DHK16 v Minister for Immigration

[2017] FCCA 3228

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHK16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3228

Catchwords:
MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – reasonableness of relocation – whether the Authority erred in making a decision unsupported by probative evidence – whether the Authority relied on speculation or assumption – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

Rawson Finances Pty Ltd v Federal Commissioner of Taxation (2013) 93 ATR 775; [2013] FCAFC 26

Applicant: DHK16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3049 of 2016

Judgment of: Judge Smith

Hearing date: 22 November 2017

Date of Last Submission: 22 November 2017

Delivered at: Sydney

Delivered on: 22 November 2017

REPRESENTATION

Counsel for the Applicant: Mr C Murphy

Solicitors for the Applicant: Shelly Legal

Counsel for the First Respondent: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3049 of 2016

DHK16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. The applicant is a citizen of Sri Lanka who arrived in Australia by boat without a visa on 2 October 2012.  There is no issue that in the circumstances he subsequently became an unauthorised maritime arrival within the meaning of the Migration Act 1958 (Cth) (Act). 

2. On 9 July 2015, the applicant lodged an application for a protection visa.  The claims made by him in support of that application were summarised at [4] in the decision of the Immigration Assessment Authority (Authority) dated 4 October 2016, which I set out below (without alteration):

   4.The applicant's claims are contained in the information referred to the IAA. They can be summarised as follows:

   •The applicant claims to fear that if he returns to Sri Lanka he will be badly beaten and killed, because he has no money to repay a debt to a money lender, Mr SW. He claims that he cannot seek help in Sri Lanka because authorities and police officers are very corrupt, and SW bribes officers.

   •The applicant manages a 4 acre family farm in the Southern Province of Sri Lanka; he has spent periods overseas for employment reasons, during which times he employed friends to manage the farm;

   •he lived and worked as a contracted security officer in Iraq between December 2004 and December 2006; he travelled to Afghanistan in October 2009 and returned to Sri Lanka in January 2010 after failing to find employment there;

   •upon return from Afghanistan, the applicant decided to grow bananas rather than rice as the financial yields were better. He lacked the required funds for irrigation, fertiliser and chemicals and he was unable to obtain a bank loan is the title deeds to the lands were in his mother’s name. Therefore, the applicant approached a moneylender, Mr SW. The applicant knew this money lender had a bad reputation, but he took the risk and entered into an agreement to repay a loan in the sum of 10 Lakhs and interest (10% per month) in anticipation of profits from his banana harvest, which the applicant expected to be in the sum of around 20 Lakhs;

   •the applicant planted his banana crop in July 2011 but before harvest time the crop was hit by a disease (Panama disease) which spread through the watering system; the fruit was rendered inedible and unsaleable, and the harvest that was expected in April 2012 accordingly failed;

   •after the crop failed, SW demanded immediate repayment of the 10 Lakhs principal and 5 Lakhs as interest, a total of 15 Lakhs; as the applicant could not pay him, SW came to his home and threatened to kill him; the applicant negotiated a four week extension but was unable to find money to repay the loan;

   •thereafter, SW called the applicant continuously by phone harassing and threatening him; the applicant went into hiding in fear of his life, assisted to do so by a friend who owned a restaurant;

   •the applicant knows people from his suburb who have been beaten by SW or on his direction for failing to repay debts; the applicant’s wife who was pregnant with their third child told him to find somewhere else to live to escape SW; nowhere else in the country was safe for the applicant as SW was influential and powerful; the police were in SW’s pockets and took no action when SW arranged for defaulting debtors to be beaten up, even though this was against the law in Sri Lanka;

   •implicit in the applicant’s claims is a fear that he will be harmed by the authorities on account of being a failed asylum seeker who departed Sri Lanka illegally.

3. On 29 July 2016, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The delegate also found that the applicant was not an excluded fast-track review applicant.  The decision was then referred to the Authority for review.  There is no issue in these proceedings that that was the correct course to be taken in all of the circumstances of the case. 

