CJB16 v Minister for Immigration
[2020] FCCA 845
•16 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CJB16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 845 |
| Catchwords: MIGRATION – Application for review of decision of the Immigration Assessment Authority (IAA) – whether the IAA arrived at a conclusion that was based on no evidence – whether the IAA arrived at a conclusion that was not supported by the evidence before it – whether the IAA failed to consider whether the applicant would suffer from significant harm arising from societal discrimination – whether the IAA failed to exercise its discretionary powers pursuant to s.473DC of the Migration Act 1958 (Cth) – whether the IAA failed to complete its task pursuant to ss.473CB and 473DB of the Act because it failed to consider one of the applicant’s claims – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 473CB, 473CC, 473DB, 473DC, 476 |
| Cases cited: Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559; (1997) 144 ALR 567; (1997) 71 ALJR 743; (1997) 64 FCR 151; (1997) 48 ALD 481 |
| Applicant: | CJB16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2300 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing dates: | 3 December 2019 and 24 March 2020 |
| Date of Last Submission: | 24 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 16 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms U. Okereke-Fisher (by direct access) |
| Counsel for the Respondents: | Mr J. Kay Hoyle |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application made on 24 August 2016 and as further amended is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7467.
THE COURT NOTES THAT:
On 3 December 2019, an order was made that the applicant pay the first respondent’s costs thrown away on that day. Order 3 made today stands in addition to that order.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2300 of 2016
| CJB16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) on 24 August 2016, and further amended on 21 March 2017, 29 November 2019, and 2 December 2019, seeking review of the decision of the Immigration Assessment Authority (“IAA”) made on 29 July 2016, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse to grant the applicant a Safe Have Enterprise visa (“SHEV”) (“a protection visa”) (“the visa”).
The evidence before the Court is contained in a bundle of relevant documents filed by the Minister and tendered by the applicant (“the Court Book” – “CB” – “AE1”).
Background.
The applicant is a citizen of Sri Lanka (CB 1). He arrived in Australia on 25 September 2012 as an “illegal maritime arrival” ([4] at CB 102) and participated in an “Arrival Interview” on 1 October 2012 (CB 1 – CB 11). On 11 January 2013 he participated in an “Irregular Maritime Arrival Entry Interview” (“the entry interview”) with an officer of the Minister’s department, and an interpreter in the Tamil language (CB 12 – CB 27).
At the entry interview, the applicant answered “yes” to the following question: “Were there any armed groups, political groups, or religious groups operating in the area you lived?”. Further, he provided the following details (at item 7, CB 23):
“[Sub-question:] If ‘Yes’ provide details:
[Answer:] About 1 km from my house there was the EPDP.
[Sub-question:] What was the nature/level of your involvement with them?
[Answer:] I didn’t have any involvement. They suspected us of having involvement with the LTTE so they looked at us differently.”
The applicant applied for a protection visa, which was received by the Minister’s Department on 29 September 2015 (CB 35 – CB 72). A written statement outlining the applicant’s claims to fear harm was attached to the application (CB 73 – CB 76). In this statement the applicant claimed to fear harm from the Criminal Investigation Department (“CID”), and the Sri Lankan Army (“SLA”) ([10] at CB 73). He also claimed to fear harm from groups associated with the SLA (“the associated groups”) ([25] at CB 75). He claimed that his father was detained by the SLA for four months in 1999, and continued to be monitored following his release ([11] at CB 73 and [13]-[15] at CB 74).
The applicant also claimed that on 29 May 2010 he returned to Sri Lanka from Qatar for a six month holiday. However, the SLA questioned him about his identity, and his father advised him to leave ([16]-[17] at CB 74). After he left, the SLA questioned his father as to why he left before the six months had elapsed [18] at CB 74).
Around March 2012, the applicant permanently returned to Sri Lanka ([20] at CB 74). However, he did not stay at home at night, as he said that there had been instances of kidnappings occurring in the area around his home ([20] at CB 74). His father was concerned that he would be kidnapped. On his father’s advice he left Sri Lanka permanently ([21] at CB 74). The applicant also claimed to fear harm as a failed returning asylum seeker ([29] at CB 75).
The Delegate.
The applicant was invited to, and attended, an interview with the delegate on 29 March 2016 (CB 95 – CB 97, and [13] at CB 105).
The delegate refused to grant the applicant the visa on 15 June 2016 (CB 98 – CB124). The delegate referred to the applicant’s written claims, as set out above ([10] at CB 104). The delegate summarised the applicant’s written claims as follows ([11] at CB 104):
“…the applicant claims that he fears persecution from the Sri Lankan army (SLA) and the Criminal Investigation Department (CID) due to being an imputed supporter of the Liberation Tigers of Tamil Eelam (LTTE). He also claims to fear harm as a failed asylum seeker/returnee due to having departed Sri Lanka illegally by boat. He believes he will be jailed for his illegal departure.”
The delegate also had regard to what the applicant had told him at the interview ([13] at CB 105). The delegate noted at [42] (CB 109) of the decision, that:
“…as submitted by the applicant in his arrival interview 8, written statement of claims, and at the Protection visa interview, that nothing happened to him personally which caused him to flee Sri Lanka. Therefore, I am not satisfied that the applicant ever personally experienced persecution in Sri Lanka, nor that the Sri Lankan authorities had any interest in the applicant prior to his departure from Sri Lanka in 2012, which may be evidenced by his ability to obtain a travel document, travel to Qatar, and re-enter Sri Lanka on two occasions without being targeted by the authorities. I put this to the applicant at interview. In response, the applicant stated, in summary, that his father had asked him to leave Sri Lanka; that he had not personally experienced harm as he had lived outside of Sri Lanka for some time; that he will be questioned by the authorities on his return to Sri Lanka; and that he fears harm as a failed asylum seeker/returnee.”
[Footnote Omitted.]
Ultimately, the delegate found that the applicant was not owed protection under s.36(2)(a) or s.36(2)(aa) of the Act ([83] at CB 119 and [93] at CB 121).
The IAA.
On 16 June 2016, the matter was referred to the IAA for review (CB 126 – CB 127). The IAA affirmed the decision of the delegate on 29 July 2016 (CB 128 – CB 145). The IAA outlined the applicant’s claims, which were contained in the information referred to the IAA, as follows (at [4], CB 130 – CB 131):
“· He is a Tamil Roman Catholic born in Nelliyadi, Jaffna District, Northern Province, Sri Lanka. He resided lawfully in Qatar between December 2004 - May 2010 and August 2010 - March 2012.
· In 1999, an LTTE member arrested on terrorism charges told the SLA that his father was providing food and shelter assistance to LTTE members. His family was detained. Due to their young age and the intervention of the grama sevaka (village headman), after answering some questions the applicant and his siblings were released to stay with relatives.
· His father was detained for several months, beaten and tortured by the SLA on suspicion of LTTE support and was subsequently monitored and harassed following his release. The SLA conducted routine visits to the house every three months (even after the war) to check on his father's movements and activities and to search for underground bunkers hiding LTTE members or weapons.
· In December 2004 he went to Qatar. He returned on a short vacation in 2010 and when the SLA visited they wanted to know who he was. The applicant's father told them he was his son, home on from abroad for a six month vacation. Fearing the SLA would intensify their monitoring and that the applicant would also be targeted and harmed as he was, his father advised him to go back to Qatar. He followed this advice and returned to Qatar in August 2010.
· After he left the SLA were suspicious about his early departure and interrogated his father.
· In March 2012 the applicant returned to Sri Lanka but he did not stay home at night time as kidnappings of people with suspected LTTE links were occurring in the area.
· The authorities are still concerned about the LTTE regrouping and heavily restrict people's movement and conduct routine checks of homes, taking particular interest in visitors from outside the town. The SLA has as recently as November 2012, kidnapped and killed people from his area on suspicion of LTTE support activities.
