CLW16 v Minister for Immigration
[2017] FCCA 2386
•13 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CLW16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2386 |
| Catchwords: MIGRATION – Safe Haven Enterprise visa application – review of Immigration Assessment Authority decision (IAA) – IAA’s decision was irrational, illogical and unreasonable – whether the IAA failed to consider established principles in relation to relocation – the IAA erred in finding that there was no record that the applicant had been involved, or suspected of being involved with the Liberation Tigers of Tamil Eelam – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CA Other materials cited: |
| Cases cited: Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18; [2007] HCA 40 |
| Applicant: | CLW16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2387 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 20 July 2017 |
| Date of Last Submission: | 3 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 13 October 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Stephen Hodges Solicitor |
| Counsel for the First Respondent: | Mr H P T Bevan |
| Solicitors for the First Respondent: | Minter Ellison |
ORDERS
Leave to raise three new grounds contained in the applicant’s written submissions dated 27 July 2017 be refused.
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2387 of 2016
| CLW16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority (IAA) made on 10 August 2016. The IAA affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.
Background
The applicant is a citizen of Sri Lanka of mixed Tamil and Muslim parentage. He arrived in Australia by boat without a visa at the Cocos (Keeling) Islands on 26 October 2012. On 3 December 2015, the applicant was notified that the Minister had exercised his discretion to allow him to apply for a protection visa. On 29 December 2015, the applicant applied for a protection visa, in particular, a Safe Haven Enterprise Visa. In those circumstances, it was not in dispute that the applicant was a “fast track applicant” for the purposes of the Migration Act1958 (Cth) (Act).
In support of his application for a protection visa, the applicant claimed to fear harm from a number of sources. First, from the Sri Lankan Army (SLA) and security authorities as a suspected supporter of the Liberation Tigers of Tamil Eelam (LTTE); secondly, from Muslim men in his community because he had worked for the Tamil National Alliance (TNA) in local elections in 2012; and thirdly, from the Sri Lankan authorities because he had left Sri Lanka illegally and sought asylum in Australia.
On 5 July 2016, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. Although it is unnecessary to examine the delegate’s reasons for decision in any detail, the basis of the delegate’s decision meant that the applicant became a “fast track review applicant”. In turn, that meant that the delegate’s decision was referred to the IAA for review pursuant to s.473CA of the Act.
On 10 August 2016, the IAA affirmed the delegate’s decision.
IAA’s decision
The IAA accepted that the applicant had experienced harassment, threats and physical mistreatment at the hands of the SLA from 2009 onwards and that that constituted serious harm. The IAA accepted that the applicant was accused of helping the LTTE but found that the accusation was known by the SLA to be without foundation. It was simply used as a threat to intimidate the applicant and to extort money and goods from him.
The IAA did not accept that the applicant had a profile as a supporter of the LTTE; or that there would be any records that supported that he was subjected to any formal investigation or under real suspicion of supporting the LTTE. It found that the applicant did not face harm on return to Sri Lanka as a person suspected of having supported the LTTE, or having links of any kind with that organisation. Further, the IAA found that the applicant would not continue to be subjected to the harm that he had faced in the past and, in any event, none of the individuals who had sought to harm him in the past, would seek to pursue him if he lived outside his home area. The IAA found that there was no real chance of harm that related to all areas of Sri Lanka.
The IAA accepted that the applicant faced threats from local Muslim men during the 2012 elections because he supported the Tamil candidate for his area. It also accepted that a group of Muslim men came to the applicant’s home on election night and that it was possible that they intended to harm him on that occasion. The IAA was not satisfied that there was a real chance that the applicant would face serious harm from those Muslim men almost four years after the election campaign, given that the only interaction he had with them prior to the election night, consisted of warnings only and in spite of ample opportunity to do so, had not in fact, inflicted actual harm upon the applicant. Further, it did not accept that there were people looking for the applicant because they intended to harm him, or that their enquiries indicated the existence of a real chance that the applicant would face serious harm on return.
The IAA accepted that the applicant’s extended family had been harmed in the 1980s and 1990s as a result of communal violence. It found that that violence had arisen in the specific conditions of the civil war and that there was no real chance of similar harm arising in the reasonably foreseeable future.
