DLN16 v Minister for Immigration

[2019] FCCA 1207

FEDERAL CIRCUIT COURT OF AUSTRALIA

DLN16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1207

Catchwords:
MIGRATION – Application for judicial review of decision of Immigration Assessment Authority (Authority) affirming decision not to grant Safe Haven Enterprise (subclass 790) visa – whether there was material before the Authority as to require a reasonably competent Authority to appreciate the existence of a claim the Authority failed to consider – material did not give rise to any claim the Authority failed to consider – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5AA, 36(2A)

Cases cited:

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695

Applicant: DLN16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3177 of 2016

Judgment of: Judge Manousaridis

Hearing date: 3 May 2018

Date of Last Submission: 3 May 2018

Delivered at: Sydney

Delivered on: 15 May 2019

REPRESENTATION

Solicitors for the Applicant: Mr S Hodges of Hodges Legal

Solicitors for the Respondents: Ms R Graycar of Australian Government Solicitor

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3177 of 2016

DLN16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of Sri Lanka, seeks judicial review of a decision of the second respondent (Authority) affirming the decision of a delegate of the first respondent (Minister) not to grant a Safe Haven Enterprise (class XE790) visa (SHEV).

Background

1. The applicant travelled to Australia by boat, reaching Christmas Island on 10 September 2012.[1] The applicant, therefore, is an “unauthorised maritime arrival” as that expression is defined in s.5AA of the Migration Act 1958 (Cth) (Act).

   [1] CB7 and CB200

2. On 22 December 2015 the applicant lodged a valid application for a SHEV and was interviewed by a delegate in relation to his claims on 6 April 2016. A delegate of the Minister refused the application on 13 July 2016, and the decision was referred to the Authority on 29 July 2016. The Authority affirmed the decision not to grant the applicant a SHEV on 20 October 2016.

Claims for protection

1. The applicant’s claims for protection are set out in a statutory declaration made on 13 September 2013 (Statement) that accompanied his application for a SHEV.[2] The applicant there claimed as follows:

   a)The applicant is a Tamil Hindu male from Ambari District, Sampanthurai, Sri Lanka.[3]

   b)In 2008 the applicant’s relative was shot in the street by the Karuna group who had established a camp at the applicant’s village. On seeing the body “we informed the relative who made the relevant police report”. “Subsequent to that”, the applicant was taken by the Karuna group. He was beaten and told not to be a witness “to the incident”, otherwise the applicant and his brother-in-law would be shot.

   c)The applicant and his brother went to Colombo where they heard two people in the Karuna group had been arrested by the police. The applicant and his brother were constantly harassed and intimidated “by them”. Two letters were sent to the applicant at his house to attend camp, but the applicant did not attend.

   d)The applicant usually returned home at night. The Karuna group told the applicant’s family they were aware the applicant returned home at night, and that they will eventually capture the applicant because he reported the Karuna group to the police.

   e)The applicant’s brother-in-law fled to Germany in the beginning of 2012 because he feared intimidation by the Karuna group.

   f)The applicant fears returning to Sri Lanka because he was involved with the Tamil Coalition Party,[4] and because he witnessed the murder of his cousin by members of the Karuna group in 2008.

   g)Factions of the Karuna group have been searching for the applicant after he arrived in Australia.

   [2] CB83-85

   [3] The Authority states the applicant is from the Amara District, Eastern Province.

   [4] Also known as the Tamil National Alliance – see CB238-239, [6], second dot point

2. With his application for a SHEV the applicant provided what purports to be two letters from that Tamil Makkal Viduthalai Pulikal (TMVP), one dated 5 April 2008, and the other dated 10 May 2008.[5] They both state there are important matters to be discussed with the applicant, and urge the applicant to attend at the date and time specified. The first of the letters also states: “Be present at the appropriate time as investigations have to be conducted in relation to the killing of [PS]”. The second of the letters states: “you have so far not attended despite two letters to attend have [sic] been sent. Therefore please consider this letter to be final and as a warning, and be present immediately”.

   [5] CB159 and CB161

3. The applicant also provided what purports to be a warrant issued on 26 December 2014 by the Magistrate’s Court in Kalmunai.[6] The warrant is directed to the applicant’s brother-in-law.[7]

   [6] CB166

   [7] CB207, [34]

4. At his interview with the delegate (SHEV interview) the applicant made the following claims:[8]

   a)He and his brother-in-law were witnesses to the shooting of the applicant’s cousin, Mr S. The applicant advised the wife of Mr S who then reported the incident to the police. The police arrested members of the Karuna group responsible for the shooting.

   b)The applicant then experienced problems with the Karuna group because it was known the applicant had advised Mr S’s wife of the shooting. The Karuna group attended the applicant’s home and took him and his brother-in-law to a camp approximately three days after the shooting. The applicant was detained overnight and was beaten and threatened by Karuna group members.

   c)After the applicant and his brother-in-law were released, they went to the applicant’s house and a few hours later travelled to Colombo. The applicant remained in Colombo for some time, returning to his village four to five times during 2010-2012. On each occasion he returned to his village the Karuna group attended his home the following day asking his relatives where the applicant was and why he did not remain at home.

   d)The applicant acknowledged the warrant for arrest was issued to his brother-in-law, and that the applicant himself had not been issued with any summons to attend court, and he has never been requested to provide evidence in a court about the shooting incident.

   e)The applicant did not work for the Tamil Coalition Party, but he did donate money to them in 2010 and attended a couple of meetings, the last one being in 2012. The applicant said that the Karuna group members telephoned him during 2010 to 2012 advising him not to be involved in the Tamil Coalition Party.

