DHQ17 v Minister for Immigration
[2019] FCCA 4000
•7 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DHQ17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 4000 |
| Catchwords: MIGRATION – Protection visa application – review decision of the Immigration Assessment Authority – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.473CA |
| Cases cited: ASB17 v Minister for Home Affairs [2019] FCFC 38 |
| Applicant: | DHQ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2320 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 7 December 2018 |
| Date of Last Submission: | 7 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 7 December 2018 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr D McLaren Minter Ellison |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $7,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2320 of 2017
| DHQ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a judicial review of a decision of the Immigration Assessment Authority made on 30 June 2017. The Authority decided to affirm the decision of a delegate of the Minister to refuse to grant the applicant a protection visa.
The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 18 November 2012. The applicant lodged an application for a protection visa on 8 April 2016. The claims the applicant made in support of that application are set out in paragraph 8 of the Authority’s reasons:
8. The applicant's claims can be summarised as follows:
• He is a single, male Hindu Tamil from the Batticaloa District in the Eastern Province of Sri Lanka.
• Two of the applicant's brothers were LTTE cadres. They had fought with the LTTE at the beginning, and had been arrested and imprisoned for three years for being involved with the LTTE.
• Another of the applicant's brothers was imprisoned in K Prison from 18 January 1999 until 26 April 2000.
• In about 1997, the applicant was involved in a round-up of Tamils in his village by the Sri Lankan army and taken to the local school grounds where he was questioned about people believed to be involved with the LTTE and mistreated.
• In 2000, the applicant relocated from Batticaloa to Colombo and resided with his brother. While in Colombo, he worked with his brother who ran a jewellery business from his home.
• In 2002, the applicant travelled to the United Arab Emirates (UAE) on a work visa and remained there almost continuously until July 2011. The applicant returned to Sri Lanka for a vacation break for four months from February until June 2009.
• On return to Sri Lanka in 2011, the applicant lived in his home village in Batticaloa District and helped his father on their farm.
• He supported a relative who was contesting on behalf of a Tamil political party in the election period leading up to the Eastern Provincial Council 2012 elections. He assisted the candidate by organising meetings, putting up posters and canvassing with voters.
• In the lead-up to the election, he experienced harassment and threats from members of opposing parties.
• The applicant's candidate was successful in securing a position on the Council. After the election, opposing party members called the applicant and threatened to kill him. They also came to his house 3-4 times during September 2012 looking for him.
• The applicant departed Sri Lanka illegally by boat on 4 November 2012 and travelled to Australia.
• After he left Sri Lanka, his family reported to him that some people have come to the house searching for him. The visits by the people continued up until a year after he had left.
On 17 November 2016, a delegate of the Minister made the decision to refuse to grant the applicant a protection visa. That decision was referred to the Authority for review under s 473CA of the Migration Act 1958 (Cth).
On 8 December 2016 and later on 16 December 2016, the applicant’s migration agent wrote submissions to the Authority in support of the review. Those submissions were considered by the Authority in its decision of 30 June 2017 and the Authority also had regard to updated country information obtained by it.
The Authority’s reasons for its decision are, for present purposes, accurately set out in the respondent’s outline of submissions at paragraphs 7 to 11, and I adopt those for the purposes of this judgment, although it will be necessary to have regard in greater detail to some of the Authority’s reasoning:
7. The IAA accepted the applicant's claims about his profile as a single male Hindu Tamil from the Batticaloa District in the Eastern Province of Sri Lanka (CB 317, at [11]), and accepted much of his account of events. The IAA accepted the applicant had brothers who were detained on account of real or perceived connections to the LTTE (CB 317–318, at [14]–[15]), but noted that no other family members were involved in the LTTE (CB 318, at [16]). The IAA accepted the applicant was involved in a round-up in about 1997, but his release and subsequent ME_155601435_1
treatment indicated he was not of interest to the authorities and he was able to relocate to Colombo and travel to the UAE without incident (CB 318–319, at [17]–[20]).
