DGB16 v Minister for Immigration
[2019] FCCA 248
•6 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DGB16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 248 |
| Catchwords: MIGRATION – Application for review of Immigration Assessment Authority (IAA) decision – applicant alleged that the IAA committed error in failing to consider a claim made by the applicant – whether the IAA committed jurisdictional error by finding that the totality of the applicant’s evidence was false – whether the IAA committed jurisdictional error by failing to distinguish a claim consistently made by the applicant – whether the IAA’s decision was illogical, irrational or unreasonable – no jurisdictional error found – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476 |
| Cases cited: BRE16 v Minister for Immigration & Anor [2018] FCCA 1412 |
| Applicant: | DGB16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2989 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 6 December 2018 |
| Date of Last Submission: | 6 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 6 February 2019 |
REPRESENTATION
| Appearing for the Applicant: | Mr S Hodges |
| Solicitors for the Applicant: | Hodges Legal |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application made on 31 October 2016 and amended on 29 November 2018 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2989 of 2016
| DGB16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act1958 (Cth) (“the Act”) on 31 October 2016 and amended on 29 November 2018 seeking review of the decision of the Immigration Assessment Authority (“the IAA”) made on 4 October 2016 which affirmed the decision of the Minister’s delegate to refuse a Safe Haven Enterprise Visa (“SHEV”) to the applicant.
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister. (The Court Book – “CB”– “RE1”).
Background
The applicant is a citizen of Sri Lanka, from Jaffna. He claimed to have experienced continuous harassment and discrimination from the Sri Lankan authorities, in particular the Sri Lankan Army (“SLA”).
The applicant claimed that in 2004 or 2005, the Liberation Tigers of Tamil Eelam (“LTTE”) attempted to recruit the applicant’s elder brother, who then had to hide and move away to escape them.
He claimed to have been detained, questioned and assaulted by the SLA about 10 to 15 times between 2006 – 2010 (CB 66). He claimed to have been detained by the SLA in May or June 2012 for about eight hours. He claimed that during this detention the SLA beat him, and injured (“slammed”) his ears, causing permanent hearing loss.
The delegate refused the application on 8 August 2016 (CB 218 – CB 237). It appears the applicant’s case was referred to the IAA on or about 11 August 2016.
Before the IAA the applicant claimed to fear harm because of his Tamil ethnicity, his profile as a young Tamil male from the north of Sri Lanka, who would be imputed with a political opinion as being a supporter of the LTTE, and because of his status as a failed asylum seeker, who had departed Sri Lanka illegally.
The IAA found that the applicant was not a credible witness. In particular (at CB 244):
“13. Given the significant changes, omissions, implausibility and inconsistencies in the applicant’s evidence, I do not find him to be a credible witness. In particular, the applicant has changed his evidence about how many times he was arrested and harmed by the SLA; suggested the SLA were not interested in his brother because his brother was married, however his brother married after the applicant left Sri Lanka; failed to mention in his written statements the SLA reporting requirements between 2006 and 2010 and again after his 2012 arrest; failed to mention in his written statements his brother’s attempted conscription by the LTTE; and his implausible evidence that his brother went from Jaffna to Vanni in May 2006 to flee from danger. Although he was generally consistent about the details of his 2012 arrest, the other difficulties with his evidence are to such an extent that I am not satisfied that the applicant is a witness of truth and I reject his evidence that he was arrested in 2012.
14. I do not accept the applicant’s claims that his brother was conscripted by the LTTE, escaped after two days, hid at a relative’s house for three months and then fled from Jaffna to Vanni in May 2006 to escape the danger; that he was arrested and harmed or reported to the SLA at various times during 2006 and 2010; that he was arrested and harmed by the SLA in May or June 2012; that he was required to report to the SLA on a weekly basis after his 2012 arrest; and that the SLA visited his parent’s house searching for him after he left Sri Lanka.”
The IAA was of the view that the applicant did not have a profile that would indicate he is at risk of being imputed with links to the LTTE. This was despite coming from an area formerly controlled by the LTTE. The IAA found he would not be of adverse interest to the Sri Lankan authorities if he were to return to Sri Lanka ([29] at CB 247).
The IAA found that if he were to return to Sri Lanka, he would be considered a failed asylum seeker who departed Sri Lanka illegally ([15] and [31] at CB 244 and CB 247).
