DKN17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1155
•6 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DKN17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1155
File number(s): BRG 556 of 2022 Judgment of: JUDGE EGAN Date of judgment: 6 December 2023 Catchwords: MIGRATION LAW – Claims by Applicant that the Authority had failed to consider integers of claim - No jurisdictional error established – application dismissed Legislation: s. 5H(1) and s. 5J of the Migration Act 1958 (Cth). Cases cited: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] – [46] per Bell, Gageler and Keane JJ.[;’./
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15]per Allsop J.
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of last submission/s: 30 November 2023 Date of hearing: 30 November 2023 Place: Brisbane Solicitor for the Applicant Mr D. Taylor of Sydney West Legal and Migration Solicitor for the First Respondent: Ms L. Heldson of Sparke Helmore Lawyers ORDERS
BRG 556 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DKN17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
6 DECEMBER 2023
THE COURT ORDERS THAT:
1.The Amended Application for Review filed on 29 November 2023 be dismissed.
2.The Applicant pay the First Respondents’ costs of and incidental to the Application for Review fixed in the amount of $8,371.00.
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 EGAN
INTRODUCTION
The applicant is a citizen of the Republic of Sri Lanka and is of Tamil ethnicity.
The applicant arrived in Australia as an unauthorised maritime arrival in October 2012. On 29 February 2016, the applicant applied for a Safe Haven Enterprise Visa (SHEV).
On 25 November 2016, a delegate of the Minister refused to grant the visa to the applicant. A review of that decision to the Immigration Assessment Authority (‘the Authority’) was unsuccessful by a decision handed down on 30 June 2017.
An Application for Review of that decision of the Authority was successful, and the matter was remitted to the Authority for its reconsideration.
On 2 November 2022, the Authority reaffirmed the decision of the delegate.
At [15] of its reasons, the Authority recorded the applicant’s claims for protection as follows:
15. The applicant’s claims can be summarised as follows:
•The applicant was born in 1989, in an army-controlled area in Batticaloa, Eastern province of Sri Lanka.
•In 1990, his family were displaced and moved to an area under the control of the Liberation Tigers of Tamil Eelam (LTTE). The applicant’s parents were not members of the LTTE, but as Tamils were required to assist the LTTE. The applicant’s father owned a tractor and used it to transport soil for the LTTE and the LTTE also borrowed the family’s motorcycles.
•In 1998, the applicant’s family returned to the army-controlled area.
•In 2000, the applicant witnessed the abduction of his older brother from the area while they were on their way home from school. A white van pulled his brother inside leaving the applicant behind. The applicant’s parents reported the incident to the police but for safety fears for the applicant and his other brothers’, they did not make a statement nor asked too many questions about their missing son. The applicant’s brother is still missing, and the family have no information about him.
•After the applicant’s brother’s abduction, the applicant’s father started consuming alcohol and disappeared approximately three months later. He was not found, and the family have no information about his whereabouts.
•From 2001, the applicant’s family owned two buses and were well known in the community.
•From 2001, the applicant’s family owned two buses and were well known in the community.
•From about 2006, members of the TMVP extorted money form the applicant’s family. For instance, the applicant’s family purchased diesel from a specific petrol station in Batticaloa where members of the TMVP also used to fill up their vehicles. The TMVP members would tell the petrol station owner that the applicant’s family would pay for their diesel.
•Paramilitary groups targeted Tamil families, like the applicant’s, who had previously resided in LTTE-controlled areas and extorted money from them. The applicant’s uncle owned two trucks and was also targeted.
•In 2012, the applicant’s brother received a call from an unknown person asking for the applicant’s whereabouts. The person sounded very authoritative and threatening and the applicant’s brother hung up and did not answer subsequent calls and did not tell the applicant about the calls.
•In April 2012, members of the paramilitary group tried to abduct the applicant while he was on his motorbike going home from the temple. The applicant escaped. The applicant’s mother reported the incident to the police and the Human Rights Commission. Due to fear for his safety, the applicant stayed at his aunt’s house after work and was dropped off at home late at night to sleep.
