DVL17 v Minister for Immigration

[2018] FCCA 2280

FEDERAL CIRCUIT COURT OF AUSTRALIA

DVL17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2280

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – interlocutory dismissal of show cause decision – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.5J, 36, 473CB

Cases cited:

Abebe v The Commonwealth (1999) 197 CLR 510

Minister for Immigration v Guo (1997) 191 CLR 559

Minister for Immigration v Lat (2006) 151 FCR 214

Minister for Immigration v Li (2013) 249 CLR 332

MZYXS v Minister for Immigration [2013] FCA 614

Nagalingam v Minister for Immigration (1992) 38 FCR 191

NAHI v Minister for Immigration [2004] FCAFC 10

Prasad v Minister for Immigration (1985) 6 FCR 155

SZQGC v Minister for Immigration (2012) 128 ALD 338

SZSGA v Minister for Immigration [2013] FCA 774

SZTAL v Minister for Immigration [2017] HCA 34; 91 ALJR 936

Applicant: DVL17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2688 of 2017

Judgment of: Judge Driver

Hearing date: 16 August 2018

Delivered at: Sydney

Delivered on: 16 August 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms A Zinn of Sparke Helmore

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,667 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2688 of 2017

DVL17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority).  The decision was made on 4 August 2017.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to the applicant’s claims for protection and the decision of the delegate and the Authority on them are set out in the Minister’s outline of legal submissions filed on 8 August 2018.   

2. The applicant is a male citizen of Sri Lanka and a Hindu Tamil.[1]  He arrived in Australia at Christmas Island on 18 May 2013 as an unauthorised maritime arrival[2] and lodged a valid application for a Safe Haven Enterprise Visa (SHEV) on 27 May 2016.[3]  He appointed a migration agent in connection with that application.[4]

   [1] Court Book (CB) 43

   [2] CB 122

   [3] CB 1-54

   [4] CB 51-54

3. In a statement provided with his SHEV application, the applicant claimed he was the owner of a successful construction business and in 2012 was targeted by competitors who were jealous of his “prospering business”. The competitors hired thugs to threaten and extort money from him. In August 2012, the applicant went to the bank to deposit 6 lakhs and received a call from his wife who informed him that unknown people had come to the house looking for him. When the applicant returned home, two men asked him to get into a blue van and threatened to kill him if he did not give them 6 lakhs. The applicant agreed to their demands and asked them to return in 10-15 days.[5]

   [5] CB 44

4. A few days after the incident, the same blue van followed the applicant. A man signalled for the applicant to stop his car, the applicant got out and was taken to the side of the van. One of the men held a pistol to the applicant’s head. The applicant’s driver came looking for him and pushed the men to the ground and the applicant escaped. After this incident, the applicant stopped working and hid at a friend’s place until he departed Sri Lanka illegally on 18 March 2013.

5. In January 2014, the same people went to the applicant’s house and threatened his wife for money.[6]  The applicant’s wife borrowed 10 lakhs from her brother but her brother had borrowed the money from a third party lender and was arrested when he could not repay it.

   [6] CB 45

6. After the applicant departed Australia, his wife told him that he had been sued for forged cheques worth about 2.75 lakhs and an arrest warrant was issued in his name. The wife borrowed money from her brother again and the arrest warrant was withdrawn.

7. The applicant claimed to fear harm from the people who targeted him as he believed they had connections with paramilitary groups. He also feared harm as a result of significant economic hardship that would threaten his capacity to subsist and as a failed asylum seeker.[7]

   [7] CB 46-47

The delegate

1. By a letter dated 13 January 2017, the applicant was invited to attend an interview with the delegate scheduled for 27 January 2017,[8] which he attended with the assistance of a Tamil interpreter.[9] At the interview, the applicant raised a new claim that the men who were looking for him held government positions.[10]

   [8] CB 66-76

   [9] CB 125

   [10] CB 125

2. On 14 February 2017, the delegate refused to grant the applicant a SHEV.[11]  On the basis of relevant country information, the delegate was not satisfied there was a real chance that the applicant would suffer harm from a paramilitary group[12] and was also not satisfied he would suffer economic hardship.[13] The delegate was not satisfied the applicant met s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958 (Cth) (Migration Act).[14]

