DAT17 v Minister for Immigration

[2018] FCCA 3750

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAT17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3750

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether Authority failed to consider a claim – whether Authority erred in misapplying the real chance test – no jurisdictional error – application dismissed.

PRACTICE & PROCEDURE – Amended application filed outside of time – leave sought to rely on amended grounds 1 and 2 – reasons for delay in filing amended application – leave granted to rely on grounds 1 and 2 of the amended application dated 28 September 2018.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 46A, 65, pt.7AA

Cases cited:

CPE15 v Minister for Immigration & Border Protection [2017] FCA 591
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73

Other materials:
Prevention of Terrorism Act 1978 (Sri Lanka)

Applicant: DAT17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2135 of 2017

Judgment of: Judge Smith

Hearing date: 14 November 2018

Date of Last Submission: 14 November 2018

Delivered at: Sydney

Delivered on: 19 December 2018

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Counsel for the First Respondent: Mr J Kay Hoyle

Solicitors for the Respondents: HWL Ebsworth Lawyers

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2135 of 2017

DAT17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision made by the Immigration Assessment Authority dated 15 June 2017. The Authority affirmed the decision of a delegate of the Minister for Immigration to refuse to grant the applicant a Safe Haven Enterprise (subclass 790) visa.

Background

1. The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 8 September 2012. The circumstance of his unauthorised arrival required the Minister to exercise his personal power under s.46A(2) of the Migration Act 1958 (Cth) to enable the applicant to apply for a protection visa. On 30 November 2015 the Minister exercised this power and on 8 February 2016 the applicant applied for a protection visa.

2. The applicant made a statement in his statutory declaration dated 12 August 2013 that he feared he would be harmed on account of his Tamil ethnicity. He stated that despite the war ending Tamils were still treated as “second-class citizens” and were denied basic rights.

3. The applicant’s principal claim for protection was that he faced a real chance of serious harm in Sri Lanka because of his connection with his two uncles. He initially claimed his uncles were both successful jewellers who supported the Tamil National Alliance (TNA) and were in competition with another jeweller who was a supporter of the Liberation Tigers of Tamil Eelam (LTTE) and later the Karuna Group. This competitor “V” had connections to the Criminal Investigation Department (CID), the police and the army and began to cause issues for the applicant’s uncles, one of whom was abducted, beaten and tortured. The applicant feared the same would happen to him.

4. On 4 November 2016 the delegate’s decision was to refuse to grant the applicant a protection visa and the matter was referred to the Authority for review pursuant to pt.7AA of the Act. On 30 November 2016 the Authority received some 251 pages of material from the applicant in support of the review of the delegate’s decision. The applicant was invited to provide a revised submission in accordance with the five-page limit allowed by the Authority’s practice direction and he did so on 11 December 2016.

5. On 15 June 2017 the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.

Authority’s Decision

1. At [19]-[27] the Authority detailed the applicant’s claims made since his arrival in Australia. It noted that there had been a number of inconsistencies and that the basis of his claims had changed “somewhat over time”.

2. At [31] the Authority considered the applicant’s claim regarding the abduction of his uncle “N” and his fear that the same would happen to him. It accepted, based on country information, that his uncle was abducted; however, given the applicant’s varying evidence in respect of the reason for his abduction, it was not satisfied as to the reason for the abduction of his uncle. It will be necessary to return to this paragraph when considering ground 2.

3. The Authority also accepted that the applicant and his uncle “S” were slapped and threatened when they made inquiries into the disappearance of N. However, as the applicant did not make any claim in his 2013 statutory declaration that the authorities had made any inquiries of him, it considered the inclusion of this information in his later protection visa application was an embellishment. Further, it noted that if the applicant had been of interest to the authorities because of his uncles or possessing any LTTE associations then he would have been detained or subjected to further investigation.

