DSN16 v Minister for Immigration

[2019] FCCA 1982

FEDERAL CIRCUIT COURT OF AUSTRALIA

DSN16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1982

Catchwords:
MIGRATION – Application for remedy under s.476 of the Migration Act 1958 (Cth) (Act) in relation to decision of Immigration Assessment Authority (Authority) affirming decision not to grant a safe haven enterprise visa – whether Authority considered claims that arose tolerably clearly from the material itself – whether the Authority came under a duty to consider obtaining additional information – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J(1)(a), 36(2), 473DC, 473DD, 476

Cases cited:

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695

Applicant: DSN16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3443 of 2016

Judgment of: Judge Manousaridis

Hearing date: 20 July 2018

Date of Last Submission: 20 July 2018

Delivered at: Sydney

Delivered on: 23 July 2019

REPRESENTATION

Counsel for the Applicant: Mr A Kumar, by direct access

Counsel for the Respondents: Mr G Johnson

Solicitors for the Respondents: Mills Oakley Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3443 of 2016

DSN16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, a citizen of Sri Lanka, applies for a remedy under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise Visa (SHEV).

Claims for Protection

1. The applicant stated his claims for protection on a number of occasions. It would be convenient if I set out the claims contained in the statement dated 24 February 2016 that formed part of the applicant’s application for a SHEV.[1] The applicant claimed as follows:

   [1] CB66-69

   a)The applicant is a Tamil from a village in Batticaloa. His family are farmers.

   b)The village is a faraway place. It is patrolled by home guards appointed by the police. Most of the home guards are Muslim.

   c)In 2009 the driver of a tractor owned by the applicant’s father hit a girl riding a bicycle crossing a street who died from her injuries. The driver was acquitted with the court finding that the girl was at fault. The girl’s family got upset with the applicant’s family and vowed revenge.

   d)The Muslim home guards do not like, and are jealous of, Tamils because Tamils work hard and are, relatively speaking, well-to-do. Further, the Tamils are a minority group, with most of the population being Muslim.

   e)The applicant and his father were supporters of the “Tamal [sic] National Alliance” (TNA). The applicant’s father started to support the TNA since it started, although he was not a member. The applicant would go with his father for the TNA’s propaganda “and organize their meetings”. The TNA would tell their members they would like a meeting; the members would then tell his father to organize the meetings, and the applicant’s father would then tell the people about the meeting, and “we would rally people up for the meetings and set up a stage for it”. The applicant was there to help his father “and do what was necessary”.

   f)The applicant’s father was the leader of the temple, and he used his position in the temple to tell people about the TNA and their meetings. He collected money at the Temple for the TNA.

   g)On five or six occasions while he was helping his father, the applicant was stopped by the police or by the “CID officials” who told him he was a boy and he should stop working for the TNA and go home. One occasion occurred in about August 2012 when, while he was helping transport tables and chairs to set up a scheduled meeting, two policemen on motorbikes came, pulled the applicant’s shirt, and said he should stop helping the TNA. Another occasion occurred before August 2012 when the applicant was at the temple arranging chairs for a meeting. The applicant “would go home” to please them.

   h)Because of the applicant’s father’s involvement and the applicant’s continued involvement with the TNA the Criminal Investigation Department (CID) officials would come to the applicant’s family’s home from time to time and question the applicant or his father. Sometimes they beat the applicant’s father and also the applicant’s mother. The situation escalated in the middle of 2012 when “a group of people” came to the applicant’s home looking for the applicant’s father or the applicant. The applicant’s mother was the only person at home. She told the group of people the applicant’s father was not at home, but they would not go away. They started to beat the applicant’s mother with a “patrol pole”. The people who attacked the applicant’s mother did not identify themselves. They told her they were looking for the applicant’s father, and they wanted him to do work for the TNA. Because of this incident the applicant and his father were unable to stay at their home, but instead they stayed at the applicant’s sister’s house or at houses of relatives or friends.

   i)A couple of weeks after the incident, “they also torched our trailer and tried to burn our harvesting machine”. The applicant’s father reported the fire to the police who came to have a look, but “we never heard anything further from them”.

   j)The home guards would stop the applicant whenever they saw him on his way to school or, after he left school, to work. (The applicant stopped studying after year 10.) The home guards demanded the applicant pay money or do chores for them. On a couple of occasions the home guards beat him so severely that the applicant’s father had to take the applicant to hospital. The home guards knew who the applicant’s father was, and they beat him as well.

