CKB16 v Minister for Immigration
[2020] FCCA 388
•27 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CKB16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 388 |
| Catchwords: PRACTICE & PROCEDURE – Leave sought to rely on the grounds of proposed further further amended application – previous grounds abandoned – whether there was merit in the proposed grounds to warrant leave to amend in the interests of the administration of justice – no merit revealed – leave refused. |
| Legislation: Migration Act 1958 (Cth), ss.36, 360, 425, 473DC, 473DD, 476 |
| Cases cited: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 93 ALJR 1091; (2019) 373 ALR 196 | ||
| Applicant: | CKB16 | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2330 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 13 February 2020 |
| Date of Last Submission: | 13 February 2020 |
| Delivered at: | Sydney |
| Delivered on: | 27 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr G. Foster |
| Solicitors for the Applicant: | Sentil Solicitor & Barrister |
| Appearance for the Respondents: | Ms P. Durham |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
Leave to rely on the proposed further further amended application is refused.
The application made on 29 August 2016 as amended, and further amended is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5600.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2330 of 2016
| CKB16 |
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) (“the Act”) on 29 August 2016, amended on 28 December 2016, further amended on 19 July 2019, and yet further amended on 5 August 2019 seeking review of the decision of the Immigration Assessment Authority (“the IAA”), which on 8 August 2016 affirmed the decision of the Minister’s delegate (“the delegate”) not to grant the applicant a Safe Haven Enterprise Visa (“SHEV”) (“protection visa”) (“the visa”).
The evidence before the Court is contained in a bundle of relevant documents filed by the respondent and tendered by the applicant (“the Court Book” – “CB” – “AE1”), and the affidavit of the applicant, affirmed on 8 February 2020.
Background
The applicant arrived in Australia on 3 September 2012 (item 47 at CB 118). He lodged an application for a protection visa on 9 September 2015 (CB 99–CB 145). He was assisted by a registered migration agent (CB 99).
The applicant claimed to be a Tamil from the Eastern Province of Sri Lanka (item 33 at CB 113 and item 17 at CB 111). He feared harm from the Sri Lankan authorities because of his imputed links to the Liberation Tigers of Tamil Eelam (“LTTE”).
The applicant claimed that as a child during the 1990s, his uncle was taken and detained for questioning by the Sri Lankan Army (“SLA”) on the suspicion that he was a supporter of the LTTE ([5] at CB 135) solely based on his Tamil ethnicity ([6] at CB 136). His uncle lived on the same road as the applicant and his family ([4] at CB 135). The applicant asserted that the SLA later confirmed that his uncle had been killed ([6] at CB 136).
In about 2006, the Tamil Makkal Viduthalai Pulikal (“TMVP”) set up a camp near the applicant’s family home, near a SLA camp which was also nearby ([7]-[8] at CB 136). There was also an LTTE camp base on “the other side of the river about one kilometre from the [fa]mily [h]ome” ([8] at CB 136). As a result, the applicant’s family was “constantly at risk of being harmed” due to the conflict between these groups near his home ([8] at CB 136). He claimed that the SLA would harass his family and make false accusations against them and the Tamils living in the neighbouring homes ([9] at CB 136).
In 2007 the applicant’s parents sent him to live with a family friend in Koddaikallar to continue his studies, as around that time the TVMP was “forcibly recruiting young male Tamils” ([9]-[10] at CB 136–CB 137). He later went to live with his uncle in 2011 during secondary school ([11] at CB 137).
In April 2012 he withdrew from his studies as he decided he could no longer live in Sri Lanka as he: “…was in constant fear for [his] life” ([12] at CB 137) and was “constantly at risk of being accused of LTTE affiliation” ([15] at CB 138) by the Sri Lankan authorities ([21]-[26] at CB 138–CB 139).
The applicant left Sri Lanka in August 2012, and approximately five months after his departure, the SLA questioned his parents as to his whereabouts. His parents told the SLA that he had left Sri Lanka ([17] at CB 138).
The applicant set out his claims to fear harm in a Statutory Declaration dated 8 September 2015, attached to his “SHEV” application (CB 135– CB 140). Further documents and submissions were provided by the applicant’s representative in a letter dated 24 November 2015 to the Minister’s department, after the applicant’s interview with the delegate on 17 November 2015 (CB 161–CB 196). The delegate refused the grant of the visa on 23 June 2016 (CB 200–CB 239).
The IAA Decision
The matter was referred to the IAA on 27 June 2016 (CB 241–CB 247). The applicant made written submissions to the IAA on 14 July 2016 (CB 249–CB 255).
The IAA affirmed the decision of the delegate on 8 August 2016 (CB 257–CB 273). The assessor had regard to the submissions provided by the applicant on 14 July 2016. The IAA did not consider these submissions to be new information for the purposes of s.473DD of the Act. The applicant also provided extracts from the Department of Foreign Affairs and Trade (DFAT) “DFAT Country Information Report Sri Lanka of 16 February 2015”. The IAA noted that this information was put before the delegate when she made her decision, and determined that this also was not new information pursuant to s.473DD of the Act ([4] at CB 259).