· His father worried the applicant might be kidnapped by the army or its associated groups and advised him to leave Sri Lanka permanently. For visa reasons he could not return to Qatar so he decided to come to Australia. His father passed away in 2013.
· He fears harm from the SLA and the Criminal Investigation Department (CID) and associated groups in the authorities due to being an imputed supporter of the Liberation Tigers of Tamil Eelam (LTTE) and because he left illegally and would be returning as a failed asylum seeker.”
The IAA considered the applicant’s entry interview at [5] (at CB 131) of the decision record, finding that the applicant had subsequently abandoned the claim he made concerning the Eelam People's Democratic Party (“EPDP”) at the entry interview (CB 131):
“5. On 11 January 2013 the applicant participated in an Entry interview with an officer of the Department of Immigration and Border Protection (DIBP). In that interview the applicant was asked if there were any armed groups, political groups or religious groups operating in the area and he responded that the Eelam People's Democratic Party (EPDP) were operating in his area. He stated he had no involvement with the group but that "they suspected us of having involvement with the LTTE so they looked at us differently". However subsequent to the Entry interview he made no mention to the EPDP or any issues he or his family experienced from them. The applicant has not raised any claims relating to the EPDP his written application or the SHEV interview where he was invited to discuss his protection claims. During the SHEV interview the applicant confirmed he had raised all of his claims for protection and that there was nothing more he wished to add. On this basis, I find the applicant is not pursuing these claims and therefore they will not be assessed.”
[Error in the Original.]
[Emphasis Added.]
The IAA accepted that the applicant was questioned in 2010 ([11] at CB 132) when he returned to Sri Lanka, and that his father was questioned about the applicant’s “early departure” from Sri Lanka ([12] at CB 132) when he went back to Qatar ([11]-[12] at CB 132). However, the IAA did not accept that the applicant was being targeted by the authorities, or was of adverse interest to them ([14] at CB 133).
The IAA considered the applicant’s claims to fear harm in connection with his Tamil ethnicity ([17]-[23] at CB 134 – CB 136). In particular, the IAA considered societal discrimination in Sri Lanka, finding at [19] (CB 134 – CB 135) that:
“19. DFAT acknowledges that there is a moderate level of societal discrimination resulting largely from the conflict.16 However, the report does not identify the relevant ethnic groups or the nature and level of this discrimination. Given that country information indicates monitoring in the North and East has significantly decreased, that there have been significant positive developments for Tamils in the country's politics and that the situation has generally improved, I find that the applicant would not face a real chance of harm through official or societal discrimination for reasons of his race upon return to Sri Lanka.”
[Footnote Omitted.]
Similarly, when considering the applicant’s claims in regard to complementary protection, the IAA found at [38] (CB 138 – CB 139) that:
“38. Having regard to country information cited above which indicates that Tamils including young Tamil males are no longer at risk of harm on account of race, even when originating from the North, I am not satisfied the applicant faces a real risk of significant harm in the reasonably foreseeable future for reasons of his race, gender, age or origins.”
The IAA also considered the applicant’s claims concerning his status as a returned failed asylum seeker ([24]-[34] at CB 136 – CB 138). The IAA accepted that if the applicant returned to Sri Lanka, he would be considered a returning, failed asylum seeker ([24] at CB 136). The IAA found that even if the applicant is penalised for departing illegally, such punishment would not constitute persecution ([32] at CB 136 – CB 137).
The IAA also considered the applicant’s claims concerning his status as a returning, failed asylum seeker, in the context of complementary protection ([42]-[44] at CB 139 – CB 140). Here the IAA similarly found that even if the applicant was punished for departing Sri Lanka illegally, such penalty would not constitute significant harm ([44] at CB 140).
The IAA ultimately concluded that the applicant was not owed protection, as he did not meet the criteria under either s.36(2)(a) or s.36(2)(aa) of the Act ([35] at CB 138, and [46] at CB 140). Therefore, the IAA affirmed the delegate’s decision not to grant the applicant a protection visa (CB 140).
Before the Court.
The applicant was unrepresented at the time of making the application to the Court. On 16 November 2016 orders were made, by consent, in Chambers, setting out a timetable for the filing of various documents, including the filing of an amended application by 15 December 2016. No further documents were filed by the applicant by this date. Orders were also made for the filing of written submissions by the applicant and first respondent, 14 and 7 days, respectively, prior to the hearing.
On 21 March 2017 the applicant filed an amended application. This was prepared by Mr Kumar of counsel, acting by direct access.
On 28 August 2019, orders were made setting the matter down for final hearing on 3 December 2019. Further, orders were made for the applicant to file written submissions on or before 19 November 2019, and for the Minister to file written submissions on or before 26 November 2019.
Mr Kumar passed away prior to the final hearing in this matter. On 18 November 2019, the Court wrote to the applicant advising him of this (sending a copy to the Minister), and to enquire whether or not he intended to obtain new representation, or, if he intended to represent himself at the final hearing, whether he required the services of an interpreter.
Consistent with the relevant order, the Minister filed his written submissions on 26 November 2019. The Court’s Registry did not receive any correspondence in reply from the applicant by this date.
On 28 November 2019, Ms Okereke-Fisher of counsel sent email correspondence to the Court to notify that she was now representing the applicant by direct access. She put the Court on notice that the applicant intended to submit an “amended grounds of application” by the close of business on 30 November 2019, and to submit written submissions by “12 Noon, 2 December 2019”.
On 29 November 2019, Ms Okereke-Fisher emailed correspondence to Chambers attaching an “amended application”, and in this correspondence wrote: “I would ask the applicant to file and serve this document before Close of Business on 2 December 2019”.
On 2 December 2019 the applicant filed a list of authorities and written submissions. Attached to the written submissions was a proposed “Further Amended Application”, which differed to the “Amended Application” emailed to Chambers on 29 November 2019.
At the hearing on 3 December 2019, the Minister and the applicant were represented by counsel. The applicant’s counsel submitted that the proposed further amended application was: “…the same ground, just rearranging”, and sought leave to file an affidavit by the applicant explaining the delay.
The Minister’s counsel submitted that the respondent had not been aware until the hearing that there was an affidavit explaining the delay, and noted that the affidavit had not been filed or served. Further, he submitted that in relation to ground 1, the amended application emailed to Chambers on 29 November 2019 was “completely different” to the prior amended application. The Minister’s written submissions, filed on 26 November 2019, had addressed the grounds of the prior amended application drafted by Mr Kumar of counsel, which was filed on 21 March 2017.
In relation to the proposed further amended application filed on 2 December 2019, and in particular, with respect to ground 1, the Minister submitted that there were two additional new “formulations” of legal error in the proposed grounds, and that it was not correct to characterise the situation as: “…merely a minor reformulation of an existing ground”.
Further, the Minister submitted that the way in which the applicant sought to characterise the claimed error in the IAA’s decision: “…changes the nature of the case entirely”. The Minister submitted that he had not had the opportunity to formulate a response to this in writing. The Minister also submitted that there was no merit in either ground, thus opposing both grounds of the proposed further amended application. In those circumstances, the Minister opposed leave to grant the filing of the proposed further amended application.
There was great substance to the Minister’s submissions. However, in the interests of giving the applicant every opportunity, given the death of counsel who had represented him for some time, leave was granted for the applicant to proceed by way of the “Further Amended Application”, as filed on 2 December 2019. The final hearing was adjourned until 24 March 2020. Orders were made allowing the Minister to file further written submissions on or before 17 March 2020, in response to the further amended application. The Minister filed further written submissions on this date, in accordance with the orders.
At the final hearing on 24 March 2020, both parties were represented by counsel.
The Application to the Court.
