DJQ16 v Minister for Immigration

[2019] FCCA 2208

FEDERAL CIRCUIT COURT OF AUSTRALIA

DJQ16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2208

Catchwords:

MIGRATION – Application for review of Immigration Assessment Authority (IAA) decision – whether the IAA decision was affected by jurisdictional error – whether the IAA failed to consider a claim or integer of a claim that arose on the information and evidence before it – no jurisdictional error revealed – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Cases cited:

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503
Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609; (2008) 49 AAR 77
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALR 630; (2003) 75 ALD 630

Applicant: DJQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3109 of 2016

Judgment of: Judge Nicholls

Hearing date: 8 August 2019

Date of Last Submission: 8 August 2019

Delivered at: Sydney

Delivered on: 14 August 2019

REPRESENTATION

Legal Representative for the Applicant: Mr R.T. Selliah

Solicitors for the Applicant: Rasan T Selliah & Associates

Counsel for the Respondents: Mr T. Reilly

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application made on 11 November 2016 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $7206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3109 of 2016

DJQ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 11 November 2016, seeking review of the decision of the Immigration Assessment Authority (“the Authority”) made on 7 October 2016 which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse to grant the applicant a Safe Haven Enterprise Visa (“SHEV”) (a protection visa).

2. The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (the Court Book – “CB” –  “RE1”), and the affidavit of Freshta Nawabi, law student, made on 7 March 2017, annexing a transcript (“T”) of the applicant’s interview with the delegate held on 8 July 2016.

Background

1. The applicant is a citizen of Sri Lanka (CB 206 – CB 209). He arrived in Australia on 28 September 2012 ([1] at CB 540). The applicant applied for a SHEV, which was received by the Minister’s Department on 8 February 2016 (CB 13 – CB 49).

2. The applicant claimed to fear harm if he were to return to Sri Lanka from the Sri Lankan authorities, and in particular, the Criminal Investigation Division (“the CID”).

3. The basis for this fear was said to be his Tamil ethnicity, Hindu religion and the suspicion that his family were supporters of the Liberation Tigers of Tamil Eelam (“the LTTE”).  In particular, the CID suspected that the applicant’s brother was a supporter of the LTTE in 2008.

4. The applicant relied on a number of instances of claimed past harm.  These arose from his claim that his brother had a grocery shop in an area formally controlled by the LTTE.  The LTTE used to buy groceries from this shop.  His brother was targeted by the CID, and he fled to India.

5. The applicant claimed that he was then targeted by the CID, who stopped him on the way to school, and beat him to reveal his brother’s whereabouts.  He was subsequently questioned by the CID on about another 10 or 12 occasions between 2009 and 2012.  On one occasion in 2009 he was taken to the bush and assaulted by the CID ([8] at CB 541).

6. In July 2012 he was detained abducted and taken to the same bush area where he was beaten and questioned by the CID, to reveal his brother’s whereabouts.  He fled to Australia after that incident.  The CID had since gone to his father’s house looking for the applicant.

7. The applicant was interviewed by the delegate on 8 July 2016. The delegate refused the grant of a SHEV (CB 506 – CB 533). The applicant’s matter was referred to the IAA on 7 October 2016.

The IAA’s Decision

1. Both parties have set out a summary of the IAA’s findings which provide background to the consideration below.

   1    The applicant’s submissions at [18] – [19]:

   “18. The IAA’s fact finding can be found in paragraphs [5]-[13] of its decision. The facts found are as follows:

a. The applicant’s older brother owned a grocery shop from the years 2006-2008. Older brother's only connection to the LTTE is the LTTE buying groceries from his brother's shop. He was targeted by the CID as a suspected LTTE supporter and threatened with death, thus fleeing to India in 2008.
b. After the applicant’s brother fled, the applicant was targeted by the CID 10-12 times. He also fled after being threatened with death if he were unable to provide the location of his brother.

c. The IAA was satisfied the applicant’s evidence was consistent on key points but was prone to exaggeration, in describing the CID’s efforts to target both him and members of his immediate family, At paragraph 11 IAA stated that he made no mention in his February 2016 application of any other visits by the CID (it must be noted that the old statement attached to the 2016 application and no interpreter provided to him at this stage).

