CRK16 v Minister for Immigration
[2018] FCCA 2513
•10 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRK16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2513 |
| Catchwords: MIGRATION – Application for judicial review – protection application – no matter of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 36(2)(a) |
| Cases cited: Minister for Immigration and Border Protection v SZSCA [2014] HCA 45 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 |
| Applicant: | CRK16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 2030 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 23 May 2018 |
| Date of Last Submission: | 23 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 10 September 2018 |
REPRESENTATION
| The Applicant appeared In Person |
| Counsel for the First Respondent: | Mr Wood |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
The application filed 20 September 2016 be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2030 of 2016
| CRK16 |
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 (“the IAA”) dated 25 August 2016 which affirmed the decision of a delegate of the first respondent to refuse to grant the applicant a protection visa.
Background
The applicant is a Tamil of the Muslim faith from Trincomalee, Eastern Province, Sri Lanka who arrived in Australia on 29 September 2012 as an unauthorised maritime arrival.
On 4 February 2016 the applicant applied for the visa. On 14 July 2016 the delegate refused to grant the applicant the visa. The matter was then referred to the IAA on 18 July 2016. On 25 August 2016, the IAA affirmed the decision of the delegate to refuse to grant the applicant the visa.
Claims for Protection
The applicant’s claims for protection are summarised by the IAA at para.4 of its decision, as follows:
· He was self-employed as a fisherman and employed 40 fishermen, owned four boats and used six other fishing boats. He was targeted to pay bribes on a regular basis despite holding all the necessary permits that were renewable annually. As a Tamil he had to apply for permits and pay bribes. Sinhalese fishermen didn’t need permits. The SLN also delayed his fishing boats if he didn’t pay bribes and he was subject to discrimination and humiliation.
· One month before leaving Sri Lanka the SLN stopped his boats from going to sea. When he confronted them he was locked up for the day. He was bashed and stripped naked for 30 minutes. He was released when people from the Muslim community negotiated his release.
· The SLN continued to harass him. A few days after his release the SLN took food he had brought for his fishermen and stepped on it. His fishermen didn’t want to go to sea without food but the SLN made them go out to sea.
· He campaigned for the UNP in the September 2012 elections and on 20 August 2012 he was putting up posters with others when the SLA asked them to remove the posters. They refused, the SLA tore it off, and they stuck the poster back up. They were then threatened by the SLA.
· During the election period the police came to his house and asked to use his jeep. He refused and they threatened him. The night before the election he was stopped by the police who checked his jeep and then told him to go home. While at home four men in an auto arrived but his wife told them he wasn’t home.
· On the day of the election he went to vote but was stopped and checked by the SLN. Although everyone he knows voted for the opposition, the Government still won the election. The SLN continued their checks on his house after the election. The four men from earlier came again two days later, he was not at home, they were drunk and used bad language. They threatened his family and said if he had lied they would kill him. His wife called him and warned him not to come home. He was afraid and decided to leave Sri Lanka.
· The police, acting for the SLN, obtained a Court Order stating that all his property is seized. He believes it is an attempt by the SLN to force him to return to Sri Lanka.
· A named army officer (SLA Officer 1) and two other named men with underworld connections (Associates) are behind the problems he experienced in Sri Lanka, because SLA Officer 1 is a government official and part of the opposition party and he heard the applicant would not pay bribes to the SLN.
· Since he has been in Australia his wife has been visited on more than one occasion by the authorities in order to obtain his whereabouts.
· He is aware of failed asylum seekers who have been tortured or detained on their return. He fears persecution by the SLN and SLA. As a Tamil Muslim he has no protection from the SLN or SLA.
· He fears serious harm from the Sri Lankan authorities because of his Tamil ethnicity; his political opinion; his membership of the social groups of Tamil businessmen or Tamil Fishermen, Sri Lankans who have departed Sri Lanka illegally and failed Sri Lankan asylum seekers.
IAA’s Findings
Factual Findings
The IAA accepted most of the applicant’s claims regarding his fishing business, and found that:
15. Based on the country information and his generally consistent evidence on these matters, I accept as plausible that the applicant needed to obtain annual permits for his fishing boats and regular permission for the boats to go out fishing from the SLN; he paid bribes to the SLN to obtain the permits; he paid bribes in the form of food, alcohol and phone cards to lower level SLN officers to obtain permission to fish and avoid delays; he was prevented from continuing conch diving in 2010 or 2011 in Jaffna because he refused to bribe SLA Officer 1; he was detained, hit and made to strip naked, by the SLN for half an hour or so about a month before leaving Sri Lanka; and, a few days later, the SLN stepped on the food he had brought for his crews. I accept that the applicant had some fishing gear and a boat seized by a court order in 2013 and another boat of his was seized in 2015. Although the applicant has questioned the authorities motivation for obtaining the order, he has not claimed that the court acted illegally or the order was otherwise invalid and I reject the applicant’s assertion that the court order was obtained at the instigation of the SLN to force his return as mere conjecture.