   k)The home guards hated the applicant because, like his father, they saw the applicant as a supporter of the TNA. They also knew the applicant’s father owned 15 acres of rich and fertile land that was wealthy by local standards; that the applicant and his father were working hard on the land, and selling their produce on the market.

   l)The applicant could not go to the police because the home guards were part of the police. The home guards “hated us because of the incident with the girl on the bike”.

   m)In 2012 the applicant became aware of people going to Australia by boat. The applicant told his father about the warnings the police had given him when doing things for the TNA, and about the home guards beating up the applicant whenever the applicant went to the farm or to the shop. The applicant even stopped going to school because of the home guards. Further, the applicant could not go back home because, when he stayed back at home, the applicant got beaten every day.

   n)After the applicant left Sri Lanka, the applicant’s mother moved to stay with the applicant’s sister. The applicant’s father asked relatives and friends to look after the paddy field; and the applicant’s father stopped going to the temple and doing any work for the TNA. Despite that “they continued to look for him”.

   o)The applicant’s mother informed him of an incident “that occurred 8-9 months ago” at the applicant’s sister’s house. “They” knocked and entered the applicant’s sister’s house and wanted to know when the applicant would be coming back to Sri Lanka. When the applicant’s mother said she did not know she was slapped on her face, and “they” searched the house and ransacked it. Several days later the applicant’s mother went to their house and discovered it had been broken into.

2. In a letter to the Authority dated 22 September 2016 the applicant’s representative made a number of submissions.[2] Relevant to the issues I must decide is what was submitted to be the issue of the applicant’s employment. The representative submitted that, due to the issues the applicant and his family encountered with the Muslim home guards in his area, the applicant was unable to continue to work on his paddy farm; and the applicant had never done any other job. The representative submitted that the applicant “would not be able to survive on his previous job as a means of livelihood resulting in persecutory harm”. The representative submitted that the delegate “failed to conduct an interview and raise this issue with the applicant”, and that the delegate “failed to consider this issue and make findings as regards to this issue raised on the facts of this case”.

   [2] CB142-146

Authority’s findings and reasons

1. The Authority did not accept that the applicant or members of his family were ever of interest to the CID. Nor did it accept the CID ever came to the applicant’s family home or arrested or detained or harmed any member of the applicant’s family. The applicant provided no reason why the CID, which is responsible for investigating serious and organised crime and for counter-terrorism, would have any interest in the applicant or his family. The Authority did not accept the CID would have been involved in the intimidation of low level supporters of the TNA, being a legitimate political party which holds a significant number of seats in the national parliament. The Authority concluded the applicant’s claim that he had been targeted by the CID “is not true, and detracts significantly from the applicant’s overall credibility”.[3]

   [3] CB196, [29]

2. The Authority accepted the applicant helped his father with his campaign work for the TNA, and that this involved the applicant’s setting up chairs and tables for meetings. The Authority also accepted that on two occasions the applicant was manhandled and told not to do that work. The Authority did not accept the applicant was subjected to any additional harm or harassment. The Authority found the applicant’s account of the other instances on which he claimed he was harassed to be vague; and while the Authority accepted the applicant may have been spoken to and told to go home and stop helping the TNA, it did not accept the applicant was subjected to any additional harm or harassment. The Authority relied on what it found was “somewhat inconsistent evidence” the applicant gave about who was responsible. The Authority referred to the applicant stating in his written statement that it was the police and CID who stopped him, but before the delegate the applicant said he did not know who the people were.[4] In any event, the Authority did not accept that having his shirt pulled or being slapped or kicked, as the applicant described, amounts to serious harm “in the context of two relatively isolated incidents”.[5]

   [4] CB196, [30]

   [5] CB196, [31]

3. The Authority did not accept that the applicant’s father’s and the applicant’s work with the TNA led to the claimed attacks on the applicant’s home or on him or any member of his family. The Authority relied on the applicant and his father appearing to be relatively low level workers for the TNA, and being supporters, rather than members of, the TNA; the applicant’s father appears to have drawn authority from his role on the temple committee, which appears to have ceased in April 2011; and, on the applicant’s evidence, there were many others who assisted the TNA in a similar way.[6]