However, the IAA had regard to country information, in the context of its other findings, to find he would not be of adverse interest to the Sri Lankan authorities on arrival in Sri Lanka ([38] at CB 249). The IAA found the applicant would not be at risk of harm for reason of being a failed Tamil asylum seeker ([39] at CB 249), that any period of detention upon arrival would be “brief” such as to not amount to serious (and subsequently significant) harm ([43] at CB 250).
The IAA considered the applicant’s claims with reference to the two relevant criteria for the grant of the visa set out at s.36(2).
Before the Court
At the hearing before the Court, the Minister was represented by counsel. The applicant was represented by a solicitor. The applicant’s solicitor indicated that he wished to proceed by way of an amended application.
The Minister’s counsel expressed “deep concern” with the “late” attempt by the applicant’s solicitor to proceed by way of an amended application.
In the current case, orders were made on 9 March 2017 for the filing of any amended application, evidence, and written submissions. No attempt was made by the applicant’s solicitor to comply with those orders, or, importantly, to seek to vary the “timetable” implicit in the orders so as to ensure the proper, and fair, progress of this case.
The Minister’s counsel was particularly concerned in his submissions to point out that this was not the first time that this particular solicitor had acted in such a fashion. (See as examples in: BRE16 v Minister for Immigration & Anor [2018] FCCA 1412 at [20], and AYU16 v Minister for Immigration & Anor [2018] FCCA 2890 at [10]).
The submission was that the solicitor’s conduct turned “…the whole process into a pointless exercise”. I agree with counsel that such conduct is of no assistance to the Court in the efficient management of what is, after all, a very large caseload involving migration matters before this Court.
Further, having already filed his written submissions, in compliance with the Court’s orders, the Minister was denied procedural fairness in being able to properly consider, and respond, to the case that the applicant, with legal representation, now wanted to argue.
The applicant’s solicitor’s approach was inimical to the proper and efficient conduct of cases before this Court, and unacceptable in its ignoring of the practices and procedures of this Court, and of the Court’s orders.
This was compounded by the explanation proffered from the bar table (without any evidence to support it) by the applicant’s solicitor. The submission was that: “…my excuse remains the same as what it is each time the respondents complain about my practices.” This was “explained” by the submission that, in effect, instructions are provided by “clients” “at the last minute”.
Why the applicant’s solicitor was unable to obtain his client’s instructions in this case at an earlier, and appropriate, time, so as to comply with the Court’s orders for the conduct of this case, or even to attempt to provide an amended application at a time such as to give the Minister a fair opportunity to address it, was never satisfactorily explained.
At best, the submission was that: “…the clients adopt a very lackadaisical approach to their obligations.”
It must be said that the approach adopted by the applicant’s solicitor in this case is not restricted to him alone. There appears to be a view (as evident in the conduct of a number of migration cases before this Court), that the practices and procedures of this Court, and the need to comply with the Court’s orders, somehow do not apply to migration cases.
I take judicial note that overwhelmingly in other jurisdictions before this Court, that attitude does not generally exist. Even unrepresented applicants in non-migration cases, generally, and in contrast to a number of represented migration cases, make an effort to comply with the Court practices and procedure, and the Court’s orders.
In any event, having expressed his concern, the Minister’s counsel indicated that the Minister was able to respond to the grounds raised in the amended application.
The grounds of that application are in the following terms:
“Ground 2
The Assessor committed error in failing to consider a claim made by the applicant.
PARTICULARS
(i)The applicant claimed that he suffered hearing impairment as a result of beatings by the Sri Lankan Army in 2012;
(ii)Although the assessor came to the conclusion that the applicant was not arrested and taken by the Sri Lankan Army in 2012, it did not make any findings as to whether the applicant had a hearing impairment and, if so, the cause of it.
…
Ground 4
The Authority committed jurisdictional error by concluding that the totality of the applicant’s evidence upon which his claims were based was false and failing to distinguish a claim consistently made by the applicant.
PARTICULARS
(i)The applicant consistently claimed that he was arrested, questioned and beaten by the SLA in May 2012.
(ii)Although the Authority noted, at paragraph 10, that much of what the applicant had said was consistent with the available country information, it stated that it had serious concerns about the applicant’s credibility and the truthfulness of his evidence.
(iii)At paragraph 13, the Authority made the following finding:
“Although [the applicant] was generally consistent about the details of his 2012 arrest, the other difficulties with his evidence are to such an extent that I am not satisfied that the applicant is a witness of the truth and I reject the evidence that he was arrested in 2012”
(iv)Given the Authority’s admission of the applicant’s consistency in regards to this particular claim, it was illogical, irrational and/or unreasonable for the it to disregard the evidence on the basis of adverse credibility findings.