4. The Authority made its decision on 4 October 2016 affirming the decision of the delegate not to grant the applicant a protection visa.  The Authority’s findings and reasons for its decision are set out in [8] through to [13] of the first respondent’s written submissions, which I adopt as correct and set out below:

   8.The IAA accepted the basic elements of the applicant’s claims. It accepted that he borrowed a large sum money (10 Lakh rupees) from SW, that he was unable to pay his debt, that he was at risk of serious physical harm from SW (or his associates) for reason of not paying his debts, that SW was powerful and that the applicant would be unable to obtain protection from the authorities because SW had the support (through bribery) of local police: CB 174-175 [7]-[10].

   9.Furthermore the IAA accepted that the harm feared by the applicant was for a Convention reason, because it found that the harm arose from the applicant’s membership of a particular social group, namely as a ‘debtor to a moneylender who is unable to pay his debt’: CB 75 [11].

   10.However, the IAA found that the risk of harm from SW and his associates was localised, possibly limited to his village (where SW also lived), but at most, his risk of harm did not go beyond Southern Province in Sri Lanka: CB 175 [12].

   11.The IAA then went on to consider whether the applicant faced a real chance of serious harm by reason of having departed illegally, in breach of Sri Lanka’s departure laws. It found that on return the applicant would be processed and charged and that in the course of this the applicant might be held in detention for a short time in poor conditions, but that a short detention did not amount to serious harm: CB 175-176 [13]-[16].

   12.The IAA concluded that the applicant does not meet the requirements of the definition of refugee in s 5H(l) of the Migration Act 1958 (Cth) (the Act) and so does not meet s 36(2)(a).

   13.Although the IAA did not accept that the applicant faced a real risk of being killed by SW, as claimed, it did accept that the possible harm he faced from SW was ‘significant harm’ for the purpose of s 36(2A): CB 177 [21]. However, the IAA repeated the finding it had made under the refugee criterion, that the risk of harm was localised to the Southern Province of Sri Lanka. It found that the applicant could relocate elsewhere in Sri Lanka to avoid a real risk of such harm. The IAA then considered, pursuant to s 36(2B)(a) of the Act, whether relocation was reasonable: CB 177 [22]. It found that the applicant had skills related to agriculture and farming, and that he had also previously worked in a foreign country as a security officer; that the applicant was a Sinhalese speaker; and found that therefore he would be able to find work in another part of Sri Lanka, beyond the reach of SW; and that the applicant would be able to obtain financial help from his mother, as she was a property owner: CB 177 [23]. Accordingly the IAA concluded that relocation was reasonable within s 36(2B): CB 178 [24].

5. On 4 November 2016, the applicant applied to the Court for review of that decision.  At the hearing, the applicant was given leave to amend the ground in his application to include the following ground as the only ground of review:

   GROUND ONE:

   The Immigration Assessment Authority erred by making a finding on the reasonableness of relocation unsupported by any probative evidence and instead erroneously relied on speculation and/or assumption. 

   Particulars

   The Authority speculated and/or assumed that the Applicant would raise the funds required to reasonably relocate because he had access to his mother’s land holdings but that was contrary to the evidence. 

6. There is some tension between the ground and the particular. The particular relies on the fact that a particular finding was contrary to the evidence, whereas the ground suggests that the issue was in fact that there was no evidence. 

7. In relation to the oral submissions today I take it that the ground, rather than the particular, has precedence and I will proceed on the basis that what is asserted is that there was no evidence to support the Authority’s finding in the following sentence of [23] of its reasons: 

   … Whilst I accept the evidence of the applicant as to his own difficult financial circumstances, the applicant’s evidence otherwise is that his mother has land holdings in his local area, being the farm which the applicant had managed for many years, and it is reasonable to conclude that the applicant has recourse to some financial assistance from his mother by reference to this asset, which whilst not a liquid asset is one which could be sold either in whole or in part or used by the applicant’s mother, if not by the applicant himself, as collateral for a formal loan from a financial institution.