19. The IAA considered the applicant’s refugee status and susceptibility to persecution if he were to be sent back, in paragraphs [15]-[40]:

a. At [30], the risk of harm to the applicant was evaluated in accordance with UNHCR guidelines, which the applicant failed to satisfy. The IAA cited Four reasons: (1) his residence in an LTTE-controlled area in itself was insufficient to substantiate a need for protection (2) the CID’s focus was never on the applicant but rather, his brother (3) the CID had not made enquiries with his family about his own whereabouts since 2013 (4) had not made enquiries about his brother and this was considered with the improvements in Sri Lanka since 2015 with the change of government. Given the above factors the IAA concluded the risk of harm to the applicant is remote.

b. The IAA concluded that the applicant did not meet the requirements of s.5H(1) nor did they meet the requirements of s36.2(2)(aa) of the Migration Act 1958 (Cth).”

2    The Respondent’s submissions at [9] – [19]:

“9. The IAA accepted the following aspects of the applicant's claims; namely, that the applicant's oldest brother ran a grocery shop in an LTTE-controlled area and the LTTE bought groceries from the shop; that the applicant's oldest brother was targeted by the CID and subsequently fled to India at the end of 2008; that another older brother was in turn targeted by the CID about the oldest brother's whereabouts and fled to Malaysia two months after the oldest brother left for India; in 2009 the CID detained, beat and questioned the applicant about the whereabouts and contact details of his oldest brother; on a number of other occasions between 2009 and 2012 the CID also stopped and questioned the applicant about his oldest brother; and in early July 2012 the applicant was detained, beaten and questioned by the CID about the whereabouts and contact details of his oldest brother (at [10]).

10. Given the applicant was stopped and questioned by the CID on up to 12 occasions, including two serious incidents, over a period of three or so years from 2009 to 2012, the IAA accepted as plausible that the CID would make some enquiries about his own whereabouts between July 2012 and August 2013. Whilst the IAA accepted that there were up to three visits by the CID to the applicant's father to ask about his whereabouts in the year after he left Sri Lanka, the IAA rejected as an embellishment the applicant's claim that the CID were not targeting his younger brother (at [13]).

11. The IAA found that there was not a real chance that the applicant would, as a Tamil male from the north, face harm upon his return to Sri Lanka, now or in the foreseeable future (at [24]).

12. The IAA was not satisfied that the applicant would face a real chance of harm from the Sri Lankan authorities due to any perceived links to the LTTE on return to Sri Lanka now or in the reasonably foreseeable future (at [31]).

13. The IAA accepted that the applicant and his family lived in LTTE controlled areas for a time during the war; the Sri Lankan authorities were interested in the applicant's oldest brother who ran a grocery shop in Vavuniya from approximately 2006 to 2008 and members of the LTTE bought groceries in the shop; the applicant was questioned a number of times between 2009 and 2012 about his oldest brother's whereabouts and contact details, including being beaten and threatened on two of those occasions, once in 2009 and again in July 2012; and the CID asked about his whereabouts after he left Sri Lanka (at [30]).

14. Having regard to the UNHCR guidelines, the IAA was not satisfied that the applicant was at risk of harm for a number of reasons. The IAA considered any risk of harm to the applicant from the authorities based on his profile, including as a Tamil male from the north, to be remote (at [30]).

15. The IAA was not satisfied there was a real chance that the applicant would face harm on his return to Sri Lanka as a failed Tamil asylum seeker from Australia, now or in the reasonably foreseeable future (at [38]). The IAA accepted that, on his return to Sri Lanka, the applicant may be considered by the authorities to be a failed asylum seeker (at [32]). The IAA found that the applicant departed Sri Lanka legally by air, using his passport, and was not satisfied that the applicant was at risk of persecution under the Immigrants and Emigrants Act (at [33]).

16. The IAA accepted that an asylum seeker with actual or perceived links to the LTTE may be at risk of harm when processed at the airport. The IAA also accepted that the Sri Lankan authorities were previously interested in the applicant's oldest brother due to suspicion he was a supporter of the LTTE. The IAA however found that the current Sri Lankan authorities no longer had an adverse interest in the applicant or his oldest brother. The IAA accordingly did not accept that the applicant would be at risk of adverse attention from the Sri Lankan authorities when scrutinised on arrival in Sri Lanka (at [37]).

