CQT16 v Minister for Immigration

Case •

[2019] FCCA 3711

•

19 December 2019

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQT16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3711
Catchwords:
MIGRATION – Application to review decision of Immigration Assessment Authority (“IAA”) – whether the IAA misconstrued, misapplied or failed to apply s.473DD of the Migration Act 1958 (Cth) – whether the IAA failed to exercise its jurisdiction by asking itself the wrong question – neither ground is made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 473DB, 473DD, 476, pt.7AA div 3

Cases cited:

BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44;

(2019) 163 ALD 483

BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958;

(2017) 254 FCR 221; (2017) 159 ALD 417

Plaintiff M174/2006 v Minister for Immigration and Border Protection

[2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481;

(2018) 353 ALR 600

BZC17 v Minister for Immigration and Border Protection [2018] FCA 902

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176;

(2017) 257 FCR 111; (2017) 158 ALD 198

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111;

(2018) 162 ALD 442

AUH17 v Minister for Immigration and Border Protection [2018] FCA 388

BRA16 v Minister for Immigration and Border Protection [2018] FCA 127

DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33;

(2018) 260 FCR 260

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs

[2003] HCA 71;

(2003) 216 CLR 473; (2003) 78 ALJR 180; (2003) 203 ALR 112;

(2003) 78 ALD 8

Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22;

(1997) 191 CLR 559; (1997) 64 FCR 151; (1997) 71 ALJR 743;

(1997) 144 ALR 567; (1997) 48 ALD 481

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 10
Applicant: CQT16
First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY
File Number: SYG 2530 of 2016
Judgment of: Judge Nicholls
Hearing date: 14 November 2019
Date of Last Submission: 14 November 2019
Delivered at: Sydney
Delivered on: 19 December 2019

REPRESENTATION

Counsel for the Applicant: Mr Chia (by direct access)
Representative for the Respondents: Mr Gao
Solicitors for the Respondents: Australian Government Solicitors

ORDERS

  1. The application made on 19 September 2016, and as further amended, is dismissed.

  2. The applicant pay the first respondent’s costs set in the amount of $6000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2530 of 2016

CQT16

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 19 September 2016, amended on 30 August 2018, and further amended on 14 November 2019, seeking review of the decision of the Immigration Assessment Authority (“the IAA”) made on 23 August 2016, which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant (“the visa”).

  2. 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

  1. The applicant is a Sri Lankan national of Tamil ethnicity, born in the Eastern Province of Sri Lanka (CB 13 and [1] CB 267).  He arrived in Australia on 24 August 2012 as an unauthorised maritime arrival (CB 93).

  2. He ultimately applied for a Safe Haven Entry Visa (“SHEV”) it was received by the Minister’s Department on 2 December 2015 (CB 75–CB 109).  He was assisted in completing his application (CB 82).  His claims to fear harm were set out in a written statement dated 18 May 2015 (CB 110–CB 114).  The applicant had previously sought to apply for protection in 2013 (CB 1–CB 56).  This was deemed to be an invalid application.

The Applicant’s Claims

  1. The applicant claimed that he had been involved with the Tamil National Alliance (“TNA”), and had been involved in elections since 1994.  In an election in 2004 he was assaulted and threatened with torture by the Karuna group (“TMVP”) and the Sri Lankan police (“the CID”).

  2. The TNA candidate in his local area won this election.  The threats to the applicant increased and as a result he left Sri Lanka for Saudi Arabia.  He returned in 2008, departed and then returned again in 2012.  He was asked to support another TNA candidate for election.  The CID threatened to kill him if he supported the TNA again.

  3. The TNA candidate he had assisted in 2004 and two of his friends and his uncle were killed by a CID officer.  He left as a result, and feared he would be killed by the CID if he returned.

The Delegate

  1. The applicant attended an interview with the delegate on 25 May 2016 (CB 143–CB 145 and CB 200.8).

  2. The delegate refused the application for the visa on 13 July 2016 (CB 195–CB 218).  The delegate accepted that the applicant had been involved with the TNA, and assisted the TNA candidate in 2004.  Further, that he had been threatened in 2008 and 2012.