The further amended application, filed on 2 December 2019, is in the following terms:
“Ground 1
Ground One: Jurisdictional Error - The Authority failed to complete the task under s473CC and 473DB of the Act, leading to a failure to exercise jurisdiction and jurisdictional error in that (i) there was no evidence to support its conclusion (ii) the Authority failed to consider findings arising from an integer of the Applicant's protection claims, pursuant to the complementary protection regime under s 36(2)(aa) of the Migration Act. In essence, the Authority failed to consider whether the Applicant would suffer Significant Harm arising from the "moderate level of societal discrimination resulting largely from the conflict" (ii) (ii) the Authority failed to exercise the discretionary powers under s 473DC.
Particulars
a) The Applicant claimed that if he was forced to return to Sri Lanka as a failed asylum seeker, the authorities at the airport will arrest him and interrogate him for leaving the country illegally. He also stated that he will be targeted by the CID as they will be suspicious that he may have links to the former LTTE [Paragraph 29, CB75]. He fears harm from the SLA and CID and associated groups due to being an imputed supporter of the LTTE and because he left illegally and would be returning as a failed asylum seeker. [Paragraph 29, CB75]. (Collectively the “Claims”).
b) The Authority accepted that Tamils in the applicant's area were harmed during the war and subsequently; (ii) acknowledged that there is a moderate level of discrimination resulting largely from the conflict (“Societal Discrimination”). Subsequently, the Authority found that the Applicant would not face a real chance of harm through official or societal discrimination for reasons of his race upon return to Sri Lanka. [Paragraph 19, CB 134-135].
Ground 2
The Authority failed to complete the task under ss 473CB and 473DB of the Act in that it failed to consider one of the Applicant's protection claims, leading to a failure to exercise jurisdiction and jurisdictional error. Furthermore, the Authority's decision not to assess one of the Applicant's protection claims is a decision that was plainly unjust and lacking an evident and intelligent justification.
Particulars
a) In his Entry interview on 11 January 2013 and in response to the question whether there were armed groups or religious groups operating in his area, the Applicant responded that the Eelam People's democratic party (EPDP) were operating in his area He stated that the EPDP “suspected us of having involvement with the LTTE so they looked at us differently” (the “EPDP Claim”). [Paragraph 5, CB 131].
b) The Authority found “... The applicant has not raised any claims relating to the EPDP in his written application or the SHEV interview where he was invited to discuss his protection claims. During the SHEV interview the applicant confirmed he had raised all of his claims for protection and that there was nothing more he wished to add. On this basis, I find the applicant is not pursuing these claims and therefore will not be assessed. [Paragraph 5, CB 131].”
[Underlining Removed.]
Ground One: The Applicant’s Arguments.
By ground one the applicant raises three arguments (“limbs”) all focused on the IAA’s finding that the applicant would not face a real chance of harm through, relevantly, societal discrimination, for reason of his race (Tamil) on his return to Sri Lanka.
The three arguments, or limbs, were said to arise with reference to the proposition that the IAA failed to complete its task to review the delegate’s decision pursuant to s.473CC and s.473DB of the Act.
In short compass the three limbs are as follows. One, the IAA arrived at a conclusion that was based on “no evidence”, or in apparent contradiction, was not supported by the evidence before it. Two, the IAA failed to consider whether the applicant would suffer from significant harm arising from societal discrimination. Three, the IAA failed to exercise the discretionary powers available to it pursuant to s.473DC of the Act.
Ground One: The First Limb. The Applicant’s Argument.
In his submissions the applicant was unclear as to whether the complaint was that there was “no evidence” to support the IAA’s finding in this regard (as for example stated at [6] of his written submissions), or “insufficient evidence” as appeared to be, at least in part, the complaint as expressed in submissions before the Court, and as appears to be stated at [11] of his written submissions.
To establish the background to the first element of ground one, the applicant referred to his claims to fear harm, and a DFAT report referred to by the IAA in its decision record.
The applicant’s claims to fear harm were based on his Tamil ethnicity, that he was imputed to be an LTTE supporter, and that he left Sri Lanka illegally and would return as a failed asylum seeker.
The applicant submitted that the IAA found that he belonged to the Tamil minority in Sri Lanka, and that Tamils, including members of the applicant’s family, had been harmed during the war. It therefore should have considered the risk of harm to the applicant as it arose from these findings.
In this consideration, the IAA referred to a particular DFAT report. (For DFAT report see footnote 16 to [19] at CB 134). It noted that the report acknowledged that there existed a “moderate level” of societal discrimination in Sri Lanka. The IAA also noted that the DFAT report did not identify the relevant ethnic groups, or the nature, and level, of this discrimination ([19] at CB 134 – CB 135).
The applicant now argues that notwithstanding these findings, the IAA went on to conclude that the applicant would not face a real chance of harm through societal discrimination by reason of his Tamil ethnicity.
The applicant drew attention to the IAA’s reasoning at [19] (CB 134 – CB 135):
“19. DFAT acknowledges that there is a moderate level of societal discrimination resulting largely from the conflict.16 However, the report does not identify the relevant ethnic groups or the nature and level of this discrimination. Given that country information indicates monitoring in the North and East has significantly decreased, that there have been significant positive developments for Tamils in the country's politics and that the situation has generally improved, I find that the applicant would not face a real chance of harm through official or societal discrimination for reasons of his race upon return to Sri Lanka.”
[Footnote Omitted.]
The applicant’s submission was that the DFAT report was “inconsistent”, and “discloses gaps with respect to” societal discrimination. The first explanation for this submission was that the report “qualified” the level of societal discrimination as being “moderate”. However, the report then: “…proceeded to state that the report does not state the nature and level of the discrimination” (see the applicant’s written submissions at [9], and repeated in oral submissions before the Court). (See further below).
The second explanation for this submission was that there were “gaps” in the DFAT report. These were said to be (with reference to [9] of the applicant’s written submissions):
1 Absence of knowledge with respect to the relevant ethnic group that is subject to societal discrimination;
2 The nature and level of the societal discrimination;
3 Provenance/perpetrators of the societal discrimination;
4 The attributes of the applicant's profile that would trigger societal discrimination.
The submission was that the IAA arrived at the conclusion that the applicant would not suffer harm, relevantly because of societal discrimination, for reason of his (Tamil) “race”, by relying on country information which indicated that monitoring by the Sri Lankan authorities in the north and east of Sri Lanka had significantly decreased, there had been a significant positive development for Tamils in Sri Lankan politics, and the situation for Tamils had generally improved.
The applicant’s argument as to the legal error arising from this was as follows. First, that the DFAT report “implies” that despite the improvement in the situation for Tamils, societal discrimination persists. In this light the IAA should not have relied on the improved situation for Tamils to address the issue of societal discrimination.
Second, the “improvements” do not address societal discrimination. This was not satisfactorily explained in oral submissions.
Third, the IAA’s conclusion in this regard only addressed one aspect of the applicant’s claims, that is, his race. The IAA failed to address the “claim” (societal discrimination) as it relates to the applicant having left Sri Lanka illegally and returning as a failed asylum seeker.
Fourth, in view of the gaps in the DFAT report, there was “no material” before the IAA to support its conclusion.
In oral submissions before the Court the applicant emphasised some aspects of his argument, but appeared to ultimately summarise the argument as follows.
There was “no evidence” before the IAA to support the conclusion that the applicant would not face a real chance of harm through societal discrimination by reason of his (Tamil) race.
Consideration: Ground One. The First Limb.
What was immediately apparent in the applicant’s written and oral submissions was a lack of clarity as to the exact nature of the legal error, and the particulars which supported the ground. Further, the applicant’s submissions were characterised by an expansion of the particulars on which he sought to rely from that stated in his ground.
It was not made clear, or satisfactorily explained, as to whether the ground, the actual legal error asserted, was a “no evidence” ground, or an assertion that there was an insufficient basis to support the IAA’s conclusion.
While references were made to the latter in submissions before the Court, the ground as stated, as pleaded, was not said to be one of legal unreasonableness. That is, that in light of the evidence it was not reasonably open to the IAA to come to the conclusion that it did.