The IAA summarised the applicant’s claims for protection as follows ([5] at CB 259–CB 260):
“• The applicant's uncle was accused by the Sri Lankan Army (SLA) of being affiliated with the Liberation Tigers of Tamil Eelam (LTTE). His uncle was taken away by the SLA one day in the 1990's for questioning. The SLA later confirmed that the applicant's uncle had been killed as they were suspicious he was a supporter of the LTTE. The claims against his uncle were unfounded and he was solely suspected of LTTE association due to his Tamil ethnicity.
• The applicant's home in the Batticaloa area is next to an SLA camp. The Tamil Makkal Viduthalai Pulikal (TMVP) also has a camp close to the applicant's home. On the other side of the river about one kilometre from the family home, there was also an LTTE camp. The LTTE and the SLA would fight each other resulting in missiles landing near the applicant's home.
• The SLA constantly came to the applicant's home and, using unfounded claims, would demand to enter and conduct a search of the house. The SLA falsely suspected the applicant's home was being used as a base for attacking the SLA camp. The SLA members were all Sinhalese and would make false accusations against the applicant's family and against the Tamils living in the neighbouring homes. The SLA imputed them with a pro-LTTE political opinion because of their Tamil ethnicity. When the applicant was around 11 or 12 years old, the TMVP was forcibly recruiting young male Tamils.
• In around January 2007 the applicant's parents sent him away to live with a friend of his mother's in Koddaikallar, approximately 60 kilometres from the family home. The applicant's parents sent him there as they were fearful that the TMVP would forcibly recruit him or that he would be at risk of harm from the SLA.
• In May 2011 the applicant moved in with his uncle S in Kaluwanchikudi in Batticaloa. His uncle was the former village Grama Sevaka (Head Man) and was influential.
• In April 2012 the applicant withdrew from his studies as he decided he could no longer remain in Sri Lanka as he was in constant fear for his life. He would occasionally visit his family home for one or two days but lived mostly with his uncle. He feared he would be harmed or detained if he stayed at the family home. He and his family feared that as a young Tamil returning to the area and unknown to the SLA for the years he had been away, he would automatically be deemed to be associated with the L TTE and at risk at the hands of the SLA.
• The SLA still has an army camp close to his home. The applicant's parents are fearful because they told him that other young Tamils in his home area had been deemed to be associated with the L TTE and encountered harm by the SLA. It was impossible for him to continue living under such risk of detention and harm at the hands of the SLA in Sri Lanka.
• He was constantly at risk of being accused of L TTE affiliation in Sri Lanka and his parents were fearful for his life. In August 2012 he fled Sri Lanka. Approximately five months after his departure the SLA went to the family home and questioned his parents as to his whereabouts. His parents told the SLA he had left Sri Lanka and the SLA officers left.”
The IAA ultimately accepted as plausible that the applicant’s uncle and extended relatives had been killed by the SLA on the basis of imputed connections to the LTTE ([7] at CB 261). However, it did not accept that the applicant had a profile with the Sri Lankan authorities as an imputed supporter of the LTTE ([8]-[10] at CB 261) as on the applicant’s evidence he had never personally: “…been questioned or detained or experienced any harm from the authorities” ([33] at CB 266).
In relation to his claims to fear harm on the basis of his Tamil ethnicity, the IAA found that the applicant did not describe “any personal incidents of serious discrimination in the past” and noted that he had been able to go to school and move freely between his family’s homes ([61] at CB 271). While the IAA accepted that the applicant may be subject to “some level of societal discrimination” as a result of past practices, ultimately it was not satisfied that the applicant would face a real chance of serious harm in Sri Lanka as a result of his Tamil ethnicity ([61]-[62] at CB 271).
Again, while the IAA accepted that upon return to Sri Lanka the applicant may be questioned, charged and fined under the “the I&E Act” (Immigrants and Emigrants Act) with the offence of leaving Sri Lanka illegally, it found it was unlikely that he would face a custodial sentence, and as a result, the IAA was not satisfied that the questioning of the applicant, or an imposition of a fine amounted, to significant harm to meet the complementary protection requirements under ss.36(2A) or 36(2)(aa) of the Act ([63]–[67] at CB 272).
Before the Court
The applicant was not legally represented when he made his application to the Court on 29 August 2016.
On 24 November 2016 a Registrar of this Court made orders for the conduct of this case. Amongst those orders the applicant was given the opportunity to file an amended application by 19 January 2017. The applicant filed an amended application on 28 December 2016.
At a callover on 23 March 2017, the matter was listed for final hearing on 3 September 2018. On 16 January 2018 the parties were notified by letter and email respectively that the matter was re-listed for hearing on 2 August 2019.
On 27 June 2019 the parties were notified by email that their case may be affected by the judgment of BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 (handed down on 9 October 2019), consequently the hearing of 2 August 2019 was vacated.