   [6] CB196, [31]

4. The Authority did not accept the applicant or his mother were assaulted in the incident the applicant claimed occurred in about August 2012. The Authority relied on a number of matters. The applicant provided “very inconsistent and contradictory evidence”. First, the applicant mentioned the incident at his entry interview, but he said it was carried out by the army. Before the delegate, on the other hand, the applicant said he was unsure who committed the act, but he thought the home guards were responsible. Second, the applicant stated he could not report problems with the home guards to the police, yet he provided what purported to be a police report of the incident. Third, although both in his written statement and before the delegate the applicant claimed he was not at home when his mother was assaulted, the purported police report states the applicant was at home, and that he, too, was assaulted.[7]

   [7] CB196-197, [32]

5. The Authority also did not accept the applicant has been pursued after his departure from the TNA because of his low level political work for the TNA with his father. The Authority relied on the applicant’s father’s influence having stemmed from his role in the temple and his father’s ending that role in April 2011; the low level nature of the applicant’s activities; the applicant’s vagueness about who was responsible for telling the applicant to stop his TNA work; and the changed political situation in Sri Lanka which has led to increasing influence for the TNA.[8]

   [8] CB197, [33]

6. The Authority accepted the applicant was harassed by home guards on his way to and from school,[9] but considered the applicant exaggerated the events and, for that reason, the Authority did not accept the applicant was subjected to a sustained and frequent pattern of serious harm by home guards for any of the reasons the applicant claimed; or that the applicant was singled out and mistreated in a manner that other schoolchildren were not.[10] The Authority relied on its finding that the applicant’s evidence about what exactly happened, and why, “was extremely vague”.[11] The Authority referred to the applicant’s having stated at one point that it was because of his father’s work with the TNA that caused the applicant’s being harassed but he could not identify when his father had started working with the TNA, yet before the delegate the applicant said the TNA harassment only started in 2012, while he had stopped going to school in 2010.[12] The Authority also referred to the applicant’s claim that the harassment was related to the death of a village girl which he said occurred in 2009, but he also said that the resulting problems occurred after the court case two or three years later. Finally the Authority referred to the applicant at one point in his interview by the delegate saying that the “main thing” was that he is Tamil, but at another point saying that his village borders the Muslim area, and the Muslims want to kick out the Tamils and take their farms.[13]

   [9] CB197, [34]

   [10] CB198, [37]

   [11] CB197, [34]

   [12] CB197, [34]

   [13] CB197, [34]

7. The Authority accepted the applicant may have been subjected to some bullying and harassment in the context of ethnic and political tensions prevailing during and after the civil war. The Authority said it made this finding based on country information “rather than [on] any credible evidence by the applicant about the circumstances of his claimed mistreatment”.[14] The Authority found, however, that any mistreatment suffered by the applicant was not serious harm.[15]

   [14] CB198, [37]

   [15] CB198, [37]

8. The Authority accepted that a trailer belonging to the applicant’s family was damaged in 2012. The Authority found, however, that given the difficulties it had found with the applicant’s evidence, the motive for that incident is not clear. The Authority nevertheless concluded that “[r]egardless of these problems with the evidence”, it was not satisfied that the burning of the farm trailer and the attempt to burn the harvester represents harm or a serious threat of harm to the applicant. The Authority also said there was no suggestion that the destruction of the trailer prevented the applicant or his family from earning a livelihood from their land, or that there is credible evidence on the basis of which it could be satisfied there is a real chance this would occur in the future.[16]

   [16] CB198, [38]

9. Given its finding that the applicant’s claims about who was responsible for seeking to harm him and why they were “vague, shifting and inconsistent”, the Authority also did not accept the applicant’s family were subject to ongoing harassment or assault or any kind of harm after the applicant’s left Sri Lanka.[17] The Authority accepted the applicant’s family house might have been damaged, but given what the Authority found to be the problems with the applicant’s evidence, and “the fact no one was living there at the time”, the Authority was not satisfied this had anything to do with an ongoing pursuit of the applicant or his father for political or ethnic reasons, or reasons of personal enmity or jealousy, but was a random opportunistic crime.[18]

   [17] CB198, [39]

   [18] CB198, [40]