(v)The rejection of the entirety of a claimant’s evidence/claims on the basis of credibility concerns in some areas offend principles stated in cases such as SZQPY v Minister for Immigration and Border Protection [2018] FCA 359.”
[Errors in the original]
[Grounds one and three were not pressed].
Ground Four
The applicant’s solicitor submitted that he would speak to ground four first. In what appeared to be an indication of the continuing, late, evolutionary process of the applicant’s case, his solicitor also submitted that: “…it may be that when I come to the end of submissions, oral submissions for ground four, I won’t trouble your Honour with any further oral submissions about ground two.”
In any event, ground four asserts that the IAA committed jurisdictional error because it concluded that the totality of the applicant’s evidence, upon which his claims were based, was false, and that the IAA failed to distinguish a claim consistently made by the applicant.
The particulars appear to raise a further claim of jurisdictional error. Namely, that the IAA’s decision was illogical, irrational, or unreasonable.
However, in submissions before the Court, the applicant’s solicitor stated that the applicant did not rely on illogicality in making out ground four. (See further below).
At best, in oral submissions, the “nub” of ground four was described as being that the IAA should not have rejected the applicant’s claims in relation to the incident in 2012 because of what were described as “other difficulties with the evidence.”
The submissions directed attention to [13] (at CB 244) of the IAA’s decision record. (See further below at [42]). While the applicant’s submissions then proceeded to a lengthy review of the various times the applicant expressed his claims to fear harm (that is at an interview on arrival, his application for the visa, and an interview with the delegate, and during the process of review), it was for the purpose of making the following submission about the “central issue” in the case.
The submission was that what “stands out like a beacon” is that the applicant consistently claimed that the SLA abducted him while on his way home late at night in either May or June 2012 and beat him. He suffered “hearing damage” as a result of this beating.
The applicant submitted that he relied on SZQPY v Minister for Immigration and Border Protection [2018] FCA 359 (“SZQPY”) for the proposition that the IAA fell into jurisdictional error because it totally rejected the applicant’s consistent evidence by relying on “relatively minor detail[s]” to find inconsistency in the applicant’s evidence.
It is to be noted, as set out above, that at particular (iv), the applicant’s ground alleges that the IAA’s approach in this regard was “illogical, irrational and/or unreasonable”.
However, when pressed to explain the exact allegation of legal error, the applicant’s solicitor submitted that although [32] of SZQPY “talks about the concept of unreasonableness” this was “not the basis of this claim” in the current case.
The applicant’s solicitor’s, it must be said, confused submissions, were that while particular (iv) used the word “unreasonable” (no reference was made to irrational or illogical), he did not “mean” to use the word “unreasonable” in the sense that “no rational mind could reach that decision.”
This begs the question as to, in context, what else could it mean?
Ultimately the “best” explanation of the ground that could be obtained from the submissions was that “the essence of the entire ground four is that [the IAA] was wrong to reject…the May/June” 2012 incident (“allegation”) “on the basis of finding inconsistencies and implausibilities surrounding other material.”
One of many difficulties with the applicant’s submissions was that I respectfully understood the Court in SZQPY to make clear that the jurisdictional error found in that case (involving a decision by the Administrative Appeals Tribunal) was as follows:
“[103] It is a significant matter to conclude that a person is not a witness of truth and therefore the whole of the testimony of the witness must be rejected. To reject the whole of the evidence there must be a foundation for the view that the whole of the evidence is so unreliable that it should be rejected.
…
[106] In this case, the Tribunal rejected the whole of the appellant’s account based upon four matters. The issue is whether any one of these matters or a number of the matters taken together provided a sufficient basis to support the rejection of the whole of the appellant’s evidence. By sufficient, I mean a basis that was logical and probative, and provided a legally reasonable foundation upon which the Tribunal, in the discharge of the statutory function I have described, might rest its factual finding that the whole of the appellant’s account was false.
…
[112] Taking these matters together, a considerable part of the material relied upon by the Tribunal in finding that the whole of the appellant’s account was false was not of a kind that could be used by the Tribunal, in the proper discharge of its statutory fact-finding task, to support such a conclusion. It was not probative of that conclusion and it was not logical to use that material to support such a conclusion.[113] It follows, that there was jurisdictional error in the Tribunal’s decision.”