The particulars to the ground appeared to set up a dichotomy in the IAA’s reasoning between all of the applicant’s claims to fear harm if he were to return to Sri Lanka, and the assertion that the IAA failed to properly take into account what was said to be its acknowledged understanding that a moderate level of societal discrimination persisted in Sri Lanka (with reference to [19] of the IAA’s decision record).
Before the Court the applicant also sought to expand the suite of particulars on which he sought to rely, without making any attempt to seek leave to do so.
The applicant’s argument before the Court focused on the DFAT report, what it said, what it did not say, and what it should have said. At best, I understood the notion of “gaps” to relate to this latter point in particular.
However, the applicant’s first limb of ground one (if not all of the limbs of ground one) requires a proper understanding of the IAA’s relevant reasoning. After all, it is the IAA’s decision, its reasoning and findings, which is the subject of this judicial review, not the DFAT report. That report is only relevant to the extent that it informs the IAA’s decision.
The applicant relied on what the IAA stated at [19] of its decision record. (See as extracted at [44] above). However, what is set out there can only properly, and contextually, be understood with reference also to [17] – [18] of the IAA’s decision record (at CB 134):
“17. The applicant belongs to the ethnic Tamil minority.3 The situation has markedly improved for Tamils since the end of the war. The Sri Lankan constitution provides for race equality4 and DFAT assesses there are currently no official laws or policies that discriminate on the basis of ethnicity or language.5 Recent developments in Sri Lanka's political landscape are significant and indicative of a more positive future for Tamils. DFAT considers the Sirisena government has a more proactive approach to human rights and reconciliation than the previous government.6 Since taking power in 2015, the Sirisena government has, inter alia, established a new reconciliation taskforce mandated with 'healing the wounds of mistrust and social and cultural stress generated from extended conflicts between different communities in Sri Lanka',7 replaced military governors with civilians governors in the Northern and Eastern Provinces,8 actively recruited Tamil youths for the police service,9 reduced high security zones, released land formerly held by the military, released some individuals held under the Prevention of Terrorism Act 1979 (PTA) and engaged constructively with the Tamil national Alliance (TNA) and the international community.10 The August 2015 parliamentary election was deemed credible by international and domestic observers.11 While the Tamil National Alliance (TNA), contesting under the IIankai Arsu Kachchi (ITAK) won just 16 seats, Tamil representation increased in profile with the TNA leader, Rajavaothian Sampanthan formally appointed opposition leader.12
18. I accept that Tamils in the applicant's area (including family members) were harmed during the war and subsequently. In considering the risk of such harm in the reasonably foreseeable future, I have considered the UNHCR's 2012 advice which is its most current risk assessment and continues to be relied upon in and reinforced by, more recent and current reports from a variety of other credible sources, including DFAT and the United Kingdom Home Office.13 Country information indicates that the security situation in Sri Lanka, including in the North and the East has greatly improved since the war ended in May 200914 and DFAT, the UNHCR and other authoritative sources do not indicate in their recent and current reporting that Tamils are at risk of persecution in Sri Lanka purely on account of their race.15”
[Footnotes Omitted.]
Paragraph 19 is part of the IAA’s assessment of the applicant’s claim to fear harm on return to Sri Lanka for reason of his Tamil ethnicity and his origins in the north of Sri Lanka. That entire consideration is set out at [17] – [23] (CB 134 – CB 136) of the decision record.
The IAA accepted that the applicant belonged to the ethnic Tamil minority in Sri Lanka, and came from the north ([17] at CB 134 and [21] at CB 135).
The critical point in the IAA’s reasoning, was as initially set out at the beginning of [17] (at CB 134): “…The situation has markedly improved for Tamils since the end of the war.”
The IAA set out various reasons for this. That finding, and the findings that informed it, were all reasonably open to the IAA, and arose from various country information sources before it (as recorded by the extensive footnotes), including, but not limited to, the now impugned DFAT report.
At [18] (CB 134) the IAA accepted that Tamils in the applicant’s home area, including some members of his family, were harmed during the war.
However the IAA properly, and correctly, understood that its task was to assess the real risk of harm in the reasonably foreseeable future.
While instances of past harm can inform the real risk of harm, the relevant test is one of reasonable foreseeability (Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559).
The IAA found that Tamils were not at risk: “…purely on account of their race” ([18] at CB 134). Given the applicant’s ground now, it is important to note, again, that the IAA relied heavily on various country information reports for this finding, and not only the DFAT report (see footnotes at CB 134). In fact, the IAA’s actual finding is couched in terms of what the: “…UNHCR and other authoritative sources” report.
In the context of the improvement in the situation for Tamils since the end of the war, the IAA began its analysis at [19] by noting what was reported in the DFAT report: “…that there is a moderate level of societal discrimination resulting largely from the conflict.”
What is patently obvious, and contrary to the applicant’s assertion in his ground, and some of his arguments before the Court, the remainder of [19] represents the IAA’s understanding of what the DFAT report does, and does not, say. That is, while the report refers to societal discrimination, it: “…does not identify the relevant ethnic groups or the nature and level of this discrimination” (at CB 134 – CB 135).
As against this, the IAA reasoned that other country information (the significant decrease in monitoring in the north and significant positive development for Tamils in the north, and the general improvement in the situation) led it to the conclusion that the applicant would not face a real risk of harm for reason of societal discrimination.
The applicant now relies on what, in essence, he says is the “inconsistency” between the IAA stating that there is a moderate level of societal discrimination, but that this would not lead to a real risk of harm for the applicant.
The first limb of the applicant’s ground one lacks merit.
First, the ground as pleaded (and as in part submitted), that there was “no evidence” to support the IAA’s impugned findings, is demonstrably without any basis. The IAA did have relevant evidence before it. It made repeated and extensive references to it. The applicant otherwise referred to this evidence in his submissions before the Court.
Second, as the Minister submits, a “no evidence” ground can only succeed in the absence of any evidence at all (MZZYE v Minister for Immigration and Border Protection [2015] FCA 1378 (“MZZYE”) at [54], and see Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480, Australian Broadcasting Tribunal v Bond ("Bond Media case") [1990] HCA 33; (1990) 170 CLR 321)
In the current case, it is not necessary to consider any paucity of evidence that might give rise to a “no evidence” ground. The IAA, plainly, referred to, and relied on, a variety of country information reports to reach the impugned conclusion at [19] (CB 134 – CB 135), and the further conclusion at [23] (CB 135 – CB 136). (See also above at [62]).
Third, it is difficult, if not impossible, to see how the applicant could realistically plead a “no evidence” ground, when he then proceeded in submissions to also refer, and rely on, what he said was the relevant body of evidence before the IAA.
Fourth, it is for this reason that it can be reasonably inferred that the applicant devised his “gaps” argument, to manufacture, with reference to “gaps” in the evidence, a “no evidence” scenario.
The “gaps”, however, on which he relies, are not said to be “gaps” in the IAA’s reasoning, but “gaps” in the DFAT report on which (in contradiction to the “no evidence” ground) it said it relied. That is, the applicant has attempted to characterise what he says the DFAT report did not say, and on what the IAA relied, as “gaps”.
The applicant has sought to show “gaps” in the DFAT report, with reference to the IAA’s report of what was in the DFAT report. However, before the Court he did not establish any “gaps”, with reference to the DFAT report itself, as a point of comparison.
The DFAT report was not put into evidence before the Court by the applicant. Nor did he call for the production of the full text of the report.
What remains, therefore, is that the applicant’s argument focused only on the IAA’s references to what was in the DFAT report, and the IAA’s reasoning and findings, and his counsel’s attempt now to conduct her own review of the merits of the applicant’s claim to fear harm.