8. The Minister argued that there was evidence, and that it was a question that it was an available inference from that evidence, for the Authority to arrive at the finding that it did at [23]. By contrast, the applicant asserted that there was no probative evidence of the matters in that sentence and that the conclusion was based on suspicion or speculation, rather than on some probative material or logical grounds relying upon the decision in Rawson Finances Pty Ltd v Federal Commissioner of Taxation (2013) 93 ATR 775; [2013] FCAFC 26 at [62] (Jessup J) and [83]-[84] (Jagot J).

9. That was a case dealing with an appeal from a decision of the Administrative Appeals Tribunal which explains the reference in those paragraphs to a question of law.  Of course, the issue before this Court is whether there is jurisdictional error which is slightly different. 

10. Nevertheless, it may be accepted that a jurisdictional error may be established if there is a finding of fact upon which the decision is based for which there was no basis in the material, and when I say no basis, I mean no evidence or other material from which there may be drawn a logical inference to support the finding. 

11. When the applicant arrived in Australia he was interviewed for his application for a protection visa.  In that interview, he was asked about the way in which he came to travel to Australia and he explained that he paid a significant sum of money for that purpose.  The applicant was asked, “has the remaining money been paid yet? How will you pay the money?”  The applicant said that he had not paid the remaining amount yet, the remaining amount being 7 lakh rupees. He said:

    I have land I am trying to sell it to pay it. 

12. In support of his protection visa application, the applicant made a statement in which he explained that he did not have enough money to buy what he needed to grow bananas on the property owned by his mother. He said:

    I went to several banks in neighbouring suburbs to try and get a loan.  The banks all wanted me to have deposited money with them or to give them the deeds to our land as security but I couldn’t do that as the deeds belonged to the family farm not me, personally.  My mother is still alive and the deeds were in her name.  No bank would lend me any money.  “In Sri Lanka, banks’ collateral requirements preclude many people from securing loans.”

    (Citation omitted)

13. In my view, the combination of what the applicant said in respect of the loan with which he paid for his travel to Australia and what he said in support of his protection visa application provide a probative basis for the inference drawn by the Tribunal at [23] that it was reasonable to conclude the applicant has recourse to some financial assistance from his mother, by reference to the land owned by his mother. 

14. The Authority inferred that there would be two ways upon which this financial assistance could be obtained: first was that it could be sold either in whole or in part, and secondly, it could be used by the applicant’s mother, if not by the applicant himself as collateral for a formal loan from a financial institution. The fact that land in Sri Lanka could be used as collateral for a loan is an obvious inference that arises from the applicant’s statements in support of his protection visa application. In fact, that was the extent of the applicant’s own evidence.

15. The fact that the land could be sold and, indeed could be sold either by the mother or by the applicant, is a matter that was logically based on what was said by the applicant at the entry interview in respect of his ability for the way in which he proposed to pay the outstanding amount of money that he had acquired in order to travel to Australia.  While there is some tension between the statement made in support of the protection visa application and the statement made in the entry interview, that does not mean that there was not probative material before the Authority of the fact that it was reasonable to conclude that the applicant had recourse to finances by reference to that land. 

16. The applicant himself said that he was trying to sell the land.  That suggests that he had some ability to do so, either directly by himself or with the assistance of his mother.  One of the suggestions made in submissions by the applicant, either expressly or by implication, is that there was no suggestion in the evidence that his mother might be willing to depart with, or encumber her land in order to assist her son. 

17. I do not accept that submission in light of what was said at the entry interview, but I find that there was evidence before the Authority to make the finding in the last sentence at [23].

Conclusion

1. For that reason, the only ground in the application must fail and the applicant must be dismissed. 

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       20 December 2017