In relation to the applicant’s claims regarding his political involvement with the United National Party (“UNP”), the IAA accepted that the applicant was actively involved with the UNP and had experienced threats, harassment and abuse from the Sri Lankan Army (“SLA”) and police: paras.16-21 of the IAA’s decision. It also accepted that the applicant’s wife was visited two or three times after his departure by people asking for his whereabouts but was not satisfied that these visits were connected to his UNP campaigning: para.22 of the IAA’s decision.
The applicant claimed that an SLA officer and two other men with underworld connections were behind all the actions taken against him by the Sri Lankan Navy (“SLN”), SLA and police. The IAA accepted that the applicant was forced to leave Jaffna in 2010 or 2011 as he did not pay a bribe to an SLA officer but did not accept that there were any links between this incident and the applicant’s issues with the SLN, SLA and police: see paras.23-25 of the IAA’s decision.
At para.26, the IAA accepted that the applicant, if he were to return to Sri Lanka, would be considered a failed asylum seeker who departed illegally by the Sri Lankan authorities.
In relation to the applicant’s claims that he was discriminated against by the Sri Lankan authorities because he was Tamil and that he faced restrictions as a Tamil fisherman and had to pay bribes to the SLN, the IAA found that:
36. I accept the applicant regularly had to pay bribes of money, food, alcohol and phone cards to members of the SLN and faced harassment and delays in his fishing business. I also accept that the police tried to ‘borrow’ his jeep and that SLA Officer 1 stopped him pursuing conch fishing in Jaffna when he refused to pay a bribe. I accept that a month or so before he left Sri Lanka he was detained for a short period by the SLN, after a confrontation about the SLN delaying his boats going out to fish, where he was assaulted and made to strip. I accept that there have been subsequent visits by different people seeking bribes, in connection to his business, to his home in Sri Lanka to enquire about his whereabouts.
37. Notwithstanding these incidents, the applicant was able to run his fishing business and support himself and his family, including his parents and parents-in-law throughout the later war years when his area was under SLN control and the post war period in Sri Lanka. He confirmed at the SHEV interview that his detention involved the only physical harm he has actually suffered in his dealings with the Sri Lankan authorities. In these circumstances, I do not consider the incidents to impact to such an extent that it threatens the applicant’s capacity to subsist or otherwise constitutes serious harm. I am satisfied that the incident of physical harm was an isolated one and find that the chance of the applicant suffering similar harm, now or in the foreseeable future, as remote.
38. I accept the applicant as a Tamil fisherman was subject to the military registration / day pass system and I am prepared to accept that the applicant may face the same situation, together with possible approaches for bribes, while conducting his fishing business if he returns.
39. I accept that this is discriminatory and systematic conduct by the Sri Lankan authorities for reason of the applicant’s Tamil ethnicity and presents a level of day to day harassment while undertaking his fishing business that impacted, and may impact in the future, on the applicant’s capacity to earn a living. However, his evidence does not suggest that he or his family were unable to maintain and support themselves through his fishing business. I do not accept that the day to day harassment on his fishing business is to such an extent that it threatens the applicant’s capacity to subsist or otherwise constitutes serious harm. (emphasis added)
Having regard to the applicant’s evidence and the country information the IAA found, at para.40, that there:
…is not a real chance the applicant would, as a Tamil fisherman and businessman, face official or societal discrimination amounting to serious harm upon his return to Sri Lanka, now or in the foreseeable future.
In relation to the applicant’s claims to fear harm on the basis of his political involvement with the UNP, whilst the IAA accepted that the applicant was subject to threats and harassment from the authorities because of his UNP activities, it also noted that the circumstances in Sri Lanka have changed since his departure in 2012. The IAA found that:
44. Given that the applicant was targeted for his activities with the UNP at elections while the UNP was in Opposition and the UNP is now the largest party in the Sri Lankan Parliament and part of the ruling coalition, I do not accept that the applicant faces any real chance of harm from the Sri Lankan authorities or other politically motivated groups, in relation to his former UNP activities or any further support he may give to the UNP, if he returned to Sri Lanka, now or in the reasonably foreseeable future.