•During the 2012 election, the applicant’s family hired their buses to Tamil political parties like the Tamil National Alliance (TNA). At times they also provided their buses to be used by paramilitary groups, who threatened to cause them problems if they failed to provide them their buses. At times the family had to refuse to hire their buses to paramilitary groups as the buses were hired by Tamil political parties who actually paid the applicant’s family. This would cause problems with the paramilitary groups. At one time stones were thrown at the bus and on one occasion a passenger was injured.
•The day after the September 2012 election, a bomb was thrown at the applicant’s family home. The police were called. They took photographs and gave the family a written record of the incident.
•The applicant’s mother became fearful for the applicant’s safety and was trying to find a way for the applicant to leave the country. The applicant contacted a person in Batticaloa who made arrangement for him to depart Batticaloa for Australia. The applicant departed Batticaloa on 26 September 2012 and arrived in Australia in October 2012.
•Towards the end of 2012, the applicant’s brother received a call from an unidentified person asking about the applicant’s whereabouts.
•In 2015, the paramilitary groups took one of the applicant’s family’s buses. The family reported it to the police. After a month, the bus was returned to a private bus company all broken and damaged.
•A person who travelled with the applicant to Australia attempted to renew his Sri Lankan passport. The government knew that he was in Australia and refused to renew his passport.
•The applicant has posted anti-government messages on his Facebook account. The authorities would have become aware of this and will bring it up on his return to Sri Lanka.
•The applicant fears harm at the hands of paramilitary groups due to the past incidents. The applicant also fears that he will be harmed by the Sri Lankan authorities for reasons of his Tamil ethnicity, having resided in a former LTTE-controlled area, his illegal departure and having sought asylum in Australia.
At [16] of its reasons, the Authority recorded what constituted a person as a refugee under the provisions of s. 5H(1) of the Migration Act 1958 (Cth) (‘the Act’).
At [17] of its reasons, the Authority recorded what constituted a well-founded fear of persecution under the provisions of s. 5J of the Act.
In its reasons, the Authority recorded that it had had regard to relevant country information.
On 7 December 2022, the applicant filed an Originating Application for Review of the decision of the Authority.
On 29 November 2023, an Amended Application for Review was filed on behalf of the Applicant.
Grounds of Review
At the hearing before the Court, the applicant was given leave to further amend such Amended Application to substitute the word “Presidential” for the words “human rights” where those words appeared in Grounds 1 and 2. The Grounds of Review were as follows:
1.The Secretary unreasonably failed to refer to the Authority the Presidential Commission documents concerning the reporting of his brother’s kidnapping, shown by the Applicant to the Delegate in the Protection Visa Interview held on 1st June 2016, and a copy of which is annexed to his affidavit of 6 November 2023.
Particulars:
i.In the PV interview immediately prior to 45 minutes the Applicant provided documents to the Delegate and said:
Interpreter: Okay I have a document, it’s with like the human rights organisation 392 but unfortunately the date, the date is wrong. Okay so essentially this is 393 my brother’s ID and his birth certificate and this is the statement that 394 was made but there’s one error in that they had mistakenly entered the 395 date of when he was, the year as 99 instead of the year as 2000.
ii. The documents were provided to the Delegate but were not referred to the IAA.
iii. Had the documents been before the Authority it would have considered the claim that the family were targeted and the applicant was at risk because of being a member of a family seeking justice for the abduction of their son/brother.
2. The Authority failed to consider a critical integer of the applicant’s claims.
Particulars;
a.The Authority purported to assess the applicant’s claims to be at risk because of being a witness to his brother’s kidnapping but did not consider the claim in the context of the broader claim arising on the materials that he was at risk as a member of a particular social group of a family which was a victim of a human rights abuse seeking justice for the abduction of their son/brother.
b.The Authority found at 22 that ‘At the SHEV interview, the applicant stated that due to fear for the safety of the applicant and his other brothers, his mother did not give a statement and that the family did not ask too many questions…”
c. The Applicant in the SHEV interview stated
[approx 41:30] Interpreter: Okay so we couldn’t, we didn’t make any kind of statement and they refused to take a statement when we spoke about
their abduction and I believe that they were also somehow involved.
d. The Authority in assessing the applicant’s claims that the authorities were involved in the kidnapping, and secondly that he was at risk for being the witness to it, the Authority misunderstood and failed therefore to consider that the applicant had personally attended the police station and they refused to take a statement.