On 27 July 2019, an email was received from “Sentil Solicitor & Barrister” notifying the Court that Senthil Rajan Sinnarajah was now representing the applicant, however he had mistakenly filed the Notice of Address for Service (“NAS”) in an unrelated matter. A copy of this NAS was attached to the email, however it was not filed in this matter, until 10 February 2020.
On 16 October 2019, the parties were again contacted by email and the matter was set down (by consent) for final hearing on 13 February 2020. The applicant was legally represented by a solicitor, at that time, who continued to act for the applicant.
At the final hearing, the applicant was represented by counsel who sought leave to proceed by way of a “further further amended application”. This document was annexed to the applicant’s affidavit of 8 February 2020, which had been filed on 10 February 2020. A further amended application had been filed previously and it was that version of the applicant’s application which was addressed by the Minister in his written submissions to the Court (see further below).
The applicant also filed written submissions on 10 February 2020. Orders made previously by a Registrar of the Court required the applicant to file his written submissions 14 days before the final hearing and the Minister to file written submissions 7 days before the hearing. The Minister complied with that order. The applicant did not.
The Minister opposed the application for leave to further further amend the application. The Court has the power to allow the amendment of the application as sought by the applicant (Rule 7.01 of the Federal Circuit Court Rules 2001 (Cth)). There was no dispute between the parties that the Court may do so “…in the way and on the conditions…[it] thinks fit”.
While the applicant filed, and relied on his affidavit of 8 February 2020 (filed on 10 February 2020), he provided no evidence whatsoever as to why the applicant, who was not only represented by a solicitor, but also counsel, waited until less than 72 hours before the scheduled time for the hearing to bring forward yet another version of his application.
As set out above, the applicant was legally represented, on his own evidence, since at least July 2019. Why he waited until after the Minister had filed his written submissions to file his submissions remained without any, let alone a satisfactory, explanation.
In any event, there was no objection from the Minister to proceeding with the hearing in relation to the grounds in the further amended application, and for the Court to hear argument on the proposed grounds in the further further amended application to determine whether any of those grounds had requisite merit so as to argue for the leave to further further amend the application.
To avoid doubt, I note that the applicant confirmed that if the Court found merit in any, or all, of his proposed grounds and granted the leave sought, it should proceed to finally determine the application in light of the submissions already made. The Minister agreed to this course of action.
The applicant confirmed that grounds 1, 3 and 4 of the further amended application were not pressed and were formally abandoned. I understood that the grounds in the earlier versions of the applicant’s applications had been superseded by the further amended application.
Consideration: Ground 2
Ground 2 of the further amended application, and reproduced in identical terms in the further further amended application, is in the following terms:
“When the IAA affirmed the decision not to grant a protection visa for me it erred in law. The IAA did not invite me including for a hearing to comment on or respond to the adverse information in which it relied to refuse my protection visa application. The IAA must have invited me to provide my comments in writing and/or to appear before the IAA to give evidence and present arguments relating to the issues raised and relied to refuse my protection visa in relation to my referred application with the IAA.
Particulars
Failure to seek new information about the Applicant’s parents’ fears for the Applicant.”
What is immediately apparent is that the ground does not contain any clear articulation of jurisdictional error. As pleaded, the ground itself appears to invoke the language of s.425 or s.360 of the Act neither of which applies to the circumstances of this case.
The assertion in the ground, in essence, is that the IAA failed to give the applicant the opportunity to comment on, or respond to, adverse information. It is only with the bare assertion in the particular to the ground that reference is made to the claim that the IAA failed to seek new information from the applicant. Again there is no clear articulation of jurisdictional error.
It was only during oral submissions that the following articulation of a ground satisfactorily emerged. That is, that the IAA breached s.473DC(3) of the Act because it unreasonably did not consider whether to exercise the discretion to consider whether to invite the applicant to give new information about his parents’ claimed fears for his safety.
The applicant sought leave to proceed on the basis of that articulation of ground 2. This ground in its newly articulated form then ultimately became part of the request for leave to proceed by way of the further further amended application.
Before the Court, the applicant directed attention to [5] of the IAA’s decision record where, as set out above at [13] of this judgment, the IAA summarised the applicant’s claims to protection (CB 259–CB 260). There the IAA made various references to the applicant’s parents, and their claimed fears for the applicant (at CB 260):
(1) Second dot point at CB 260
“· In around January 2007 the applicant’s parents sent him away to live with a friend of his mother’s in Koddaikallar, approximately 60 kilometres from the family home. The applicant’s parents sent him there as they were fearful that the TMVP would forcibly recruit him or that he would be at risk of harm from the SLA.”
(2) Fourth dot point at CB 260
“· In April 2012 the applicant withdrew from his studies as he decided he could no longer remain in Sri Lanka as he was in constant fear for his life. He would occasionally visit his family home for one or two days but lived mostly with his uncle. He feared he would be harmed or detained if he stayed at the family home. He and his family feared that as a young Tamil returning to the area and unknown to the SLA for the years he had been away, he would automatically be deemed to be associated with the LTTE and at risk at the hands of the SLA.”