   [11] CB 118-138

   [12] CB 130

   [13] CB 131

   [14] CB 133-134

The Authority

1. On 17 February 2017, the matter was referred to the Authority.[15]

   [15] CB 139-149

2. On 4 August 2017, the Authority affirmed the decision not to grant the applicant a SHEV.[16]

   [16] CB 149-166

3. The Authority accepted the applicant was a citizen of Sri Lanka and that Sri Lanka was his receiving country.[17] The Authority found the applicant’s accounts of the extortion incidents were detailed and he answered the delegate’s questions without hesitation. It also accepted that the applicant was: extorted for money in August 2012 and November 2012; threatened on both occasions with a pistol being pointed at his head on the second occasion; and that he lived with a friend before departing Sri Lanka illegally in March 2013. However, notwithstanding the applicant’s general credibility, the Authority retained concerns about his reasons for leaving Sri Lanka.[18]

   [17] CB 154, [8]

   [18] CB 154-155, [12]

4. The Authority accepted that the applicant started his business in 2000 and noted his evidence that apart from the incidents in 2012, no one had ever come and demanded money from him and that his father also worked in construction but was never extorted.[19]  The Authority cited independent country information that indicated during the years of the conflict and soon after, paramilitary groups and the Sri Lankan government were involved in enforced disappearances that were carried out for purely economic purposes. The Authority found the applicant’s explanations regarding why he thought the men who carried out the extortions were affiliated with the government were “not convincing” and was not satisfied that the applicant knew who they were or where they were from. The Authority found the suggestion that these men had connections to paramilitary groups or the government was “purely speculative” and it had difficulty accepting that the applicant would not have been approached at any other time before the incidents in 2012 if paramilitary groups or the Sri Lankan authorities were indeed involved. The Authority was not satisfied that the applicant ever had any issues with or was targeted by the Sri Lankan authorities or any paramilitary organisation.[20]

   [19] CB 155, [13]

   [20] CB 155, [14]

5. The Authority observed that the applicant had operated his business from 2000 and his father operated the business prior to that without any incidents of threat or harm. The Authority was therefore not satisfied that the applicant experienced harm as a result of operating a successful business from 2000 to 2012 and did not accept that he was targeted by competitors in the same industry for the first time in 2012 when he had been running a prosperous business for over a decade.[21]

   [21] CB 155, [15]

6. In addition, the Authority accepted that the applicant’s wife was threatened for money in January 2014 but this incident made it question the veracity of the applicant’s claimed reasons for leaving Sri Lanka. The Authority noted that the applicant expressed concern for his family’s welfare and found it implausible that after a couple of intimidating incidents in 2012, he would have left Sri Lanka and his young family without support. The Authority noted the applicant’s claim that he contacted his wife and children twice a day and that the men had not returned to his home since his wife paid them in 2014. The Authority was not satisfied that another extortion attempt had been made against the applicant’s family.[22]

   [22] CB 156, [16]

7. The Authority found the extortion demands were opportunistic acts by criminals that were neither systematic nor discriminatory. The Authority noted the applicant did not report the incidents to the police and was satisfied that if he returned to Sri Lanka and was subjected to extortion threats, then he could approach the police or obtain help from the state. The Authority did not accept, without any preceding incidents, that the reason the applicant decided to leave Sri Lanka, close his business abruptly and leave his wife and young family was due to the two incidents that occurred in 2012. The Authority referred to country information that indicated despite strong economic growth and low unemployment, there was a perception amongst Sri Lankans that there was a lack of economic opportunities, which was a significant “push factor” for external migration. For these reasons, the Authority was not satisfied that the applicant left Sri Lanka as a result of the extortion threats. It also found that considerable time had elapsed since the applicant’s family were approached for money and was satisfied that the applicant did not face a real chance of harm from any Sri Lankan authority, the Tamil Makkal Viduthalai Pulikal (TMVP), other paramilitary groups, business rivals or the men who had previously tried to extort him.[23]

   [23] CB 156, [17]

8. The Authority accepted that the incident with the forged cheques occurred but as the arrest warrant was withdrawn and the incident resolved, it was not satisfied the applicant would face a real chance of harm for this reason if he returned to Sri Lanka.[24]

   [24] CB 156, [18]

9. The Authority cited country information that indicated the situation in Sri Lanka had improved for Tamils and they faced a low risk of official discrimination under the current government. The Authority found that: the applicant completed up to year 11 in high school; there was no suggestion he was denied any educational opportunities because he was a Tamil; and he had operated a successful business. Apart from the incidents in 2012 and 2014, the Authority was not satisfied that the applicant had suffered any social or financial disadvantage amounting to serious harm as a result of discrimination based on his ethnicity and was not satisfied if he returned to Sri Lanka he would suffer significant economic hardship or discrimination that would threaten his capacity to subsist and take care of his family.[25]