   [8] CB205-207

Additional information before the Authority

1. After the matter was referred to the Authority the applicant’s representative sent submissions to the Authority together with a report the Department of Foreign Affairs and Trade (DFAT) issued on 18 December 2015. The representative also forwarded to the Authority an “Additional Statement” of the applicant dated 21 August 2016.[9] The applicant there asserted that a person who spoke Tamil had “pre filled” the application for a SHEV, and that he was “misled by the Tamil speaker in the preparation and filing of my SHEV application”. The applicant requested the Authority invite the applicant to a hearing to remit his case “to the department for consideration”.

   [9] CB233-234

Authority’s reasons

1. The Authority first identified the information that was before it. It referred to the applicant’s agent’s submissions and the DFAT report, and concluded that these did not constitute new information.[10] The Authority also referred to the applicant’s additional statement, but concluded it was not satisfied it was necessary to invite the applicant to obtain further information. It relied on the applicant’s failing to specify “what if any aspects of his application in particular are incorrect or what documents were not presented to the delegate beyond requesting an interview to explain”; the applicant’s having signed a statement of claim that accompanied his SHEV application noting that all information was true and accurate, and it was prepared with the assistance of a registered migration agent; and the applicant’s having stated at the completion of his SHEV interview that everything in his statement was true and he had provided all his claims for protection.

   [10] CB238

Claim based on shooting incident in 2008 and threats from the Karuna group

1. The Authority did not accept the applicant was a witness to a shooting because, on the applicant’s own evidence, it was his brother-in-law who was summoned to court to give evidence, and the applicant had not been summonsed. The Authority also did not accept the applicant remained in hiding between 2008, when the shooting incident occurred, and 2012, or that during this period his travel was limited because he feared harm from the Karuna group. The Authority relied on the following:[11]

   a)The applicant worked in his usual place of employment, a jewellery store in Colombo, from 2008 until 2012, a few days before the applicant’s departure to Australia.

   b)In 2010 the applicant travelled from Sri Lanka to India for a wedding.

   c)The Authority found that the applicant gave inconsistent evidence about when and how often the applicant travelled from Colombo to his home village.

   [11] CB240, [12]

2. The Authority, therefore, concluded it was not satisfied the applicant had ever faced harm from the Karuna group in the past, including being detained and tortured for one night, receiving threats both verbally and in writing, having the Karuna group attend his home or any other form of harm.[12]

   [12] CB240, [12]

Claim based on involvement with the Tamil National Alliance and threats from the Karuna Group

1. Although the Authority noted the applicant provided inconsistent evidence about his involvement with the Tamil National Alliance (TNA), the Authority accepted the applicant was involved with the TNA but that his involvement was limited to the applicant donating to the party in 2010 and attending a meeting in 2012. The Authority was also willing to accept that members of the Karuna group contacted the applicant and advised him not to support the TNA, but the Authority found “that no harm was faced by the applicant on this basis”.[13] The Authority, however, was not satisfied there was a real chance the applicant would face any harm if he were to return to Sri Lanka, now or in the foreseeable future, even if the applicant were to continue to support the TNA. The Authority relied on country information which showed, among other things, that in the 2015 parliamentary elections the TNA won 16 seats, that its leader was appointed opposition leader, and that the Karuna group had renounced paramilitary activities.[14]

   [13] CB241, [15]

   [14] CB242, [21]

Claim based on failed asylum seeker and illegal departure

1. The Authority accepted the applicant departed Sri Lanka illegally and if he were to return, he would be doing so as a failed Tamil asylum seeker. For reasons it is unnecessary to set out here, the Authority was not satisfied the applicant has a well-founded fear of persecution as a Tamil or a Tamil failed asylum seeker who departed Sri Lanka illegally.[15]

   [15] CB244, [31]

Claim based on complementary protection

1. The Authority repeated findings it had already made. It set out the effect of country information to which the Authority already referred. The Authority was not satisfied that the imposition of a fine or to the applicant’s being detained for a short period of time amounts to significant harm under s.36(2A) and s.5 of the Act. The Authority then concluded it did not find that there is a real risk the applicant will suffer significant harm upon return to Sri Lanka.

