DMU16 v Minister for Immigration - [2018] FCCA 276

FEDERAL CIRCUIT COURT OF AUSTRALIA

DMU16 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 276

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant believed in relevant respects but the applicant’s fears found not to be well-founded – whether the Authority overlooked an element or integer of the applicant’s claims considered – no jurisdictional error.

Cases cited:

AAH15 v Minister for Immigration [2016] FCA 104

Carrascalao v Minister for Immigration [2017] FCAFC 107

Htun v Minister for Immigration (2001) 233 FCR 136

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

SZVVR v Minister for Immigration [2016] FCA 1364

Tickner v Chapman (1995) 57 FCR 451

Applicant:

DMU16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 3224 of 2016

Judgment of:

Judge Driver

Hearing date:

7 February 2018

Delivered at:

Sydney

Delivered on:

21 February 2018

REPRESENTATION

Counsel for the Applicant:

Mr N Kulkarni

Counsel for the Respondents:

Ms R Francois

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application filed on 21 November 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3224 of 2016

DMU16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 26 October 2016. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a national of Sri Lanka. On 25 September 2012 the applicant arrived at the Cocos Islands by boat.[1]
[1] Court Book (CB) 81
On 11 January 2013 the applicant participated in an entry interview.[2]
[2] CB 1-15
On 7 September 2013 the applicant’s agent lodged an application for a protection (class XA) visa.[3]
[3] CB 16-105
On 10 October 2014 the Minister’s Department (Department) wrote to the applicant informing him that his protection (class XA) visa application was invalid because of a statutory bar.[4]
[4] CB 106-107
On 30 November 2015 the Department wrote to the applicant informing him that the statutory bar had been lifted and inviting him to apply for a temporary protection visa or a Safe Haven Enterprise Visa (SHEV).[5]
[5] CB 108-114
On 19 February 2016 the applicant lodged an application for a SHEV.[6]
[6] CB 115-155
On 8 April 2016 the applicant lodged further material in respect of his application for a SHEV.[7]
[7] CB 175-205
On 8 June 2016 and 14 July 2016 the applicant was interviewed by the delegate in relation to his application for a SHEV.[8]
[8] CB 214
On 30 August 2016 the delegate made a decision refusing to grant the applicant a SHEV.[9]
[9] CB 209-236
On 2 September 2016 the Authority wrote to the applicant informing him that the delegate’s decision had been referred to it for review.[10]
[10] CB 242-243
On 11 September 2016 the applicant’s agent provided a written submission and certain other material to the Authority.[11]
[11] CB 244-267
On 26 October 2016 the Authority made a decision affirming the delegate’s decision not to grant the applicant a SHEV.[12]
[12] CB 270-289

The present proceedings

These proceedings began with a show cause application filed on 21 November 2016. The applicant continues to rely upon that application. There is one ground in the application, which is the assertion that the Authority erred by failing to consider an integral part of the applicant’s claim. There are 20 particulars given and, by the time this matter reached trial on 7 February 2018, it was particular (xx) which was pressed. That particular asserts that the Authority did not consider threats to shoot the applicant in reaching its decision that the treatment of the applicant does not amount to serious harm or lead to a real chance of serious harm.
I have before me as evidence the book of relevant documents filed on 1 December 2016.
Both the applicant and the Minister prepared written submissions and also made oral submissions through their counsel at the trial of the matter. The applicant was initially represented by solicitors who withdrew from the record in accordance with the Federal Circuit Court Rules 2001 (Cth). At trial, the applicant was ably assisted by Mr Kulkarni on a direct access brief.