10. The Authority addressed two submissions made by the applicant’s representative. One was the submission the Authority described as being to the effect that the applicant was unable to earn a livelihood from farming because of serious harm or the threat of harm. The Authority did not accept that claim because although the applicant claimed he continued to be harassed in the same way after leaving school, and while he was going to and from work, he “does not claim that he was prevented from working on the farm, until he decided he needed to leave Sri Lanka altogether”.[19] A second submission by the applicant’s representative the Authority considered is that, because the applicant’s family has been forced to abandon the farm the applicant will be denied the opportunity to earn a livelihood. The Authority did not accept that submission because the applicant “has not provided a credible account of his family’s situation since his departure”, and that, if they have left the farm, the Authority was not satisfied it has been for the reasons claimed by the applicant, or for any other reason that gave rise to a real chance of serious harm, or for any other of the reasons mentioned in s.5J(1)(a) of the Act.

    [19] CB197, [35]

11. Based on these findings, and after having considered and rejected the applicant’s claims that he is a refugee within the meaning of s.5H(1) of the Act,[20] the Authority concluded the applicant did not meet the definition of “refugee” in s.5H(1) of the Act and, for that reason, the applicant did not meet the criterion provided for by s.36(2)(a) of the Act.

    [20] CB199-200, [42]-[49]

12. Finally, the Authority considered whether the applicant met the complementary protection criterion provided for by s.36(2)(aa) of the Act. The Authority said it had already accepted the applicant faced instances of minor physical mistreatment from the home guards, and minor harassment in relation to his political activity in support of the TNA. The Authority accepted the applicant faced instances of harassment and minor physical mistreated from the home guards, and minor harassment in relation to his political activity in support of the TNA in 2012. The Authority also accepted if the applicant were to continue to assist the TNA in future elections he may be subjected to low level harassment “in the context of the documented, generally low level political violence that accompanies election campaigns in Sri Lanka”, but was not satisfied this would rise to the level of significant harm.[21] After referring to, and making findings about the likely processing of the applicant by the Sri Lankan authorities if he were to return to Sri Lanka,[22] the Authority concluded it was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country there is a real risk the applicant will suffer significant harm and, for that reason, the Authority found the applicant does not meet the criterion provided for by s.36(2)(aa) of the Act.[23]

    [21] CB201, [55]

    [22] CB202, [56]-[57]

    [23] CB202, [58]-[59]

Grounds of application

1. The applicant relies on the first four grounds set out in the amended application.[24]

   [24] The applicant does not press ground 5.

Ground 1

1. Ground 1 is as follows:

   The Authority fell into error when it failed to consider a clearly articulated claims [sic] that the Applicant was [at] risk owing to his Tamil ethnicity and a person from [a] particular area and/or denied the Applicant procedural fairness in failing to assess the applicant’s claim and/or giving meaningful consideration of the Applicant’s claims.

   Particulars

   (a)The Applicant had claimed fear owing to his ethnicity.

   (b)The Authority has failed to assess the claim.

   (c)The Authority fell into error in carrying out [a] proper review and thereby committed jurisdictional error.

2. In his written submissions counsel for the applicant submitted that the applicant claimed that as a member of a minority group if he were returned home he would suffer harm. Counsel submitted that such claim was “squarely put” in the applicant’s claims, and in particular in the following passage:[25]

   In Kalmunai, we Tamils are a minority group and most of the population is Muslims. The Muslims do not like us and there are ongoing tensions between us.

   [25] CB66

3. In oral address counsel for the applicant said that the Authority engaged in a minor way with a claim based on the applicant’s being a Tamil, but the Authority did not do so in a meaningful or direct way. The Minister, on the other hand, submitted the Authority made no error because it considered the applicant’s limited evidence concerning the mistreatment the applicant claimed he encountered from the Muslims.[26]

   [26] Submissions of the First Respondent, [14]

4. The question this ground raises is whether there was before the Authority a claim based on the applicant’s ethnicity. Whether such claim was before the Authority turns on whether such claim can be said to arise “tolerably clearly from the material itself”.[27] That also means that when determining whether a claim arises tolerably from the material itself, the material which is said to reveal the claim cannot be construed without reference to the context in which it appears. Ground 1, and the submissions counsel for the applicant makes in support of the ground, relies on two sentences of the applicant’s statement dated 24 February 2016 that formed part of the applicant’s application for a SHEV but without reference to the context in which those sentences appear.

