’s statutory declaration and the delegate’s reasons for decision.
Ground 3, therefore, fails.
Conclusion and disposition
The applicant has succeeded on one of the three grounds stated in the amended application. I propose, therefore, to order that the Authority’s decision be set aside, and that the Authority review the delegate’s decision according to law. I will also order that the Minister pay the applicant’s costs as agreed or assessed, although I will reserve to the parties liberty to apply within 21 days for an order discharging or varying that order because I have not invited submissions on costs.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 25 September 2020
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