The IAA accepted that the applicant had breached Sri Lankan law by departing by boat without a passport and, for that reason, would be charged, fined and released. If the applicant pleaded not guilty, he would be released on his own personal surety and, as he was not a smuggler, there was no real chance he would be given a custodial sentence and any fine imposed would not constitute serious harm.
The IAA found that any processing of the applicant upon return to Sri Lanka would not amount to serious harm. It was not satisfied that any brief detention during the process of investigation or while on remand, even taking into account the prison conditions, would amount to serious harm. In any event, the IAA found that the laws which the applicant had breached were of general application, and so the enforcement did not constitute persecution for the purposes of ss.5H(1) and 5J(1) of the Act.
The IAA concluded on the basis of those findings, that the applicant did not meet the requirements of the definition of refugee in s.5H(1) and so did not meet the criterion in sub-s.36(2)(a) of the Act.
In respect of the criterion in sub-s.36(2)(aa) of the Act, the IAA found in light of s.36(2B), that the fact that the applicant could reasonably relocate to another area of Sri Lanka to avoid harm in his local area, meant that there was no real risk that he would suffer significant harm in Sri Lanka.
Further, the IAA considered the likely penalties that might be imposed upon the applicant for his breach of the Sri Lankan laws and the treatment he might face in prison, did not amount to significant harm within the meaning of the Act.
For those reasons the Tribunal concluded that the applicant did not satisfy the criterion in sub-s.36(2)(aa) of the Act, and affirmed the decision of the delegate to refuse to grant the applicant a protection visa.
Consideration
The application originally filed by the applicant contained five grounds.
At the hearing the applicant abandoned grounds 2 and 4 and sought leave to add two further grounds. That leave was refused for reasons given at the hearing. However, leave was granted to amend the application to include a number of grounds arising out of [24] of the IAA’s reasons.
For the reasons that follow, none of the original grounds can succeed and the further grounds raised by the applicant with leave must also fail. The application will be dismissed.
First ground: the IAA’s decision was irrational, illogical, or so unreasonable that no reasonable decision maker could make it
This ground is based upon what the applicant asserts are inconsistent findings made by the IAA. The applicant relies upon the fact that the IAA found, on the one hand (at [16]), that the applicant experienced serious harm at the hands of the SLA from 2009 onwards and yet, on the other (at [17]), that the reason for that harm was not “in connection with the accusations made by the SLA.”
The ground is based on a misunderstanding of both the IAA’s reasons and what constitutes legal unreasonableness.
First, contrary to the applicant’s argument, the IAA did not reject the contention that the harm suffered by the applicant was “in connection with the accusations made by the SLA” (i.e. that the applicant was assisting or was involved with the LTTE). Rather, the IAA found that the real reason for the mistreatment of the applicant was not any “genuine belief on the part of the SLA that the applicant was actually assisting or involved with the LTTE” but that the accusations made by the SLA were ones that the SLA “knew to be without foundation”: IAA’s reasons at [17].
The IAA found that the “real reason for the harassment and mistreatment the applicant suffered at the hands of the SLA after 2009” was to enable the SLA to intimidate the applicant to corruptly exploit “its powerful position for personal gain”: IAA’s reasons at [17]. In other words, the IAA accepted that there was a connection between the accusation of involvement with the LTTE and the harm suffered by the applicant, but that connection was an excuse for, rather than, the motivation for the harm.
Secondly, and in any event, the IAA explained the basis for accepting the fact of the serious harm but rejecting the motivation for it. That basis was provided by country information which suggested first, that it was very unusual for Muslims to support the LTTE after 1990; and secondly, that people actually suspected of supporting the LTTE were treated far more harshly by the Sri Lankan authorities than the applicant was.