e.The Secretary unreasonably failed to refer to the Authority the human rights commission documents concerning the reporting of his brother’s kidnapping, shown by the Applicant to the Delegate in the Protection Visa Interview held on 1st June 2016, and a copy of which is annexed to his affidavit of 6 November 2023.
f.Had the Authority considered the integers of the claims by the Applicant that the police refused to take a statement and that he believed that they were involved, it could have come to a different conclusion about (1) whether the authorities or paramilitaries associated with the government were involved in his brother’s kidnapping: and whether the family was subjected to ongoing threat and persecution because of seeking justice
g. The second Authority failed to address why the family was targeted in the bombing and to assess the claim arising on the materials that it was associated with the family seeking justice for the abduction of their son/brother.
h. The First Authority had found that the bombing was “directed at the family generally, and not to the applicant individually” [at 26, CB102].
i. , and the Second Authority failed to address the claim that he was a member of a family which was targeted in this way in 2012 with the bombing [at 38].
j.The Second Authority in assessing only that the bombing was not directed at the applicant personally because of being a witness, failed to assess whether the bombing was directed at the family because of their reporting the abduction of their son/brother.
k. The Authority failed to consider a claim arising on the materials that the Applicant’s family as a unit were and remained under threat to not raise or give evidence about the kidnapping of the applicant’s brother.
l. The Authority failed to consider the magnification of the risk arising from the formal complaint lodged with the Presidential Commission.
Consideration of Grounds of Review
Ground 1 was a claim that the Secretary had unreasonably failed to provide the Authority with copies of documents which had been submitted to the Presidential Commission To Investigate Into Complaints Regarding Missing Persons by the applicant’s brother. It was accepted on behalf of the Minister that such documents had been provided to the Minister, but that they had not been provided to the Authority. It was submitted on behalf of the Minister, however, that even if the Authority had considered the subject documents, it could not realistically have arrived at a different decision. The Court agrees with the submissions made on behalf of the Minister in that regard.
First, the documents which constituted Annexure NG-1 to the affidavit of the applicant filed on 29 November 2023 were untranslated identification documents relating to a relative of the applicant, save for one page which was not a submission made by the applicant to the Presidential Commission, but was rather a submission made to that Commission by an older brother of the applicant.
It was submitted on behalf of the applicant that had the Authority had access to such documents, the Authority “ … would have considered the claim that the family were targeted and the applicant was at risk because of being a member of a family seeking justice for the abduction of their son/brother”. The difficulty with such submission was that no such particular social group was ever identified in submissions made on behalf of the applicant to the Authority. Submissions were made to the effect that the applicant was a member of a particular social group comprised of those who had witnessed a crime against humanity, namely the alleged abduction of the applicant’s brother. [1] The claim regarding the applicant being a member of a family seeking justice for the abduction of the applicant’s brother was not relevantly articulated or advanced. That was so in circumstances where at [24] of its reasons, the Authority had accepted that the applicant’s brother had been abducted by unknown people in 2000, and further, where at [22] of its reasons, the Authority found that the applicant’s brother had been asked to register missing persons with the authorities. The Authority, at [29] and [34] of its reasons, considered the applicant’s claims concerning the alleged abduction of the brother, but such claims did not prevent the Authority from finding that based upon all of the information before it, the Applicant did not face a real chance of persecution for any reason should he be returned to Sri Lanka.
[1] See submission made to the Authority dated 16 September 2022 at Court Book (CB) pp. 161 – 162.
In reliance upon country information, the Authority, at [42] – [49] inclusive of its reasons, found that the security situation for Tamils in Sri Lanka had improved significantly since the end of the war in May 2009. Accordingly, in circumstances where the Authority found that the applicant was not of a profile where he would be persecuted should he be returned to Sri Lanka, the non-provision to the Authority of the subject documents was immaterial, in that it could not realistically have resulted in the Authority arriving at a different decision from that which it did. [2] Ground 1 is without merit.
[2] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] – [46] per Bell,
Gageler and Keane JJ.