   [25] CB 156-157, [19]

10. The Authority referred to country information regarding the presence of the Liberation Tigers of Tamil Eelam (LTTE) in Sri Lanka[26] and, when looking at the applicant’s personal circumstances, was not satisfied that he had suffered any harm or was singled out and targeted due to any suspected support for the LTTE. The Authority found the applicant and his family had never been involved with the LTTE and was not satisfied that he had a profile that would link him to the LTTE. It concluded there was no real chance of the applicant being harmed by the Sri Lankan authorities or any other group or person now or in the reasonably foreseeable future on the basis of being a young Tamil male from a former LTTE controlled area.[27]

    [26] at CB 157, [20]

    [27] CB 157-158, [21]

11. The Authority accepted that the applicant departed Sri Lanka illegally but was satisfied he had no identity concerns that would raise the concern of the authorities on his return.[28] It accepted that the applicant may be arrested and charged under the Immigrants and Emigrants Act but found that as he was not involved in organising or facilitating people smuggling, there was no real chance that he would be given a custodial sentence. The Authority was also not satisfied that the imposition of a fine would constitute serious harm.[29] The Authority found that if the applicant pleaded not guilty, he would be granted bail on personal surety or be required to wait to be collected by a family member.[30] It accepted that he may be detained for a short period but found this would not amount to serious harm.[31]

    [28] CB 158, [22]

    [29] CB 158, [23]

    [30] CB 158-159, [24]

    [31] CB 159, [25]

12. The Authority was also satisfied that the provisions and penalties of the Immigrants and Emigrants Act were the result of a law of general application and did not involve systematic and discriminatory conduct.[32] The Authority also did not accept that the applicant would be imputed with any pro-LTTE or anti-government dissident beliefs for any reason and found he would not face a real chance of persecution on return to Sri Lanka.[33] The Authority considered the applicant’s claims singularly and cumulatively but found he did not meet the requirements of s.36(2)(a) of the Migration Act.[34]

    [32] CB 159, [26]

    [33] CB 159, [27]

    [34] CB 159, [28]-[29]

13. The Authority referred to its earlier factual findings and was satisfied that, for the same reasons, the applicant also did not face a real risk of significant harm.[35]

    [35] CB 160, [32]

14. The Authority accepted that the applicant would be detained at the airport for questioning and security and character checks as a result of his illegal departure. It also accepted that he may be charged under the Immigrants and Emigrants Act for departing Sri Lanka illegally and remanded in custody for a short period. The Authority did not accept there were any particular aspects of the applicant’s profile that would result in his being detained for a longer period or subjected to more intensive interrogation that would give rise to significant harm. It was not satisfied there was a real risk the applicant would be subject to the death penalty or arbitrarily deprived of his life. The Authority was also not satisfied that the imposition of a fine would amount to significant harm.[36]  The Authority did not accept this process amounted to significant harm. It accepted that the conditions in prison or detention may be poor, but was not satisfied there was any intention to inflict pain or suffering, severe pain or suffering or cause extreme humiliation.[37] The Authority was also not satisfied the applicant faced a real risk of significant harm if he returned to Sri Lanka and found he did not meet the criterion in s.36(2)(aa) of the Migration Act.[38]

    [36] CB 160, [33]

    [37] CB 160, [34]

    [38] CB 160-161, [35]

The present proceedings

1. These proceedings began with a show cause application filed on 28 August 2017.  The applicant continues to rely upon that application.  There are four particularised grounds in it:

   1. Ground 1 – The IAA’s reasoning at [34] is infected with legal error.  The legal error alleged is the kind of legal error that has been alleged by the Appellants in SZTA, as this matter has not been finalised by the High Court of Australia the applicant requests his application to be adjourned until this time.

   a. More details will be provided once the court book is made available.