The applicant’s view of the country information before the IAA does not assist in the prosecution of his ground. The creation of the “gaps” device is no more than the applicant’s attempt at fact finding. It is well settled that the choice of, and weight to be assigned to, such country information is for the decision maker to determine, of course acting reasonably (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11] per Gray, Tamberlin and Lander JJ, and see also Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] per French J (as he then was), Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123; (2009) 113 ALD 46 at [45] per Spender, Moore and Foster JJ, NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [81] per Young J, SZANK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1478 at [16] per Hely J and Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 216 ALR 1 at [8] per Gleeson CJ).
What the applicant, his counsel, or for that matter the Court, thinks of the merits of his claims to protection, is irrelevant for current purposes. The only relevant finder of fact is the IAA.
In this regard, as set out above, the IAA referred to, relied on, and analysed country information before it. The “gaps” posited by the applicant now are his “gaps” in his second hand assessment of the IAA’s analysis where it referred to the DFAT report, amongst other country information.
The real, and relevant, question for current purposes, which the applicant (with his counsel’s assistance) should have asked of himself before embarking on this argument, was whether the IAA’s finding (that is, the impugned finding at the end of [19], and for that matter the conclusion at [23]), was reasonably open to it on what was before it.
The answer to that question, on the evidence before the Court, is in the affirmative. As set out above, the IAA had before it a number of country information reports relating to the situation for Tamils in Sri Lanka, and as to what would likely occur to the applicant if he were to return to Sri Lanka in the reasonably foreseeable future.
The IAA’s impugned conclusion was probative of that information. It gave evident and intelligible reasons for this conclusion (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 (“SZVFW”), Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”) at [76], [105] and see also Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) at [130]-[131]), Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [44]-[45] and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [92] per Wigney J).
Fifth, and for the sake of completeness, I note that the applicant’s ground does not plead illogicality or irrationality in the IAA’s decision, or in relation to the impugned finding. Noting, of course, that the standard relevant to making out such a claim is strict or stringent (Li at [108] and SZVFW at [11]).
In any event, in his submissions the applicant did refer to the IAA’s note that the DFAT report acknowledged that there was a moderate level of societal discrimination in Sri Lanka (the first sentence at [19]). The applicant also submitted that the IAA found that the DFAT report did not identify the nature and level of this discrimination (also at [19]).
On the best view of the applicant’s argument here, the submission was to point to this perceived inconsistency between these two pieces of information to then argue that “gaps” existed in the DFAT report. (See [46] above as to the “gaps”).
The difficulty with this submission is that it relies on a perceived inconsistency in the DFAT report. The issue is whether there was inconsistency in the IAA’s decision, in relation to a material particular, which could reveal jurisdictional error (Hossain v Minister for Immigration and Border Protection [2018] HCA 34, particularly at [30]-[31], [46], [72], and [75]-[76]).
A fair, if not plain, reading of the IAA’s reasoning is that the reference to “a moderate level of societal discrimination” is a reference to what the DFAT report said, not necessarily what the IAA accepted or found.
The IAA’s finding was that notwithstanding that “acknowledgement” in the DFAT report: “…the report does not identify the relevant ethnic groups or the nature and level of this discrimination” ([19] at CB 134 – CB 135).
Given the evidence that is before the Court, the applicant has not been able to show, nor did he seek to do so, that the IAA’s finding as to what the report did not identify was not reasonably open to the IAA on what was before it. Or further, that it was illogical or irrational.
In any event, given the state of the DFAT “acknowledgement” and the IAA’s reading of the report as a whole, it was reasonably open, and not illogical, or inconsistent, of the IAA, to prefer other country information which indicated that monitoring of Tamils in the north and east of Sri Lanka by the Sri Lankan authorities had “significantly decreased”, that there had been: “…significant positive developments for Tamils”, and that: “…the situation has generally improved”.
That is the basis on which the impugned finding (at the end of [19] at CB 135) was founded. That is the evident justification, based on evidence before it, for the IAA’s impugned finding. (In relation to “gaps”, see further below at limb three of ground one).
In all, the first limb of ground one is not made out.
Ground One: The Second Limb. The Applicant’s Argument.
The second limb of ground one asserts that the IAA failed to consider the applicant’s exposure to societal discrimination in the context of the consideration of the complementary protection criterion for the grant of the visa.
The argument was that the IAA considered the matter of societal discrimination in relation to whether the applicant satisfied the criterion at s.36(2)(a) of the Act, but did not do so in relation to s.36(2)(aa) of the Act.
In particular, the applicant argues that the IAA failed to consider whether the applicant, given his particular circumstances and, as it was described, “attributes”, would face significant harm for reason of being subjected to societal discrimination over an extended period of time.
Consideration: Ground One. The Second Limb.
The IAA’s consideration of the applicant’s claims as against the criterion for the grant of the visa at s.36(2)(aa) of the Act is at [36]-[46] (CB 138 – CB 140) of its decision record.
The difficulty for the applicant with this argument is that he has made this assertion without reference to the actual analysis, and reasoning, made by the IAA.
First, on the evidence, there is nothing to indicate that the IAA misunderstood, or misapplied, the relevant “test” posited by s.36(2)(aa) of the Act. It set out its understanding in unexceptional terms (see [36]-[37] at CB 138 and CB 143.7 – CB 144.2).
Second, the applicant did not point to any part of the evidence before the Court to establish that he made any factual claim to fear harm separate to, or in addition to, what he had claimed in relation to the “refugee” criterion.
In short, as set out above, the applicant claimed to fear harm if he were to return to Sri Lanka because of his youth and Tamil ethnicity, because he would be imputed to be a supporter of the LTTE, and because he left illegally and would be returning as a failed asylum seeker.
As is clear from its analysis and findings in relation to complementary protection, the IAA expressly relied on factual findings expressed earlier in its decision record (see [38] – [41] at CB 138 – CB 139). It was not necessary for the IAA to repeat each of these findings, and the reasoning for them, in assessing the applicant’s claims against the complementary protection criterion (SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26).
Third, the IAA did consider those claims as against the definition of serious harm as derived from s.36(2A) and s.5 of the Act ([41] at CB 139).
Fourth, in addition, it also specifically considered whether the applicant would suffer significant harm at the airport on return to Sri Lanka, for reason of having departed Sri Lanka illegally ([42]-[44] at CB 139 – CB 140).
The applicant now does not assert legal error in this analysis beyond what is set out above. In any event, the IAA’s findings here were based on the evidence before it. It gave evident and intelligible reasons for its conclusion. The second limb of ground one is not made out.
Ground One: The Third Limb. The Applicant’s Argument.
The applicant submitted that the third limb of ground one is an assertion that the IAA failed to exercise the discretion, which I ultimately understood to be, pursuant to s.473DC of the Act to obtain further country information regarding the level, or degree, of societal discrimination against Tamils in Sri Lanka.
Again this contention relied on the “gaps” argument to assert that the DFAT report was silent on how societal discrimination manifested itself generally, and the impact it would have on someone with the applicant’s profile.
Consideration: Ground One. The Third Limb.
The applicant’s third limb does not reveal jurisdictional error in the IAA’s decision.
First, to the extent that the applicant, again, relied on the “gaps” argument, that does not assist him for the reasons already set out above.
Second, for the remainder, beyond stating the contention, the applicant made no attempt, let alone a satisfactory attempt, to explain the legal basis for the proposition that the third limb of ground one reveals jurisdictional error in the IAA’s decision.
For example, as the Minister submitted, it was not clear whether the applicant based his argument on the concept of legal unreasonableness, or otherwise. The applicant’s ground is, in essence, to simply refer to the IAA’s obligation to complete its review task under s.473CC and s.473DB of the Act by investigating the existence of further information about societal discrimination in Sri Lanka, and how it affects Tamils over an extended period of time.
The assertion in the ground itself that the IAA failed to exercise the discretionary powers under s.473DC of the Act was not satisfactorily explained in submissions beyond this mere assertion. In submissions the applicant sought to expand the explanation for the ground by submitting that the IAA failed to exercise its statutory discretion under s.473DB of the Act (see the applicant’s written submissions at [18]).