17. The IAA accepted that the applicant may experience some societal discrimination as a Tamil male from the north. However, considering the applicant's circumstances as a whole, the IAA was not satisfied that the applicant had a well-founded fear of persecution within the meaning of s 5J of the Migration Act 1958 (the Act) (at [39]).

18. The IAA went on to consider whether the applicant satisfied the complementary protection criterion (at [41]-[46]). The IAA accepted that the applicant may face some level of societal discrimination as a Tamil male from the north, however was not satisfied that the discrimination the applicant may face amounted to significant harm (at [43]). The IAA was not satisfied that there was a real risk of significant harm to the applicant if he returned to Sri Lanka as a failed asylum seeker, due to any perceived links to the LTTE, or otherwise as a Tamil male from the north (at [44]).

19. The IAA accordingly affirmed the delegate’s decision.”

The Application to the Court

1. The application to the Court is in the following terms:

   “1. The Second Respondent committed jurisdictional error by failing to consider a claim or integer of claim that arose either expressly or clearly on the information and evidence before it.

Particulars:

1.1The Second Respondent did not consider the Applicant's claim that he fears harm from the Sri Lankan authorities for the reason he breached their warning that "if he fled like his brother and return he would be killed" and he fears he would be killed.

1.2The Second Respondent did not consider the Applicant's claim that his brother's food parcel supply to the LTTE which is separate to selling goods like other shop keepers. Paragraph 26 of the decision states that according to the UNHCR eligibility guideline 2012, real or perceived links with the LTTE may give rise to a need for the international protection ...and this may include:

·Former LTTE supporter who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;

·Persons with family links or who are dependent on or otherwise closely related to persons with the above profile

1.3The Second Respondent did not consider that his brother was chased and shot by the CID and he fled to India subsequently.

1.4The Second Respondent did not consider the Applicant's claim that he was tortured during his monitoring and interrogations, and that he fears that such beatings will continue in the course of future monitoring and interrogations.

1.5The aforementioned claims were all raised in the interview with the delegate of the Minister of Immigration and Border Protection.

2. Further grounds will be provided after I get the Court book and hearing transcript.”

[Errors in the Original.]

1. Although the application to the Court does not state that the application was prepared by a lawyer, lawyers who subsequently came onto the record proceeded to press the sole ground of the application. At the hearing the applicant was represented by his lawyer, and the Minister by his Counsel.

Consideration

1. What must immediately be said about the applicant’s ground and the four particulars, or instances, on which he relies, is that it is selective, and misunderstands, or misrepresents, the IAA’s reasoning.

2. Despite some concerns that the applicant was prepared to exaggerate, and that there was: “…an element of…exaggeration in some of his evidence” ([10] at CB 541), the IAA accepted what it otherwise said was the applicant’s generally consistent evidence on key points.

3. These were (at CB 541):

   “10. …his oldest brother ran a grocery shop in a LTTE controlled area from approximately 2006 to 2008; his oldest brother was targeted by the CID and fled to India at the end of 2008; the applicant was questioned and beaten by the CID in 2009 and 2012 about the whereabouts and contact details of his oldest brother; and, as far as he and the rest of his family know, his oldest brother’s only connection to the LTTE is the LTTE buying groceries from his brother’s shop…”

1. The critical finding made by the IAA on which much of its decision turned is set out at [12] (CB 542) of its decision record:

   “12. Country information suggests that monitoring and harassment of Tamils has decreased under the Sirisena government and, on a day-to-day basis, the Tamil community feels more confident to refuse or question the motives of monitoring activities undertaken by authorities.⁴”

[Footnote Omitted.]

1. I note that this mirrors the country information extensively referred to by the Minister’s delegate (see [90] – [106] at CB 523 – CB 526).

2. As set out above, the sole ground of the application asserts that the IAA in four instances failed to consider a claim, or any integer of a claim, in considering the application.