  3. The delegate did not accept that the applicant’s uncle and friends were killed as he had claimed.  The delegate found that in light of country information the applicant would not be harmed for any reason if he were to return to Sri Lanka.

The IAA

  1. The delegate’s decision was referred to the IAA for review on 14 July 2016 (CB 220–CB 221).  The applicant provided further documents to the IAA.

  2. The applicant’s submission to the Court described these as follows:

    “17. The applicant also provided to the Authority:

    a.   three photographs said to depict the applicant in Martyrs' Day gathering in Dammam city, Saudi Arabia;4

    b.   a photograph his wrist with of "burn marks" indicated;5

    c.    a letter of support dated 28 July 2016 (Letter) from an events coordinator for the Tamil Civic Centre, attesting to the applicant's volunteer work for various Tamil remembrance events in Sydney from 2013 to 2016;6

    d.   TamilNet article entitled "LTTE officers graduate from Karadiyanaru training school" dated 14 March 2003 (TamilNet article);7

    e.    Internet article dated 26 July 2014 from Tamil news website "Tamilwin" said to contain a photograph of the applicant at Black July event in Sydney (Tamilwin article);8 and

    f.     further photographs, said to be of the applicant at Martyrs' Day celebration events in Australia.9”

    [Footnotes Omitted.]

  3. The Minister’s submissions described them as follows at [6]:

    “6. On 14 July 2016, the delegate's decision was referred to the IAA pursuant to s 473CA of the Act: RD 220−221. On 30 July 2016, the applicant provided further documents to the IAA as follows:

    6.1. a statement from the applicant raising 2 further claims for protection. First, that the applicant voluntarily joined the Liberation Tigers of Tamil Eelam (LTTE) from 2000 until 2004, serving as a fighter, rising to the rank of Lieutenant, and in the political wing of the LTTE. Secondly, the applicant claimed he was involved in pro−LTTE Tamil activities, such as Tamil Hero's Remembrance Days and Black July Remembrance Days, in Saudi Arabia and Australia. He claimed to fear that, despite the authorities in Sri Lanka not being aware of his LTTE links when he previously exited and entered the country, it was possible his real profile would become known if returned as a failed asylum seeker. The applicant also gave reasons why he did not mention this information to his legal representatives or the delegate

    6.2. photos of the applicant at `LTTE martyrs day celebration events held in Australia' (undated)

    6.3. a news article dated 14 March 2013 regarding the LTTE, and an article in Tamil dated 26 July 2014 regarding remembrance day events in Australia. The applicant claimed that he appeared in a photo in that article, at the Black July remembrance day

    6.4. a letter from a Tamil Civic Centre Events Coordinator dated 28 July 2016, confirming the applicant's involvement in various remembrance day events held in Sydney from 2013−2016: RD 233−257.”

  4. For current purposes, as set out above, in the additional statement the applicant raised two claims not raised earlier before the delegate.  One, that he had voluntarily joined the LTTE, fought with them, and served in its political wing.  Two, he was involved in public LTTE activities both in Saudi Arabia and Australia.

  5. The IAA affirmed the delegate’s decision on 23 August 2016 (CB 266– CB 283).

The Grounds of the Application

  1. The grounds of the further amended application are in the following terms:

    “1. The second respondent (Authority) at [6]-[9] misconstrued and misapplied, or failed to apply, section 473DD of the Migration Act 1958.

    Particulars

    In relation to some or all of the new information provided on 30 and 31 July 2016, the Authority either:

    a.   failed to form the state of satisfaction required under paragraphs 473DD (a) and (b); or

    b.   construed the term “exceptional circumstances” too narrowly or failed to form the state of satisfaction required under subparagraph 473DD(b)(ii).

    2. Further, or in the alternative, the Authority at [37] asked itself the wrong question and thereby constructively failed to exercise its jurisdiction.

