DGB17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 199
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DGB17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 199
File number(s): MLG 1547 of 2017 Judgment of: JUDGE TAGLIERI Date of judgment: 17 March 2023 Catchwords: MIGRATION – protection visa application – application for judicial review – whether the claim of harm based on cumulative and inter-connecting facts was made or arose on the material before the Tribunal – whether the Tribunal considered and disposed of that claim – jurisdictional error established – application for review allowed Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 476 Cases cited: AWT15 v Minister for Immigration and Border Protection [2017] FCA 512
AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89
CED17 v Minister for Immigration & Border Protection [2018] FCA 877
CPE15 v Minister for Immigration and Border Protection [2017] FCA 591
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105
Minister for Immigration & Border Protection v DDK16 [2017] FCAFC 188
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; (2004) 144 FCR
Solimon v University of Technology Sydney [2012] FCAFC 146
SZUTM v Minister for Immigration and Border Protection [2016] FCA 45; (2016) 241 FCR 214
Division: Division 2 General Federal Law Number of paragraphs: 63 Date of hearing: 16 November 2022 Place: Hobart Counsel for the Applicant: Mr White Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondent: Ms Stone Solicitor for the Respondent: Australian Government Solicitor
Table of Corrections 28 March 2023 Footnote 20 has been corrected to show “Hossain v Minister for Immigration and Border Protection [2018] HCA 34; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3” ORDERS
MLG 1547 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DGB17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE TAGLIERI
DATE OF ORDER:
17 March 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the second respondent dated 30 June 2017.
2.A writ of mandamus issue directed to the second respondent as constituted by a different member to reconsider and determine the applicant’s application for review according to law.
3.The name of the First Respondent is amended to Minister for Immigration, Citizenship and Multicultural Affairs.
4.The First Respondent pay the applicant’s costs fixed in the scale amount as set out in the Schedule to the Migration Regulations 1994 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
On 20 July 2017, the Applicant filed an application in the Court for a review of a decision of the Administrative Appeals Tribunal, Migration and Refugee Division, (“the Tribunal”) dated 30 June 2017. The application enlivens this Court’s jurisdiction pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”).
BACKGROUND
The Applicant is a non-citizen who applied for a Protection Visa on 30 January 2013, which was refused by a delegate of the First Respondent on 13 October 2014.
The Tribunal conducted a hearing on 28 April 2016. The Applicant attended the hearing to give evidence. He was represented at the hearing by his registered migration agent and assisted by an interpreter in the Tamil language.
On 30 June 2017, the Tribunal affirmed the decision of the First Respondent’s delegate to refuse the Protection Visa.
The Application for judicial review of the Tribunal’s decision came before me on 16 November 2022 for hearing. At the hearing, the Applicant was represented by Counsel and had the assistance of an interpreter in the Tamil language.
BASIS OF TRIBUNAL DECISION
The Tribunal accepted that the Applicant:
·Was arrested in Galle in 2000 when visiting his cousin;
·Was taken into custody in 2001 for being insolent at a checkpoint;
·Had disclosed to the Liberation Tigers of Tamil Eelam (“LTTE”) the location of an army intelligence officer who was shot and killed some months later (“the army officer”);
·Was arrested by local police along with an acquaintance and handed over to Colombo CID, where they were questioned about the death of the army officer and had been beaten during this time. That acquaintance was shot and killed in 2003; and
·Was questioned further in Batticaloa about his involvement in the murder of the army officer following his return from Colombo.
The Tribunal found that no requirements were placed on the Applicant when he was released in either Colombo or Batticaloa. The Tribunal found that the Applicant had no adverse profile with the Sri Lankan authorities for any reason when he left Sri Lanka in July 2014.
The Tribunal did not accept that the Applicant’s background, his departure from Sri Lanka during peace time, or his long absence from Sri Lanka would cause the authorities to have an interest in him. The Tribunal did not accept that the authorities would re-open the case against the Applicant if he returned to Sri Lanka.