(3) Sixth dot point at CB 260
“· He was constantly at risk of being accused of LTTE affiliation in Sri Lanka and his parents were fearful for his life. In August 2012 he fled Sri Lanka. Approximately five months after his departure the SLA went to the family home and questioned his parents as to his whereabouts. His parents told the SLA he had left Sri Lanka and the SLA officers left.”
The applicant relied on Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (“CRY16”) at [21], [40] and [69] to submit that a failure by the IAA to consider whether to exercise the power pursuant to s.473DC of the Act may be legally unreasonable.
The applicant’s ground lacks requisite merit for the following reasons.
The IAA certainly has a discretion pursuant to s.473DC of the Act to get new information from the applicant, and this discretion must be exercised reasonably (Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [21]). Further, there is no doubt that a failure to properly consider the exercise of the discretion may reveal legal unreasonableness.
What was missing, however, in the applicant’s submissions was an understanding, or appreciation, of the circumstances in which this may occur, and as, with respect for example, explained by the Full Court in CRY16.
In that case, (involving an application for a protection visa) the question of internal relocation arose for the first time before the IAA (CRY16 at [43]). That question involved issues of the reasonableness of relocation, and further involved the applicant’s personal circumstances. This was in circumstances where the question of relocation was not explored before the delegate or the subject of any findings by the delegate ([43], [50] and [82]).
That is not this case. In the summary of the applicant’s claims set out in the delegate’s decision, the delegate made specific reference to the applicant’s parents’ fears for him, and the reasons for those fears as claimed by the applicant (see [12] – the ninth dot point at CB 207, the third dot point at CB 208, the fourth dot point at CB 208 and the sixth dot point at CB 208).
There was no complaint now from the applicant that the delegate misunderstood or misrepresented his claims in this regard, or that the delegate failed to consider these claims, or the context in which the parents’ fears were raised, or misunderstood the relevance to his claims for protection.
In its decision record the IAA’s summary of the applicant’s claims to protection included references to his parents fears for him as he had claimed (see above at [36] and with reference to [13] of this judgment).
What is immediately apparent is that the IAA understood that part of the applicant’s claimed fear of harm included what his parents feared for him, and with specific reference to the cause of their fears.
That is, they were fearful the TMVP would forcibly recruit him, that he would face harm as a young Tamil male who would on return be deemed by the SLA to have been associated with the LTTE, and that he would be perceived generally by the authorities to have LTTE links.
As a result of the delegate’s decision, the applicant would have been on notice of the delegate’s view and findings in relation to his claimed fears relating to the TMVP, the SLA and the Sri Lankan authorities.
Upon notification of the referral of his case to the IAA the applicant was given the opportunity to make submissions to the IAA about the delegate’s decision, and to provide new information (CB 242–CB 247). He did make such submissions (CB 249–CB 255). There is nothing in those submissions about his parents’ fears for him, let alone the provision of new information about this, beyond what he had put before the delegate.
Before the Court, the applicant was not able to satisfactorily explain, with reference to the circumstances of this case, what new information the IAA could have, and should have, sought from him in relation to his parents’ claimed fear for him.
At best, when pressed by the Court to identify this new information, the applicant’s response was that the IAA should have obtained new information from the applicant as to why his parents were fearful for him. This ignored the fact that the applicant had already provided that information to the delegate, and as this was subsequently understood by the IAA (see [13], [36] and [44] above).
There is no indication of legal unreasonableness in not considering exercising the discretion in s.473DC(3) in circumstances where the applicant is unable now to identify what new information should have been the subject of the IAA’s consideration, and in circumstances where the information concerning his parents’ fears was put before the delegate. This was done with an explanation as to its relevance to his claims for protection. No new issue arose before the IAA as was the case in CRY16 which gave rise to the subsequent analysis by the Full Court in that case.
In all, in the circumstances of this case the applicant’s proposed ground 2 lacks such merit such as to argue for, or warrant, the leave sought by the applicant.
Consideration: Ground 5
Proposed ground 5 is in the following terms:
“1. The IAA erred when:
a. it accepted as plausible that three of the applicant's relatives (E- mother's mother's brother's son, L - mother's mother's brother's son, & P - mother's sister's husband's brother: see paragraph 6 [CB260]-[CB261]) were killed by the SLA on the basis of imputed connections to the LTTE, and accepted that the applicant's uncle was detained and killed by the SLA in 1990 on suspicion of being associated with the LTTE (paragraph 7 [CB261 ]); and
b. The IAA did not accept that the applicant has a profile with the Sri Lankan authorities as having ever been involved in Tamil separatism or of being a supporter of the LTTE because of his family association. (paragraph 10 [CB261]); and
c. The IAA, in coming to that conclusion, stated: 'Considering the applicant's evidence, the time that has elapsed since the deaths of his uncle and three other members of his extended family, and the fact that neither he, nor any other member of his family, has ever had any trouble with the authorities, . .'.