Those two matters provided a rational basis for the IAA’s conclusion. That is to say, that there was, on the material, room for a logical or rational person to reach the same decision on the material before the IAA: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at 648; [2010] HCA 16 at [131]-[135] (Crennan and Bell JJ); BNH16 v Minister for Immigration & Border Protection [2017] FCAFC 109 at [36] (Tracey, Farrell and Charlesworth JJ); CQG15 v Minister for Immigration & Border Protection (2016) 70 AAR 413; [2016] FCAFC 146 at [59] (McKerracher, Griffiths and Rangiah JJ); ARG15 v Minister for Immigration & Border Protection [2016] FCAFC 174 at [44] (Griffiths, Perry and Bromwich JJ); Gill v Minister for Immigration & Border Protection [2017] FCAFC 51 at [60] (Griffiths and Moshinsky JJ); BSJ16 v Minister for Immigration & Border Protection [2017] FCAFC 78 at [40] (Collier, Murphy and Burley JJ).
The first ground is rejected.
Third ground: the IAA failed to consider the established principles in relation to relocation
The applicant argued that it was not open to the IAA to conclude that relocation was available to the applicant in circumstances where the feared perpetrators were state agents. The argument was put in three ways. The first was that it was inconsistent with the law as explained by Lords Bingham and Hope in Januzi v Secretary of State for the Home Department [2006] 2 AC 426; [2006] 3 All ER 305 (Januzi). There are two answers to that proposition: first, the IAA’s approach to the issue of relocation was not inconsistent with Januzi; and secondly, even if it were inconsistent, the law to be, and in fact applied by the IAA, is that set out in s.5J of the Act.
Januzi concerned the content and application of what is commonly known as the relocation principle. There were two issues before the House of Lords in that case. Lord Bingham, who delivered the leading opinion, explained, at [1]:
… The common issue in the appeals is whether, in judging reasonableness and undue harshness in this context, account should be taken of any disparity between the civil, political and socio-economic human rights which the appellant would enjoy under the leading international human rights conventions and covenants and those which he would enjoy at the place of relocation. In the appeals of Messrs Hamid, Gaafar and Mohammed a further issue arises, on the approach to be followed where the persecution suffered or to be suffered was or would be sanctioned or connived at by the authorities of the country of the appellants’ nationality. …
In examining those issues, Lord Bingham considered the way in which the principle of relocation arose in the definition of “refugee” in the Convention[1]. He said, in a passage adopted by the High Court of Australia, as correct[2]:
[1] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967).
[2] SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18 at 25 [19]; [2007] HCA 40.
[7]The Refugee Convention does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he would have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason. Although described by a number of different names this relocation alternative has now been recognised for a number of years, at any rate since publication of para 91 of the United Nations Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees in 1979:
‘The fear of being persecuted need not always extend to the whole territory of the refugee’s country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so.’
The corollary of this proposition, as is accepted, is that a person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country.
(Emphasis in original)
His Lordship found, in determining the first issue, that the Convention was not directed (apart from persecution) to the level of civil, political, social or economic rights prevailing in the country of nationality: see also Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317; [2014] HCA 45 at [30] (French CJ, Hayne, Kiefel and Keane JJ) and at [43] (Gageler J) (SZSCA).
Next, his Lordship rejected the contention, which appears to be the one put forward by the applicant in these proceedings, that internal relocation is never an available option where persecution is by the authorities of the country of nationality. His Lordship said at [21]:
…
There can, however, be no absolute rule and it is, in my opinion, preferable to avoid the language of presumption. The decision-maker, taking account of all relevant circumstances pertaining to the claimant and his country of origin, must decide whether it is reasonable to expect the claimant to relocate or whether it would be unduly harsh to expect him to do so. The source of the persecution giving rise to the claimant’s well-founded fear in his place of ordinary domicile may be agents of the state authorised or directed by the state to persecute; or they may be agents of the state whose persecution is connived at or tolerated by the state, or not restrained by the state; or the persecution may be by those who are not agents of the state, but whom the state does not or cannot control. These sources of persecution may, of course, overlap, and it may on the facts be hard to identify the source of the persecution complained of or feared. … The more closely the persecution in question is linked to the state, and the greater the control of the state over those acting or purporting to act on its behalf, the more likely (other things being equal) that a victim of persecution in one place will be similarly vulnerable in another place within the state. The converse may also be true. All must depend on a fair assessment of the relevant facts.
Lord Hope expressed a similar opinion at [48] – [49].