In this light, and on the basis of the submission that the applicant relied on SZQPY, and given the applicant’s solicitor’s demonstrable inability to explain what other jurisdictional error the applicant’s ground sought to assert, it was appropriate for the Minister to seek to respond to the applicant’s ground, on the basis that what was being alleged was that it was illogical of the IAA to reject the applicant’s claim as to the claimed 2012 incident.
The applicant’s submission directed attention to [13] of the IAA’s decision record. It must be said such a focus was selective. The terms of the applicant’s ground, and as explained at particulars (i), (ii), (iii) and (v) to the ground, and even drawing on what I understood to be the “nub” of the applicant’s submissions before the Court, require attention to be given to [10] – [14] of the IAA’s decision record (CB 243 to CB 244):
“10. In assessing the applicant’s evidence I have taken into account difficulties of recall over time, the scope for misunderstanding in interpreted material, cross cultural communication issues, the applicant’s stated hearing impairment and the problems people who have lived through trauma may experience in presenting their story in a cohesive narrative. I also accept that much of what he has said is consistent with the available the county information. Nevertheless, having considered his written statements and his evidence from his SHEV interview, I have serious concerns about the credibility of the applicant and the truthfulness of his evidence.
11. At the SHEV interview he was asked, and confirmation was sought twice, about when he first came to the attention of the SLA and he said it was in May or June 2012. The delegate pointed out this was inconsistent with his written statements’ claim he was taken to the SLA camp 10 to 15 times during 2006 and 2010. He said, first, that the delegate asked about 2012 and not the war and 2012 was the first time after the war he was troubled by the SLA, and, secondly, that he was only detained and beaten once by the SLA in 2006 and those other occasions during 2006 and 2010 was just him going to the SLA camp to report and to show the SLA he was still in the village. The recording of the interview does not bear out his first response and the second response is a substantial change from his written evidence which was to the effect that he was taken to the SLA camp 10 to 15 times during 2006 to 2010 and each time he was physically assaulted by the SLA. He also mentioned for the first time at the SHEV interview that he was placed on a weekly reporting requirement after his arrest in 2012 and that the reason the SLA visited his parent’s house looking for him is because he failed to report once he left Sri Lanka.
12. The applicant was asked why he was targeted by the SLA and not his older brother. He said his brother was married and the SLA target single Tamil males. The delegate pointed out to him that he said his brother married after he left Sri Lanka and took a break and gave the applicant a chance to speak to his representative before responding to that discrepancy and some other concerns raised by the delegate. No response to that discrepancy was provided by the applicant or his representative. He also mentioned for the first time at the SHEV interview that his older brother was taken by the LTTE during the ceasefire in 2004 -2005 and asked to join but his brother escaped after two days and then hid at a relative’s house for a few months. In about May 2006, approximately a year after the encounter with the LTTE, his brother moved to Vanni because it was dangerous for him to stay in Jaffna due to the LTTE’s interest. I consider it implausible that a person who fled conscription by the LTTE would decide to escape further danger by moving, even though the ceasefire was still in effect, from Jaffna, an area controlled by the Sri Lankan government, to Vanni, an area controlled by the LTTE.
13. Given the significant changes, omissions, implausibility and inconsistencies in the applicant’s evidence, I do not find him to be a credible witness. In particular, the applicant has changed his evidence about how many times he was arrested and harmed by the SLA; suggested the SLA were not interested in his brother because his brother was married, however his brother married after the applicant left Sri Lanka; failed to mention in his written statements the SLA reporting requirements between 2006 and 2010 and again after his 2012 arrest; failed to mention in his written statements his brother’s attempted conscription by the LTTE; and his implausible evidence that his brother went from Jaffna to Vanni in May 2006 to flee from danger. Although he was generally consistent about the details of his 2012 arrest, the other difficulties with his evidence are to such an extent that I am not satisfied that the applicant is a witness of truth and I reject his evidence that he was arrested in 2012.
14. I do not accept the applicant’s claims that his brother was conscripted by the LTTE, escaped after two days, hid at a relative’s house for three months and then fled from Jaffna to Vanni in May 2006 to escape the danger; that he was arrested and harmed or reported to the SLA at various times during 2006 and 2010; that he was arrested and harmed by the SLA in May or June 2012; that he was required to report to the SLA on a weekly basis after his 2012 arrest; and that the SLA visited his parent’s house searching for him after he left Sri Lanka.”
[Errors in the original]
Regard should be given to all of the relevant parts of the IAA’s consideration because, in essence, the complaint before the Court is that it was not open to the IAA to “reject” the applicant’s claim as to the 2012 incident based on an adverse view of the applicant’s credibility arising from “other matters”.