8. The IAA accepted the applicant's account of his relative's involvement in the 2012 election, but found that the applicant did not have a prominent or senior position in the party or during the election campaign (CB 319, at [21]–[22]). While the IAA accepted the applicant was subject to threats and intimidation around the election period, possibly from people aligned with paramilitary groups such as the Karuna Group (CB 320, at [25]), it did not accept that anyone searched for him after his departure (CB 320, at [27]). The IAA found that the applicant would not be of any adverse interest to those who threatened and intimidated him during the election (CB 320–321, at [29], [32]).
9. The IAA noted country information did not support a conclusion that Tamils with the applicant's profile face harm (CB 321, at [30]), nor would he be denied the capacity to subsist (CB 321, at [31]). The IAA also did not accept the applicant would have a profile with the Sri Lankan authorities for actual or imputed support of the LTTE, or is considered to be a person of interest to members of pro-government parties or paramilitary grounds (CB 321, at [32]). In light of country information and the applicant's profile, the IAA did not accept the applicant would be targeted by the authorities, pro-government parties or paramilitary groups, nor that the intimidation faced by him in 2012 would resume on return (CB 321, at [32]). The IAA also did not accept the applicant would face harm as a failed asylum seeker (CB 322, at [40]).
10. In relation to the applicant's illegal departure, the IAA found that any experiences or penalties on return would not amount to serious harm and that the applicant would face a law which was not applied in a discriminatory manner (CB 322, at [37], [39], [40]). Ultimately, having regard to the applicant's profile and country information, the IAA did not accept the applicant would face a real chance of harm upon return to Sri Lanka (CB 322, at [41]).
11. For those reasons, the IAA rejected the applicant's claims and found he did not meet the requirements of the definition of refugee in subsection 5H(1) of the Act (CB 322, at [42]). For the same reasons, the IAA found that the applicant did not satisfy the complementary protection criterion (CB 323, at [46]). In this context, the IAA found that the applicant's experiences on account of his illegal departure would not amount to significant harm (CB 323–324, at [50]).
In an amended application, the application raises three grounds:
1. In 2012 the applicant assisted a candidate in the Eastern Provincial Council election. The applicant was subjected to intimidation and threats from people during the course of and arising out of his campaigning activities: at [25]. The applicant stated in his SHEV application that his "activities with the Tamil National Alliance ... put [him] at real risk". The applicant told the Department that he supported the Tamil people in achieving freedom through political means. In the circumstances, an issue for the Immigration Assessment Authority ("the IAA") to determine was:
a) whether the applicant would continue to engage in political activities if required to return to Sri Lanka and, if so, whether he faced a real risk of persecution or significant harm as a result; or
b) whether the applicant would be dissuaded from re-engaging in political activities if required to return to Sri Lanka because of his fear of persecution or significant harm. The IAA failed to deal with this aspect of the applicant's claims, which is a jurisdictional error.
2. The IAA accepted nearly all of the applicant's claims, other than his claim that, after arriving in Australia, "people continued to come to his home searching for him for another year but stopped when they knew he had come to Australia": at [27]. On a fair reading of the IAA's decision, the IAA had a real doubt as to whether its finding on this material question of fact was correct. The IAA ought to have considered, but failed to consider, the possibility that this claim by the applicant was true. This was a jurisdictional error by the IAA.
3. The IAA failed to consider the applicant's claims cumulatively. This is a jurisdictional error.
I will deal with the second and third grounds first.
The second ground concerns a statement at paragraph 27 of the Authority’s reasons that it had considerable doubt that opposing party members would continue to seek out or target the applicant in retaliation for the election result more than a year after the election had past.
The applicant alleges in ground 2 that this evinces some doubt in the Authority’s finding of fact and that in light of the principle explained by Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719, the Authority ought to have considered that possibility that the claim made by the applicant was true. I reject that contention.