   [27] NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695, at [15]

5. When context is taken into account, it is clear the applicant did not claim, and could not reasonably have been taken by the Authority to have claimed, fear of harm based solely on his being a member of the Tamil minority. The applicant claimed fear of harm from particular classes of persons based on particular alleged events. One class of person from whom the applicant claimed fear of harm are Muslims; and the applicant gave two reasons why he feared harm from Muslims. The home guards were Muslim; and Muslims were jealous of Tamils because Tamils were better farmers and were perceived to be more prosperous. The events on which the applicant claimed he feared harm were based, at least to the extent they involved Muslims, on the applicant’s claims that the home guards stopped the applicant whenever they saw him on his way to school or work or to the paddy field, demanded money from him or that he perform chores, and the guards beat the applicant.[28] This is the claim the Authority considered and rejected.

   [28] CB68, first paragraph

6. A claim to the effect that the applicant feared harm or was exposed to a real risk of harm because he was a member of the Tamil minority did not arise tolerably clearly from the material that was before the Authority. Ground 1, therefore, fails.

Ground 2

1. Ground 2 is as follows:

   The Authority misdirected its enquiries. The Applicant claimed that he only had limited farming skills. The Tribunal [sic] failed to give meaningful consideration of the Applicant’s claims and directed its inquiries to a different question.

   Particulars

   (d)The Authority did not address whether in the circumstances [the applicant] only had a farm job he could survive upon return.

   (e)The Authority fell into error in carrying out proper review.

2. In his written submissions counsel for the applicant submitted the Authority did not deal with the fact that the applicant’s only skill was farming, being an issue “squarely raised by the agent”.[29] The part of the applicant’s representative agent’s submissions that the applicant submits made a claim based on the applicant’s only skill being that of the farmer is that which I have set out in paragraph 3 of these reasons. The Minister, on the other hand, submits the Authority identified and considered the agent’s submission.

   [29] Applicant’s Outline Submissions, [14]

3. I have already noted that the Authority identified as a claim it understood the applicant’s representative to have made that the applicant was unable to earn a livelihood from farming because of serious harm or the threat of harm. The Authority considered the claim.  As I have also noted, the Authority did not accept that claim because although the applicant claimed he continued to be harassed in the same way after leaving school, and while he was going to and from work, he “does not claim that he was prevented from working on the farm, until he decided he needed to leave Sri Lanka altogether”.[30] This, however, is not the only basis on which the Authority considered and rejected the claim made by the agent.

   [30] CB197, [35]

4. The representative’s claim was premised on the truth of the applicant’s claims that “[d]ue to the issues that the applicant and his family encountered with the Muslim Home Guards in his area he was unable to continue to work in his paddy farm”. The Authority considered the applicant’s claims that he had been harassed or harmed by the Muslim Guards, but, although accepting the applicant may have been subjected in the context of ethnic and political tensions prevailing during and after the civil war to some bullying and harassment not amounting to serious harm, the Authority rejected the applicant’s claims.[31] In other words, the Authority rejected the truth of the factual premises on which the applicant’s agent claim was based.

   [31] CB197-198, [34]-[37]

5. Ground 2 also fails.

Ground 3

1. Ground 3 is as follows:

   The Authority fell into error by failing to properly consider and assess [RA] (at [28]) letter resulting in jurisdictional error.

   Particulars

   3.1The Authority asked the wrong question/ignored the claims regarding [RA] and/or failed to have proper regard to the document provided by [RA].

   3.2The Authority failed to consider the risk to the Applicant.

   3.3The Authority committed jurisdictional error.

2. This ground relates to a letter purportedly from a Mr RA (RA letter).[32] At the top left hand corner of the letter an address at Darwin is given. The purported author of the letter states he knows the applicant and that he went to Sri Lanka in April 2015 and visited the applicant’s sister’s house. The purported author states that the applicant’s sister’s house was partly damaged “by some unknown people”, and that the applicant’s mother and sister told the author “as strangers are searching for” the applicant and his father, the applicant’s father is still hiding from them. The purported author also states that the applicant’s mother said that if “they capture” the applicant’s father, and if the applicant has to return to Sri Lanka, “they would kill them”.