Grounds of application

1. The applicant relies only on ground 2 contained in the application filed on 16 November 2016 which is as follows (errors and emphasis in original):

   The IAA failed to consider a claim that was made out on the facts.

   . . .

   Particulars

   1.The IAA did not accept that the applicant was a witness to a shooting incident that occurred in 2008 [12].

   2.The IAA made no finding if in fact the claimed 2008 incident did not occur.

   3.The IAA appears to impliedly accept that that the applicant’s brother in law “was summoned to court to provide evidence” [12].

   4.The IAA was on notice that the applicant’s brother in law “fled to Germany in 2012”.

   5.Therefore, it would only have been reasonable to assess if the applicant would face serious and or significant harm on account of his brother in law having fled to Germany when he had been summoned to court to provide evidence regarding the 2008 incident.

   6.The IAA failed to consider if the applicant would face harm on account of his familial link to an individual who fled Sri Lanka and was summoned to court to provide evidence.

2. In short, the ground claims there was before the Authority a claim (asserted claim) to the effect that the applicant had a well-founded fear of persecution or there was a real risk the applicant would suffer significant harm because he was related to a person who had fled Sri Lanka and who had been summoned to appear before a court to give evidence.

Principles

1. The principles relevant to determining whether a claim is before a Tribunal is well established; and it will be sufficient if I only refer to two authorities. The first is NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2)[16] where the Full Federal Court said:

   a)The “function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances”; and neither “the delegate nor the Tribunal is obliged to consider claims that have not been made”.

   b)The Tribunal must “deal with the case raised by the material and evidence before it”, and the “question, ultimately, is whether the case put by the [applicant] before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it”.

   c)That does not mean, however, the Tribunal “is only required to deal with claims expressly articulated by the applicant”. On the other hand, the Tribunal “is not required to consider a case that is not expressly made or does not arise clearly on the materials before it”.

   [16] [2004] FCAFC 263

2. The second authority is NAVK v Minister for Immigration and Multicultural and Indigenous Affairs where Allsop J (as his Honour then was) explained when it could be said a claim which was not expressly made may nevertheless be considered to have been raised: [17]

   From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. 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.

   [17] [2004] FCA 1695, at [15]

Did the asserted claim arise sufficiently from the material?

1. The asserted claim is said to arise on the assumption that the Authority did not accept the applicant’s claims that he witnessed the shooting he claims to have witnessed. The significance of this is that whether or not the asserted claim arose sufficiently from the material that was before the Authority must be assessed by reference to the matters the Authority did not reject. Mr Hodges, who appeared for the applicant, agreed as much.[18] The matters the Authority rejected include the applicant’s claims that he had faced harm from the Karuna group in the past, including being detained and tortured for one night, receiving threats both verbally and in writing, and the Karuna group attending his home; and the applicant’s claim that he went into hiding in Colombo between 2008, when the shooting incident occurred, and 2012, or that during this period his travel was limited, because he feared harm from the Karuna group. Also relevant is the Authority’s having accepted the applicant’s evidence that he has never been summonsed. The question, therefore, is that, given the findings the Authority made, did there arise sufficiently from the material that was before it as to require a reasonably competent Authority to appreciate the existence of a claim in terms of the asserted claim?

   [18] T8.20

2. I asked Mr Hodges to articulate the claim he submits the Authority ought reasonably to have identified as arising on the material before it, given the findings it made. At one stage Mr Hodges pointed to the victim of the shooting being a family member, the applicant’s brother-in-law having been summoned to give evidence in circumstances where the applicant’s brother-in-law had fled Colombo, the perpetrators of the shooting having been arrested and “brought before the court”, there being what Mr Hodges asserted to be country information that “they were sentenced to prison”, and “a whole lot of factors that are not addressed”. When I informed Mr Hodges that it was necessary to identify what those other factors were, Mr Hodges submitted the Authority “was required to consider the chance of revenge or reprisals attacks in a situation where former members of the Karuna members and the TMVP are in jail and in the groups on the outside – or the remnants of the group on the outside – are engaging in either paramilitary or criminal activities”.[19]

   [19] T10.30

3. This submission is not arguable, given the findings the Authority made. The Authority did not accept the applicant witnessed the shooting he claimed he witnessed; it did not accept the Karuna group visited his home; it did not accept the applicant had been held and tortured by the Karuna group; it did not accept the applicant received any verbal or written threats; it did not accept the applicant hid in Colombo; and it found the applicant received no summons to give evidence. In these circumstances, the material before the Authority was incapable of suggesting a claim that the applicant faced a real risk of reprisal from persons associated with the persons who have been charged with the shooting the applicant claimed to have witnessed.

4. Given the findings the Authority made, there did not arise from the material that was before it as to require a reasonably competent Authority to appreciate the existence of a claim in terms of the asserted claim. Ground 2, therefore, fails.

Disposition

1. I propose to order that the application be dismissed. I will consider the question of costs at the time I pronounce my order.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  15 May 2019