4. The Authority outlined in further detail at [33]-[39] the reasons why it did not accept that the applicant had given a credible account of ongoing interest in him by the authorities. It accepted that the authorities had gone to the applicant’s house on possibly two occasions since the incident on 19 March 2009; however, it found that this was not as a result of any ongoing interest in him. The Authority also rejected the applicant’s claim that he had been in hiding for two years prior to his departure. Given the passage of time, the lack of interest and at most “cursory efforts” to locate or find the applicant since the incident in March 2009, the Authority was not satisfied there was any new interest in the applicant or that any inquiries had been made of him since his departure to indicate an ongoing interest in him.

5. The Authority next considered, at [40]-[41], the applicant’s claim that his uncle “S” had been detained under the Prevention of Terrorism Act 1978 (Sri Lanka) (PTA) in August 2015. After detailing a number of inconsistencies and concerns with the evidence the applicant had proffered in respect of this claim, it did not accept the claim and was not satisfied the applicant was at risk of harm as a consequence of a relative being detained under the PTA.

6. At [43]-[47] the Authority considered whether the applicant had any actual or imputed links to the LTTE and whether by reason of certain personal characteristics, including his being a Tamil, he would be imputed with a pro-LTTE opinion. It indicated that while country information indicated that Tamils in the eastern province continued to be monitored or detained there was a general easing in the security situation.  The Authority found that the applicant did not have a connection with the LTTE and along with the easing in the security situation, that he would not be subjected to harm in the reasonably foreseeable future as a result of any suspected imputed LTTE connections.

7. The Authority next considered, at [48]-[55], whether the applicant faced a real chance of serious harm as an illegal departee and a failed asylum seeker. It noted that the country information suggested that the “key risk factor” was whether a Tamil has actual or perceived links to the LTTE. The Authority found he did not have these links and that “merely being a Tamil, or a Tamil from the north or the east, or being a failed asylum seeker appears not to be enough to give rise to a real chance of harm on return”. It concluded the applicant did not meet the definition of a refugee under s.5H(1) of the Act and therefore did not meet the criterion of sub-s.36(2)(a).

8. As the applicant had made no separate claims for protection in respect of the complementary protection criteria, the Authority referred to its previous findings to conclude that it was not satisfied he met sub-s.36(2)(aa). It affirmed the decision of the delegate not to grant the applicant a protection visa.

Consideration

1. At the hearing the applicant sought leave to rely on an amended application dated 28 September 2018, however Counsel for the applicant indicated that only grounds 1 and 2 were pressed. Leave was granted to rely on grounds 1 and 2 of the amended application.

Ground 1 – failure to consider a claim

1. The basis of this ground is that the Authority failed to deal with what was called the “Second Class Citizen Claim”. The claim was said to have expressly arisen from the applicant’s statutory declaration dated 12 August 2013 where he stated at [20] and [25] as follows:

   20. Despite the fact that the war officially ended in 2009, the situation for Tamils has barely improved. We are still treated as second-class citizens and denied of many of our basic rights. We are harassed by the authorities and the Sinhalese population and are afraid to complain or exercise our rights for fear of punishment.

   …

   25. I fear I will be harmed and mistreated in Sri Lanka for reasons of my race – I am a Tamil

   (Without alteration)

2. In the delegate’s decision, the delegate recorded that in the interview the applicant had claimed that Tamil people were living in fear and are “being destroyed ‘little by little’ which will lead to a Tamil ‘genocide’”[1]. The Authority expressly identified the claim where it stated as follows:

   27. … The applicant thus claims that he fears harm because of his connection with his uncles, and because he will be imputed to be a supporter of the LTTE both because of this family connection and because he is a young Tamil male from an area formerly under LTTE control. He claims that Tamils generally face human rights abuses including torture at the hands of the police and other authorities…

   [1] Exhibit A, p.526.

3. The applicant argued that the Authority only referred to the applicant’s fear of harm on the basis of his Tamil ethnicity in the context of addressing the chance of harm as a result of an imputed link to the LTTE and as a failed asylum seeker. He pointed to the fact that the headings used by the Authority when making its findings were “Imputed political opinion of support for the LTTE” and “Illegal departure/failed asylum seeker” and argued that the Authority failed to deal with the claim more generally.