2. Such a conclusion fails to take into account the relevant evidence concerning the deaths of his uncles and three other members of his extended family and/or draws a distinction between ‘family’ and ‘extended family’, that is not shown to be a relevant consideration.
3. Such that the decision to affirm the delegate’s decision was unreasonable.”
Before the Court, the applicant explained that the jurisdictional error alleged in this ground was one of legal unreasonableness.
The argument was that the IAA misunderstood the evidence before it in making this finding ([10] at CB 261) that the applicant didn’t have “any profile” with the Sri Lankan authorities as none of his family had any trouble with the authorities.
It was therefore unreasonable of the IAA to make this finding in circumstances where (as expressed earlier in the decision – at [6] and [7], CB 260–CB 261) it had accepted, as plausible, that his uncle and three other members of his extended family were killed by the SLA.
Paragraph 10 of the IAA’s decision record is in the following terms (at CB 261):
“10. Considering the applicant’s evidence, the time that has elapsed since the deaths of his uncle and three other members of his extended family, and the fact that neither he, nor any other member of his family, has ever had any trouble with the authorities, I do not accept that the applicant has any profile with the Sri Lankan authorities as having ever been involved in Tamil separatism or of being a supporter of the LTTE because of his family association.”
There is no doubt that the IAA’s power must be exercised reasonably (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (“SZVFW”) at [4], [80] and [89], Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li”) at [26], [29], [63] and [88], and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 [4] and [53]).
In the current case, the essence of the applicant’s complaint is that the IAA came to a particular conclusion as a result of unreasonable, (understood by the Minister, properly in the circumstances to be illogical or irrational) reasoning (although not referred to by the applicant see Li at [72]).
In ARG15v Minister for Immigration and Border Protection [2016] FCAFC 174 the Federal Court found that for such an allegation to be made out “extreme” illogicality must be shown (at [47]). (See also Li at [108] – “stringency of the test”, and SZVFW at [11]). However, in the current case it is not necessary to consider whether the claimed illogicality was extreme or not. That is because the applicant’s argument misunderstands, or misrepresents, what the IAA has plainly reasoned.
The applicant claimed, variously, that if he were to return to Sri Lanka he would face harm from the Sri Lankan authorities. A reason for this was said to be that he would be said to have familial connections to relatives who were perceived to have been supporters, or members, of the LTTE.
The IAA accepted that the applicant’s uncle and three other members of his mother’s family had been detained and killed by the SLA on suspicion of being associated with the LTTE ([6] and [7] at CB 260–CB 261).
The IAA also considered the situation concerning the applicant’s immediate family. It was the applicant’s evidence that “…his father didn’t have a problem at all”, and that his younger brother was too young to have had experienced any problems ([8] at CB 261).
Before the Court, the applicant focused on the IAA’s finding that no “other members of his family, has ever had any trouble with the authorities” as it appears at [10] (at CB 261).
The argument was that the reference to “his family” included members of the extended family. The assertion therefore was that it was unreasonable, in the sense of illogical, of the IAA to make this finding when it had earlier accepted that the applicant’s uncle and three other members of his mother’s family had been killed by the SLA.
It must be said that the applicant’s argument is baseless in light of the IAA’s clear and plain reasoning. The IAA certainly accepted that the applicant’s uncle and other members of his mother’s family had been killed by the SLA.
However, the IAA reasoned that given the time that had elapsed since those events (1990), and in light of the applicant’s evidence that neither he, nor any other members of his family ever had any trouble, he did not have a profile with the Sri Lankan authorities which included any LTTE involvement.
The reference to “any other member of his family” as it appears at [10] plainly, given that it immediately follows the reference to the deaths of his uncle and other members of the extended family, related to members of the applicant’s immediate family which were the subject of his evidence as set out at [8] of the IAA’s decision record (at CB 261).
There is no merit in proposed ground 5 such as to argue for the leave sought.
Consideration: Ground 6
Proposed ground 6 is in the following terms:
“The IAA erred when it failed to consider the aspect of the Applicant’s claims that he was of combat age in Sri Lanka during the conflict and at the time of his departure from Sri Lanka, when the IAA dealt with his claims, such failure amounting to a constructive failure to exercise its jurisdiction and jurisdictional error.
Particulars
i.Applicant’s claim [CB250], [CB211], also at paragraph 17 [CB 263]
ii.The IAA recorded the Applicant’s complaints as ‘He and his family feared that as a young Tamil returning to the area and unknown to the SLA for the years he had been away, he would automatically be deemed to be associated with the LTTE and at risk at the hands of the SLA.’ [CB 260]
iii.The IAA had before it the various claims including the specific claim concerning his being of ‘the right age (16 or 17)’ paragraph 17 [CB263] and specifically him being ‘of combat age’ [CB250]
iv.The IAA merely referred to the Applicant as being ‘a young Tamil male’ (paragraph 19 [CB263], (paragraph 33 [CB266])
v.The IAA failed to consider the claim that because of his particular circumstances including that he was a young Tamil from the East of Sri Lanka, domiciled in LTTE active areas, past suspect profile / record including past questioning as a Tamil with the LTTE suspected profile, of combat age in Sri Lanka during the conflict and at the time of his departure from Sri Lanka, with maternal family members killed on account of imputed links to the LTTE in Sri Lanka, with a past profile, including his risk profile is elevated due [CB250],”.