3. To support the proposition that such errors reveal jurisdictional error the applicant relies on AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 (“AYY17”). In that case the Full Court reviewed relevant authorities and set out the principles relevant to the consideration now of the applicant’s ground (at [18]):

   “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) 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) 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) 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 emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (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.”

1. I note for the sake of completeness that before the Court the applicant specifically referred to Kasupene v Minister for Immigration and Citizenship [2008] FCA 1609; (2008) 49 AAR 77 (“Kasupene”) (See above in [19] of this judgment, at [18](d) of their written submissions).

1. The applicant was legally represented before the Court. He was assisted, in part, by a registered migration agent during the processing of the application for the visa.

2. However in the current circumstances Kasupene is of no assistance to the applicant, because what he relies on in the particulars to his ground are the various statements he made during the interview with the delegate.  Those statements, as set out in the transcript of the interview that he has provided to the Court, speak for themselves.

Consideration: The First Particular

1. The first particular to the ground is that the IAA did not consider the applicant’s claim that he feared harm (he would be killed) from the Sri Lankan authorities for reason that he did not comply with: “…their warning that “if he fled like his brother and return he would be killed””.

2. The applicant submitted that this claim emerged at the interview with the delegate at T 23.  The entire statement is as follows, the part in bold is the part now relied on by the applicant:

   “Actually, I can’t live in Sri Lanka, that’s my birth place. Actually, I love to live in Sri Lanka but I have no freedom. I can’t keep there. I was threatened at gunpoint that if you escape from here and come back, if I see you again, I will shot and kill you. So there is no guarantee for my life in Sri Lanka. That’s why I came here. Otherwise I would have lived in Sri Lanka. My life is not guaranteed in Sri Lanka, I have problems. I can’t live peacefully. That’s why I came here.”

[Errors in the Original.]
[Emphasis Added.]

1. The applicant’s submission was that the IAA (at [10], CB 541 – CB 542), accepted certain “key points” as to the applicant’s past. However, the complaint is that the IAA did not consider, and failed to make a finding on, the claim as expressed at the interview.

2. I accept the Minister’s submission that the IAA was not obliged to refer to every piece of evidence before it.  (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at [46]). The IAA’s obligation is to deal with each claim, that is, the basis on which harm is feared if an applicant is to return to their home country.

3. However, evidence given by an applicant in relation to an application for a protection visa may contain, or may constitute in its terms a claim to fear harm, or is an essential component or integer of such a claim, which does engage the IAA’s obligation in the circumstances explained in the authorities referred to in AYY17.

4. The immediate question then is focused on what the applicant told the delegate, as relied on now by particular one to the ground, and the actual claim to fear harm that was made.

5. The applicant’s claim to fear harm on return to Sri Lanka was that he feared harm from the CID in the same fashion as he had been threatened, and harmed, by them in the past.

6. In the current case, the evidence reveals that the applicant did make the statement on which he now relies.  The issue now is whether that was an essential component of his claim, or whether the statement was such, that in the circumstances, it required consideration.

7. In his submissions now, the applicant seeks to draw a distinction between harm that he feared from the CID because of his brother, and harm that he feared from the CID in his own right.

8. That is, that the threat to shoot him, if he was seen again, was directed to him personally. The complaint is that the IAA did not consider this specific integer of his claim.

9. Throughout the application for the visa, including those times when the applicant has been variously represented by migration agents, and where a number of statements, documents and submissions were made, there is no reference by the applicant to fearing harm from the authorities (in context, the CID) for reason other than, relevantly, he was targeted because of his brother.

10. The IAA recognised this and accepted (despite some concerns) that the applicant’s evidence was consistent in this regard. That is, that he had suffered harm in the past for reason of his brother and the CID’s efforts to locate his brother, and would suffer similar harm in the future.

11. The applicant now relies only on what he said at the interview.  That needs to be read in context.  It is clear that at the interview, consistent with the applicant’s claims as expressed to that point, the delegate, properly in the circumstances, focused on the applicant’s elder brother, and what happened to the applicant as a result of the CID’s interest in him.  (See for example T 13, T 16 – where the applicant gave evidence about his brother’s shop, and the LTTE as his customers – T 17).

