EQS17 v Minister for Immigration

[2018] FCCA 860

FEDERAL CIRCUIT COURT OF AUSTRALIA

EQS17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 860

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a protection visa – whether the Authority failed to take into account the relevant UNHCR guidelines – whether the Authority failed to properly identified, assess and address the risk of harm in respect of the applicant’s particular social group – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473CB, 476

Applicant: EQS17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 3236 of 2017

Judgment of: Judge Street

Hearing date: 10 April 2018

Date of Last Submission: 10 April 2018

Delivered at: Sydney

Delivered on: 10 April 2018

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Counsel for the Respondents: Mr H Bevan

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,620.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3236 of 2017

EQS17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act (1958) (Cth) (“the Act”) in the respect of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 28 September 2017, affirming a decision of the delegate not to grant the applicant a protection visa. 

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant arrived in Australia on 14 October 2012 as an unauthorised maritime arrival. The applicant claimed to fear harm because he would be at risk of being harmed by the Sri Lankan authorities, being a Hindu Tamil from the Jaffna district in the Northern Province. The applicant feared harm from the police, the CID and their associated paramilitary groups for imputed association with the Liberation Tigers of Tamil of Eelam (LTTE), and due to his support of the LTTE members, and payment of taxes to the LTTE for his business in Jaffna, his ethnicity, the area of origin and connection to relatives who are linked to the LTTE. The applicant also claimed to fear harm from members of the Eelam People’s Democratic Party (EPDP) as a Tamil businessman who failed to pay money in response to demands. On 17 February 2017 the delegate found the applicant failed to meet the criteria for the grant of a protection visa. 

The Authority

1. On 22 February 2017 the Authority wrote to the applicant, identifying that the application for the protection visa had been referred to the Authority for review. The letter explained that there were limited circumstances in which the Authority could consider new information, and provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.

2. The applicant did, in fact, put on submissions dated 22 March 2017, which were expressly referred to in the Authority’s reasons. The Authority identified in its reasons the background to the visa application and having regard to the material referred by the Secretary under s 473CB of the Act. The Authority identified the applicant’s submissions and summarised the applicant’s claims. Those claims included reference to the applicant’s displacement in 1990 and being questioned by police in 1993, and from 1993 until December 1996, that the applicant travelled to Saudi Arabia for work. The applicant moved to Vavuniya in 2000 and allegedly housed injured LTTE members in that period.

3. In 2002 the applicant’s family moved to Jaffna and started a grocery business. Up until 2006, the applicant allegedly paid taxes to the LTTE up until that time. When the Sri Lankan Army took over the area, the applicant allegedly burnt the information relating to having paid taxes to the LTTE. 

4. The applicant alleged that his mother’s brother’s son, K, was kidnapped by the CID in 2007 and his whereabouts are unknown. The applicant alleged his nephew NS, was forcibly recruited by the LTTE, and rose to a rank of lieutenant and was killed in 2008. The applicant alleged his niece participated in peace talk negotiations as an interpreter for a high ranking LTTE member and now resides in the United Kingdom. The applicant alleged that a cousin was a member of the LTTE intelligence and now resides in Germany. The applicant also referred to arranging for his son who was then aged 10, to travel illegally to Switzerland, and being intercepted at Colombo, and that his son was then questioned by the CID in Colombo. The applicant claimed that he and his son attended Court the next day, and that he was required to take his son to the CID offices every month. The applicant alleged that 15 days later his son departed Sri Lanka and travelled to Switzerland, where the son now resides, and that the applicant did not attend the CID office.

5. The applicant alleged that in 2010, cousin K was killed by the EPDP for failing to give them money when demanded. The applicant alleged that his cousin’s son was kidnapped and killed by members of the EPDP when his father, also a shopkeeper, failed to pay demand for money. The applicant also alleged that in 2012, three members of the EPDP/CID began harassing the applicant about paying taxes and supporting the LTTE, and threatened to report the applicant to the CID unless he paid them a large amount of money within a week. The applicant alleged that in August 2012, he travelled to Kilinochchi and remained in hiding until he left for Australia. The applicant alleged the EPDP have targeted other shop owners in the area, including killing an owner who was known to the applicant.

6. The applicant alleged on 8 May, unknown men came to his house in Sri Lanka and were looking for him and that on 18 December 2013, the applicant’s family were harassed by members of the EPDP on the telephone about the applicant’s whereabouts, and that as recently as October 2016, members of the EPDP went to his family’s residence asking about his whereabouts, and that a white van every three months, circles around his family’s home to intimidate them.