[Underlining Removed.]
The essence of the complaint in proposed ground 6 is that the IAA did not consider an aspect, or integer of, the applicant’s claims to fear harm. The applicant submitted before the Court that this revealed jurisdictional error in the way explained in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263 and Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802.
The explanation to the ground as put in submissions are as follows. As part of his claims to fear harm, the applicant made express reference to being of “combat age” as an aspect of the Sri Lankan authorities interest in him. The IAA did not address this aspect of his claims in its decision record. It referred to the applicant’s age as being “young”, but did not refer to his being of “combat age”.
To make good this argument the applicant referred to:
1. In his written submissions to the IAA dated 14 July 2016 (CB 249– CB 255) the applicant stated:
“I was of combatant age in Sri Lanka” (CB 250.6).
2. In the summary of the applicant’s claims in her decision record the delegate recorded:
“· The applicant claims that it is plausible that the applicant would be the next target, because, his mother’s cousins did not have children and his maternal cousins have fled overseas; the applicant was a similar age to other LTTE combatants who were forcibly recruited from Batticaloa towards the end of the Sri Lankan civil war; and the applicant’s maternal family is imputed with having LTTE connections.” (last dot point of [14] at CB 209–CB 210).
“…the applicant was of combatant age” (last dot point of [14] at CB 211).
3. In its decision record the IAA recorded, as part of its summary of the applicant’s claims, that the applicant feared harm “as a young Tamil” (fourth dot point of [5] at CB 260). There was no reference to “combat age”.
4. The applicant submitted that in its analysis the IAA referred to:
a. “…because he was of the right age” – ([17] at CB 263).
b. “…he was a young Tamil male” – ([19] at CB 263).
c. “…the applicant as a young Tamil male” – ([33] at CB 266).
Again the applicant submitted, there was no reference to “combat age”.
It is important to note the context in which the phrase “combat age” appears in the articulation of the applicant’s claims.
The entire paragraph in his written submissions to the IAA in which the phrase “combat age” appears is as follows (at CB 250):
“I am a single Tamil male aged 21 from the East of Sri Lanka. I arrived in Australia by boat. I will be questioned at the airport while checks are undertaken. The Authorities at the airport will notify my return to my home area, my previous questioning on suspected LTTE involvements (I am a Tamil from the East, domiciled in the LTTE active areas, with past suspect profile/record including his past questioning as a Tamil from the East with the LTTE suspected profile; I was of combatant age in Sri Lanka; maternal family members were killed on account of imputed linked to the LTTE in Sri Lanka )and my escape will come to the attention of the authorities. I will be detained for additional questioning and will be subject to harm due to these cumulative basis.”
Previously the delegate had relevantly recorded the applicant’s claim as follows (at CB 211):
“· The applicant claims that considered cumulatively, the applicant’s risk-profile would be considered adverse by the Sri Lankan authorities. The applicant claims that his risk profile is elevated due to his particular circumstances. The applicant claims that these particular circumstances include that: the applicant is a young Tamil male from the East of Sri Lanka; the applicant was of combatant age both during the civil conflict and at the time of his departure from Sri Lanka; several of the applicant’s maternal family members were killed on account of their imputed links to the LTTE; the applicant had not lived permanently in his home village since 2007; the applicant has spent a considerable amount of time in Australia, which has large Tamil Diasporas.”
What emerges is as follows. The applicant claimed to fear harm because the Sri Lankan authorities would view him as having a “risk profile”. The reasons for this, as claimed by the applicant, were certain features of his particular circumstances which included his age.
This is clear where the applicant stated in his protection visa application that the TMVP (which on his evidence worked in “close collaboration with the SLA members” – [5] at CB 55) targeted (in 2006) “young male Tamils”. In the same statement at [7] (CB 55) the applicant stated:
“7. The TMVP was compulsorily recruiting young male Tamils around this time in 2006. I was about 11 or 12 years of age at the time.”
Further, in the same statement he claimed that in around 2011 and 2012 (at CB 56):
“…They feared that as a young Tamil returning to the area and unknown to the SLA for the years I had been away, that I would be automatically deemed to be associated with the LTTE and at risk at the hands of the SLA. The SLA still has an army camp nearby our home and this camp remains until now. My parents were fearful because they told me that other young Tamils in our home area had been automatically deemed to be associated with the LTTE and encountered harm by the SLA.”
In his statutory declaration of 8 September 2015 (CB 135–CB 140) the applicant stated ([9] at CB 136):
“…I believe this is why they accused us of either launching attacks or allowing LTTE members to launch attacks against the SLA from our home area. Around this time, the TMVP was forcibly recruiting young male Tamils. I was about 11 or 12 years old at the time.”