12. As the delegate explained (at T 18):

    “[Immigration Officer]: Sure. You see, why we are starting from your brother’s situation because, from what you have explained in your statement of claims and also what you mentioned now, is that all the problem you faced and even your youngest brother that now is living in Sri Lanka and your family, they are all suffering because of your brother’s situation. So we need to be clear about his situation first, then we can then make sense that why you were in trouble or why your family are in trouble. Do you understand?”

[Errors in the Original.]

1. The applicant’s response was (at T 18):

   “[Applicant through interpreter]: Actually, my brother had the shop and LTTE always buy things from his shop. He also provided food to LTTE. Because of that he was shot by CID and he escaped from it. When I was studying, I stayed in my brother’s shop. So because of that, CIDs always have seen me and asking me to give information about my brother and his involvement. Because of that I am having problems.”

[Errors in the Original.]

1. He further explained (at T 18 – T 19):

   “[Immigration Officer]:… So you need to make your mind or be upfront with me, what was the situation of your brother? Was he just simply a shopkeeper? Or was he an active LTTE member? Which one was that?

[Applicant through interpreter]: As far as I know, I am thinking probably because of his, because he was supplying things to LTTE, as well as food to LTTE, we are having problems. But I don’t know exactly what his involvement was with LTTE or any other involvement. But as far as we know, everything because he had the shop, he sold things to LTTE, he supplied food to LTTE, we are having problems.”

[Errors in the Original.]

1. The interview continued with the delegate putting certain country information to the applicant (T 19).  The focus however remained on the brother (at T 20.2):

   “[Immigration Officer]: …But, I’m not sure about your brother.  I’m still not clear about your brother’s situation.”

1. For current purposes, the applicant made his position as to the claimed fear of harm clear (at T 20):

   “[Applicant through interpreter]: Then, I don’t know why in Sri Lanka, the CIDs still targeting us, threatening us, and even they took me to the jungle. I was beaten and I was threatened at the gunpoint that I will be shot dead by the CID. I don’t know what his involvement was, but, I don’t know why the CIDs targeting me and my family, regarding my brother that I don’t know really what extent his involvement is. But I was threatened and targeted by the CID.”

[Errors in the Original.]

1. The consideration of the applicant’s argument now that the IAA failed to deal with a claim made by the applicant, is informed by what the delegate then told the applicant (at T 20):

   “[Immigration Officer]: Well, um, even if your brother had any involvement to the extent that CID was interested about him, that was previous, before the end of civil war in 2009. Now we’re in 2016, there is no more LTTE, there is no, you know, there is nothing for government to be looked after. The only interest they are having at the moment, from the country information we are accessing, is that Sri Lankan government is very much sensitive if they people they want to resurrect, to bring back LTTE, they are very much after those type of people. Otherwise, there is no LTTE. Why they need to be worried about where is your brother or anybody’s previous LTTE involvement, because it’s all gone. There’s no more LTTE.”

[Errors in the Original.]

1. The interview continued in this vein up to the part now relied on by the applicant (at T 23).

2. What emerges, therefore, is that the applicant’s evidence, in relation to this aspect of his claim, was clear.  He was threatened that he would be shot.  He claimed to have been threatened in the past, including that he would be “shot dead by the CID”, and: “…threatened at gunpoint that if you escape from here and come back, if I see you again, I will shot [sic] and kill you”.

3. The applicant now argues that this was a claim personal to him, and separate to the claims concerning his brother.  The first part of that argument must be accepted.  Plainly there was a threat directed to the applicant himself.

4. The second part of that argument, given the evidence before the Court, is to be rejected.  The threat to shoot him was not directed to the applicant, in context, for any other reason other than because of his relationship to his brother, and his failure to cooperate with the CID, and tell them of his brother’s whereabouts.

5. Critically, therefore, the IAA accepted that the applicant had been threatened by the CID in the past.  But this was because of his brother, and the brother’s activities.

6. Given the evidence before the Court, there is no legal error in the IAA’s reasoning in this regard.  While the threat to kill the applicant was directed to the applicant, it was because of, and arose from, the CID’s interest in, and concerns about, the applicant’s brother.