    Particulars

    In finding it was not satisfied there was a real chance the applicant could suffer harm based on his past involvement with the Tamil National Alliance, the Authority relied upon the absence of past harm without considering whether, due to well-founded fear, the applicant had modified his conduct to avoid harm.”

    [Underlining Removed.]

Ground One: The Applicant’s Argument

  1. Ground one asserts that the IAA misconstrued, misapplied or failed to apply s.473DD of the Act in relation to the material provided to the IAA by the applicant. That is, his statement, photographs, news articles and a letter referring to the applicant’s attendance at certain commemoration events in Sydney, from the Tamil Civic Centre (“TCC”) coordinator.

  2. The ground focuses on s.473DD of the Act:

    “For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

    (a)  the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

    (b)  the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

    (i)  was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

    (ii)  is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.”

  3. The applicant’s argument is that at each of (a), (b)(i) and (b)(ii) of s.473DD of the Act, the IAA was required to form a “state of satisfaction” in relation to the new information that was presented to it.

  4. The applicant relied on BYA17v Minister for Immigration and Border Protection [2019] FCAFC 44 (“BYA17”) at [55]:

    “That being so, in our view the IAA’s failure to make any reference to the news reports in its reasons, coupled with its detailed consideration of the other new information on which the appellants sought to rely, entitles an inference to be drawn that it did not consider the news reports either in the exercise of its functions under s 473DD or in arriving at its substantive decision: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69] (McHugh, Gummow and Hayne JJ). In other words, these considerations provide a proper basis for inferring on the balance of probabilities that the IAA “… failed in the discharge of [its] exact function according to law”, being to form a state of satisfaction under s 473DD in respect of whether it should have considered the information in the news reports and, if satisfied that they should be considered in the review, to consider them: cf Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 (Dixon J).”

  5. The applicant submitted that in the current case the IAA referred “globally” to the “initial statement”, photographs, news articles and the letter from the TCC co-ordinator.  That is it recognised that there was “new information”.

  6. However, with reference to [5]–[8] of the decision record, the IAA only considered whether some of the new information met the requirement as to exceptional circumstances.

  7. The focus of the ground, as explained in submissions, was on what were described as two new sets of claims made by the applicant.  One, that the applicant feared harm because he voluntarily joined the LTTE “from some time in 2000 until 2004”, serving both as a fighter, and in the LTTE political wing.  Two, the applicant was involved in pro–LTTE activities both in Saudi Arabia and Australia.

  8. In submissions the applicant explained that, with reference to s.473DD of the Act, the IAA committed two legal errors.

  9. One, it did not consider the photographs or news articles submitted by the applicant (see [12]–[13] above). That is, in relation to these items it did not consider whether it could reach the requisite state of satisfaction in relation to s.473DD(a), (b)(i) and (b)(ii).

  10. Two, the consideration it did give was only focused on the explanation provided by the applicant for not presenting the new information to the delegate (with reference to s.473DD(b)(i), and did not consider whether the new information was credible personal information which was not previously known (with reference to s.473DD(b)(ii)). In short, the IAA only focused on s.473DD(a).

  11. In addition to BYA17 (see above) the applicant also relied on BVZ16v Minister for Immigration and Border Protection [2017] FCA 958 (“BVZ16”) for the proposition that the three elements in s.473DD((a), (b)(i) and (b)(ii)) are overlapping and cumulative and have to be considered together.

  12. The applicant referred to BVZ16 at:

    1.  [9]: “The requirements of paras (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the para (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.”

    2.  [37]: “I would also uphold an additional and related contention of the appellant. This was to the effect that, even if the FCC Judge had been correct in finding that the IAA had addressed s 473DD(b)(i), this would not have completed the IAA’s statutory task, given that para (b) is expressed in alternatives. The circumstance that the appellant may not have been able to satisfy subpara (b)(i) did not foreclose him being able to satisfy subpara (b)(ii).”