It is not the case, as is implicit in this ground, that the expression of any doubt whatsoever gives rise to the obligation to consider the correctness or otherwise of other findings of fact or claims made by an applicant. In this case, the doubt expressed at paragraph 27 was simply another way of putting disbelief. In other words, it did not evince the possibility that the Authority might have been wrong in respect of its conclusion about the continued interest in the applicant after the end of the election. The doubt was about the applicant’s claim, not about the Authority’s conclusion.
The third ground is that the Authority failed to consider the applicant’s claims cumulatively. This ground has no merit either and it appears simply to be based upon the fact that the Authority did not say expressly that it had given cumulative assessment to the applicant’s claims. I accept the Minister’s submission that here there was no real obligation of the Authority to give a further assessment other than what it had already engaged in because of its conclusion that nothing that the applicant had put forward would give rise to ongoing problems on return to Sri Lanka: see Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at paragraphs [29] - [34]. The third ground is rejected.
I will return then to the first ground. Essentially this ground is that the Authority failed to consider whether the applicant might resume political activity or refrain from such activity out of fear of persecution. It is suggested that that claim arose on the material and the failure to consider it amounted to jurisdictional error.
It is well established that the failure by the Authority to consider a clearly articulated argument based upon established facts might amount to jurisdictional error. One of the leading cases in this area is NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263:
58 The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901;(2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247;(1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) [2001] FCA 263; (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
60 In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364 at 368 [17], Selway J referred to the observation by Kirby J in Dranichnikov, at 405, that ‘[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances’. He also referred to the observation by von Doussa J in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 that ‘[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made’ (at [16]). Selway J however went on to observe in SGBB (at [17]):
‘But this does not mean the application is to be treated as an exercise in 19th Century pleading.’
His Honour noted that the Full Court in Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 1801 at [49] had said:
‘The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention "label" to describe his or her plight, but the Tribunal can only deal with the claims actually made.’
His Honour, in our view, correctly stated the position when he said (at [18]):
‘The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.’
This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.
That judgment has been considered and applied on numerous occasions by the Full Court of the Federal Court: see EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214 at paragraph 36, Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198 at paragraph 42, Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at paragraph 17, ASB17 v Minister for Home Affairs [2019] FCFC 38 at paragraph 26, and in the context of Part 7AA, Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at paragraph 79.
Of particular assistance in respect of this matter are the following passages:
First, DFE16 v Minister for Immigration and Border Protection [2018] FCAFC 177 at paragraph 19 to 21;
19. The Tribunal must deal with claims that are expressly articulated and those which clearly arise from the materials before the Tribunal. This obligation plainly includes a claim raised by the evidence and contentions before the Tribunal which if resolved in one way would or could be dispositive of the review:NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [60][63].
20. Whether a failure to consider a matter raised in the context of an application for a protection visa goes to jurisdiction 'depends upon the circumstances of the case and the nature of the material; including the cogency of the material and its place in the assessment of the applicant's claims': Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [28] (Rangiah J, Reeves J agreeing).
21. As to those instances where a claim is made that the Tribunal should have considered a claim that arose on the materials even though it was not articulated as a claim by the applicant, the following passage in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] (Allsop J) was approved by the Full Court in Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161; (2013) 219 FCR 287 at [70]:
Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
Secondly, AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 (“AYY17”) at paragraph 18, referring to the decision of Barker J in AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (“AWT15”), and to the decision of Markovic J in SZUTM v Minister for Immigration and Border Protection [2016] FCA 45:
18. It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act(as discussed, for example, in BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169;(2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. 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 SelwayJJ).
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:
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.
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 Dranichnikovthat, 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] FCA 1609; (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.
The Minister submits that there was no claim that was either expressly made by the applicant or which arose in the sense examined by the authorities from the material or from the established facts. The Minister points in particular to the way in which the claim was framed in the protection visa application. That, of course, is the starting point for the analysis.