7. The IAA’s finding that, given the passage of time and country information before it, that the applicant would not face harm in the future, was reasonably open to it for the reasons that it gave.

8. For current purposes, the IAA considered the claim of past harm in the context in which the applicant presented it.  The IAA did not fail to consider the claim as expressly made, or clearly arising on the circumstances presented.

9. In all, particular one is not made out.

Consideration: Particular Two

1. Particular two asserts that the IAA did not consider the applicant’s claim that his brother gave “food parcels” to the LTTE. This was said to be different or was separate to selling goods to the LTTE.

2. The applicant relies on the following from the interview with the delegate, to make good this assertion:

   1    At T16.5:

   “[Applicant through interpreter]: Actually, my elder brother Tivakkar had a shop and LTTE comes and buys things from his shop. And also we provide food to LTTE.”

   2    At T 17:

   “[Applicant through interpreter]: I think because LTTE comes and buys things from my brother’s shop, he has all the things in his shop. So most of the time LTTE comes and buy things from his shop. Also we provide food parcels to LTTE. I think that’s the reason.”

   3    At T 18:

   “[Applicant through interpreter]: Actually, our village Veerapuram was under the control of LTTE and LTTE-controlled area. And somebody has informed CID that my brother supplied things to LTTE and also provided food to LTTE. So somebody informed this to CID and because of that we are having problems. This is what my mother told me.”

   4    At T 18:

   “[Applicant through interpreter]: Actually, my brother had the shop and LTTE always buy things from his shop. He also provided food to LTTE. Because of that he was shot by CID and he escaped from it…”

3. The applicant’s submission before the Court was that at [30] (CB 545 – CB 546) the IAA only accepted that the LTTE bought groceries. That is that the applicant’s brother sold the groceries to the LTTE, whereas it is said the applicant’s claim was that he also gave food parcels to the LTTE.

4. The applicant’s argument was that selling goods to the LTTE would be seen as being in the conduct of business, whereas giving the goods to the LTTE should be viewed as a “positive” and voluntary act to further the LTTE’s cause.  Before the Court he sought to emphasise this distinction by focusing on the word “Also” as it appears at T 17 (see [52](2) above).

5. It must be said that there are elements of the applicant’s argument now that go beyond what is even implicit in the applicant’s evidence to the delegate at the interview.

6. There is nothing to say that the giving of the goods was voluntary.  He did use the word “provide”, but equally without more, it could be that the brother gave the goods to the LTTE under some compulsion.

7. This is not an obvious understanding, as the applicant now seeks to argue, of what the applicant told the delegate.  It is not plain on the materials before the IAA.

8. In any event, the applicant’s claim as it emerges (even with what was said in Kasupene in mind) was that he feared harm from the CID if he were to return to Sri Lanka, because they would treat him in a similar fashion as they had in the past.

9. That past interest by the CID in him, and their treatment of him, which the IAA accepted, was that he was targeted because of the CID’s interest in his brother, who had evoked their interest because as a shop owner he had dealings with the LTTE.

10. This is precisely what the applicant told the delegate: (T 20.8)

    “Even I don’t know why they are targeting us.  Only thing I know was he had a shop and he has [indiscernible] involvement with LTTE and he supplied food…”

11. As the Minister submitted, whether the applicant otherwise made statements about his brother selling food, or providing food parcels, the claim to fear harm as it was expressly made, and clearly arose from what the applicant told the delegate at the interview, was that he would be harmed in the future by the CID, as he had been harmed in the past, because of his brother’s dealings, or involvement, with the CID.

12. Whether the brother sold food to the LTTE, or “also” gave them food, does not alter the claim that the interests of the CID was because of his brother’s dealings, or relationship with the LTTE.  This is one claim.  It is a claim that the IAA considered.  In fact, it accepted that his brother had dealings through his shop with the LTTE (at [10] and [30]).

13. Particular two is not made out.

Consideration: Particular Three

1. Particular three asserts that the IAA did not consider that his brother had been chased, and shot at, by the CID, and had fled to India.

2. Before the Court, the applicant submitted that the IAA acknowledged the claim that in 2008 the applicant’s brother was targeted by the CID (at [5], CB 540). Further, that the IAA “explicitly” accepted that the brother was targeted and fled to India.