   2. Ground 2 – The Authority’s decision is illogical, inconsistent and so unreasonable no reasonable decision maker is likely to reach a similar decision.

   a.At [12] the IAA accepted that the applicant was extorted for money in August 2012 and in November 2012 and that the applicant was “threatened” on both occasions.

   b.At [12] the IAA accepted that the applicant was threatened in the manner described “with a pistol pointed at his head”.

   c.The IAA accepted that the applicant was generally credible [12].

   d.The IAA accepted that the applicant “started his business in 2000” [13].

   e.The IAA impliedly accepted that the applicant “was making a considerable income throughout the years of the conflict ...”.

   f. The IAA found that the applicant did not “deliberately mislead the delegate”.

   g.Having made the above positive findings, the IAA states in slightly a vague manner that it has concerns regarding the reasons the applicant left Sri Lanka [12], the IAA's concerns are spelt out to some degree at [14]

   i.      The IAA found it hard to believe that the paramilitary groups or the Sri Lankan authorities had been involved in the August 2012 and November 2012 extortion incidents because the applicant did not claim that he had been subjected to extortion prior to 2012.

   h.A fair reading into the decision record it appears to be that the IAA had some doubt in its findings. For example on the one hand the IAA accepts that the applicant is generally credible, and that he did not deliberately mislead the delegate in his responses while on the other hand the IAA refused to accept an essential integer of the applicant's claim that is persons who targeted him (the applicant) were TMVP / members of the Karuna group as claimed by the applicant.

   i. The IAA accepted that the said incidents (i.e. extortion incidents) did occur but had concerns that the applicant would not have known or that he knew who it was that targeted him.

   j.The applicant states he had resided in Batticaloa since birth (refer the applicant's statement of claims and delegate's decision).

   k.If the delegate was willing to accept that incidents of extortion did happen, on the facts it appears the applicant was better placed to identify who it was that targeted him. It was not open on the facts for the IAA to infer that the applicant who had resided in the same area since birth was not able to identify who it was that subjected him to extortion.

   l.It is submitted that the IAA erred in its reasoning and the decision is infected with legal error.

   m.Having accepted the 2012 extortion incidents, the IAA refused to accept another incident that the applicant claimed occurred [16].

   n.Findings at [16] relating to “another extortion attempt” is clearly inconsistent.  The IAA at [16] accepted that the extortion incident did take place, however then went onto infer that it was not satisfied that this other extortion attempt has been made against his family.

   Ground 3 - The Authority's decision is infected with legal error [15]

   Particulars

   a.At [15] the IAA refused to accept an essential integer of the applicant's claims that competitors targeted the applicant. It was not open to make this finding without providing sufficient reasons for rejecting this claim.

   b.The IAA failed to ask its self if it might be wrong prior to making such an inference.

   Ground 4 - The Authority failed to assess and consider if the applicant would face significant harm when assessing the applicant’s claims under the [complementary] protection criterion.

   Particulars

   a. The IAA accepted that the extortion were carried out by “criminals” [17] despite the IAA stating that the acts were “neither systematic nor discriminatory” [17], the IAA was obliged to assess future hmm under the [complementary] protection criterion, which it did not do.

1. The application is supported by a short affidavit filed with it which I received.  I also have before me as evidence the court book filed on 30 November 2017. 

2. The Minister filed legal submissions in accordance with procedural orders made by a registrar. 

3. The applicant filed legal submissions earlier today. Those submissions raised an issue not raised in the application. That is the proposition that the Secretary of the Minister’s Department did not comply with his obligation under s.473CB of the Migration Act. In response to those submissions the Minister tendered two additional documents that had been omitted from the court book. Exhibit R1 is the record of an irregular maritime entry interview conducted with the applicant on Christmas Island on 23 March 2013. Exhibit R2 is a record of an enhanced screening interview conducted on the same day.

4. The applicant and the Minister also made oral submissions at the hearing today. 

Consideration

1. The issue raised in the applicant’s written submissions appears on its face to be an interesting one.  He asserts that the Departmental file sent to the Authority did not include the initial entry interview records.  He invites the Court to draw that inference from the fact that the interview records were not included in the court book.  The Minister concedes that the records were omitted from the court book, but submits that the two documents comprising exhibit R1 and R2 were included in the file sent to the Authority. 

2. The solicitor for the Minister invited me to draw that inference from two paragraphs in the Authority’s reasons.  First, at [3][39], the Authority states that it had regard to the material referred by the Secretary under s.473CB. That, however, begs the question of what was comprised in that material. Secondly, and more importantly, at [9],[40] the Authority refers specifically to the enhanced screening interview and appears also to refer in the final sentence of that paragraph to the irregular maritime arrival entry interview.  I infer from that paragraph that the Authority had before it the record of both interviews comprised in exhibit R1 and exhibit R2. 

   [39] CB 152

   [40] CB 154

3. It follows that the assertion in the applicant’s written submissions fails at a factual level. 

4. In his oral submissions the applicant asserted that the material provided to the Authority by the Secretary did not include a record of a mental health assessment conducted upon him.  I adjourned for a short time to enable the Minister’s solicitor to obtain instructions on that issue. 