This reasoning discloses that, contrary to the applicant’s argument, there is no established principle that makes relocation irrelevant where persecution emanates from a legitimate state agent. Further, consistently with what was said by Lord Bingham, the IAA’s reasons show that it did assess the issue of relocation on the basis of the relevant facts.
In any event, the question for the IAA was not whether the applicant was a “refugee” within the meaning of Article 1A(2) of the Convention at large, but rather, whether he was a “refugee” within the meaning of s.5H of the Act. One of the requirements of that definition is that the applicant have a “well-founded fear of persecution”. That term is, in turn, defined by s.5J of the Act. That section relevantly provides:
Meaning of well-founded fear of persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)the real chance of persecution relates to all areas of a receiving country.
(Emphasis in original and added)
The question posed by sub-s.5J(1)(c) of the Act is different to that posed by the relocation principle, as it is understood in the context of the definition of “refugee” in the Convention. There is, for example, no reference in sub-s.5J(1)(c) to relocation at all or, in particular, to the reasonableness of relocating. The IAA addressed itself to the question posed by sub-s.5J(1)(c) of the Act: see [20] of its reasons.
The second way in which this ground was argued, was that the SLA’s behaviour in the local area, was indicative of its behaviour more generally and across the country. That argument does no more than posit an inference that the IAA could have, but did not draw from the material before it. It does not support the contention that there was any jurisdictional error in the way in which it dealt with the issue raised by s.5J of the Act.
The third way the argument was put was that the local soldiers extorting money were arguably motivated by personal interest that was also Convention related. That may well be so, but the IAA found otherwise. It was the task of the IAA, not the Court, to determine what inferences to draw and findings of fact to make on the material. The argument rises no higher than an attack on the merits of the IAA’s conclusion.
The third ground is rejected.
Fifth ground: the IAA erred in making a finding that there was no record of the applicant having had or been suspected of involvement with the LTTE
The IAA stated, at [30], that “… the evidence does not suggest that the authorities actually suspect” that the applicant had any connection to the LTTE and that it did “not consider that there would be any record of the applicant having had or been suspected of, involvement with the LTTE.” The applicant argues that these statements reveal error because, given that it had accepted that the applicant had been taken to the army camp and detained on a number of occasions and accused of having connections with the LTTE, there would be records of those accusations.
This ground relies on an inference that could have been, but was not, drawn by the IAA. Importantly, the inference was not one that had to be drawn by the IAA. The IAA did not draw the inference because it did not believe that the SLA members who were harming the applicant had any other purpose than personal gain. It gave cogent reasons for that conclusion: see [21] above. In those circumstances, the argument is no more than an assertion that the Tribunal’s finding of fact was wrong. Understood in that way, the ground raises no jurisdictional error and must be rejected.
Further grounds
At the hearing an issue arose as to whether the IAA’s reasoning in [24] of its statement revealed a misunderstanding of the meaning of persecution in the Act. Although Counsel for the Minister was able to present cogent oral arguments in relation to that issue, orders were made allowing the applicant to file written submissions setting out any proposed grounds arising from [24] of the IAA’s decision. The question of leave was left to be dealt with on the papers.
The relevant passage in the IAA’s decision is:
[24]I accept that the applicant faced threats from local Muslim men during the 2012 elections because he supported the Tamil candidate for the TNA. Country information indicates that historically there was bad feeling between the Tamil and Muslim communities in [town]. Information relied on by the delegate to support his finding that there were “multiple cases of voter intimidation and violence” in that election, which he found consistent with the applicant’s claim that he had been threatened by a mob of Muslim men, in fact refers only to “reports of threats and intimidation” and a massive police and army presence in an election “mired in controversy”. Based on the applicant’s evidence, however, I accept that a group of Muslim men came to his home on election night. It is possible that they intended to harm him on that occasion, although given his evidence that he had experienced previous warnings - either when he met them on the road or possibly when they came to his home and he was able to avoid them by going to his sisters’ neighbouring houses - I consider that they had ample opportunity to harm him had they intended to do so. I am not satisfied that there is a real chance that he would face serious harm from local Muslim men if he were now to return to his village, almost four years after the election campaign in which he helped the TNA. His own evidence indicates that any interaction he had with the men prior to election night consisted of warnings only. It would appear that if they had any intention of actually harming him they had ample opportunity to do so. Accepting that they did come to his home on election night, I am not prepared to accept, on the basis of this incident alone, that they intended to do him serious harm. I consider that the possibility that they would seek to harm him now, four years later, is remote. While I note the applicant’s claims that people have continued to inquire about him during his absence, I am not satisfied that these are people who are looking for the applicant because they intend to harm him, or that these inquiries indicate the existence of a real chance that the applicant would face serious harm on return.