The difficulty here is that s.473DB(1) contains no discretionary power. It provides for a mandatory prohibition on the IAA accepting or requesting new information and interviewing the applicant.
Sub-section 473DB(2) does contain a discretionary power. That is that the IAA may make a decision on a fast track reviewable decision at any time after the decision has been referred to it. How this specifically related to the complaint about getting new information, or undertaking further investigation, was never satisfactorily explained.
In the circumstances, therefore, the ground can only reasonably be understood as an assertion that the IAA should have exercised, or perhaps considered exercising, the discretionary powers in s.473DC.
Here, again, the applicant’s argument in presentation suffered from a lack of precision and clarity. There are two discretionary powers in s.473DC of the Act. Sub-section 473DC(1) provides that the IAA may get new information which it considers to be relevant. However, there is no duty to do so (s.473DC(2)). Sub-section 473DC(3) provides that the IAA may invite a person to give new information.
The reference to discretionary “powers” (plural) as it appears in the ground in relation to s.473DC would suggest that the applicant sought to rely on the IAA’s alleged failure to have exercised both discretions.
However, in submissions in final reply before the Court, the applicant explained that he relied on s.473DC(1), and not s.473DC(3). This was put in response to the Minister’s submission that what was said, relevantly in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 (“BVD17”), stood in answer to the applicant’s argument (see further below).
In all, therefore, I understood the applicant’s ultimate explanation of the third limb of ground one to be that the IAA failed to consider the exercise of the power in s.473DC(1) to get “additional” information to “fill the gap” in the DFAT report. In short, it was legally unreasonable not to have done so.
There are four points that can immediately be made in response to the applicant’s argument.
One, the “test” for legal unreasonableness is strict/stringent with a high threshold to be met before any such finding can be made (Li at [108] and SZVFW at [11]), and see above at [90] of this judgment).
Two, while the IAA had the power to “get” further information, the further information that the applicant now asserts it should have sought was country information. In that light, the choice of country information relevant to its task is for the IAA to determine (NAHI, and see above at [84] of this judgment).
Three, as set out above, the applicant clarified before the Court that he relied on s.473DC(1) in answer to the Minister’s submission that in BVD17 the High Court found that the exercise of the statutory discretion, such as in s.473DC(3), was a procedural decision in respect of which the IAA was not required to give reasons.
In my respectful view, I do not comprehend what the High Court relevantly said in BVD17 to be restricted only to s.473DC(3), as the applicant now seeks to argue. Rather, the relevant reference by the High Court was to discretionary powers such as s.473DC(3). Section 473DC(1) is also such a discretionary power.
The IAA, therefore, was not required to give reasons for not considering whether to exercise the power, or considering not to exercise the power, in s.473DC(1) of the Act.
The result for current purposes is that it is not possible to draw the inference, upon which legal unreasonableness may be found, concerning the claimed failure by the IAA to get further country information, in circumstances where the IAA was not required to give any reasons for not doing so.
Four, as set out above, the applicant’s argument seeks to ignore the fact that the IAA did undertake an examination of relevant country information. Its conclusion, based on its assessment of that information, and how it related to the applicant’s circumstances, and the findings that informed that conclusion, were all reasonably open to it, and for which it gave cogent reasons, and an evident justification.
To assert legal unreasonableness in these circumstances, given the relevant statutory context, and even if the “gaps” did exist (which for reasons set out above I do not agree are of assistance to the applicant in making out his case), without more, is an attempt by the applicant to substitute his own fact finding for that of the IAA. In short, he seeks impermissible merits review.
Ground One: Conclusion.
In all, the applicant’s ground as pleaded is not made out. Nor do his additional arguments, or the various “limbs” of his argument, reveal jurisdictional error in the IAA’s decision.
Ground Two: The Applicant’s Argument.
Ground two asserts that the IAA failed to complete its task pursuant to s.473CB and s.473DB of the Act because it failed to consider one of the applicant’s claims. The IAA’s failure to do so was also said to be “plainly unjust”, and the decision lacked an evident and intelligible justification.
The particulars assert that at the entry interview the applicant stated that the Eelam People's Democratic Party (“EPDP”) was operating in his area. He stated that the EPDP suspected him of being involved with the LTTE. The particulars also assert that in its decision record, the IAA found that the applicant had not raised any claims relating to the EPDP in his protection visa application, or at the interview with the delegate (“the EPDP claim”).
The applicant submitted that he raised the EPDP claim at the entry interview. In his statutory declaration accompanying his visa application, he made various references to fearing harm from the SLA, and groups associated with the SLA.
The applicant drew attention to [5] of the IAA’s decision record (at CB 131):
“5. On 11 January 2013 the applicant participated in an Entry interview with an officer of the Department of Immigration and Border Protection (DIBP). In that interview the applicant was asked if there were any armed groups, political groups or religious groups operating in the area and he responded that the Eelam People's Democratic Party (EPDP) were operating in his area. He stated he had no involvement with the group but that "they suspected us of having involvement with the LTTE so they looked at us differently". However subsequent to the Entry interview he made no mention to the EPDP or any issues he or his family experienced from them. The applicant has not raised any claims relating to the EPDP his written application or the SHEV interview where he was invited to discuss his protection claims. During the SHEV interview the applicant confirmed he had raised all of his claims for protection and that there was nothing more he wished to add. On this basis, I find the applicant is not pursuing these claims and therefore they will not be assessed.”
[Error in the Original.]
The argument was that while the applicant made no express reference to the EPDP in his statement of claims, or the interview with the delegate, it was not open to the IAA, or reasonable of it, to find that he had abandoned the EPDP claim.
The applicant sought to rely on EZC17 v Minister for Immigration and Border Protection [2019] FCA 163 (“EZC17”) at [30]:
“30. It is certainly true that the appellant did not address his claim of torture after his return from Qatar in 2011 in his Statement of Claims or make explicit reference to it in the protection interview, when he could have done so. It is, perhaps, curious that he did not. I do not accept, however, that his failure to make explicit reference to this claim signifies an abandonment of it when it was clearly raised in his Entry Interview. At the commencement of the protection interview, the appellant commenced by directing the interviewer’s attention to the Entry Interview. I accept the appellant’s submission that the terms in which he did so affirmed that he maintained his claim that he had been tortured after his return from Qatar. While his failure to specifically refer to this incident of claimed torture in later parts of the protection interview (or, indeed, in the Statement of Claims) might reflect on the veracity of that claim (I say no more than that), I do not accept that the appellant abandoned it. It is important to note that, in [17] of its Decision and Reasons, the IAA was prepared to go behind the appellant’s Statement of Claims and, given its view of his credibility, to accept the appellant’s evidence that he had been detained and questioned after his return from Qatar. But, in that connection, the appellant certainly did not give evidence in the protection interview that he was only questioned and was “not subjected to any mistreatment” (emphasis added), as the IAA stated. There was no such disavowal by the appellant of the explicit claim made in the Entry Interview that torture had taken place at that time. The IAA failed to engage with that claim. It was not relieved from the task of engaging with it because explicit reference was not made to it by the appellant or his agent in the course of the protection interview, despite the interviewer’s urgings to “put forward all your claims for protection”. The truth is, the appellant’s claim of torture after his return from Qatar in 2011 had been put forward at the outset of this interview. That being so, it was then necessary for the IAA, on review, to consider and determine it.”
The applicant submitted that the circumstances in his case were similar to the circumstances in EZC17, and that this Court should follow what occurred in that case.
The applicant also relied on various other authorities in support of the proposition that the IAA was required to consider a claim to fear harm made by the applicant (SZTFI v Minister for Immigration and Border Protection [2015] FCA 322 at [53], NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58], Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [42]).
Consideration: Ground Two.