The Tribunal found that the Applicant did not have a well-founded fear of harm due to his Tamil ethnicity and did not face a real chance of serious harm or a real risk of significant harm in Sri Lanka and accordingly found that the Applicant did not satisfy ss 36(2)(a) or 36(2)(aa) of the Act.
COURT REVIEW
A review to this Court is authorised by s 476 of the Act. In order to succeed and obtain the relief sought the Applicant needs to demonstrate jurisdictional error by the Tribunal. What constitutes jurisdictional error is usefully described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
GROUNDS OF REVIEW
The amended application for review filed 19 October 2022 raises one ground for review, being that:
1. The Tribunal constructively failed to exercise its jurisdiction by failing to consider an integer of the Applicant’s claims for protection, namely a claim that the Applicant’s incriminating conduct, when considered together, gave rise to a real risk that he would face serious harm on return to Sri Lanka.
PARTICULARS
A. The Applicant relied on the following incriminating conduct, which together tended to support the inference that Sri Lankan authorities would view him with increased suspicion on return:
(i)That he fled Sri Lanka in 2004 during peacetime, not long after the death of [the army officer];
(ii)That his acquaintance (who was also implemented in the death of [the army officer] together with the Applicant) was killed in Army controlled territory in 2004, and
(iii) That he had remained away from Sri Lanka for an extended period.
B. The Tribunal considered each of the matters described in particulars A (i)-(iii) in isolation, but did not consider the combined effect of those matters together on the inference that Sri Lankan authorities would view the Applicant with increased suspicion on return.
C. In the premises, the Tribunal failed to consider the Applicant’s claim described in particular A.
APPLICANT’S CASE
The Applicant’s counsel relied on and referred to documents in the Court Book filed 4 April 2018 in articulation and expansion of the submissions for the Applicant in support of the ground of review. The Court Book was received into evidence without objection as Exhibit R-1.
The essential contention was that the Tribunal had failed to consider the claim made by the Applicant that, despite being cleared of involvement in the death of the army officer, collective subsequent events and conduct tended to incriminate him in respect of the death.
In particular, reliance was placed on three primary facts set out in the ground of review as incriminating him and causing increased suspicion, as set out at A of the particular of claim in the amended application filed 19 October 2022 and stated at [11] of these reasons.
The Applicant accepts that the three components of his conduct were individually considered, but he contends that the combined effect of the events and conduct and its tendency to incriminate him as involved in the death of the army officer was not considered for the purpose of deciding he satisfied the requirements for protection under s 36(2)(a) or s 36(2)(aa) of the Act.
Counsel submitted that the Tribunal was not required to search for claims, but in issue was:
(a)Whether the claim described at [13] to [15] of these reasons arose on the material before the Tribunal; and
(b)Whether the Tribunal disposed of the described claim.
In the written Outline of Submissions filed 19 October 2022 at [17], the Applicant contends:
The Applicant first made the circumstantial claim, based in some combination of the primary facts, in the November 2013 submission and continued to repeat and rely on the circumstantial claim through the course of his review application as follows:
•April 2016 submission;
•May 2016 submission.
[citations omitted]
Counsel for the Applicant took the Court to documents in the Court Book which he said demonstrated that the “circumstantial claim” of incrimination as described arose and was made before the Tribunal. In particular:
·Statement of Claims filed 24 January 2013 at [4] and [6];[1]
·Statement dated 19 June 2014 for Tribunal hearing at [6];[2]
·Statutory declaration dated 15 April 2016, about events since and what he says will occur because of his background of having been brought to the authorities’ attention for various conduct or suspected conduct, being:
·Expiry of his passport in 2009;
·No longer having an identify card; and
·Certainty he would interviewed on re-entry to Sri Lanka at Colombo airport;[3]
·Post-Tribunal hearing statement dated 12 May 2016 at [9] and [10], including evidence that his long absence would compound suspicions.[4]
[1] Court Book at page 73.
[2] Court Book at page 133.