7. The Authority referred to the relevant law. The Authority referred to a submission that the applicant suffered mental health issues arising from trauma he had experienced during the conflict and from the Sri Lankan authorities.  The Authority noted there was no expert opinion regarding the applicant’s psychological condition and considered the impact of the past trauma when considering the totality of the applicant’s evidence. The Authority did not give particular weight to minor inconsistencies in the applicant’s testimony, such as timeframe for his travel or employment. The Authority observed that overall the applicant was found to have provided information in a coherent manner and discussed many topics in great detail and without apparent difficulty. The Authority noted the applicant had been assisted by a legal practitioner and was not satisfied the applicant’s mental health has negatively impacted on his capacity to present his claims for protection such that he could not provide fulsome responses to questions that had been asked of him. 

8. The Authority accepted as plausible that the applicant was questioned by police about possible LTTE involvement in about 1993, and that as well as being released without charge or conditions, the applicant in December of 1993 departed Sri Lanka on a valid passport in his name to travel to Saudi Arabia. The Authority found this indicated that following the questioning by the police in Colombo, despite initial suspicion by the authorities, the applicant was not considered to hold a profile of LTTE involvement or present any other security or political threat to the government.

9. The Authority accepted as plausible that the applicant ran errands and supported LTTE members by housing those who were injured and provided food and supplies whilst residing in Vavuniya.  The Authority noted that the applicant stated that he was at no time a member of the LTTE or involved in any fighting. The Authority noted the applicant returned to Jaffna in 2002 and opened a grocery store.  The Authority noted that Jaffna remained under LTTE control between 2002 and 2006, and that the applicant paid taxes during that period and then destroyed the evidence of the payment of the same when the Sri Lankan Army took control. The Authority accepted that the applicant would be perceived to have been a shopkeeper in his local area, but given the modest nature of the business described in the wife’s letter, the Authority did not accept that the applicant would be perceived in his local area as being wealthy.  The Authority considered it plausible the applicant took steps to remove evidence of any association with the LTTE following the Sri Lankan Army’s advance. 

10. The Authority made reference to the applicant having referred to a number of family relationships with people who were active in the LTTE involvement in support of his claims. The Authority was not satisfied the applicant’s relationship to NS, of itself, has ever triggered the suspicion by the authorities, including the CID or affiliated groups, such as the EPDP, that the applicant was involved with the LTTE. The Authority referred to the applicant’s claim involving the cousin K, and was not satisfied that there is a real chance the applicant faces harm from the CID or unknown people on the basis of that his cousin K was abducted or that a neighbour went missing and that his body was found in the ocean.

11. The Authority referred to the applicant’s claim in the interview that NS had been a lieutenant in the LTTE and had died an heroic death. The Authority did not accept the applicant’s explanation that he continued to withhold information at the time of lodging the visa application because he was afraid the Tamil interpreters would report this information to authorities in Sri Lanka. The Authority found there was no credible information to corroborate that his two cousins were linked with the LTTE, and considered the inclusion of these claims at the end of the applicant’s visa interview to have been a recent invention to bolster his claims for protection.

12. The Authority was not satisfied the applicant had a cousin who was an interpreter for a high ranking LTTE official who fled to the United Kingdom or that he has another cousin currently residing in Germany who was part of the LTTE intelligence. The Authority referred to the applicant’s claim that an arrest warrant had been issued and that he had been detained at the Sri Lankan airport on return. In this regard, the Authority referred to the applicant stating that in 2009 he had attempted to arrange for his 10 year old son to depart Sri Lanka illegally to Switzerland. The applicant referred to a direction that he and his son were required to attend Court the next day, and that the applicant was required to bring his son to the office once a month, and that the applicant did not do so, and successfully arranged for his son’s departure from Sri Lanka 10 days later, and that the son is now resident in Switzerland. The Authority accepted that the applicant’s description of those events, in terms of his son’s departure, was plausible, but the Authority had considerable doubt that there is an open warrant in existence for the applicant.

13. The Authority noted that the applicant had stated in his visa application that he had not been charged with any offences or subject to an arrest warrant, and from his own testimony, it appears that his son, rather than himself, was the subject of the Court proceedings and the reason for the ongoing requirement by the CID.  The Authority noted the applicant hadn’t claimed that he had been ever questioned or pursued by the CID or police for his son’s failure to comply with any salient requirement, and it was in those circumstances that the Authority was not satisfied there’s an arrest warrant for the applicant in existence.

14. The Authority referred to the applicant’s claim that in July 2012, three unknown men came into his shop and demanded money, and that the applicant stated he did not know who they were at the visa interview, and made reference to a letter from the applicant’s wife, dated 16 November 2012, in support of the claims. The Authority made reference to the letter, describing the applicant being extorted, and the Authority referred to country information. The Authority taking into account that country information, accepted it was plausible the applicant was approached and threatened with being reported to the CID. The Authority was satisfied the primary motivation of the men targeting the applicant was for financial gain and their ability to operate at the time with impunity.