While the applicant’s submissions (sent through his then migration agent) made reference to “combatant age” ([89] at CB 190), the claim to fear harm is described in the submissions as set out immediately above.
At [9] (CB 162–CB 163) of the submissions, the applicant’s representative stated:
“The above shows a clear pattern of young men in the Applicant’s mother’s family being suspected of having links with the LTTE, even where these links are not real. It is clear that the familial generation prior to the Applicant’s generation (ie the Applicant’s mother’s cousins, the Applicant’s mother’s brother-in-laws) was suspected of involvement with the LTTE and was targeted on this basis. It is plausible that the Applicant would be the next to be targeted as:
· his mother’s cousins did not have children and his maternal cousins have fled overseas;
· he was of similar age to other LTTE combatants who were forcibly recruited from Batticaloa towards the end of the Sri Lankan civil war;6 and
· his maternal family is imputed with having LTTE connections.”
[Footnote Omitted.]
The submissions also asserted that the applicant would be targeted, as had the young members of his extended family, because amongst other things (at CB 163.2):
“· he was of similar age to other LTTE combatants who were forcibly recruited from Batticaloa towards the end of the Sri Lankan Civil war…”.
It is clear that what the applicant claimed is that as a young Tamil male, that is of young age, he was of a similar age to other LTTE combatants. That is, what made him of “combat age” was his youth.
The delegate’s reference to “combatant age” at CB 211, relied on by the applicant now, is clearly a summary of that part of the applicant’s submissions to the delegate as reproduced at CB 190 (see [89]–[92] of those submissions under the heading of “Applicants particular circumstances”).
The submission there was that the applicant had a high risk profile which would be considered “adverse” by the Sri Lankan authorities. Part of the reason for this was said to be that he was “a young Tamil male…of combatant age both during the civil conflict, and at the time of his departure from Sri Lanka” ([89] at CB 190).
Before the Court, the applicant did not satisfactorily explain how the reference to “combat age” of itself added to the risk profile beyond being a young Tamil from the North-East of Sri Lanka who was of a certain age such that he was perceived to be of combat age.
As the applicant himself made clear the other three members of his extended family killed by the SLA were of adverse interest to the SLA, and were young Tamil males (see Death Certificates at CB 194–CB 196). In all being a young Tamil male (as was the case with his extended family) meant he was of interest, amongst other things, because he was of combat age.
The IAA understood that the applicant was claiming to fear harm on return to Sri Lanka because of threats from the SLA and the TMVP. It addressed this claim at [11]-[21] (CB 262–CB 264).
It addressed the applicant’s claim that he would be of adverse interest because at relevant times he had been of an age when he was in fear of forcible recruitment (for combat) by the TMVP. The IAA referred to country information ([14] at CB 262) that:
“14. Contemporaneous information from Human Rights Watch confirms that the paramilitary Karuna group (whose political party is known as the TMVP) abducted and forcibly recruited hundreds of young men primarily between the ages of 18 and 30 throughout 2006. The group abducted boys and young men from their homes and other places in a coordinated effort to increase the numbers of Karuna’s force.3 The areas where the abductions took place were under government control, with myriad military and police checkpoints and security force camps. Human Rights Watch investigated abductions attributed to the Karuna group in the eastern districts of Ampara, Batticaloa, and Trincomalee.4”
[Footnotes Omitted.]
The matter of the applicant’s age was the subject of further consideration by the IAA in relation to the applicant’s claim that he was suspected of being an LTTE member “…because he was of the right age (16 or 17)” ([17] at CB 263). In context, and given country information before the IAA, and the applicant’s submissions to the delegate and the IAA, the “right” age was at best in part because he was of an age to be recruited by the TMVP or the LTTE for the purpose of fighting in the Civil War. That is, of combat age.
That connection between combat (fighting) and age is made clear by the country information referred to by the IAA from Amnesty International ([18] at CB 263):
“…Information from Amnesty International confirms that in Sri Lanka’s north and east, where much of the armed conflict played out and where large concentrations of Tamils live, the army remained vigilant against even minor acts of dissent.6 Tamils throughout the country, but especially in the north and east, reported that, security forces and paramilitary groups frequently harassed young and middle-aged Tamil men.7 DFAT reported that under the Rajapaksa government the security and intelligence forces in the north and east were known to monitor any possible LTTE activity and any form of civil resistance or anti-Government sentiment.8”
[Emphasis Added.]
[Footnote Omitted.]
In all, before the Court, the applicant was unable to satisfactorily indicate, how the reference to “combat age” was different to, or added a different dimension to, the claim that he feared harm because in the past during the Civil War, and when he left Sri Lanka, he was a young Tamil (that is, of a certain age) who because of this would be perceived as having certain connections (or attract interest from the TMVP or LTTE for recruitment) which would raise his profile to a higher risk.