[3] At [24] to [26], as included in the Court Book at page 242.
[4] Court Book at pages 373 and 374.
It was submitted that the fact that he was questioned over the shooting death of the army officer, that he then left Sri Lanka shortly before the acquaintance was shot, and that had been absent for a long time, would all collectively raise his profile above the interest authorities had in him in 2004. This circumstantial claim should be treated as having clearly been raised in his statements.
Counsel submitted that the Tribunal’s reasons at [64] are dispositive and there it did not dismiss the individual claims due to credibility, but its evaluation shows no consciousness at all of the claims of events after the Applicant left Sri Lanka in 2004.
Referring to the Tribunal reasons at [68], Counsel submitted that the Tribunal does not provide its reasoning for the conclusion at [64]. Although mention is made of events after the Applicant left in 2004 at [68], it is dislocated from the claim made. This highlights the failure to properly consider the basis of the circumstantial claim, which was that each of the primary facts together tended to incriminate the Applicant and tended to support the inference that he faced a real chance of serious harm because the authorities would be more suspicious of him.
It was said that the Tribunal did not properly understand how the Applicant was putting his case and the Tribunal reasoning did not address his case.[5]
[5] Written Outline of Submissions filed 19 October 2022 at [20] and [21].
FIRST RESPONDENT’S CASE
The First Respondent’s answer to the ground of review is essentially twofold. First, the claim as now articulated in the ground of review and as explained by the submissions referred to at [13] and [14] of these reasons was never made. Counsel conceded that two of the three elements of the claim as particularised in the ground were clearly expressed by the Applicant, but not that referred to at A(ii) concerning the killing of Applicant’s acquaintance being a factor with the other facts particularised collectively raising suspicion of the Applicant by Sri Lankan authorities if he were to return.[6]
[6] Consistent with the First Respondent’s written Outline of Submissions filed 31 October 2022 at [37].
Second, that the individual facts and conduct relied upon by the Applicant and noted at [13] of these reasons were accepted as credible, but the Tribunal rejected each as a reasonable basis for fearing harm from authorities in Sri Lanka.
Thirdly, and in the alternative, to the submission referred to at [24], there was no obligation to cumulatively consider the facts/conduct claimed to constitute the fear of harm, when each had been rejected individually as being a basis for there being a real chance of serious harm or real risk of significant harm.[7]
[7] Minister for Immigration & Border Protection v DDK16 [2017] FCAFC 188 at [34]; CED17 v Minister for Immigration & Border Protection [2018] FCA 877 at [24] to [26].
APPLICANT’S REPLY
In reply submissions, Counsel for the Applicant submitted that the authorities relied upon by the First Respondent were not to the point. If the Court accepted that the claim as now explained clearly arose before the Tribunal, then it was the absence of consideration of it that constitutes the jurisdictional error.
SUMMARY OF DETERMINATION
As is evident from the competing contentions summarised above, this matter raised particularly nuanced arguments, to which I have paid detailed attention. Ultimately, I have been persuaded that the Applicant’s contentions should largely be accepted. Accordingly, for the reasons below, I have concluded that the circumstantial claim referred to in the ground of review did clearly arise before the Tribunal. Secondly, I have concluded that the Tribunal failed to appreciate and understand the circumstantial claim as made and therefore failed to give it consideration as required by the well-established legal principles to which I refer below.
LEGAL PRINCIPLES – FAILURE TO CONSIDER
A summary of the statements of principles is helpfully provided in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 (“AYY17”) from [18] and following in these terms:
18. … In that regard, we note that:
•The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
•The Tribunal is only required to consider such claims where they are either:
(a)the subject of substantial clearly articulated argument, relying on established facts; or
(b)clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 per Barker J (at [67]).
•These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
... A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).