Ground 2 was a claim that the Authority had failed to consider a critical integer of the applicant’s claims, namely that the Authority had failed to consider that the applicant was at risk as a member of a particular social group, being a family which had been the victim of human rights abuses whilst seeking justice for the abduction of their son/brother. There is no merit to such ground.
First, the alleged claim was never articulated as a ground of complaint before the Authority, nor was such claim clearly apparent from the materials before the Authority. The content of the UNHCR documentation annexed as DRT-2 to the affidavit of Mr Taylor filed on 29 November 2023 at A.5 does not of itself give rise to any such articulation of a claim in the absence of any reference having been made to it on behalf of the Applicant. As such, the Authority was not required to consider such claim. [3]
[3] NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15]
per Allsop J.
Second, the Authority was prepared to accept that the applicant’s brother had been abducted but was not prepared to accept that such abduction was because of any actual or imputed LTTE involvement on the part of the applicant’s brother, or the applicant’s family, so as to give rise to each member of the family having such a profile that they would be of interest to the authorities. During his SHEV interview, the applicant clearly stated that his brother was not involved in the LTTE. [4]
[4] See Annexure AC-1 to the affidavit of Mr Chelliah filed on 29 November 2023 at Transcript p. 17.429.
Third, as to the alleged bombing of the applicant’s family home, it was open for the Authority to find that there was no evidence that established that any bombing was due to the actions of the TMVP. At [38] and [51] of its reasons, the Authority found as follows:
38.Given the applicant’s evidence that his family business was well known in their area, I accept that during the period leading up to the September 2012 election, their buses were in high demand by political parties. I accept that political parties hired their buses, including Tamil political parties and that the family were paid for the use of their buses. Given that that the family were the subject of extortion events at the hands of the paramilitary groups and that these groups continued to engage in criminal activities even after forming political parties, I accept TMVP members did not pay the applicant’s family for use of their buses. I accept that the family preferred to hire their buses to political parties that paid them and at times may have refused to hire their buses to TMVP and that this may have caused issues for them. I accept that at times stones were thrown at their buses and that on one occasion a passenger was injured. While the applicant’s family suspected that TMVP members were responsible for the stone throwing, the applicant stated that they did not have any evidence that the people responsible were in fact members of the TMVP. The applicant has given some details regarding the damage caused by the bomb thrown at his family home and the reporting of the matter to the police. While I am willing to accept that this incident occurred, the applicant’s evidence is that they had no evidence that it was the TMVP and that it was speculation on his family’s part. I note that both incidents were reported to the police and that the authorities and insurance company responded to the incidents. On the evidence provided, I am not satisfied that these incidents occurred because the applicant was personally targeted or that the TMVP or the authorities wanted to harm the applicant.
…
51.On the information before me, I am not satisfied that the applicant faces a real chance of persecution for reasons of his Tamil ethnicity, as a Tamil who resided in LTTE controlled area during the war or due to his family background or imputed political opinion. While I accept that the applicant’s family were the subject of extortion attempts by the TMVP during the conflict, the security situation in the east has changed substantially and paramilitary activities have waned considerably. I do not accept that the applicant was targeted or harmed by paramilitary groups while in Sri Lanka or that his family bus was stolen and damaged by paramilitary group members in 2015. The applicant’s evidence does not indicate that his family have been the subject of any further extortion attempts since 2006. Given these matters, I am not satisfied that the applicant faces a real chance of harm at the hands of paramilitary groups in the foreseeable future. I do not accept that the applicant has posted any anti-government messages or material on social media as claimed and he has not claimed to have engaged in any other activities in Australia that would be of concern to the Sri Lankan authorities or place him at a real risk of any adverse attention if returned to Sri Lanka.
To the extent that the Authority did not accept the applicant’s claims about alleged incidents involving the applicant, the applicant’s brother and the applicant’s family, the applicant’s claims that the Authority failed to consider a critical integer of the applicant’s claims amounted to no more than an attempt to seek an impermissible merits review by this Court.
Further, the decision of the Authority ought not to have been so closely scrutinized by the applicant with an eye keenly attuned to error. [5]
[5] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR
593 at [46] – [47] per French, Sackville and Healy JJ.
The applicant has failed to establish jurisdictional error on the part of the Authority.
The Grounds of Review are without merit and are dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate: AR
Dated: 6 December 2023
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