  13. The applicant’s argument was that the IAA did not consider the “significant and detailed new claim” that the applicant was an LTTE cadre, which was “potentially dispositive of the review”. It failed to do so because, it is said, the IAA took an unduly narrow interpretation of the words “exceptional circumstances” as they appear at s.473DD(a).

Consideration: The Relevant Law

  1. The applicant’s submissions appeared to proceed on the basis that s.473DD facilitates an applicant’s capacity to provide new information to the IAA, subject to the IAA’s state of satisfaction as to the matters set out at s.473DD(a), (b)(i) “and” (b)(ii) of s.473DD of the Act.

  2. However, as was made clear in Plaintiff M174/2006 v Minister for Immigration and Border Protection [2018] HCA 16 (“M174/2006”), at [22], the “primary requirement” as set out at s.473DB within Division 3 of Part 7AA is to consider “…the review material provided to the Authority under s 473CB without accepting or requesting new information…”.

  3. For current purposes, s.473DD is an exception to that “primary rule” (M174/2016 at [22]). The requirements of s.473DD(a) and s.473DD(b), on which the applicant now relies, are therefore exceptions to the “primary rule” to be applied in the narrow circumstances dictated by those provisions (BZC17v Minister for Immigration and Border Protection [2018] FCA 902 at [52]).

  4. As the applicant submits, the requirements of s.473DD(a) and s.473DD(b) are cumulative. But contrary to what was at least implicit in the applicants argument only two, at least, of these requirements (s.473DD (a), (b)(i) or (b)(ii)) must apply in order for the IAA to be satisfied that the requirements of s.473DD are met (M174/2016 at [31], [78], [100] and see also Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [102], and AQU17v Minister for Immigration and Border Protection [2018] FCAFC 111 (“AQU17”) at [13]).

  5. That is (a) and (b)(i) or (a) and (b)(ii).  The conjunctive “and” between (a) and (b), and the alternative “or” as between (b)(i) and (b)(ii) make that clear.

  6. In that light, there is no requirement that the IAA consider s.473DD(a) before s.473DD(b). If s.473DD(b) is not met then the prohibition in s.473DD (“the Immigration Assessment Authority must not consider any new information”) remains (AUH17v Minister for Immigration and Border Protection [2018] FCA 388 (“AUH17”) at [33], BRA16v Minister for Immigration and Border Protection [2018] FCA 127 at [26]).

  7. What follows from this is that, contrary to the applicant’s argument, even if the IAA did not consider one of either (a) or (b) of s.473DD, then no error is revealed so long as, of course, it properly considered the requirements of the other limb. It does not matter whichever of (a) or (b) it considered first, given the conjunctive nature of (a) and (b).

  8. The applicant submitted in the current case that the IAA did not properly engage with the “new information” that the applicant submitted to it. That is, to form a state of satisfaction under s.473DD in relation to whether it should have considered the photographs and news reports.

  9. As was said in M174/2016 what constitutes “exceptional circumstances” pursuant to s.473DD(a) is “inherently incapable of exhaustive statement” (see at [30]).

  10. However, contrary to the applicant’s submission now, not every consideration of “exceptional circumstances” requires consideration of whether the new information is credible personal information (with reference to s.473DD(b)(ii)). See AQU17 at [14] and the reference to M174:

    “As the plurality in Plaintiff M174 made clear, what will amount to exceptional circumstances is inherently incapable of exhaustive statement. Each case will be different to every other case and must be treated on its merits and the matters for the Authority to take into consideration must necessarily vary from case to case. It is a misconception that the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist as s 473DD(b) does not codify what constitutes “exceptional circumstances”. Rather, s 473DD(b) sets out the further preconditions that must also be met before the Authority can consider the new information cumulatively upon the precondition set out in s 473DD(a): Plaintiff M174 at [31]. As BVZ16, BBS16 and CHF16 illustrate, in many cases consideration of the factors in ss 473DD(b)(i) and/or (ii) may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances exist but whether those factors will have bearing upon that decision will depend on the particular case.”