(Emphasis added)
•As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):
(a)such a finding is not to be made lightly (NABE at [68]);
(b)the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c)to clearly emergefrom the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection [2016] FCA 45; (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:
37.While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38.Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d)while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and
(e)understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
[original emphasis from AYY17]
In applying these principles, it is necessary to also be mindful of Mortimer J’s remarks in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 (“CPE15”) at [40]:
The kind of argument which must have been articulated by an applicant in order for the Tribunal to exceed its jurisdiction by failing to consider it was described by Griffiths J in SZSSC as “a substantial and clearly articulated argument”. In other words, the Tribunal as the decision-maker on the merits must have clearly been put on notice by an applicant of a contention, submission or argument the applicant wished to make in support of a decision in her or his favour on the review. Unless the argument has been “clearly articulated”, the Tribunal would not be put on notice. Unless the argument is “substantial”, a reviewing court cannot be confident or sufficiently confident that the Tribunal’s failure to deal with the argument may have affected or been material to the conclusion it reached. Ultimately the argument put by an applicant in these circumstances must be characterised as capable of affecting the formation of the state of satisfaction required by section 65 of the Migration Act. If it is not so capable, then the Tribunal will not exceed or fail to exercise its jurisdiction in not considering such an argument.
[Emphasis added]
Further, as explained by Mortimer J at [42] of CPE15:
… assessments by a reviewing court of whether the identified argument was “substantial and clearly articulated”, and what the Tribunal did or did not do in its reasons in terms of considering it, will be highly fact dependant and will need to be considered against the background of each individual case.
DID THE CLAIM CLEARLY ARISE?
Careful review and analysis of the materials before the Tribunal and its reasoning is therefore required. Although the Tribunal did not have the benefit of the explanation and articulation of the Applicant’s claims which the Court has had on the hearing of this review, I have reached the conclusion that the circumstantial claim clearly arose on what was before it.
Principally, because the circumstantial claim and the Tribunal’s awareness of it is self-evident in my opinion from the terms of the Tribunal’s own reasons, and whether it arose clearly is not dependant only on the interpretation of particular submissions or statement/statutory declarations to which I was taken. In my view it is to be appreciated by the totality of what the Applicant said as forming the basis for his fear of harm and in many cases there are multiple factual bases relied upon, many of which may be cumulative or interconnected.
In its reasons at [23], the Tribunal referred to the June 2014 statement and then said it was lodged and provided:
…additional detail and clarification about the applicant’s claims along with the applicant’s review application.
Following this, the Tribunal specifically recited the Applicant’s claim about having been suspected in relation to the death of the army officer and then released after detention and questioning, but also went on to say in the sixth and seventh dot point in its reasons at [23]:
•After I left, a friend of mine who had been arrested and interrogated with me over the same incident was shot dead. This occurred around two to three months after I left Sri Lanka, I believe the CID killed him in relation to [the army officer]'s death and they would still have a record of my involvement.
•The Rajapaksa regime has been in power since 2005 and has been ruthless in eliminating anyone who has an association with the LTTE. I believe I will either be perceived as an LTTE cadre or at the very least a high level supporter of the LTTE due to my involvement in the above mentioned incident and if I return to Sri Lanka I will be killed because of this.
[emphasis added above mentioned incident referring to involvement in the death of the army officer]
Later in its reasons at [24], referring to additional information in the 25 April 2016 statement, the Tribunal noted the claim based on harm because of being again suspected in relation to the death of the army officer on return to Sri Lanka. That is suspicion in a current or future temporal context. It noted:[8]
[8] Court Book at pages 423 to 444.
•As there was no formal legal case against me I expect that I was not on a list which would have stopped my exit from Sri Lanka in 2004. A Tamil leaving Sri Lanka during peace time as it was in 2004 is very different to returning now given all that has taken place and especially given my background. Even though a lot of time has passed, CID and other army connected people will not forget who I am. I am certain there will be people who will still want to harm me.