Whilst the IAA accepted that the applicant is a Muslim and that anti-Muslim acts of violence have occurred in Sri Lanka, particularly under the former Rajapaksa government, it found that:
48. …the applicant does not claim to have experienced harm in the past on account of his religion, and I find there is not a real chance that he will experience harm for this reason now or in the reasonably foreseeable future.
The IAA also considered the applicant’s claim to fear harm on the basis of being a failed asylum seeker, however, considering the applicant’s evidence and the country information, the IAA was not satisfied that the applicant faces a real chance of persecution on the basis of being a Tamil asylum seeker who departed illegally, now or in the reasonably foreseeable future: paras.49-65.
Ultimately, the IAA found that the applicant did not meet the requirements of the definitions in s.5H(1) of the Migration Act 1958 (“the Act”), or s.36(2)(a), concluding that:
66. I accept that the applicant will experience some discrimination and harassment as a Tamil fisherman and businessman from the east. I also accept that he will face some non-discriminatory penalties because to his illegal departure from Sri Lanka. However, considering the applicant’s circumstances as a whole, I am not satisfied that the applicant faces a real chance of persecution in the reasonably foreseeable future, either in the period following his arrival or on his return home, whether because of his illegal departure, having made a claim for asylum in Australia, as a Muslim, his support of the UNP, as a Tamil fisherman and businessman from the east or any combination of these. The applicant does not have a well-founded fear of persecution within the meaning of s.5J.
Complimentary Protection Criteria
At paras.71-72, the IAA considered whether the applicant would face significant harm on account of his illegal departure from Sri Lanka. Ultimately it found that:
73. The applicant will be charged under the IE Act and will be fined for his illegal departure. I find that the imposition of a fine does not amount to significant harm under s.36(2A) of the Act.
The IAA considered whether the applicant would face significant harm on account of the applicant being a Tamil fisherman and business man from Trincomalee. It found that:
74. I accept that the applicant may face some discrimination and harassment as a Tamil fisherman and businessman and a level of societal discrimination. Having considered the evidence discussed above however, I find that the discrimination or harm the applicant faces from the government or from society, is low level and primarily has an economic impact. I do not accept the such harm would amount to significant harm as defined in ss.36(2A) and 5 of the Act.
The IAA went on to find that:
75. There is no suggestion that the applicant faces the death penalty for any reason. I do not accept that there is a real risk that the applicant would face being arbitrarily deprived of life or tortured for any reason connected with being a Muslim, his support of the UNP, as a Tamil fisherman and businessman from the east, as a failed Tamil asylum seeker or any combination of these. Nor do I accept that there is a real risk that he would be subjected to cruel, inhuman or degrading treatment or punishment, intentionally inflicted for any of those reasons or as a result of any discrimination he might suffer as a Tamil. I am not satisfied that there is a real risk that the applicant will be subject to discrimination amounting to significant harm based on his Tamil ethnicity and / or as a Tamil fisherman and businessman from the east.
Grounds of Application
The application for judicial review set out two broad grounds of review, simply claiming a failure to afford procedural fairness and application of the wrong legal test.
On 15 March 2017, Registrar Caporle ordered that the applicant file and serve any written submissions 28 days before the hearing.
The applicant filed written submissions on 2 February 2018, three days before the first scheduled hearing providing two particularised grounds replacing those in his original application. The new grounds pressed are as follows:
Ground 1
IAA misapplied the well-founded fear test
Particulars
[a] IAA failed to understand the aspects of well-founded fear test for grant of a protection visa
[b] IAA failed to distinguish between harassment and fear of harm
Ground 2
IAA constructively failed to exercise its jurisdiction by failing to discern a Convention nexus.
Particulars
[a] IAA failed to discern that the Applicant was extorted, mistreated and threatened because of his race and or religion
The body of the submissions filed on 4 May 2018 disclosed two additional grounds at paras.21-22 which I would described as: (a) apprehended bias; and (b) taking irrelevant matters into account. I will deal with these arguments as additional grounds of the application.
Ground 1(a)
Ground 1(a) alleges that the IAA failed to understand the well-founded fear test in the legislation. The relevant legislative provisions are in three parts which provide as follows:
5H – Meaning of refugee
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a) in a case where the person has a nationality--is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality--is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
(2) Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(b) the person committed a serious non-political crime before entering Australia; or
(c) the person has been guilty of acts contrary to the purposes and principles of the United Nations.
5J – 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.
Note: For membership of a particular social group, see sections 5K and 5L.
(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(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.
(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d) significant economic hardship that threatens the person's capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.
(6) In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.
36 – Protection visas--criteria provided for by this Ac
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant.
The argument in this case is that the extortion, if paid, amounted to serious harm that affected the applicant’s subsistence, and that if not paid, would expose him to serious harm as a result of the threats underlying the extortion.