  1. It is the case that s.473DD of the Act does require an evaluated assessment by the IAA (M174/2016 at [75]).  However, as was noted in DYS16v Minister for Immigration and Border Protection [2018] FCAFC 33 at [17] this does not require the IAA in that evaluation to be satisfied as to any particular fact. Each case must be approached on its own merits (AUH17 at [32]).

Consideration: Ground One

  1. In that light, therefore, the questions now are what are the relevant circumstances of this case, and how did the IAA proceed.

  2. First, the photographs and news articles.  In his submissions the Minister referred to the circumstances of the presentation of his claims by the applicant.

  3. In the current case, prior to making his valid application for the visa (CB 75–CB 109) the applicant had made an invalid application for a visa (CB 1–CB 56).

  4. The Minister’s submission was that the applicant, on both occasions, was represented by two separate refugee organisations (Refugee and Immigration Legal Centre and Refugee Advice and Casework Service).  He made two written statements, with assistance, in setting out his claims.

  5. Further, when he was invited to attend an interview before the delegate, the applicant was put on notice by provision of attached information as follows (at CB 132, CB 133 and CB 135–CB 136):

    1. “The purpose of the interview

    The interview is an opportunity for you to provide the department with all the information you have to support your claims for protection and to clarify the written claims that you made in your protection visa application.

    The interview is also an opportunity for the interviewing officer to ask any questions they may have about your claims, your identity, or documents you have provided.

    It is important that you present all your claims for protection during your protection visa interview. If a refusal decision is made on your visa application and your application is reviewed, you may not be able to raise new claims to be considered at that review.”

    [Emphasis Added.]

    2.  “What happens during a protection visa interview

    At the interview, the officer will:

    …

    Towards the end of the interview, there will be a short break if you wish. During this time, you can consider if there is anything else you want to tell the officer. If you have a representative or migration agent, you can discuss any matters with them privately during this break.”

    3.  “Your responsibility in relation to your protection claims

    You must tell the truth throughout the protection visa process, including during your interview. Giving false or misleading information is a serious offence in Australian law. If you provide false or misleading information, your visa may be refused.

    It is your responsibility to provide the particulars of your claims for protection and to provide sufficient evidence to establish those claims at the interview and before a decision is made. It is important that you explain clearly at the interview why you are seeking protection in Australia and give details of your protection claims.

    If you have any protection claims that you have not already provided, please provide this information in writing, at least two (2) working days before your interview, using the contact details provided in the covering letter.”

  6. At the interview with the delegate, the delegate’s decision record relevantly reveals (at CB 200–CB 201):

    “5. The applicant attended a Protection visa interview on 25 May 2016.

    6. The applicant made the following relevant additions and amendments to their written claims:

    · In 2012 he met with a TNA candidate named Thuraisasingham two or three times about how to support him.

    · During a recent election his brother was threatened with being run over by a vehicle and warned not to get involved in politics after someone had thrown oil on a poster for a Sinhalese political candidate.

    7. At the protection visa interview the applicant submitted a range of media articles that relate to various issues and incidents including the treatment and/or Sri Lankan returning from abroad, general law and order, the Prevention of Terrorism Act and instances of absuctions.1 These articles are not specific to the applicant’s personal circumstances, such as referring to him or his family and contacts in Sri Lanka. I have considered them as part of my consideration of country information in this assessment.”

    [Footnote Omitted.]

  7. In all, the Minister’s submission was that the applicant was “well aware” of the need to put all his claims and information before the delegate.

  8. The IAA’s consideration of the “new information” is set out at [4]–[9] of its decision record.  What is immediately apparent is that contrary to the circumstances in BYA17 (at [14]), the IAA in the current case made specific reference to the new information and the two “further claims” raised in that information ([5] at CB 267).

  9. Further, and importantly, the IAA considered the information in the applicant’s “additional statement”.  That is, it considered and rejected, with reasons given, the applicant’s explanation as to why he did not mention to the delegate or his representative the information, and claims, that he now sought to bring forward ([6]–[7] at CB 267–CB 268).