Proposed ground 6 lacks requisite merit such as to call for the leave the applicant seeks.
Consideration: Ground 7
Proposed ground 7 is in the following terms:
“1. The IAA erred when it failed to consider the aspect of the Applicant’s claims that he was of combat age in Sri Lanka during the conflict and at the time of his departure from Sri Lanka, when the IAA dealt with his claims, such failure amounting to a constructive failure to exercise its jurisdiction and jurisdictional error. (See earlier Ground)
2. As a result, the IAA failed to properly consider the claim that the Applicant ‘’will be detained for additional questioning and will be subject to harm due to these cumulative basis.” [CB250] and his claim “it is likely authorities would interrogate (him) upon return to Sri Lanka” [CB210], such failure amounting to a constructive failure to exercise its jurisdiction and jurisdictional error.
Particulars
i. The Applicant expressed fears in claims which concerned what would be likely to happen upon his return, including claims the Applicant ‘’will be detained for additional questioning and will be subject to harm due to these cumulative basis.” [CB250] and his claim “it is likely authorities would interrogate (him) upon return to Sri Lanka” [CB 210];
ii. The IAA considered (paragraph 53 [CB53] whether, cumulatively, questioning by the authorities combined with possible detention and a fine amounts to serious harm. After considering the totality of the evidence, the IAA found the treatment does not amount to serious harm.
iii. In so finding, it is clear the IAA did not consider the effect that the Applicant, being of combat age during the civil war when recruitment of young men into fighting forces occurred, together with the other matters the Applicant claimed were of relevance to whether he was likely to be harmed upon return, including that because of his particular circumstances including that he was a young Tamil from the East of Sri Lanka, domiciled in LTTE active areas, past suspect profile/record including past questioning as a Tamil with the LTTE suspected profile, of combat age in Sri Lanka during the conflict and at the time of his departure from Sri Lanka, with maternal family members killed on account of imputed links to the LTTE in Sri Lanka, with a past profile, including his risk profile is elevated due [CB250],
iv. Accordingly the IAA did not properly consider all claims, amounting to a constructive failure to exercise its jurisdiction and jurisdictional error.”
[Underlining Removed.]
Before the Court, the applicant submitted that this ground “hung off” ground 6. I understood this to be another example of the reliance on the “combat age” point as it related to the IAA’s finding as to what would likely occur to the applicant immediately on his return to Sri Lanka.
The applicant’s proposed ground directs attention to [53] (at CB 270) of the IAA’s decision which is in the following terms:
“I have also considered whether, cumulatively, questioning by the authorities combined with possible detention and a fine amounts to serious harm. Considering the totality of the treatment that the applicant will experience, I find that this treatment does not amount to serious harm.”
The applicant’s particulars to this ground, and written submissions, sought to enlarge the scope of the focus of the ground by asserting that the IAA failed to properly consider all of the applicant’s claims involving his personal circumstances when it considered his claims on a cumulative basis.
This latter part of the applicant’s allegations was not satisfactorily explained in submissions before the Court to the extent that it was not clear whether it was being pressed.
In any event, to the extent that the ground asserts a failure to consider the “combat age” point, that lacks merit for the reasons set out above in relation to proposed ground 6.
For the remainder, as is clear at [53] (at CB 270) the IAA considered one aspect of the applicant’s claim to fear harm on return to Sri Lanka. That is he would be returning as a person who left Sri Lanka illegally, and was returning as a failed asylum seeker.
In particular, the IAA focused on the question of whether the applicant would suffer harm as a result of questioning by the authorities, possible detention and the payment of a fine.
What is set out at [53] is the IAA’s consideration, on a cumulative basis, of the earlier individual consideration of each of the elements identified at [53].
At [47] (at CB 269) the IAA considered whether the applicant would be seen as having an actual, or suspected, connection to the LTTE because of being a failed asylum seeker or returnee from a western country. At [47] the IAA referred to findings expressed earlier in its decision record to find that that would not be the case.
The IAA also considered the impact of possible detention and the payment of a fine on the question of possible harm on return ([48]–[52] at CB 269–CB 70).
There is no error at [53] (at CB 270) in considering the cumulative effect, or impact, on the applicant of these matters, to rely on findings of fact already expressed earlier in the decision record (SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774). The IAA is not required to set out in full, findings of fact expressed earlier simply because it is assessing the chance of harm on a cumulative basis of all of the applicant’s personal circumstances.
In all, there is no requisite merit in proposed ground 7 so as to argue for the leave that the applicant now seeks.
Conclusion
There is no requisite merit in any of the four proposed grounds of the further further amended application. It is therefore appropriate to refuse leave to the applicant to proceed by way of the further further amended application, noting as set out above, that no attempt was made to provide any explanation whatsoever for the delay in bringing forward the further further amended application.
The grounds of the application as amended, and further amended, were abandoned. As set out above ground 2 of the further amended application became a part of the further further amended application. It is therefore appropriate to otherwise dismiss the application. I will make those orders.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 27 February 2020
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