•I am a young Tamil from Batticaloa Eastern Province who would be being returned after having been away from the country since 2004. My passport which I left in Malaysia expired in 2009 and I no longer have an identity card which I left in Sri Lanka and which went missing in the Tsunami. I am sure Sri Lanka will know that I have asked for asylum in Australia, I am certain that I will be interrogated at Colombo airport and that I will be detained because of this and because of my background in Sri Lanka.
•The Sri Lankan authorities will investigate me and will contact CID. The investigations will show that I have been detained and questioned about connections with LTTE and about the killing of an army officer. I am worried that the fact I ran away from Sri Lanka in 2004 will lead them to think I had reason to run. Once I am detained I am very scared of being physically beaten and tortured as happened to me previously as further punishment.
•The fact that the details of my arrest were published in the Virakesari which is a National Tamil newspaper adds to my fears as many people will know that I was detained under suspicion in connection with the killing of an army intelligence officer. The fact that I was arrested with [the friend/acquaintance] who was shot in late 2004 is another connection I have which will raise suspicion against me. I have real fears that I may end up being shot like my friend.
•I am afraid that there will be people in the army and CID who knew the officer, and who despite all these years that have passed, will be aware of and who will remember my arrest in connection with this, This puts me at high risk of harm not just at the time of arrival in the country but also after this.
…
•Having asked for asylum is a problem because it raises suspicion against me as I said earlier, but also the Sri Lankan government will know I have spoken against them here in Australia. I was also granted refugee status in Malaysia and it will be presumed I have spoken against the government there also, The Sri Lankan government knows that there are many Tamils in both Australia and Malaysia who are opposed to it.
•I am a young Tamil who because of my background is at risk of interrogation, torture and detention by the CID/authorities if returned to Sri Lanka, I am also at risk of being harmed or killed by others outside of legal processes.
[emphasis added]
I consider that the above passages of the reasons of the Tribunal clearly convey reliance on the three primary facts referred to by the Applicant in its submissions for the purpose of the circumstantial claim described at [15] and [16] of the Applicant’s written outline of submissions.[9] The cited paragraphs from the reasons demonstrate that that the member at very least individually noted reliance on the three primary facts which together constituted the circumstantial claim, although it is unclear whether she appreciated their inter-connection and cumulative reliance for the purpose of the circumstantial claim and protection application.
[9] Applicant’s Outline of Submissions filed 19 October 2022 at [16].
Although the Tribunal member did not have the benefit of the framing and explanation of the discrete pieces of evidence collectively relied upon to support the claim for protection based on the Applicant being regarded with renewed or increased suspicion of involvement in the death of the army officer, it did in my view clearly arise in the sense discussed by Allsop J in Htun at [42].
On the plain and collective reading of the statements made by the Applicant, which were referred to by the Tribunal member, the circumstantial claim was said to be based on a fear of harm from both State or State-related authorities acting both within and outside the legal process.
The written submissions made on behalf of the Applicant for the purpose of the Tribunal review did not expressly argue that the fact of the friend/acquaintance’s death would increase suspicion of the Applicant on return to Sri Lanka. However, my interpretation of the authorities referred to at [28] to [30] of these reasons is that the Tribunal discharging its statutory function must engage in consideration of the claims for protection advanced on all relevant evidence before it regardless of whether particular evidence is emphasised in submissions.
In my view, it ought not be lost that an essential and fundamental basis of the Applicant’s claim for protection was as set out in his representative’s submission in the Court Book on page 189, which stated:
As a Tamil returnee who has been arrested and detained under suspicion of connection to the killing of an army intelligence offer and imputed with LTTE involvement, it is submitted that the applicant has a profile which place him at high risk of significant harm from the CID, army, pro government militias and other individuals outside of legal processes, either upon arrival in Colombo or subsequently in his home area of Batticaloa.
The expression in the submission referred to at [39] of these reasons in my view captures the circumstantial claim as it is now explained by Counsel for the Applicant. In my view, all evidence relevant to the essential claim in the submission and as now framed in the ground of review needed to be considered in order for the Tribunal to discharge its function according to law.