  10. In these circumstances, the IAA found that it was not satisfied (at [9]) that exceptional circumstances existed so as to meet the exception to the “primary rule” in s.473DD of the Act.

  11. The applicant’s argument that jurisdictional error is revealed because the IAA did not expressly refer to, or consider, s.473DD(b)(ii) must, in light of what is set out above, be rejected. The IAA gave consideration to all of the new information, and found that in the circumstances presented it could not be satisfied that “exceptional circumstances” existed.

  12. In the circumstances, the IAA was not required to then go on to consider the matter at s.473DD(b)(ii). Even if it could have been satisfied as to what was set out there, the applicant still did not satisfy the requirement for “exceptional circumstances” as set out at s.473DD(a). There is no requirement for exceptional circumstances in s.473DD(b)(ii).

  13. As set out above, the applicant argued that the IAA made no reference to the photographs or the news items in determining whether it could reach the requisite state of satisfaction under s.473DD of the Act.

  14. The IAA did refer to this information (see at [4] CB 267).  It summarised the new information, including that the applicant was involved with LTTE activities in Saudi Arabia and Australia.  It did not need to repeat this summary at [6]–[9].  What follows was clearly focused on the new claims, which the photographs and news reports sought to corroborate.

  15. Further, the IAA did not adopt an unduly narrow approach to the question of considering whether exceptional circumstances existed so as to justify the consideration of the new information.  As set out above, the IAA had regard to the particular circumstances of this case and gave cogent reasons, arising from what was before it, for being unable to reach the requisite level of satisfaction.  In all ground one is not made out.

Consideration: Ground Two

  1. Ground two asserts that at [37] of its decision record the IAA asked itself the wrong question and thereby constructively failed to exercise its jurisdiction.

  2. At [37] the IAA stated (CB 274):

    “37. Although he suffered serious harm during the 2004 election campaign and received further threats, including having a gun pointed to his head, the applicant continued to support the TNA while living at the same address when in Sri Lanka without any further incidents of harm nor were the threats acted upon in any way. After making a payment, that he initiated, to the TMVP, he was not subject to any further extortion attempts. As discussed above, the political landscape in Sri Lanka has changed for the TNA since the current Sirisena government came to power, including the authorities investigating a former Chief Minister for the shooting of the TNA politician the applicant supported in the 2004 campaign. In view of this evidence, I am not satisfied there is be a real chance that the applicant would face harm, including any further threats or extortion, because of his previous, or any renewed, involvement with the TNA if he is returned to Sri Lanka now or in the reasonably foreseeable future.”

    [Error in the Original.]

  3. The complaint is that the IAA was not satisfied that the applicant would suffer harm based on his past involvement with the TNA because it found there was an absence of past harm.  In this consideration, the IAA did not consider whether the applicant had modified his behaviour to avoid past harm.  The applicant relies on Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 (“S395/2002”) at [43] to support his assertion of legal error.

  4. To make good his argument before the Court, the applicant referred to his written statement of 9 August 2013 (CB 57–CB 61):

    “17. Afraid for my life, I decided to go to the office of the Karuna group near the army camp and pleaded for help from them and for them not to harm me and let me live in the area peacefully. They said they would spare my life if I paid them 100 000 rupees. I could only afford to pay them 25 000 rupees. They took the money from me and told me to not leave the area. I know they would soon be wanting more money from me because they told me if I didn’t keep paying them when they wanted me to I would meet the same fate as my uncle.

    18. So I decided to go back to Saudi Arabia. My mother said she didn’t want to lose another member of our family. The work visa I obtained to work in Sri Lanka was renewable every twelve months and I had continued to renew the visa every year before the expiry date. The company used to organise everything for me. My work visa for Saudi Arabia was still valid for three months so I made arrangements to return there as soon as possible.

    19. I returned to Saudi Arabia on the 4th April 2009 to escape danger in Sri Lanka. Although my life was not at risk by the Karuna group and the CID, Saudi Arabia would not allow me to stay there permanently as a permanent resident with a wife and family.”