The applicant proposed three new grounds in respect of this passage. The first ground was:
1.The IAA failed to assess that the applicant faced a real risk of significant harm from Muslim men in connection with the 2012 elections, when it assessed the applicant’s claims against the complimentary [sic] protection criterion.
The error asserted in this proposed ground does not arise in respect of [24] of the IAA’s reasons at all. In that paragraph, the IAA was dealing with the refugee criterion, not the complementary protection criterion. In respect of that criterion, the IAA relevantly adopted its earlier factual findings at [39]. This proposed ground goes beyond the leave granted at the hearing, and leave to raise it is rejected for that reason. In any event, the IAA clearly dealt with this claim in respect of the complementary protection criterion and the ground has insufficient prospects to warrant the grant of leave to amend.
The second proposed ground raised by the applicant is:
2.The IAA failed to consider that the applicant faced a real chance of serious harm from Muslim men in connection with the 2012 elections, when it assessed the applicant’s claims under 5J of the Migration Act [CB 169, 24].
Particulars
a.The IAA accepted at [CB169, 24] “that the applicant faced threats from local Muslim men during the 2012 elections”.
b.The IAA accepted at [CB 169, 24] “that historically there was a bad feeling between Tamil and Muslim communities in Kattankudy”.
c.The IAA accepted at [CB 169, 24] that the group of Muslim men intended to harm the applicant when they went to the applicant’s home on election night.
d.S5J (5) (a) of the act states that “a threat to the person’s life or liberty” amounts to serious harm.
e.The existence of “threats” coupled with an actual “intention” to carry out the threats / harm on at least one occasion raises an obligation to assess future harm to the applicant from Muslim men in connection with the 2012 elections.
f.The IAA failed in this regard to assess this claim made out on the facts.
(Emphasis in original)
It is not easy to understand this ground as it is formulated and the applicant’s written submissions in support of it do little to clarify the ground. In his submissions, the applicant relevantly states:
…
When applying the real chance test and when assessing future harm what happened in the past is relevant. The IAA’s reasoning when applying the real chance test and looking into the future appears to have been misguided and founded on its own subjective opinion, when it stated that the Muslim men who had the intention to harm the applicant in September 2012, had no intention to harm really because the Muslim men had “ample opportunity to harm him.” It is this finding made by the IAA at [CB 169, 24] that resulted in the adverse finding that the applicant would not face serious harm upon return.
It is submitted that the IAA’s finding that the Muslim men had “ample opportunity to harm him” was not open on the evidence as the applicant departed Sri Lanka soon after the September 2012 incident and during the short period he remained in Sri Lanka after the September 2012 incident he was able to avoid his persecutors by “going to his sisters’ neighbouring houses.”
(Emphasis in original)
Whatever these submissions actually mean, they do not disclose any error in [24] of the IAA’s reasons.
In [24] the IAA accepted the applicant’s claim that during the 2012 elections a group of Muslim men went to the applicant’s home. The IAA also accepted that it was possible that the men had intended to harm him. However, it did not in fact accept on the basis of that incident alone, that they did intend to harm the applicant then, or ever. It said:
Accepting that they did come to his home on election night, I am not prepared to accept, on the basis of this incident alone, that they intended to do him serious harm.
That was, as the applicant argues, a subjective opinion; however, there is no error in that. The IAA must determine whether it is satisfied that the criteria for the grant of the visa were met, not whether there was some objective basis for that satisfaction. That, in turn, requires it to make findings of fact. That is, it must determine for itself what happened in the past and then, drawing on that, to determine what might occur in the reasonably foreseeable future.