At [37] of the First Respondent’s written submissions and in oral submissions by Counsel, it was contended that the Applicant “never pointed to” his friend/acquaintance, with whom he had been arrested on suspicion of the murder of the army officer in 2003, as being a factor which would cause the Sri Lankan authorities to view him with increased suspicion. I disagree.
The bolded passages of the Tribunal’s reasons, as set out at [34] and [35] of these reasons, where it summarises the Applicant’s claims, do raise the claim of the connection with the acquaintance raising suspicion.[10] I agree with the First Respondent that the Applicant said he believed that he would be killed because his friend/acquaintance had been killed by the CID. However, that belief was not confined, as the First Respondent asserts, to fear of people as opposed to the CID.[11] A fair and natural reading of the passages noted by the Tribunal from the various statements made by the Applicant convey that the fear was not confined to “people” meaning the community,[12] exclusive of people who are part of the CID. That would require an interpretation of “people” that is contrary to its wide and natural meaning.
[10] At [34] of these reasons, at dot point 4 in particular.
[11] Written submissions of First Respondent at [37].
[12] As Counsel for the First Respondent submitted.
This conclusion is consistent with the articulated claim in his submission referred to at [40] of these reasons and the statement noted by the Tribunal in the final dot point in the Tribunal’s reasons at [24].
The First Respondent submitted that the only basis upon which reliance was placed on the shooting of the friend/acquaintance was in terms of a fear that he too would be shot, as distinct from fear of harm more broadly because of raised suspicion of him concerning the death of the army officer. This is rejected as it is dependent on an isolated reading of the Applicant’s references to various statements that he “feared the same would happen to him”. It does not acknowledge the effect of all the statements made collectively by the Applicant as discussed above.
Counsel for the First Respondent submitted that the framing of claim in the way now relied on “is simply not logical”. She submitted:
The claim the Applicant made was that the CID suspected he and his friend of shooting [the army officer] and his friend was shot on that suspicion. It doesn’t make logical sense to say that the friend’s shooting would itself then cause the Applicant to be at suspicion of the same thing.
Frankly, I did not understand the force or merit of the submission. It is dependent on an assumption that no further evidence or information came to light connecting the friend to the killing of the army officer between when he left Sri Lanka and when the friend was shot, regardless of who shot the friend.
I note the Tribunal did state that it considered the evidence that the friend/acquaintance was shot by the CID or army in action outside of the legal process in connection with the death of the army officer purely speculative.[13] However, it also accepted the friend/acquaintance was shot after the Applicant left Sri Lanka.[14]
[13] Tribunal’s reasons at [72].
[14] Tribunal’s reasons at [70].
There remains the question of whether the circumstantial claim was not only noted and clearly arose, but if it was considered.
WAS THE CLAIM CONSIDERED?
I agree with Counsel for the Applicant that the most proximate part of the Tribunal reasons dealing with the circumstantial claim is at [64] to [68]. In these paragraphs, there does not appear to be any engagement in the evidence relied upon about the killing of the Applicant’s friend/acquaintance, nor consideration of the facts that it accepted that the friend/acquaintance was shot dead a few months after the Applicant arrived in Malaysia, which, on another accepted fact, was in 2004.
While this alone would not necessarily mean the Tribunal fell into jurisdictional error,[15] there are other reasons why, in my view, the Tribunal failed to consider the circumstantial claim.
[15] Solimon v University of Technology Sydney [2012] FCAFC 146.
Under the heading “Fear of harm from CID outside the legal process/harm from pro-government paramilitary groups in the Eastern Province” at [69] to [71] of its reasons, the Tribunal clearly considered the evidence about of the killing of the friend/acquaintance in the context of raising suspicion of the Applicant in connection with the death of the army officer.
The member did not accept that the killing of the friend/acquaintance was related to the death of the army officer, describing the Applicant’s evidence as purely speculative.[16] In part, the Tribunal relied on what it treated as inconsistency in an account given by the Bishop of Trincomalee-Batticaloa in a letter of 24 November 2008 and what the Applicant acknowledged was an assumption that the CID shot the friend/acquaintance based on what his mother had told him that the friend/acquaintance had been in army controlled area when shot.