Consideration

The Authority accepted each of the following claims made by the applicant:
a)in March 2012, men from the Criminal Investigation Department (CID) attended the applicant’s home. He was not present. They told his mother that if the applicant did not answer their calls they would shoot him;[13]
b)after this incident the applicant went to live with an aunt in another town and also stayed with another aunt in his home town;[14]
c)the applicant had decided not to answer calls from a private number;[15]
d)in August 2012, men from the CID again attended the applicant’s home. He was not present. They reiterated to his mother that they would shoot the applicant if he did not answer their calls;[16]
e)after this incident the applicant left Sri Lanka;[17] and
f)in October 2012, men from the CID attended the applicant’s father’s home and asked about the applicant’s whereabouts.[18] The Authority noted the applicant’s belief that they stopped visiting after this occasion because they had learnt that he had left Sri Lanka.[19]
[13] CB 277-279 at [29], [34], [36] and [42]
[14] CB 54, CB 273 at [8], CB 278 at [36] and CB 280 at [43]
[15] CB 278 at [34] and [36]
[16] CB 277-279 at [29], [35], [36] and [42]
[17] CB 12-13, CB 278 at [35]-[36]
[18] CB 278 at [35]-[36]
[19] CB 280 at [45]
These findings are to the effect that the applicant left his home and subsequently left Sri Lanka immediately following threats made to his life by the CID.
The applicant makes the following contentions based upon the facts as accepted by the Authority:
a)the irresistible inference is that the applicant left Sri Lanka as a consequence of the threats made to his life, that the steps he took after March 2012 were precipitated by the threat then made and that his departure from Sri Lanka was precipitated by the second threat made in August 2012;
b)it was an essential integer of the applicant’s claim that he fears persecution that he was threatened on two occasions to be shot by the CID;
c)the Authority was obliged to consider each integer of the applicant’s claim.[20] Consideration involves engaging in an “active intellectual process” directed at the integer of the claim;[21]
d)in relation to the threats, the Authority stated that it “accept[s] that threats were made against the applicant during the 2012 visits”;[22]
e)the Authority expressed its conclusion that “the phone calls, requests for money, and visits to the applicant’s home by the CID amounts to monitoring and harassment of the applicant” but “this treatment does not amount to serious harm” or “lead to a real chance of serious harm to the applicant in the reasonably foreseeable future”;[23]
f)apart from the reference above, the Authority did not refer to the threats as part of, or in the process of reaching, its conclusion;
g)there is nothing to suggest that the Authority had regard to the character of the threats made;
h)the reasons for decision contain no discussion of the fact that the threats were that the applicant would be shot, not for example, that he would be arrested or beaten;
i)there is nothing to suggest that the Authority gave any consideration to the prospect of the threats being carried out, whether at the time they were made or if the applicant were to return to Sri Lanka. For example, the reasons for decision do not disclose any consideration of whether the threats were serious or merely empty threats which were only intended to scare the applicant. Nor, for example, do they disclose any consideration of whether the incidents reflect the antagonism of the CID generally or only of particular individuals; and
j)by failing to deal with these matters, the Authority failed to properly consider this significant element of the applicant’s claim.
[20] Htun v Minister for Immigration (2001) 233 FCR 136 at 139 [7] per Merkel J and 152 [42] (Allsop J, with whom Spender J agreed); SZVVR v Minister for Immigration [2016] FCA 1364 at [32] per Collier J; AAH15 v Minister for Immigration [2016] FCA 104 at [48] per Katzmann J
[21] Tickner v Chapman (1995) 57 FCR 451 at 462 per Black J; Carrascalao v Minister for Immigration [2017] FCAFC 107 at [45] per Griffiths, White and Bromwich JJ
[22] CB 279 at [42]
[23] CB 280 at [46]
I prefer the Minister’s submissions which are, essentially, that the Authority did all it needed to do in order to dispose of the applicant’s claims as they were put.
By way of background to the threats, it is important to note that the threats were only:
a)made on a contingent basis to his family as follows: “[w]e have called your son many times. He does not answer our calls. Tell him to answer the phone or else we will shoot him”;[24] and
b)in the context of earlier phone calls to the applicant which had only two purposes; namely to further interrogate the applicant about his possible LTTE[25] links and/or to extract money.[26]
[24] CB 54 at [12], cf [13]
[25] Liberation Tigers of Tamil Eelam
[26] CB 53 at [10]
The applicant does not appear to dispute that the Authority expressly referred to and understood that the 2012 visits to his home included these contingent threats to shoot the applicant if he did not answer the phone, as the Authority referred expressly to the threats on four occasions in its decision.[27]
[27] at CB 277 at [29], CB 278 at [34]-[35] and 279 at [42]
The Authority’s reasons make clear that the manner in which it addressed the question of whether the applicant had a well-founded fear of harm arising from these incidents during the home visits in 2012 was to:
a)First, review the country information which concluded that “Tamil civilians who were not members of the LTTE, including those who may have provided a low-level of support to the LTTE, may be monitored by Sri Lankan authorities, but are at low risk of being detained or prosecuted”;[28]
b)then, consider the actual incidents in the context of that information, noting that the Authority specifically referred to the “threats” being made during what it described as the CID “visits” in 2012;[29] and
c)finally, to expressly consider the applicant’s conduct with respect to the demands for money.[30]
[28] CB 279 at [38]
[29] CB 279 at [42]
[30] CB 280 at [44]
It was in this context, of having encapsulating the threats as part of the visits at [42], that the Tribunal made the following key findings:[31]
I note that the applicant continued to live in the homes of his father, his mother and his aunts in the Batticaloa district throughout 2011 and 2012 until his departure from Sri Lanka. In addition, the applicant continued to work on the family farm and the family cultivated land. I note the applicant’s claim that he took different paths when travelling to work and home, however in my view, it is reasonable to assume, that if the Sri Lankan authorities, including the CID, suspected the applicant of involvement with the LTTE or any militant separatist group, either in the past or at the time of their visits, they would have located the applicant, detained and questioned him. This did not happen.