The proposition that the IAA did not apply a forward looking test cannot stand in light of the plain findings by the IAA that there was no “real chance that (the applicant) would face serious harm … if he were now to return to his village”, that the possibility “that they would seek to harm (the applicant) now, four years later, is remote”.
Finally, the applicant’s submissions contain the contention (not relevant to the ground as framed) that the IAA’s conclusion that the Muslim men had had “ample opportunity to harm” the applicant was not open on the evidence. The applicant supports this by suggesting that there was no such opportunity because, after the September 2012 incident, the applicant had avoided his persecutors by going to his sisters’ houses. This contention is based on another misunderstanding of the IAA’s reasons.
The applicant’s claim was, in fact, that he had gone to stay at a friend’s house in Colombo[3]. The reference to the applicant’s sisters’ houses in [24] of the IAA’s reasons refers to the evidence that is set out at [23] of the reasons:
… He also indicated at the SHEV interview that these groups of men had come before the election as well, but when asked to clarify the apparent inconsistency with his earlier statement that the first time they came to his home was on election night, he said that it happened “on and off” during election time, but it “came to a peak” on election night; he also indicated that on the earlier occasions he had met the groups of men on the road, although he then also stated that they had been to his house looking for him. Asked for more detail, he said that they came after work not to harm him, but just to warn him to stop helping the TNA, and he would go to one of his sisters’ houses in the family compound when he heard them.
[3] See Court Book, pp.60 and 126, [54].
The IAA did not base its findings on the fact that, on or after the September 2012 incident, the men had ample opportunity to harm the applicant. That opportunity had arisen prior to that incident and was based on the applicant’s own evidence.
This ground has insufficient merit to warrant leave being granted to include it.
The third proposed ground is:
3.When assessing if the applicant would face a real chance of serious harm from local Muslim men (who had threatened the applicant and intended to cause harm on at least one occasion in the past) the IAA failed to consider that the applicant avoided his persecutors / serious harm “by going to his sisters’ neighbouring houses.” [CB 169, 24]
Particulars
a.The applicant claimed that when the Muslim men came to his home on election night and previously when “he had experienced previous warnings – either when he met them on the road or possibly when they came to his home and he was able to avoid them by going to his sisters’ neighbouring houses” [CB 169, 24].
b.The applicant claimed therefore that he avoided his persecutors not only on election night when they went to the applicant’s home with the intention of harming him, but previously when “he experienced previous warnings”.
c.Though the IAA states “they had ample opportunity to harm him had they intended to do so” [CB 169, 24], the IAA failed to consider if the reason the Muslim men did not pursue the applicant was because the applicant was able to avoid his persecutors.
d.The IAA when applying the real chance forward looking test failed to consider if the applicant would be able to avoid being harmed by the Muslim men.
(Emphasis in original)
The applicant contends that the IAA fell into an error similar to that found by the majority in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 (S395). In SZSCA the majority (French CJ, Hayne, Kiefel and Keane JJ) explained at [17] that:
The essential reasoning in S395 was that the Tribunal had diverted itself from its task of determining whether there would be a real chance that the applicants would be persecuted if they returned to Bangladesh, by focusing on an assumption about how the risk of persecution might be avoided. …
The IAA did not do that here. All it did was to note that the applicant had given evidence that he had avoided the group of men by going to his sisters’ houses. The applicant’s evidence was, in any event, that he had done so at a time when the men had not come to harm him, but simply to warn him.
This ground, too, has insufficient merit to warrant leave to amend the application to include it.
In addition to the proposed grounds raised by the applicant, the Minister’s written submissions dealt with whether the IAA ought to have considered whether the threats of harm made by the Muslim men might have amounted to persecution and, if so, should have considered whether such threats might recur in the future. While I appreciate that the Minister may have done this because the applicant’s proposed grounds and his written submissions were not very clear, I consider that I ought not to deal with this possible argument. It was not in fact one raised by the applicant, and I have not had the benefit of full submissions about it. It may have been different if the applicant had been unrepresented, but he was not.
Leave to raise the three proposed grounds in the applicant’s written submissions dated 27 July 2017 is refused.
Conclusion
The applicant has not established that the IAA’s decision was affected by jurisdictional error and the application must be dismissed.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 13 October 2017
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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