[16] Tribunal’s reasons at [71].
Although not argued, there is in my view serious difficulty with the Tribunal’s approach described at [53] of these reasons, because earlier in the Tribunal’s reasons at [31] the member accepted the Applicant’s explanation about mistakes in the Bishop’s letters and said:
… the Tribunal accepts these letters are not an accurate reflection of the applicant’s claims and gives no weight to the contents of this letter.
[emphasis added]
Despite that stated in the Tribunal’s reasons at [31], later statements at [71] clearly demonstrate that it did give weight to the contents of the letters and relied on inconsistency between their contents and the Applicant’s evidence as a basis for rejecting:
·any connection between the shooting of the acquaintance/friend by CID;
·concluding that the Applicant was of no further interest to the authorities in connection with the death of the army officer; and
·“these events” were not indicative of the Applicant facing a real chance of serious harm or a real risk of harm from the authorities acting outside the legal process.[17]
[17] Tribunal’s reasons at [69] to [71].
I consider that the Tribunal’s approach shows that it failed to accurately appreciate the basis of the claim the Applicant made about fear of harm on return to Sri Lanka based on the renewed or further suspicion relying on the cumulative primary facts set out in the ground of Application for Review. This of itself falls within jurisdictional error as discussed in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [63]; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [44] and [50], and Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105at [65].
In addition, I consider that findings in the Tribunal’s reasons at [71] and conclusion at [74] are entirely separate from the Applicant’s claim dealt with at [68] because they relate to the Tribunal’s consideration of agents operating outside of the legal process. This is clear from the terms of [74] itself repeated below and the words emphasised in bold font:
… the applicant does not have a real chance of serious harm now or in the foreseeable future from state agents or non-agents working with state authorities acting outside the legal process arising from imputed pro-LTTE or anti-government political opinion arising from the incidents in 2000, 2001 and 2003. …
[emphasis added]
The First Respondent submitted that the Tribunal dealt with the claim that the Applicant feared harm of being killed because the friend/acquaintance had been shot in the context of that claim as it was made in the Tribunal’s reason at [69] to [71]. However, I have rejected the submission that the circumstantial claim which is the subject of the ground for review was not made and, in any event, the Tribunal misapprehended the basis of the claim for the reasons given at [54] to [57] of these reasons.
The First Respondent’s counsel took considerable time to refer the Court to the Tribunal’s findings and reasons about rejection of various claims for fearing harm on return to Sri Lanka.[18] It was then submitted that [68] dealt with the claim that the Applicant would be regarded with increased suspicion and made a finding it was entitled to make for the reasons given.
[18] Tribunal’s reasons at [64] to [67].
Counsel for the Applicant submitted this was in response to his submission that the reasons at [68] were circular and that [68] could not be interpreted in the manner submitted by the First Respondent. He pointed to the sentence:
… The Tribunal has found the applicant will be considered of no interest to the authorities in connection with this incident. …
and submitted this was not a finding about the claim of being regarded with increased suspicion for primary facts relied upon, but instead was a reference to the earlier findings in the preceding paragraphs. He maintained that the Tribunal’s reasons were circular and did not deal with the claim as put.
Although the outcome of this review does not depend on whether I prefer the submissions at [59] or [60] of these reasons, I prefer the interpretation of [68] contended by the Applicant’s counsel.
Finally, I agree that the First Respondent’s alternative submission[19] is not on point in the circumstances of this case. The claim as made or which clearly arose was not considered at all or alternatively was misapprehended and misunderstood, leading to jurisdictional error.
[19] Referred to at [25] of these reasons.
The Application for Review succeeds and the relief sought will be granted, because I readily accept that the failure to arising from the misapprehension of the Applicant’s circumstantial claim is material.[20]
[20] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 17 March 2023
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