In essence, when seen in this light, the argument draws on what the appellate Court found in SZQPY (at [112]). That is, that the “material” used by the Tribunal (in that case) “…was not of a kind that could be used…to support such a conclusion”, that the applicant (in that case) was not a witness of truth, and that the entirety of his account to fear harm was therefore rejected.
The applicant’s ground (as best as he could be understood), is not made out.
First, contrary to the submissions before the Court, and indeed unlike the situation in SZQPY, the IAA did accept some of the applicant’s key claims, and evidence. For example, it accepted that he was a Tamil of Hindu religion and that he had lived in Jaffna.
In this light, the IAA did consider whether the applicant would suffer harm on return to Sri Lanka for reason of being a Tamil male from the north of Sri Lanka, and who may be the subject of an imputed political opinion for those reasons. (See [18] – [30] at CB 245 – CB 247).
Further, the IAA also accepted that he would, on return, be a failed asylum seeker who had departed Sri Lanka illegally. The IAA considered the likelihood of harm on return on this basis. (See [31] – [46] at CB 247 to CB 250).
Second, what the IAA rejected was the applicant’s claim to have suffered past harm, and this included the claimed incident of 2012. This is the subject of the IAA’s consideration at [10] – [14] (at CB 243 to CB 244).
Third, contrary to the applicant’s submissions now, the basis of the IAA’s reasoning, that is, the matters probative of its adverse conclusion, cannot be described as “minor”, or “other matters”.
For example, as set out at [11] (at CB 243), the IAA contrasted the applicant’s evidence at the interview with the delegate, where he said (confirmed twice) he first came to the attention of the SLA in May or June 2012, with his written statements made in support of his application for the visa, that he had been taken to the SLA camps 10 to 15 times during 2006 and 2010.
How the applicant’s solicitor could now describe this as “minor”, or that the IAA could be said to be relying on “other matters”, was never satisfactorily explained. Plainly, when the applicant first came to the attention of the SLA, and the frequency of their interest in, and contact with him, goes to the heart of his claim to have suffered harm in the past. Nor can the focus on 2012 be described as “other matters”.
This illustrates the poorly conceived ground and argument advanced in this case, and may possibly explain the confused state of the applicant’s submissions. It must be said, in light of the evidence before the Court (the IAA’s decision record, and the various sources of the applicant’s claims), the applicant’s submissions lacked a probative basis on which to construct the argument. In short, the very criticism which the applicant’s ground apparently seeks to raise about the IAA’s decision.
This is further illustrated with reference to [12] (CB 243 to CB 244) of the IAA’s decision record. The IAA noted that when the delegate asked the applicant why he, and not his older brother, was targeted by the SLA, the applicant’s response was that his older brother was married, and he was single.
The delegate, and the IAA, found that this evidence revealed a discrepancy with the applicant’s other evidence that his brother married after the applicant left Sri Lanka.
The IAA noted that the delegate gave the applicant the opportunity to speak to his representative before responding to this discrepancy, and other concerns raised by the delegate. No explanation was provided.
This also, and the further matters noted by the IAA at [12] – [13] (CB 243 to CB 244), cannot be described as “minor”, or “other matters”. All are relevant to the question as to the circumstances of the SLA’s interest in the applicant, which underpinned his claim to have suffered past harm at the hands of the SLA.
Even if the IAA did have regard to matters which did not directly relate to the applicant’s claim to fear harm, as the applicant now argues (which, as set out elsewhere in this judgment is not the case), it does not necessarily follow that jurisdictional error is revealed.
As was said in DQA16 v Minister for Immigration and Border Protection [2018] FCA 2086 at, in part [88], and [89]:
“[88]…That is not to say that the Tribunal can never have regard to inconsistencies in a review applicant’s evidence, even inconsistencies in relation to matters that do not directly relate to the applicant’s claims to fear persecution, in assessing the applicant’s credibility...
[89] In all the circumstances, it was open to the Tribunal to ask the applicant questions about matters which did not directly relate to his claims of persecution, including questions about his siblings. It was also open to the Tribunal to have regard to any inconsistencies in the applicant’s evidence in assessing his credibility as a witness and the credibility or reliability of his evidence generally. It was equally open to the Tribunal to have regard to the applicant’s refusal to answer certain questions in assessing his credibility. The applicant’s submissions to the contrary had and have no merit.”