   [32] CB85

3. In his written submissions, counsel for the applicant submits the Authority did not properly consider its discretion under s.473DD of the Act. Counsel submitted that the “additional information was required to give focus to the “exceptional circumstances” in considering the documents”.[33] The Minister, in his written submissions, submits the Authority considered the RA letter; and he further submits that s.473DD of the Act does not apply to the RA letter because s.473DD of the Act applies to “new information”, as that expression is defined in s.473DC, but the letter was before the delegate and, for that reason, it was not “new information”.

   [33] Applicant’s Outline Submissions, [25]

4. The Authority referred to the RA letter but decided to give it no weight. The Authority gave the RA letter no weight because it did not know who RA is, or what his relationship with the applicant is; there was no evidence RA travelled to Sri Lanka; and, “at most, he simply repeats what he says he was told “ and, for that reason, the Authority did not consider that the RA letter provided “independent corroboration of the applicant’s claims such as to overcome the many problems with the applicant’s own evidence, nor does it establish the existence of a threat to the applicant’s life . . . in the light of those problems”. The Authority considered and properly considered the RA letter.

5. Ground 3, therefore, fails.

Ground 4

1. Ground 4 is as follows:

   The Authority committed jurisdictional error when it misapprehended the Applicant’s claim regarding equipment damage [38] and/or failed to ask the correct questions and/or failed to properly exercise its discretion under s 473DF of the Act.

   Particulars

   4.1The Authority should have found that the delegate did not raise the reason with the Applicant such that the Applicant [sic] the motive for damage.

   4.2The Authority did not enquire from the Applicant.

   4.3This was relevant consideration in assessment of whether the Applicant’s fear was well-founded upon return to Sri Lanka.

   4.4The Authority applied the wrong test.

   4.5The Authority committed jurisdictional error.

2. In his written submissions counsel for the applicant submits that the Authority “erred in consideration relating to the farming activities”, that it “did not engage with the reason why the equipment was damage[d] whereas the delegate’s reasons appear to be linking it [to] tensions in the area”.[34] Counsel further submits the Authority could have sought further information under s.473DC of the Act.

   [34] Applicant’s Outline Submissions, [35]-[36]

3. The substance of ground 4 is that the Authority ought to have exercised its power under s.473DC of the Act to obtain further information in relation to the reason or reasons for which the trailer was damaged; and the obligation to consider exercising that power arose because the delegate appeared to accept the damage was linked to tensions in the area. It may also be that counsel for the applicant intended to submit the Authority was obliged to consider whether it should seek further information because the Authority was not satisfied there was sufficient information before it on the basis of which it could determine the reasons why the trailer was damaged.

4. There are four things to note about ground 4. First, although counsel for the applicant identifies the page in the court book which he submits shows the delegate linked or seemed to link the damage to the trailer with tensions in the area,[35] there is nothing in the delegate’s reasons that suggests the delegate considered any such link. The delegate accepted that the applicant’s family’s farm equipment “was damaged by unknown persons”.[36] Second, as the Minister submitted, even if the delegate had considered the damage to the trailer was linked to tensions in the area, the Authority was not bound to give the applicant notice that it might take a different view. I accept the Minister’s submissions that the facts in this case are distinguishable from cases such as Minister for Immigration and Border Protection v CRY16,[37] because there is nothing to suggest that additional information was required from the applicant for the Authority to conduct the review. Third, the Authority noted in its reasons that before the delegate the applicant said he did not know who was responsible for the damage.[38] Thus, there would have been no point in asking the applicant again whether he had any idea who might have been responsible for inflicting the damage. Fourth, as the Minister further submitted, the Authority was not satisfied that the burning of the trailer and the attempt to burn the harvester represented serious harm or a serious threat of harm to the applicant.[39] Thus, even if the Authority sought additional information concerning the reason for which the trailer was damaged, that information would have been irrelevant, given the Authority was not satisfied the damage constituted serious harm, or the threat of serious harm.

   [35] CB121

   [36] CB121, fourth dot point

   [37] [2017] FCAFC 210

   [38] CB198, [38]

   [39] CB198, [38]

5. Ground 4, therefore, fails.

Conclusion

1. The applicant has not succeeded on any of the grounds on which he relies. I propose, therefore, to order that the application be dismissed. I will consider the question of costs when I pronounce my order dismissing the proceeding.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  23 July 2019