3. However, the applicant now relies on what he said at the interview with the delegate at T 18 (see [37] above). The applicant now describes the brother being shot at as being a “pivotal” issue.  The best explanation of this before the Court is in the applicant’s written submissions (at [35]).

4. The submissions state:

   “35. Simply mentioning the “brother’s whereabouts” does not constitute a consideration of the fact that the applicant’s oldest brother was only pursued by the CID, a powerful organ of the Sri Lankan state. The fact that the CID actively pursued his brother should be construed as obvious evidence that the brother was suspected of LTTE link that was serious enough to attract the attention of the country’s main intelligence organisation. Upon further investigation, it would be reasonable to conclude that the CID would also have implicated the applicant himself due to his work with his brother in the shop which supplied food parcels to the LTTE.”

1. What the applicant’s submissions did not satisfactorily address, or explain, was that the IAA accepted that the brother was pursued by the CID, and that they “actively” did so.

2. The applicant’s argument appears to seek to conflate the interest of the CID in the brother as creating an interest in the applicant, beyond simply being targeted by the CID because of his brother’s activities.

3. The submission now that “further investigation” would lead to a conclusion that, in effect, the applicant acted in the shop in the same fashion as his brother, does not arise from what the applicant himself told the delegate at the interview.

4. As the applicant stated (at T 18):

   “…When I was studying, I stayed in my brother’s shop. So because of that, CIDs always have seen me and asking me to give information about my brother and his involvement. Because of that I am having problems”.

[Errors in the Original.]

1. How the brother being shot at can be said to be a basis for the applicant’s fear of harm, beyond the fact that he was having “problems” because of his brother (which the IAA accepted), was not satisfactorily explained.

2. The IAA made no reference to the brother being shot at in its decision record. The Minister submits that it is implicit therefore that it has not accepted that “claim”.

3. This is problematic.  If it was a claim to fear harm then the IAA was required to properly consider it.  (See Minister’s submissions at [23]).

4. In my view the IAA did not refer in its decision record to the applicant’s evidence that his brother had been shot at because in the circumstances presented it did not need to do so.

5. It is to be remembered that the task for the IAA was to assess whether the applicant, not his brother, had a well-founded fear of harm if he were to return to Sri Lanka.

6. The importance of the brother to the IAA’s relevant consideration was that the applicant’s “problems” emanated from his brother’s activities which aroused the interest of the CID and lead them to question, and variously mistreat, the applicant.

7. Whether the brother was shot at or not, does not go to the assessment of the applicant’s claim to fear harm, in circumstances where the IAA accepted that for whatever reason the CID had an adverse view about the applicant’s brother, and mistreated the applicant in an effort to find the brother.

8. In all, particular three is not made out.

Consideration: Particular Four

1. Particular four asserts that the IAA did not consider the applicant’s claim that he had been tortured and beaten during his: “…monitoring and interrogations”, and that he fears such beatings will continue in the future.

2. It must be said that the applicant struggled to explain this particular before the Court. The applicant submitted that the IAA accepted that he had been detained and mistreated.  (With reference to [10] at CB 541 – CB 542).

3. If the IAA accepted the claim, then it is difficult to see how it can be said to have failed to consider it.

4. In his submissions, the applicant referred to the requirement for the IAA to “engage intellectually” with the claim of interrogation and mistreatment of the applicant.

5. Given that the IAA accepted that that was the case, I cannot see what further intellectual engagement was required of the IAA.

6. The IAA accepted that the applicant had been variously mistreated. It then considered whether, in the circumstances presented, this gave rise to a well-founded fear.  It found that it did not, for reasons that engaged with the claim as made (the connection to the brother), and which were reasonably open on what was before it, that it did not give rise to a well-founded fear.  (See at [30], CB 545 – CB 546).

7. Particular four is an attempt to cavil with the IAA’s findings by, in reality, arguing that it should have found for, and not contrary to, the applicant.  In all, particular four is not made out.

Conclusion

1. None of the particulars to the sole ground reveal jurisdictional error in the IAA’s decision.  It is therefore appropriate to dismiss the application to the Court.  I will make that order. 

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  14 August 2019