Fifth, although it was not satisfactorily developed in the applicant’s submissions, it is clear that the IAA rejected the applicant’s claim as to the occurrence of the 2012 incident, even though it also found that “…he was generally consistent about the details of the 2012 arrest” ([13] at CB 244) in the various presentations of his claims.
The Minister referred to CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 (“CQG15”) to develop his response to what he (as explained above) understood to be the “illogicality” claim of the applicant’s ground.
In particular, the Minister referred to the Court’s consideration in CQG15 at [59] – [61] to submit that the analysis there applies equally to the circumstances of the current case.
In short, the matters identified by the IAA as the basis for its adverse credibility finding (in relation to the claims of past harm) were not “minor”. Nor can they be properly described as “other matters”. Each of the matters raised at [10] – [14] was central to the applicant’s claims of past harm.
When reduced to its essential core, the applicant’s argument before the Court was that once the IAA found that the applicant had given consistent accounts of the claimed incident in 2012, it was bound to accept that the incident had occurred.
This argument denies the evaluative nature of the IAA’s statutory task. It was not illogical, or for that matter unreasonable, or irrational, for the IAA to find that the otherwise consistent accounts of the claimed incident of 2012, were outweighed by the adverse view it had formed about the applicant’s credibility as it related to past events, and derived from his own evidence about those events.
This is particularly so in circumstances where the IAA’s adverse view of the applicant’s credibility arose from inconsistencies, discrepancies, implausibilities, and the lack of satisfactory explanations for these, in relation to a number of matters central to the applicant’s claims of past harm.
As the Minister submitted, evaluation of the applicant’s claims (as to past harm), and the rejection of the occurrence of the claimed 2012 incident, occurred absent any independent corroboration of the occurrence of that incident.
In all, ground four, in all its apparent iterations, is not made out.
Ground Two
Ground two asserts that the IAA failed to consider a claim made by the applicant. The particulars explain that the applicant claimed to have suffered a hearing impairment as a result of the beatings by the SLA in 2012. The IAA did not make any finding as to whether the applicant had any such impairment, or the cause of it.
The applicant’s submissions before the Court, both written and oral, did not advance the applicant’s argument beyond that point.
It is the case that a failure to consider a claim expressly made, or clearly arising from the circumstances presented, may, indeed, lead to jurisdictional error (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244, Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALR 630; (2003) 75 ALD 630).
Further, as the High Court explained in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24] (as per Gummow and Callinan JJ):
“[24] To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice...”
However, the fundamental misunderstanding underlying the applicant’s ground is that the IAA’s obligation (amongst other things) was not to make findings in respect of every piece of evidence before it. Rather, the obligation is to consider, and make findings, about an applicant’s claims to fear harm if he, or she, were to return to their country of origin.
As is clear, the IAA’s task (and for that matter, similar in this regard to the Administrative Appeals Tribunal), is whether, in effect, the applicant meets the criteria for the grant of the relevant visa to enable them to access protection in Australia.
In short, the IAA’s obligation was to consider the likelihood of serious, or significant harm, if the applicant were to return to Sri Lanka.
The applicant made no claim whatsoever to fear harm if he were to return to Sri Lanka for reason of any hearing impediment, or impairment. Nor did he claim to have suffered past harm because of any such hearing difficulty. The claimed hearing impediment was a result of, or a consequence of, the claimed beating by the SLA in 2012, not the cause of it.
It is the case, as the Minister submitted, that it appears that the IAA accepted that the applicant had some hearing impairment. It made reference to this at [10] (at CB 243) in the context of the difficulties faced generally by applicants who seek protection, and specifically in relation to this applicant, in explaining their circumstances and claims.
However, given that the claimed hearing impairment was never advanced as a basis for the fear of harm (past or future), or a reason for the infliction of harm, the IAA properly focused on the claimed circumstances which led to the claimed 2012 incident, and the motivation of the SLA to inflict harm (both past and future) on the applicant.
The IAA’s finding that the claimed incident of 2012 had not occurred was based on findings which were reasonably open to the IAA, and which were probative of the relevant evidence before it. This meant that even if the applicant did have some hearing impairment, it did not occur as a result of the claimed beatings in 2012.
In this circumstance, the IAA was not obliged to then speculate, or even consider, what may have been the cause of the hearing impairment. In all, ground two is not made out.
Conclusion
Neither of the applicant’s remaining grounds of the amended application are made out. It is appropriate to dismiss the application. I will make that order.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 6 February 2019
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