4. There are two reasons this argument must fail. First, the Authority’s reasons and findings at [47] and [55] effectively dealt with the applicant’s claim. There, the Authority wrote:

   47.While there are reports of some Tamils returning to Sri Lanka, including failed asylum seekers, being detained on arrival or after returning to their villages and being subjected to mistreatment and torture, the country information makes clear that the key risk factor is whether a Tamil has actual or perceived links to the LTTE which are of concern to the authorities. Some information indicates that it is only those viewed as a real threat to the unitary state, or likely to be involved in reviving the LTTE who may be at risk. I do not consider that the applicant would be viewed in this light and I am satisfied that he does not face a real chance of serious harm as an actual or imputed supporter of the LTTE.

   …

   55.…While there are reports of failed asylum seekers or Tamils returning to Sri Lanka being detained on arrival or after returning to their villages, and that such people face a risk of being mistreated and subjected to torture, particularly if they are detained for prolonged periods, the country information suggests that the key risk factor is whether a Tamil has actual or perceived links to the LTTE; merely being a Tamil, or a Tamil from the north or the east, or being a failed asylum seeker appears not to be enough to give rise to a real chance of harm …

   (Emphasis added, footnotes omitted)

5. It is clear from these findings when read in the context of the whole of the Authority’s reasons that it did consider the broader claim of the applicant fearing harm as a Tamil. It was implicit in the reasons that the Authority only considered the applicant would be at risk of harm on the basis of his ethnicity if he possessed actual or perceived links to the LTTE which it was satisfied he did not. There was no need for the Authority to go any further then it did. The use of “or” in [55] further supports the conclusion that the Authority considered the applicant’s ethnicity singularly and cumulatively when coming to the conclusions it did.

6. The second difficulty with this argument is that, by virtue of the submissions of his migration agent dated 12 December 2016, the applicant expressly disavowed a claim to fear harm on the basis of being a Tamil generally, such being what he is now alleging the Authority did not consider. The submission states:

   ...

   1.3The delegate failed to appreciate the claim is not that the applicant, as a mere Tamil will suffer discrimination amounting to persecution. Instead, the persecuted group the subject of the claim is Tamil young men from Onthachimadam in Batticaloa district (formerly this area under the control of LTTE for decades) in the East of Sri Lanka and imputed as supporters or associates of LTTE. ...

   (Without alteration)

7. The applicant pointed to the fact that this submission was made under a heading directed to explaining the exceptional circumstances for the Authority to consider a new claim, his loss of livelihood, he now wished to raise; therefore this statement should be confined to the context of that new claim and whether there exists exceptional circumstances for considering it. He pointed to other instances in that submission where reference was made to a fear of persecution on the basis of his Tamil ethnicity generally: see Exhibit A, p.838 at [2]. He also argued that [5.6] of the submission showed that he had maintained the broader claim:

   5.6In consideration of the evidence as a whole and for the stated reasons, when considered cumulatively, there is a real chance that the applicant faces serious harm amounting to persecution on the bases of his Tamil ethnicity and imputed political opinions and a member of the group ‘Young Tamils’ in the Northern and Eastern Parts of Sri Lanka.

   (Without alteration)

8. Two observations can be made about this: first, when the whole of the submission is considered, and in particular [5.3]-[5.4], the manner in which the applicant made his claim to fear harm on the basis of his ethnicity was intrinsically connected and linked with his fear of harm as a result of an imputed association with the LTTE; and secondly, the Authority directly addressed that submission at [46] of its decision where it stated it was satisfied there was no real chance that he would be subjected to harm “as a person with suspected LTTE connections for any reason including his relationship with his uncles, his Tamil ethnicity, the fact that he is a young Tamil male from Eastern Province, or because he left Sri Lanka illegally and applied for asylum, or because of those characteristics considered cumulatively”.