  5. Further, to his written statement of 18 May 2015 (CB 110–CB 114):

    1.  “14. I was too scared to go to the hospital because they would need a police report and the CID might find me and arrest me. I stayed at home until after the election and avoided going out at night. During the day I continued to work for the party with other people” ([14] at CB 111).

    2.  “23. I Stayed in Saudi Arabia and worked for one company for 4 years. The policy of the company was that after 4 years I had to go back to Sri Lanka. On 12 December 2008 I went back to Sri Lanka. The CID identified me again and threatened to kill me if I did not give them money. I gave then 25,000 rupees. It was also coming up to another election and they threatened to kill me if I supported a Tamil party again. They were harassing me constantly to get me to work with them in supporting the government party and have me convince other Tamils to support the party too. They said if I did not help them they would shoot me the way they shot my uncle. I feared for my life and on 5 April 2009 I went back to Saudi Arabia” ([23] at CB 112).

    3.  “25. When I went back I did not get married. I tried to stay indoors or only went out with my mother or father and worked on the farm with my father” ([25] at CB 112).

    4. “26. The provincial council election for the eastern area was about to happen. A TNA candidate for the election met me and he asked me to work for him. I was in front of a school one day and a CID officer came up to me and put a gun to my head and said he would shoot me if I got involved in the election. This happened some time in July 2012. I was very afraid and went home upset to my parents. I started planning to leave Sri Lanka again. My father helped me to get out. I left on 5 August 2012” ([26] at CB 113).

  6. The applicant argued that this clearly showed that he modified his conduct due to his fear of harm.  That is, he, variously, left Sri Lanka for Saudi Arabia to avoid paying a paramilitary group further money, stayed at home, avoided going out at night and worked on the farm with his father.

  7. The IAA’s legal error is said to be revealed because the IAA did not make any finding that the applicant would, for example, choose to stay at home or pay the paramilitary group not to harm him.

  8. The applicant’s ground is not made out.

  9. In the current case, the applicant submitted that his reliance on S395/2002 was for the principle stated at [43]. That is, that a failure to consider that an applicant has modified past behaviour to avoid persecutory harm reveals jurisdictional error.

  10. Although not referred to by the applicant this point was emphasised in S395/2002 at [50]:

    “50. In so far as decisions in the Tribunal and the Federal Court contain statements that asylum seekers are required, or can be expected, to take reasonable steps to avoid persecutory harm, they are wrong in principle and should not be followed.”

  11. However, what the applicant’s argument failed to engage with is that the circumstance in S395/2002 which gave rise to this principle, the characteristic central to the visa applicant in S395/2002, and the basis upon which the harm feared arose, was a characteristic that could not be modified.  That is his homosexuality.

  12. That, of course, in the context of the time in which S395/2002 was decided did not mean that those characteristics which perhaps could be modified (for example religion or political opinion) were not also subject to the principle enunciated at [50] of S395/2002.  As was made clear, any expectation that asylum seekers are required, or can be expected, to modify behaviour to avoid persecutory harm was “wrong in principle”.

  13. However, since the time of S395/2002 the following amendment to the Act, which pre-dated, the applicant’s application for the visa, is relevant to the applicant’s case (see s.5J(3)):

    “(3)  A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)  conflict with a characteristic that is fundamental to the person's identity or conscience; or

    (b)  conceal an innate or immutable characteristic of the person; or

    (c)  without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)  alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)  conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)  alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)  conceal a physical, psychological or intellectual disability;

    (v)  enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.”

  14. There is nothing in the circumstances of the applicant’s case as presented to the IAA, that reveals that he could not take steps to modify his behaviour relevant to the claimed acts of past harm that he sought to avoid.

  15. In short, the applicant staying indoors, or working on a farm, or going to work in Saudi Arabia instead of staying in Sri Lanka, were not of the same type of immutable characteristics that a person could not modify as set out at s.5J of the Act.

  16. In any event, and in the alternative, what must be said about the applicant’s ground, and the argument in explanation of it, is that the applicant’s ground selectively misunderstands the IAA’s actual reasoning.