To the extent that the argument of the applicant is that he is not able to subsist whilst paying bribes, this was not accepted by the IAA as explained in paras.36 to 39 of the decision (see quote above).
The question which arises in this case is the extent to which the applicant would be at risk if he ceased paying bribes and whether or not that claim was determined by the IAA. This argument requires a consideration of the cases put by the applicant to obtain the visa and its submissions to the delegate and IAA.
In his entry interview (which appears at Court Book p.16) the applicant set out a brief summary of harassment by the navy, but did not set out that he objected to paying bribes or refused to pay bribes. Later in his visa application (at Court Book p.95) the applicant set out what would occur if bribes were not paid, and the difficulty of having to pay significant bribes. Again, there is no statement that the applicant objects to paying bribes, rather the case is put on the basis of the harm caused by the extortion requiring bribes to be paid. In the delegate’s decision (at Court Book p.143) the delegate recounts the claims of requirements of bribes to be paid by navy officers, but again without any claim that the bribes were more than a form of harassment nor a statement that the applicant was a conscientious objector to the payment of bribes. At the delegate stage the applicant did later say that he believed a particular officer targeted him and continues to pursue him because he refused to pay bribes to Sri Lankan authorities.
In the submissions made by the applicant’s agent at Court Book pp.123 to 125 the focus was upon the cause of the applicant being targeted by authorities to pay bribes because he is a Tamil businessman who refused to pay bribes and threatened to report his assailants to authorities. Later in those submissions it is said:
He believes that these individuals continue to be interested in targeting him because he was a Tamil businessperson working in the fishing industry, who refused to comply with extortion demands from the Sri Lankan authorities and who threatened to report his assailants to more senior authorities.
The IAA did not accept the link between the instance of violence that the applicant alleged and the extortion, saying at para.25:
25. SLA Officer 1 asked the applicant for a bribe in 2010 or 2011, which the applicant refused to pay and he was forced to leave Jaffna and abandon the conch diving business venture there. I do not accept that there is any link between the applicant’s issues in Trincomalee and his refusal to pay a bribe to SLA Officer 1 in Jaffna or otherwise in relation to SLA Officer 1 and the Associates. I am satisfied that SLA Officer 1, and the Associates, had no other dealings with, or interest in, the applicant after SLA Officer 1 told him to leave Jaffna on 2010 or 2011.
The IAA did accept that the applicant had regularly paid bribes to members of the navy and had faced harassment and delays in his fishing business.
As a result, it does not appear that the applicant put a case on the basis that he was a conscientious objector to paying bribes, rather that the payment of bribes was too great a burden to allow him to subsist. The latter case was rejected by the IAA.
In Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317 the High Court explained the principles for which the authority of S395’s case stood, saying at para.17:
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. Gummow and Hayne JJ said that the enquiry was what might happen if the applicants returned, not whether adverse consequences could be avoided (25). It followed that the issue to which the correct enquiry was directed – whether the fear of persecution was well founded – had not been addressed.
At para.40 of Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 McHugh and Kirby JJ noted that:
…if it was a condition of protection that [visa applicants] should take steps to conceal their race or nationality’, then the contention would effectively give no protection from persecution to members of particular social groups.
Judge Manousaridis, in SZTEO v the Minister for Immigration & Anor [2015] FCCA 2228 considered the issues, saying:
13. Two related principles, therefore, can be derived from the majority judgments in Appellant S395. The first is that the causal nexus [FN: “There must be some relevant causal link between the postulated ground (membership of a “particular social group”) and the entitling condition (“well-founded fear of being persecuted”). The one must provide the reason for the other.” - Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293 at [67] (Kirby J)] required by the definition of “refugee” in Art.1A(2) of the Refugees Convention between, on the one hand, a person’s actual or perceived race, religion, nationality, membership of a particular social group, or political opinion (Convention characteristics) and, on the other, the person’s well-founded fear of persecution, will not be taken not to be established only because the person is capable of taking action that would prevent the person from being perceived by persecutors in his or her country of nationality to be a person who possesses any Convention characteristics.
14. The second principle is that the causal nexus required by the definition of “refugee” in Art.1A(2) of the Refugees Convention between a person’s Convention characteristics and the person’s well-founded fear of persecution, will also not be taken not to be established only because the person has in fact taken steps, or intends to take steps, to conceal those characteristics. In those circumstances, the person may still be found to have a well-founded fear of persecution. Whether or not the person will have such well-founded fear, however, will depend on the reason or reasons for which the person concealed, or intends to conceal his or her Convention characteristics. If the reason is the person’s desire to avoid persecution of which he or she has a well-founded fear of persecution because of his or her Convention characteristics, the person will still be regarded as having a well-founded fear of persecution.