9. For those reasons, I am not satisfied the Authority failed to consider the broader claim of the applicant fearing harm on the basis of his ethnicity and the first ground is rejected.

Ground 2 – misapplication of the real chance test

1. The applicant argues that two aspects of the Authority’s reasoning in [31] and [33] of its decision are ambiguous and that it ought to have considered whether its conclusions in those paragraphs were wrong. He relies on the principle explained by Sackville J in Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

2. It is necessary to set out both paragraphs in their entirety:

   31.I accept that the applicant’s uncle N was abducted on 18 March 2009, and that he has not been seen since. Country information indicates that abductions such as this occurred frequently in the Batticaloa area from about 2006. Often the Karuna Group or TMVP were involved, sometimes in conjunction with the police or other security authorities. On the basis of the information before me, however, I cannot be satisfied as to the reason for the abduction. I note that at the entry interview the applicant said that he did not know why his uncle had been abducted. In the first protection visa application he stated that it was because V, a business rival, bribed corrupt police and security officials to abduct N. His later claims and evidence suggest that V may have made false allegations about the uncle, or that the police decide to raise allegations that the family was involved with the LTTE to cover up their involvement. The applicant denies that his uncle had any involvement with the LTTE. Based on the credible evidence before me, I cannot be satisfied as to the reason for the abduction of the applicant’s uncle.

   …

   33.I do not consider that the applicant has provided a credible account of ongoing interest in him on the part of the authorities after the incident on 19 March 2009, although I am prepared to accept that they may have subsequently gone to his house once or possibly twice. In the August 2013 statutory declaration the applicant stated that four weeks after the second detention of S, unidentified men attended his family home and asked about him. He stated that after that he rarely went out other than for work, and sometimes stayed with his boss or his aunt. Another inquiry was made about him at his home in 2010; at that time he was hiding in the house but the policemen accepted his mother’s word that he was not there. In the SHEV statement the applicant did not mention the first visit; he only mentioned the visit in 2010, and claimed that after that he went to stay with R, his employer. In the SHEV interview, he seems to have only mentioned the second, 2010 incident: he described one occasion when he was at home and people asked for him, and his mother said that he had gone to the market. These details appear to be consistent with those of the 2010 incident described in his statement. At the SHEV interview he said that people had been to his house looking for him “many times”, but he had only mentioned the 2010 occasion in his written statement. I do not accept this. If the police or unidentified men had been to his home many times, I believe the applicant would have said so in his written statements, rather than mentioning details of only one or two specific occasions. It is possible that, given the circumstances of his uncle’s abduction, which I accept, security agencies may have visited the applicant’s home and I am prepared to accept that they may have done so most recently in 2010. However, the applicant says that he was at home on both occasions. Had the authorities really been intent on finding him and harming him, I do not accept that they would have just left, rather than either searching the house or waiting for his return. Accepting that the visits occurred, it is not clear why they did, although it is possible that they were somehow related to the disappearance of his uncle. However, I do not consider that they reflect any ongoing interest in the applicant as a suspected LTTE cadre, or because of concerns that he might pursue an investigation or reveal the identities of the police involved, or that they indicate an intention to actually harm him. I do not consider that these one or two visits to the applicant’s home represent a serious level of adverse interest in the applicant, or indicate that he faces a real chance of serious harm on return.

   (Emphasis added, identifiers and footnotes omitted)

3. The Authority accepted that the applicant’s uncle had been abducted and it accepted that the authorities had visited the applicant’s home as recently as 2010. That is, the Authority plainly accepted those “events” occurred. The issue arises from the fact that the Authority could not determine why the uncle had been abducted and the authorities had visited the applicant’s home.

1. The relevant passages in Rajalingam are as follows:

   [62]In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant’s case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.

   [63]Although the “What if I am wrong?” terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a “well-founded fear of being persecuted” for a convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute “an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found”.

   ...