5. Those instructions were that there is no record on the Department’s file of any mental health assessment.  The applicant told me from the bar table that in 2014 in consultation with his departmental case officer he was referred for a mental health assessment.  He conceded, however, that he was not aware of any report having been prepared following that assessment.  Further, the assessment, assuming it occurred, was conducted about two years before the applicant applied for protection. 

6. No claim was made by the applicant in relation to a mental health issue.  I find that no arguable case of jurisdictional error arises from the applicant’s oral submissions.  I agree with the Minister’s written submissions in relation to the grounds of review advanced in the application.   

Ground 1

1. Ground 1 takes issue with the Authority’s finding[41] and requests the matter be adjourned until (the Minister infers) SZTAL v Minister for Immigration[42] has been finalised. The particulars state that “more details will [be] provided once the court book is made available”.

   [41] at CB 160, [34]

   [42] [2017] HCA 34; 91 ALJR 936

2. Since the applicant filed his judicial review application, the High Court has delivered judgment in SZTAL. The High Court in SZTAL (at [26]) found that “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” within the complementary protection regime under s.36(2)(aa) of the Migration Act requires the existence of an actual subjective intention by a person to inflict pain or suffering or to cause extreme humiliation. No error in the Authority’s reasoning[43] arises. Accordingly, this ground discloses no arguable case of error by the Authority and must fail.   

   [43] at CB 160, [34]

Ground 2

1. Ground 2 asserts that the Authority’s decision was illogical, inconsistent and unreasonable. The particulars comprise fourteen paragraphs referring to several of the Authority’s factual findings made at [12]-[16].[44]  Despite these contentions and the references to the Authority’s findings, the applicant does not articulate or identify with any precision the nature of the error allegedly committed by the Authority. He contends that it was “not open on the facts” for the Authority to infer that the applicant was unable to identify who it was that subjected him to extortion. The applicant states that having accepted that the 2012 extortion incidents occurred, the Authority’s findings[45] relating to “another extortion attempt” were inconsistent.

   [44] CB 154-155,

   [45] at CB 155-156, [16]

2. The particulars selectively refer to some findings made by the Authority without having regard to the whole of the Authority’s reasoning and some of the applicant’s complaints appear to mischaracterise the Authority’s actual findings and reasons. For example, the Authority accepted that the applicant was extorted for money twice in 2012[46] but was not satisfied that the men who targeted him had connections to military groups or the Sri Lankan authorities on the basis of the applicant’s unconvincing evidence about the identity of the men who had abducted him.[47]  It was also open to the Authority to find that the extortion demands were “opportunistic acts by criminals that were neither systematic nor discriminatory”.[48]  The Authority’s findings in this regard were open to it on the material before it.

   [46] at CB 154-155, [12]

   [47] at CB 155, [14]

   [48] CB 156, [17]

3. The applicant’s assertions about the Authority’s findings[49] are also misplaced. The Authority accepted that the applicant’s wife paid money in 2014 but on the basis of the applicant’s evidence in his SHEV application that the men had not returned since his wife paid them, was not satisfied that any further extortion attempts had been made against his family since that incident. Such findings were not “clearly inconsistent” and it is neither explained nor apparent how the alleged inconsistency arises. In substance, the applicant’s complaints seek to invite the Court to engage in impermissible merits review.[50]

   [49] at CB 155-156, [16]

   [50] SZQGC v Minister for Immigration (2012) 128 ALD 338 at [32]

4. The Authority’s reasoning did not lack an “evident and intelligible justification”,[51] but rather flowed logically from its assessment of the country information and the evidence before it. The choice and the assessment of the weight of country information was strictly a matter for the Authority and the Court cannot substitute its own view of the material, even if it has a different view from that reached by the Authority.[52]  It cannot be said that the Authority’s decision was illogical, inconsistent and unreasonable. Ground 2 cannot succeed. 

   [51] Minister for Immigration v Li (2013) 249 CLR 332 at [76]

   [52] NAHI v Minister for Immigration [2004] FCAFC 10 at [13]

Ground 3

1. Ground 3 contends the Authority’s decision is “infected with legal error” because the Authority refused to accept the applicant’s claim that competitors targeted him[53] without providing sufficient reasons for rejecting that claim. This ground also contends the Authority failed to ask itself if it might be wrong before “making such an inference”.