His Honour’s description of the law in these paragraphs was subsequently approved by the Full Court in SZTEO v Minister for Immigration and Border Protection [2016] FCAFC 44 at para.33.
As his Honour explained at para.17, the submissions in cases of this type are premised on the basis of requiring the decision-maker to ignore an applicant’s ability to avoid persecution, rather than recognising that the decision in S395 only required the decision-maker to ignore particular means of avoiding persecution, namely concealing one’s convention characteristics. In the case decide by Judge Manousaridis, his Honour concluded that the Tribunal had found that when confronted by extortion, the particular applicant would seek to meet that extortion and have the capacity to do so, and therefore was not at risk of serious harm: see para.25.
In this case the applicant pursued the protection visa on the basis that the cause of the extortion was his Tamil ethnicity and that whilst objecting to paying from time to time, he had regularly met the extortion, and the IAA found that his ability to do so was such that it did not amount to serious harm. It was not put that an essential characteristic of this applicant, for the purposes of the convention nexus, was that he would not meet an extortion demand and would not pay it.
As with the matter that was determined by Judge Manousaridis, it does not appear that the IAA in this case impermissibly asked what the applicant could do to avoid persecution, but rather considered what was likely to occur to the applicant if he returned to Sri Lanka given his particular characteristics. The IAA did not suggest that the applicant should hide or conceal any of his particular characteristics that formed a basis for his claim.
In these circumstances the applicant has not been able to establish a ground for judicial review in this regard.
Ground 1(b)
This ground was pursued by the applicant on the basis that the IAA failed to distinguish between harassment and fear of harm. A fair reading of the decision makes clear that the IAA did consider in some detail the precise nature of the harassment alleged, and what the allegations were in this regard it accepted. It was apparent that the IAA accepted that he genuinely held fears for his safety, as set out in the last dot point of the summary of the applicant’s claims at para.4. However, a subjective fear of an applicant is not sufficient to satisfy the relevant statutory criteria.
To the extent that this ground articulates an argument that the IAA failed to have regard to the potential harm in the future, based upon the evidence of harassment in the past, it appears to be a merits review argument seeking to have this court come to a different view to that reached by the IAA as set out above.
The applicant has not established a ground for judicial review in this regard.
Ground 2
In this ground the applicant complains that the IAA erred by failing to conclude that the actions taken against the applicant by way of extortion and threats and mistreatment were because of his race or religion. This is simply not the case. At para.39 the IAA accepted that the applicant had been the subject of discriminatory and systematic conduct by the authorities by reason of his Tamil ethnicity. The core finding in the case was not that the conduct complained of, had no nexus to the applicant’s ethnicity or religion, rather that the conduct complained of was not harm of a level that it came within the definition of a real risk of serious harm.
As a result the applicant is not able to establish ground 2.
Additional matters argued
The applicant at para.21 of his submissions lodged on 4 May 2018 complains that he was denied procedural fairness as the IAA had prejudged the matter or had prejudged assumptions that they held. There is nothing in the decision of the IAA to indicate that the IAA had prejudged assumptions that they acted upon. The decision sets out the facts and circumstances considered by the IAA and their reasoning when analysing them. No other material is pointed to by the applicant, other than his complaints about the merits of the determination. I therefore find that this is not a ground for judicial review.
The applicant also alleged that the IAA took irrelevant matters into consideration in making its decision (see para.22 of those submissions). However, at the hearing the applicant was unable to point to any particular matter that was said to be irrelevant to take into account in a case such as this. Again, I am not persuaded that this is judicial review.
The applicant also alleged error on the basis that there was no consideration of the question of relocation. However, in a case where the IAA concludes that a person is not at real risk of serious harm they do not need to go on to consider whether or not he can relocate to avoid harm. I’m not persuaded that this is a ground for judicial review.
The applicant also mentions in his submissions the case of Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26. In that case, however, the applicant pursued a protection visa on the basis that he was a member of a class of persons opposed to corruption in Russia and had actively joined a group to pursue that purpose. The applicant’s case here was on the basis that he was targeted for being a Tamil, not for being opposed to corruption or a member of a class opposed to corruption. It doesn’t appear that Dranichnikov is of any real assistance to the applicant in the present case.
In the circumstances I find that the applicant is unsuccessful and must dismiss the application.
Costs
Costs were argued by the parties. Costs ought to follow the event and there is no reason in this matter for a different outcome to follow on costs. The first respondent seeks costs in the sum of $7,206, which I find reasonable having regard to the scale.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 10 September 2018
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