   [65]Nor do I think that there is anything in the reasoning of the High Court which permits a court exercising powers of judicial review to “impute” to the RRT (or other administrative decision-maker) a lack of conviction or confidence in its findings of fact, such as to warrant a holding that the RRT should not or could not have relied on those findings to hold that the applicant’s fear of persecution was not well-founded. To take this course on the basis of the court’s own assessment of the evidence before the RRT, is to enter the territory of merits review. It is one thing to find error in a decision-maker’s failure to apply the correct legal test or to comply with statutory obligations (for example, to set out findings on material questions of fact as required by Migration Act s 430(1)(c)). It is another to decide what factual findings the RRT should or should not have made.

   [66]None of this is to deny that there may be cases in which a failure by the RRT to consider whether an alleged event may have occurred constitutes a ground of review, even though the RRT considers it likely that the event did not occur. To take an example from Guo, the applicant may rely on the experiences of previous groups of boat people who had been returned to their country of origin. The RRT may find that it is unlikely (in the sense of less rather than more likely on the balance of probabilities) that the previous group had been persecuted for a convention reason. But the RRT’s reasons may show that no consideration was given to the possibility (albeit not a likelihood) that such persecution had occurred, a possibility left open by the RRT’s findings. If the RRT’s reasons demonstrate that the experiences of the earlier groups materially bear on the chances that the applicant will be persecuted, a finding that there is a substantial chance (although not a likelihood) that previous groups were in fact persecuted might have to be taken into account if the RRT is to undertake the reasonable speculation required of it. Again, if an applicant relies on the possibility that a particular event occurred as supporting his or her claim to a well-founded fear of persecution, a failure by the RRT to make a finding as to that possibility might constitute non-compliance with s 430(1)(c) of the Migration Act.

   [67]   In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT’s own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT’s own findings to be pursued. A “fair reading” of the reasons incorporates the principle that the RRT’s reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error”: Wu Shan Liang, at CLR 271–72; ALD 9; ALR 490, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 ; 115 ALR 1 at FCR 287 . Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.

2. The Minister’s submission was that at [31] the Authority is not expressing doubt but rather is noting that there is conflicting possibilities of the reason for the uncle’s abduction and on the basis of the material before it the Authority simply cannot make a finding on that particular aspect. Hence it was put the Authority made a “finding of a non-finding”.

3. I do not need to determine the broader question raised by the Minister as to whether the principle in Rajalingam applies to non-findings. The real issue is whether the Authority properly addressed the question whether the applicant had a “well-founded fear of persecution”. If it failed to engage in reasonable speculation about what might occur in the future then it did not properly address that question. In my view, it did and the fact that it was unable to be satisfied about the cause of past events does not mean that it was required, as a matter of law, to determine the review on the basis that the reason for those occurrences supported the applicant’s claims. As Mortimer J explained in CPE15 v Minister for Immigration & Border Protection [2017] FCA 591 at [60], the relevant assessment is “one which can be made on the basis of probative material, without extending into guesswork.” The Authority’s reasoning here was that there was simply not enough credible evidence to come to any view about the reasons for the abduction or the visit. That was not an expression of some doubt about that conclusion, or an assessment on the balance of probabilities.

4. There is no obligation imposed by the Act on the Authority to make findings explicitly accepting or rejecting an applicant’s claims. Section 65 of the Act requires that the decision-maker be affirmatively satisfied that the applicant meets the statutory criteria, relevantly whether the applicant has a well-founded fear of persecution. Findings of fact are not always necessary to support a state of non-satisfaction. Where the evidence before the decision-maker is insufficient or inadequate to establish relevant facts there is no error in failing to make a finding: Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [16]-[17] and the cases referred to there.

5. I am not satisfied that the Authority failed to properly assess the possibility of future persecution in light of the abduction of the applicant’s uncle and the later visits by the authorities. Ground 2 must be dismissed.

Conclusion

1. I am not satisfied there is any jurisdictional error in the Authority’s decision and the application must be dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       19 December 2018