The resolution of the applicant’s ground depends on an understanding of what the applicant actually claimed, and the context in which he made the statements on which he now relies. Further, the relevant legal context, and the authorities on which he relies in that regard.
It is certainly the case that at the entry interview the applicant made reference to the EPDP (at CB 23):
“Local Group Activity
7. Were there any armed groups, political groups, or religious groups operating in the area you lived?
[“Yes” box ticked.]
[Sub-question:] If ‘Yes’ provide details:
[Answer:] About 1 km from my house there was the EPDP.
[Sub-question:] What was the nature/level of your involvement with them?
[Answer:] I didn’t have any involvement. They suspected us of having involvement with the LTTE so they looked at us differently.”
However, at an earlier part of the entry interview the applicant was specifically asked:
“Why did you leave your country of nationality (country of residence)?” (item 1 at CB 23).
The response made no express reference to the EPDP, nor, importantly, by inference.
What remains, therefore, is an assertion by the applicant at the entry interview that the EPDP were near his house, they suspected him of LTTE involvement: “… so they looked at us differently”.
In the circumstances, this is not an express claim to fear harm from the EPDP (with reference in particular to NABE (No 2)). They may have looked at him “differently”, but in context, they were not part of the reason that he said he left Sri Lanka.
Nor can this be said to be a: “…“substantial, clearly articulated argument” that, if accepted, might establish a well-founded fear…” (with reference to the applicant’s submissions at [27] and to Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389 (“Dranichnikov”) at [24]).
It is doubtful whether this rises to a claim clearly arising from the materials before the IAA (with reference to NABE No (2)).
However in spite of this, the IAA accepted that he made “claims” at the entry interview mentioning the EPDP as expressed at that interview. On that basis it is appropriate, if not necessary, for the current consideration to proceed on the basis that a “claim” (albeit unclear as to whether a fear of harm was involved) involving the EPDP was before the IAA.
Before the Court the applicant made references to various parts of his written statement provided with his visa application (CB 73 – CB 76). (See at [21], [25], [31], and [34] at CB 74 – CB 75). The common thread between each of the references was that he feared harm from: “…the SLA and groups associated with the SLA”.
I understood these references were for the purpose of supporting the applicant’s proposition that it was not reasonably open to the IAA to find that he had abandoned the EPDP claim, and to seek to bring the current circumstances closer to the situation in EZC17.
It was certainly not made clear before the Court, nor did the applicant point to any evidence whatsoever in the materials before the IAA, that the EPDP was such an “associated group”. It may well have been, but the applicant pointed to no evidence whatsoever to say that it was. At its highest the submission was that it could be “inferred from the material”, presumably before the IAA. This was not satisfactorily explained with specific reference to the “material”.
This also explains another somewhat contradictory submission made by the applicant, that he: “…accepts that he did not address his EPDP Claim in his Statement of Claims or make explicit reference to it in the protection [delegate’s] interview” (see the applicant’s written submissions at [24]).
The applicant’s argument here was that his failure to make any such explicit reference on these subsequent occasions was: “… not fatal to the EPDP Claim and does not signify an abandonment of the claim it [sic] when it was clearly raised in his Entry Interview” (see the applicant’s written submissions at [24]).
I pause to note that I do not agree, as set out above, with the applicant’s submission that the claim was “clearly” raised at the entry interview. There was certainly a reference to the EPDP in response to a question put to him, but there was no express, or implied, claim that he feared harm from the EPDP.
The claim to fear harm that was raised at the entry interview, and subsequently pursued by the applicant, was that he feared harm from the CID, the SLA, and “associated groups”, because he and his family were suspected of being involved with the LTTE (CB 23, CB 73 – CB 76 and, with reference to the delegate’s decision, CB 104 – CB 105 and [51] at CB 111).
The IAA specifically considered this claim. That is, that the applicant feared harm from the CID, SLA, and associated groups, because of perceived, or imputed, links with the LTTE. The IAA specifically acknowledged this claim ([4], the last dot point at CB 131). Importantly, it engaged with the claim in its various iterations in the requisite sense (see [10] at CB 132 – [14] at CB 133).
The nature of what the applicant said at the entry interview is important in this context. The claim to fear harm, the focus of the claim, was that he would be perceived to have LTTE connections. As ultimately explained by the applicant, the fear emanated from this perception held by the CID, SLA, and associated groups.
There was nothing in the statement at the entry interview referring to the EPDP that indicated that he feared harm from the EPDP (unless looking at him “differently” can be said to be a source of a well founded fear) beyond, at best, the perceived LTTE connection.
What emerges, therefore, is that the IAA did consider, in the requisite sense, the applicant’s relevant claim to fear harm because he would be perceived to have an LTTE connection.
Before the Court the applicant, apparently, made some attempt to separate the fear emanating from the SLA from “other associated groups”. However, at [10]-[14] (CB 132 – CB 133) under the heading of: “Authorities’ interest in the applicant”, the IAA addressed that aspect of the applicant’s claims.
There was nothing that the applicant said at the entry interview, or elsewhere, to indicate that the “associated groups”, or the EPDP, constituted a separate, or independent, source of fear of harm to him. The relevant references in his written statement (relevant to the LTTE imputation) were either references to the authorities on their own, or importantly for current purposes, references to: “…the army or army’s associated groups” ([21] at CB 74), or: “…the SLA and groups associated with the SLA ([25] at CB 75).
As set out above, the applicant’s central focus in his ground, and the arguments in support, was the criticism of the IAA’s finding that he had abandoned the EPDP claim.
As also set out above the applicant relied, primarily, on EZC17, and the claimed factual similarity in the relevant circumstances with this case (see further below).
However, beyond mere assertion, the applicant gave no satisfactory explanation for the central proposition in his argument that there was no basis on which the IAA could have reasonably found that the applicant had abandoned the EPDP claim.
The appropriate question, however, is whether the IAA’s finding that he had abandoned this claim was reasonably open to it on what was before it, and whether it gave cogent reasons, and an evident justification for this finding.
First, what is variously set out above as to the nature of the “EPDP claim”, the applicant’s claim to fear harm because of an imputed LTTE connection, as made, and the IAA’s consideration of that claim, provides important context for the IAA’s relevant reasoning at the impugned [5] (at CB 131) of its decision record.
Second, although not entirely clear in his argument it appeared that the applicant sought to argue that as a matter of principle, it was not open to the IAA to make any finding that the applicant had abandoned the EPDP claim.
The applicant referred to the entry interview form, and in particular part of what appears under the heading of “Important Information” as reproduced at CB 12:
“I need information about you and your arrival in Australia. This interview will be recorded. This interview is your opportunity to provide any reasons why you should not be removed from Australia. If you do not answer questions a decision may be made on the basis of the information we have.
You are expected to give true and correct answers to the questions I ask. You should understand that if the information you give at any future interview is different from what you tell me now, this could raise doubts about the reliability of what you have said.”
In short, the argument was that these statements do not support the view that a claim to fear harm made at the entry interview can be found to have been abandoned simply because the applicant makes no further reference to it: “…at the latter stages of his visa application process”.
It must be noted that the entry interview, as such, is not part of the visa application process. While it is the case that an applicant on arrival, such as the current applicant (an unauthorised maritime arrival), can raise claims to fear harm, no valid application for a protection visa could have been made at that time. To describe what subsequently follows the entry interview as: “…the latter stages of his visa application process” is, as a matter of fact, not correct.
I cannot help but note that in the large majority of fast track cases before this Court involving an IAA decision, applicants often argue that it was unreasonable of the IAA to find inconsistency, or contradiction, between what was said at the entry interview, and later in the protection visa process. That is, that such an applicant should not be held to account for what she/he says at the entry interview. As has been noted, great caution must be applied to holding applicants to what they said at the entry interview, given what is said to be the difficult circumstances of their arrival (MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 (“MZZJO”) at [56]).
In any event, to the extent that the applicant relies on EZC17 to support the argument that it was not possible to find that the applicant had abandoned the EPDP claim, the following may be said.