I accept the applicant’s claim that he was asked by the person who phoned him to pay money on at least one occasion. However I note the applicant’s statements that he told them he did not have any money; that he did not ever give them any money; that if he had paid he would have faced a problem.
At the SHEV interview the applicant clarified that the last time the CID visited his family was in October 2012. He believes they stopped visiting as they learnt he had travelled to Australia. The applicant clarified that his parents and siblings continue to live at the family homes in … and have had no problems with the Sri Lankan authorities in the past four or five years or at any time prior to that.
I am satisfied, on the evidence, that the phone calls, requests for money, and visits to the applicant’s home by the CID amounts to monitoring and harassment of the applicant however I find that this treatment does not amount to serious harm. I am also satisfied that the phone calls, requests for money, and visits to the applicant’s home by the CID in 2011 and 2012 do not, of themselves, lead to a real chance of serious harm to the applicant in the reasonably foreseeable future in Sri Lanka.
[31] CB 280 at [43]-[46]
The applicant’s argument that the Authority was required to engage in more specific reasoning, in circumstances where it is clear that the Authority expressly understood the threats and considered them to be part of the home “visits” it referred to, is to erroneously read the Tribunal’s decision with an “eye keenly attuned to the perception of error”.[32]
[32] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 271-2, 277, 280-1 (Brennan CJ, Toohey, McHugh and Gummow JJ) and 294-5 (Kirby J)
As counsel for the Minister submitted in her oral submissions, the applicant’s judicial review application needs to be considered in the context of the claims for protection made by the applicant. The applicant was not claiming a fear of harm from criminal extortionists. He was claiming a fear of harm based on his past association with the LTTE.[33] The issue was explored with the applicant at interview by the delegate. The reasons given by the delegate in rejecting the applicant’s claim are pertinent:[34]
In his PV application, the applicant states that after enquiries were made about him with [a named person], he received a home visit from the CID at four o'clock in the afternoon. He states they questioned him about his LTTE involvement, forced him to provide his mobile phone number to them and told him they would be following up. At the PV interview, the applicant was asked why the CID would make numerous enquiries about him, but did not arrest him when they found him at his family home. The applicant stated, “When they came, I was not at home. That was daytime, 4 o'clock. If they want to harm me, they won't do it publicly. They will do it in a numberplateless way, secretly.” I found the applicant's testimony to be contradictory as his written claims state he was home on this occasion and that he saw the CID men on their motorcycles and asked them what they wanted. In light of the contradictory evidence, I do not accept the claim.
In his written statement, the applicant claims he received a telephone call from an anonymous person who accused him of supporting the LTTE by providing vegetables to them, and the caller demanded money from him. He states he received similar phone calls over the next three months. He states that in approximately March 2012, two armed individuals visited his home while he was away, questioned his mother as to his whereabouts, and threatened to shoot him if he did not answer their calls. He states that his mother received a second home visit from the CID who threatened to shoot him if he did not answer their calls. The applicant claims that in approximately October 2012, his father received a home visit from the CID, who asked him for the applicant's whereabouts. When asked what the CID wanted from him, the applicant stated, “They suspected that I may have known some facts about the movement because there were arms taken from my area, so they thought I might have some information about them.” The applicant was asked at the PV interview why he believes the harassment has stopped. He stated that the authorities have stopped looking for him because they know he is in Australia. While I accept the CID or others may have questioned the applicant during the war, I do not accept that the applicant or his family received threatening home visits or phone calls in 2011 or 2012. As above, I am not satisfied the applicant has provided reasons why the CID were interested in him in 2011 or 2012. As such, I do not accept the CID harassed the applicant or his family in 2011 or 2012.
[33] see CB 54 at [12]-[17]
[34] CB 222 at [41]-[42]
Before the Authority, the applicant continued to submit that he had a well-founded fear of harm because of past links to the LTTE.[35]
[35] See the applicant’s submissions at CB 247 and evidence in support at CB 249
I am satisfied that the Authority’s decision dealt adequately with the applicant’s asserted fear of harm based upon his past association with the LTTE. The Authority reasoned that if the applicant was really suspected of having LTTE links, he would have been arrested, and that the home visits and phone calls amounted to monitoring and harassment. Beyond that, it may be inferred from the facts accepted by the Authority, and from its reasons, that the applicant was a victim of attempted extortion by CID operatives abusing their authority. It may well be that the applicant genuinely feared harm because of those extortion attempts and left Sri Lanka in order to avoid them. However, the applicant did not claim protection from criminal extortionists. He claimed protection on the basis that he feared harm by reason of his past association with the LTTE. The Authority dealt with that claim.
It may be that the Authority should have done more to explore the issue of the extortion attempts in the context of complementary protection. No challenge was made in these proceedings, however, in respect of that aspect of the Authority’s decision.

Conclusion

I conclude that the applicant is unable to demonstrate that the Authority decision is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
I will so order.
I will hear the parties as to costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 21 February 2018