   [53] at CB 155, [15]

2. Relevantly, the Authority found the applicant was able to operate his business from 2000 and his father operated the business prior to this without experiencing any incidents of threats or harm. It was not satisfied that the applicant experienced harm as a result of operating a successful business between 2000 and 2012, and did not accept that he was targeted by people who were running businesses in the same industry for the first time in 2012 when he had been running a prosperous business for over a decade.[54]

   [54] CB 155, [15]

3. Contrary to the applicant’s assertions, the Authority’s reasons established a sound basis to reject his claim that he was targeted by industry competitors who were jealous of his successful business. It was for the applicant to provide his evidence and arguments in sufficient detail to enable the Authority to reach the requisite state of satisfaction.[55] The Authority was not required to make the applicant’s case for him,[56] and was not required to accept uncritically any and all the allegations made by the applicant.[57] The Authority’s findings were open on the available evidence and for the reasons it gave.

   [55] Minister for Immigration v Lat (2006) 151 FCR 214 at [76]

   [56] Abebe v The Commonwealth (1999) 197 CLR 510 at [187]; Prasad v Minister for Immigration (1985) 6 FCR 155 at 176

   [57] Minister for Immigration v Guo (1997) 191 CLR 559 at 596; Nagalingam v Minister for Immigration (1992) 38 FCR 191; Prasad at 169-170

4. Further, the Authority was not required to ask itself “what if I am wrong?” The Authority did not express any uncertainty or doubt regarding the correctness of its finding that the applicant did not experience any harm from competitors between 2000 and 2012 and therefore was not required to consider whether that finding was wrong.[58]

   [58] Minister for Immigration v Rajalingam (1999) 93 FCR 220 at [55]-[56]

Ground 4

1. Ground 4 states that the Authority failed to assess and consider whether the applicant would face significant harm in the future when assessing his claims under the complementary protection criterion.  The particulars state the Authority accepted that the extortion was carried out by criminals,[59] despite the Authority also stating that the acts were “neither systematic nor discriminatory”. The complaint here appears to be that the Authority’s reasoning[60] in finding that the extortion acts by criminals were “neither systematic nor discriminatory” used language reflected in s.5J(4) of the Migration Act that exclusively relates to a consideration of the refugee criterion.

   [59] at CB 156, [17]

   [60] at CB 156, [17]

2. This complaint cannot succeed. Whilst the Authority[61] adopted its reasoning under the refugee criterion in assessing the applicant’s claims under the complementary protection criterion, there is no jurisdictional error in the Authority referring to its previous findings of fact in relation to an applicant’s refugee claims when assessing their claims under the complementary protection provisions.[62]

   [61] at CB 160, [32]

   [62] SZSGA v Minister for Immigration [2013] FCA 774 at [54]-[56]; MZYXS v Minister for Immigration [2013] FCA 614 at [31]

3. The Authority’s description of the extortion demands as being “neither systematic nor discriminatory” must be read with its broader characterisation of the extortion demands as “opportunistic acts by criminals”.[63] Whilst some of this reasoning reflects the language of s.5J(4), this does not mean that the Authority’s characterisation of this harm must be exclusively regarded as refugee reasoning. It is also capable, for example, of relevantly informing the Authority’s complementary protection findings,[64] particularly in relation to its assessment of the degree to which the applicant faced a risk of significant harm on his return to Sri Lanka.  Crucially, the Authority also made a finding[65] that it was satisfied that if the applicant returned to Sri Lanka and was subjected to extortion threats, then he could approach the police or obtain help from the State. This finding clearly supported the Authority’s assessment of the applicant’s claims under the complementary protection criterion. A finding regarding the availability of police or State protection was not confined to a consideration of the refugee criterion and was capable of meeting the requirements of s.36(2B)(b) such that the applicant did not face a real risk of significant harm.

   [63] see CB 156, [17]

   [64] CB 160, [32]

   [65] at CB 156, [17]

4. For these reasons, the Authority’s findings of fact[66] that the extortion demands were “opportunistic acts by criminals” and that if the applicant returned to Sri Lanka and was subjected to extortion threats, he could obtain protection from the police or the State, were directly relevant and probative of the Authority’s consideration of the applicant’s claims under s.36(2)(aa). The Authority plainly did not fail to consider whether the applicant would face significant harm by reason of the claimed extortion attempts, as contended in ground four.

   [66] at CB 156, [17]

5. I conclude that the applicant has failed to establish an arguable case of jurisdictional error by the Authority.

6. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application be dismissed.

7. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court’s scale.  The applicant did not wish to be heard on costs.

8. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,667 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  22 August 2018