I do not, respectfully, understand EZC17 to stand for the proposition that a claim made at the entry interview cannot be found to have been subsequently abandoned, as the applicant, apparently, seeks to argue now.
As a matter of principle, as the Minister submits, there is authority to support the proposition that claims to fear harm made at some earlier time can be subsequently abandoned.
The Minister referred to SZEIV v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1798 (“SZEIV”) where the Court found (at [34]):
“34. A claim made to the Department and referred to in the Delegate’s decision would, ordinarily, be before the Tribunal. However, where a claim has been made to the Delegate and not advanced at all before the Tribunal and does not arise from the material before the Tribunal, the Tribunal is entitled to assume that the claim is no longer made. The Tribunal is conducting a review of the Delegate’s decision but on the basis of the claims advanced and materials before the Tribunal. If a claim does not so arise and is abandoned, especially where the applicants are legally represented, the Tribunal is entitled to take the view that the applicants do not make that claim or a case based on that claim.”
Plainly, the situation in SZEIV, involving claims made to the delegate, and found to have been abandoned before the then Refugee Review Tribunal, differ to the current circumstances.
However, I agree with the Minister that arising from SZEIV is the proposition that there is nothing contentious about an administrative decision maker (such as the IAA) making a finding that an applicant is no longer pressing a particular claim, or has abandoned a claim, or an aspect of a claim.
Of course, such a finding must be legally reasonable, based on the material before the decision maker, and for which a cogent, intelligible, and evident justification is given.
I do not, respectfully, comprehend anything in EZC17 to be contrary to this. I agree with the Minister’s submissions that there is nothing, with respect, in EZC17 to say that the Court took a different view on this point of principle, disapproved of it, or declined to follow it.
In the current case the applicant (through his counsel) has focused on the outcome of the impugned finding in EZC17, and the outcome in this case, to submit that the cases are similar because in both cases the relevant decision makers did not consider an aspect of the respective applicants’ claims to fear harm.
What this argument has failed to address is that each of the two decision makers produced that outcome, but for very different reasons, which have consequences for the disposition of the applicant’s ground in the current case.
In EZC17 the Court found that the assessor failed to address the applicant’s claim of past torture in circumstances where that claim to fear harm was overlooked by the assessor because of a misunderstanding of the entire aspect of the applicant’s claims to fear harm (see EZC17 at [21] – [25], and in particular [26] and [30]).
It is important to note that the matter of the abandonment of the torture claim in EZC17 was not as a result of any such consideration by the assessor in that case.
Rather, this was a submission made by the Minister in seeking to explain the assessor’s failure to deal with that aspect of the applicant’s claims in that case (see EZC17 at [29]).
In EZC17, as was found by the Court, the applicant in that case specifically directed the delegate’s attention to the entry interview where he had “clearly raised” the torture aspect of his claims to fear harm. In that circumstance the Court in EZC17 accepted the applicant’s submissions: “…that the terms in which he did so affirmed that he maintained his claim that he had been tortured…” (EZC17 at [30]).
That is not this case. Here the IAA specifically focused on the EPDP claim, and unlike as in EZC17, made a specific finding that it had been subsequently abandoned by the applicant. This was in circumstances where there was no such specific reference by the applicant at the interview with the delegate to the entry interview, let alone that part of it where he had earlier referred to the EPDP.
In the current case, therefore, it was reasonably open to the IAA to find that the applicant had abandoned the reference to the EPDP as being a part of his claim to fear harm for reason of the perceived, or imputed, links to the LTTE.
The terms of the IAA’s reasoning at [5] (at CB 131) are also important here. The IAA acknowledged the reference to the EPDP at the entry interview in the terms as reportedly put by the applicant at that interview.
Its finding that “subsequent” to the entry interview: “…he made no mention to the EPDP or any issues he or his family experienced from them…” was reasonably open to it on what was before it. Nor does the applicant now argue that he made any such reference, or point to any evidence, where he did so.
Further, the IAA found that at the interview with the delegate the applicant confirmed that there was nothing more to add to all the claims to protection he had raised, in context, in his written statement which accompanied his visa application. (See above at [13] of this judgment).
In summarising the applicant’s claims to protection, the delegate had regard to the applicant’s written statement (CB 104 – CB 105). There is no reference there to the EPDP. This is understandable given no such reference was made in the written statement.
In his analysis, the delegate did otherwise have regard to what the applicant had otherwise said at the entry interview (see for example [36] at CB 108 and [42] at CB 109).
Before the Court the applicant raised no issue with the IAA’s finding that: “…During the SHEV interview [the interview with the delegate] the applicant confirmed he had raised all of his claims for protection and that there was nothing more he wished to add” (at [5], CB 131).
The intelligible justification for the IAA’s impugned finding that the applicant did not seek to pursue the EPDP reference (as put in the entry interview), is what is set out at [5] of its decision record, and as set out immediately above.
In all, no jurisdictional error is revealed by ground two.
A Further Matter.
In submissions in reply, the applicant sought to raise a yet further argument, which counsel said was in reply to the Minister’s submissions in relation to ground two.
The submission was that the applicant had made a distinct claim to fear harm from “associated groups”, as “distinct” from the EPDP claim, and the IAA failed to consider this.
When it was pointed out to the applicant’s counsel that this was a new argument, if not a new ground, not pleaded or raised in written or oral submissions before the Court, the response was that it was being raised in “conjunction” with the EPDP claim.
Counsel further submitted that the reason this point was raised in reply was to respond to the Minister’s argument that the applicant’s fear of harm emanating from the perceived association with the LTTE was “dealt with”. The argument was it was not dealt with in relation to “associated groups”.
I do not agree with the applicant’s submission that this “associated groups” point was properly raised in reply. The claim before the Court in relation to ground two was clearly that it was not open to the IAA to find that the applicant had abandoned the “EPDP claim”.
In his submissions in response to the applicant’s submissions, the Minister did make reference to “associated groups”. But this was clearly in the context of the argument that although the IAA found that the applicant had abandoned the “EPDP claim”, to the extent that what remained was the reference at the entry interview to the EPDP, this reference, could relate, at best, to the applicant’s stated references in his written statement, and as that was before the delegate, and subsequently the IAA, to “associated groups”.
That is not what the applicant’s submissions in reply were directed towards. This was a new argument, if not a new ground, raised literally at the end of the hearing.
As set out above (see at [24] – [32]), the applicant, and his counsel, were given every opportunity to further amend the application to the Court.
Even with that opportunity, the applicant still sought to raise arguments at the final hearing not discernible as arising from that further amended application. These have been dealt with above.
There sometimes comes a point in litigation where a Court must say “enough is enough” (Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175, and see the reference to this phrase in Li at [82], albeit in relation to a merits review conducted by the then Migration Review Tribunal). That point was reached with this submission/argument/proposed new ground, put forward at the end of the final hearing in reply, and in circumstances where it cannot reasonably be said that it was an appropriate reply to anything raised by the respondent in his submissions.
The applicant did not seek to yet further amend the amended application in this regard. He made no application to do so. Rather, he sought to persist with the argument that the point was being raised in reply.
It is not necessary, in the circumstances, to consider this “new ground”. In any event, for the reasons set out above at [12] (see the last dot point), and [158] – [164], the IAA did consider the applicant’s claim to fear harm from the CID, the SLA, and “associated groups”. (See further the IAA’s decision record at [17]-[23] at CB 134 – CB 136). There is no merit in the applicant’s submission that the IAA did not consider the “associated groups” aspect of his claim to fear harm for reason of being imputed as an LTTE supporter.
Conclusion.
There is no jurisdictional error in the grounds as pleaded. Nor is jurisdictional error revealed by the arguments raised in submissions. It is appropriate to dismiss the application as amended. I will make that order.
I certify that the preceding two hundred and eleven (211) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 16 April 2020
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