In response to question 89 in the protection visa application, “Why did you leave that country?” the applicant wrote relevantly:
After working in the United Arab Emirates for many years, I returned to Sri Lanka in 2011 and became active in the Tamil National Alliance as a result of a relative standing for this political group. Some of my older brothers have been politically active in Tamil freedom movements. I wanted to do something for my country. My activities with the Tamil National Alliance drew the attention of the Karuna Group. I chose to depart Sri Lanka in order to protect myself as I considered that I may be in danger and harmed.
Question 94 in the protection visa application form asked the applicant:
Do you think you will be harmed or mistreated if you return to that country or countries?
The applicant ticked the “yes” box and gave the following details:
Yes. I consider I will be harmed or mistreated should I return to Sri Lanka because I was involved with the Tamil National Alliance and the political processes leading up to the election. I am associated with that entity. Oppositional political groups recognise my association and, being of Tamil ethnicity, I still fall under scrutiny of the Sri Lankan Government. Mistreatment in Sri Lanka may come in many forms. Examples that may happen to me should I return include violence against my person, extortion, abduction and unlawful imprisonment. I am a single Tamil male whose family members have been associated with Tamil independent politics, and I am associated with GK, who stood for office in the Tamil National Alliance.
Although the applicant attended an interview before the delegate and was asked questions about his involvement in the 2012 election campaign, see for example page 249 of exhibit A, he appears not to have given any evidence about any future possible involvement in the election campaigns or the TNA itself. Indeed, the delegate recorded his claim as being one based upon his previous support for the TNA, an involvement in the 2012 election, see exhibit A, page 248.
There was nothing in either of the submissions from the applicant’s migration agents that suggested any further involvement in election campaigns for the TNA. The Authority dealt with the applicant’s political opinion and activity claim at paragraphs 27 to 32 of its reasons, which were also echoed at paragraph 46:
27. I accept that people may have been searching out the applicant in the immediate aftermath of the election results (up until the end of September 2012), however, I have considerable doubt that opposing party members would continue to seek out or target the applicant in retaliation for the election result for more than a year after the election had passed. Given the applicant did not hold a prominent or senior role with the TULF/TNA, was not directly involved in clashes occurring between opposing supporters, and did not appear to be targeted for intimidation independently of other campaigners, I am not satisfied that people came to the applicant's house searching for him after his departure from Sri Lanka.
28. The delegate suggested to the applicant during the visa interview that a number of significant political changes in Sri Lanka have occurred since the applicant's departure from Sri Lanka that would reduce the risk he would face harm as a result of actual or imputed political opinion and his support for his relative's campaign in 2012. In particular, he raised that country information indicated that paramilitary groups such as the Karuna Group had lost power and influence and were no longer politically active and that since 2012, Sri Lanka has engaged in relatively peaceful elections, with the TNA now formally leading the Opposition. The delegate indicated that reports about the circumstances in Sri Lanka did not indicate TULF/TNA supporters had been targeted based on their political opinion. The applicant responded by stating that while this may be the status at the moment, there was a chance that the government could change in one to two years, with the previous President coming back into power and the paramilitary groups rising again. I consider the applicant's concern, while genuine, is speculative at best and I do not consider this concern to undermine or detract from the force of the country information.
29. I note that nearly five years have passed since the 2012 elections. While it is possible that some of the members of the opposing parties, including former Karuna Group, might still reside in the applicant's local area, given the passage of time, the changed political environment and that the applicant's family have not been visited by people searching for the applicant since his departure from Sri Lanka, I am not satisfied that any adverse interest in the applicant by the same people who intimidated and threatened him in 2012 would resume on return to his village.
30. In addition to the country information referred to above, recent reports before the delegate do not support a conclusion that Tamils, including single Tamil men from the Eastern Province, are being systematically targeted and subjected to serious harm because of their race and/or area of origin.6 The United Nations High Commissioner for Refugees Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka issued in 2012, states that in its opinion, originating from an area previously controlled by the LTTE does not of itself result in the need for international refugee protection.