  17. The IAA accepted that the applicant had been harmed in the past as he had claimed because of his support for the TNA.

  18. At [34] the IAA made clear (CB 274):

    “34. I accept the applicant has supported the TNA since 1994 and was threatened and assaulted as a result of supporting a TNA candidate in the 2004 election. He paid money to the TMVP in 2008 / 2009 to avoid further problems at the time. When he returned in 2012 he was threatened after agreeing to support the election campaign of another TNA candidate.”

  19. At [37] (as set out above at [57]) the IAA made clear its acceptance of the applicant’s support for the TNA, and that he had received threats during and after the 2004 election campaign.

  20. It accepted that as to these claims of past harm the applicant’s evidence was “generally consistent” with country information as to circumstances in Sri Lanka at those relevant times.

  21. What the IAA’s decision turned on, however, was that while instances of past harm could inform the question of future harm, the relevant test for the IAA was one of reasonable foreseeability (Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22). That is, the likelihood of harm if the applicant were to return to Sri Lanka in the reasonably foreseeable future.

  22. In that light, while the IAA accepted that the applicant had suffered harm in the past as he had claimed, it was not satisfied he would suffer any such harm in the reasonably foreseeable future.

  23. The IAA gave, essentially, two reasons for this.  One, that the applicant continued to support the TNA after the 2004 election.  For current purposes, he did not modify this aspect of his behaviour.  However, the IAA found that although he continued to live at the same address he reported no further instances of harm, nor were the threats made acted upon.

  24. In any event, and ultimately dispositive of the applicant’s ground, the IAA’s reasoning was that “[i]n view of” the country information about the current “political landscape” in Sri Lanka it could not be satisfied as to the likelihood of harm in the future (see with reference to [27]–[33] of its decision record).

  25. While there were suggestions to the contrary from the applicant before the Court, I agree with the Minister that the reference to “[i]n view of this evidence” as it appears in the middle of [37] refers to the “political landscape” as it is described in the preceding sentence at [37], which in turn relates to the country information, as the IAA put it: “As discussed above”.

  26. As the Minister also submitted, the choice and assessment, of country information was a matter for the IAA (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]).

  27. Ultimately, the IAA found that even though it accepted the applicant’s account of past events, he would not likely be at risk of harm in the future because of his political involvement given the changes in the “political landscape”.

  28. This conclusion and the findings that informed it, were all reasonably open to the IAA on what was before it.  It gave cogent reasons for these findings probative of the evidence before it.

  29. Importantly, given the assertion of legal error in ground two, the applicant was unable to point to any part of the IAA’s reasoning where the IAA considered, or found, that the applicant could avoid future harm by modifying his behaviour.  Nor can I otherwise see this to be the case.

  30. Any absence of any such consideration as the applicant’s ground asserts, does not assist in revealing jurisdictional error where the proper focus of the IAA’s consideration was on the likelihood of the risk of harm in the reasonably foreseeable future and where such assessment and the findings that arose from it, did not require any modification of behaviour.

  31. In any event, as the Minister submits s.5J(3) of the Act, which the applicant did not satisfactorily address, does make allowance for the modification of the applicant’s behaviour to avoid harm. There was nothing in the applicant’s submission to the Court to say that it required the applicant to modify his behaviour for any of the circumstances set out at s.5J(3)(c) of the Act. In all ground two is not made out.

Conclusion

  1. Neither of the grounds of the application is made out.  It is appropriate to dismiss the application as further amended.  I will make that order. 

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 19 December 2019

Key Legal Topics

Areas of Law

  • Administrative Law

  • Immigration

  • Statutory Interpretation

Legal Concepts

  • Judicial Review

  • Jurisdiction

  • Statutory Construction

  • Natural Justice

  • Procedural Fairness

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Cases Citing This Decision

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Cases Cited

14

Statutory Material Cited

2

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
Australian Broadcasting Tribunal v Bond [1990] HCA 33
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30