31. The law in Sri Lanka prohibits discrimination based on race, sex, gender, disability, language or social status.8 I note that the applicant has completed secondary schooling in Batticaloa and since leaving school obtained employment in his brother's jewellery business in Colombo and in cleaning and domestic services while working in the UAE. Since arriving in Australia, the applicant has been employed in flower cultivation and has demonstrated a capacity to be flexible in securing employment. I am not satisfied that he would be prevented from obtaining employment such that he could subsist, on return to Sri Lanka.
32. For reasons already stated, I do not consider the applicant has a profile with the Sri Lankan authorities for actual or imputed support of the LTTE, or is considered to be a person of interest to members of pro-government parties or paramilitary groups, such as the Karuna Group, for his political opinion and arising from his involvement in his relative's election campaign for the 2012 Eastern Provincial Council. Given the applicant's profile, the country information about the change in Sri Lanka's political and security landscape and the reduced
influence of paramilitary groups, including the Karuna Group, I am not satisfied that the applicant would be targeted by the Sri Lankan authorities or members of pro-government parties or paramilitary groups on return to Sri Lanka. In respect of the individuals who were responsible for intimidating and threatening the applicant during the course of the election campaign and in its immediate aftermath in 2012, given the passage of time and that his family continue to reside in the village and have not reported any harassment or further visits by people searching for the applicant since his departure, I am not satisfied that the intimidation faced by the applicant in 2012 would resume on his return to Sri Lanka.
46. For the reasons already stated, I have found that there is not a real chance the applicant will face serious harm from the Sri Lankan authorities or from members of pro-government political parties which may include members of paramilitary groups such as Karuna, on return to Sri Lanka due to his Tamil ethnicity and/or because he originates from the Eastern Province, for imputed LTTE involvement due to his familial connections, for his political opinion arising from his support of a TULF/TNA candidate in the 2012 Eastern Province Council elections, or as a returned asylum seeker. As 'real chance' and 'real risk' involve the same standard, it follows that based on the same information, and for the reasons stated above, lam also satisfied there is no real risk of significant harm on these bases if returned to Sri Lanka.
It is clear from paragraphs 28 and 32 in particular that the Authority did consider the claim as expressly made, namely, that the applicant held a particular political opinion and that he feared harm as a result of that and his involvement in the 2012 election campaign.
The question raised by ground 1 is whether it ought to have gone further and, in particular, whether it ought to have assessed the possibility that in the future the applicant would again be involved in election campaigns. In my view, the matter is finely balanced. On the one hand, the established facts were that the applicant had a political opinion and as an expression of that had engaged in certain political activities, limited though they were.
There is no question on the Authority’s findings that the applicant maintained his political opinion, and there was no real question that there would in the future be future election campaigns. So the question arises from those established facts whether there would be a bridge between the applicant’s continued political opinion and those election campaigns. Standing against the argument that the Authority considered the existence of that bridge is the fact that although the applicant was represented by migration agents, that particular claim was never expressly made and, quite clearly, the claim was based upon past involvement.
Although the matter is, as I have said, finely balanced and has caused me some concern, ultimately, the application of the principles explained in AYY17 dictate the outcome in this case. In particular, the reference to the summary by Barker J in AWT15 at 67 to 68. The principle in this case, the factors I give greater weight to are the fact that the applicant was represented and that, in spite of the articulation of his claim by the delegate, there was no attempt to explain that the claim, in fact, the delegate went further than what had been expressly made in the protection visa application as reflected in the delegate’s decision.
In those circumstances, although the Authority’s task is to some extent a speculative one and it is not entirely bound to consider only what the applicant raises, the possible future involvement of the applicant in election campaigns was not one that was sufficiently raised in order to require the Authority to consider it. While minds might differ about that conclusion, I am not satisfied that the Authority fell into jurisdictional error in failing to address itself to the possibility raised by the applicant in ground 1. For those reasons, I would reject ground 1.
I am not satisfied that there was jurisdictional error in the Authority’s decision. As a consequence, the application must be dismissed.
I certify that the preceding twenty-nine (29) paragraphs appear to be a true copy of the transcript of reasons for judgment of Judge Smith
Date: 31 May 2019
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