15. The Authority referred to the applicant’s claims that a week later he received an extortion demand from the CID. The Authority found the applicant’s testimony about the identity of the people who visited this occasion to be vague and unconvincing and referred to the inconsistent evidence in the applicant’s written claims and the evidence given during the visa interview. It was in these circumstances, the Authority was not satisfied that the people who came to the applicant were members of the CID.

16. The Authority noted that the applicant had obtained a replacement passport in 2012. The Authority found this indicated that the applicant did not hold a profile with them for the LTTE involvement or was otherwise considered a security threat at this time. The Authority referred to the applicant’s evidence that in July/early August 2011, he travelled by himself to Kilinochchi and remained there in hiding. The Authority found the applicant’s evidence that he was working in Kilinochchi, and his engagement with people unknown to him to secure illegal departure from Sri Lanka, to be inconsistent with a person who was in fear of coming to the attention of the local authorities and was in hiding. Whilst the Authority was prepared to accept the applicant may have travelled to Kilinochchi in late July/early August 2011, the Authority was not satisfied the applicant was fearful for his safety or attempting to maintain a low profile from the CID or Sri Lankan police.

17. The Authority found that at the time the applicant departed Sri Lanka, he was not a person of adverse interest to the Sri Lankan authorities for any reason. The Authority referred to a letter from the Human Rights Commission of Sri Lanka dated 28 January 2017, which had been prepared at the request of the applicant’s wife based on her testimony.  The Authority noted the time at which the document was obtained, shortly before or, at least, close to the time the applicant’s visa interview, and noted the content of the complaint referring to unknown persons searching and inquiring about the applicant.

18. In these circumstances, the Authority referred to the whole of the letter and did not find the substance of the complaint or the motivation for making the complaint to be credible.  The Authority found the complaint was made to embellish the applicant’s claims for protection, and did not accept the document corroborates the applicant’s claims and was not satisfied that persons believed to be EPDP have been asking about the applicant’s whereabouts as recently as October 2016.

19. The Authority did not accept that people came to the applicant’s home looking for him in May 2013 or that a member of the EPDP contacted his family by telephone in December 2013.  The Authority was not satisfied that the applicant’s family were being targeted with an intention to intimidate them, and the Authority was not satisfied the applicant’s family are exposed to intimidation by CID, paramilitary groups, such as EPDP, through visits, telephone calls, or having a white van drive close to the house every three months. Taking into account country information and that the applicant’s business ceased operating for a significant period of time, the Authority considered it implausible that people who had attempted to extort money from the applicant in 2012 would pursue their demand by contacting the applicant’s family many months, if not years, later.

20. The Authority referred to country information not supporting the conclusion that Tamils, including Tamil men from the Northern Province, have been systematically targeted and subjected to serious harm because of their race and/or origin. The Authority referred to the applicant’s claims of family connections to the LTTE, having travelled and resided in LTTE controlled areas, provided accommodation, food and monetary support to the LTTE between 2002 and 2006 when attempting to facilitate the departure of his 10 year old son from Sri Lanka, and that the applicant has not ever been detained and/or questioned for lengthy periods by the authorities, subjected to serious mistreatment, arrested, charged or required to undertake rehabilitation due to being suspected of being an LTTE supporter.

21. It was in these circumstances that the Authority did not consider the applicant to have a profile with the Sri Lankan authorities for involvement with the LTTE due to his assistance to the LTTE and payment of taxes to them between 2002 and 2006, or imputed through his connection to his nephew, NS, and the abduction of his cousin K by the CID for suspected LTTE activity, or that the applicant is otherwise considered to be a person of interest to the authorities for not facilitating his son’s signing with the CID following the failed departure attempt in 2009 or due to his ethnicity or because he is a Tamil businessman.

22. The Authority made reference to the applicant’s profile and country information, about the change in Sri Lanka’s political and security landscape, and was not satisfied the applicant would be targeted by the Sri Lankan authorities, including the police, CID or members of the associated paramilitary groups on return to Sri Lanka. The Authority referred to the applicant’s concerns in respect of extortion, and was not satisfied that even if the same people who extorted the applicant in July 2012 were still resident in the Jaffna area, there is a real chance they would resume targeting the applicant and harass him on his return even if he were to manage a shop in the foreseeable future.

23. The Authority referred to the applicant having trade and retail skills and capacity to be flexible in finding employment. The Authority, referring to the applicant’s work experience and personal attributes and was satisfied that the applicant would be able to earn an income on his return to Sri Lanka and that he could subsist. The Authority accepted that the applicant had departed Sri Lanka illegally and has resided abroad, and that he would be returning home as an asylum seeker. The Authority made reference to the Immigrants and Emigrants Act 1949 and found that it was a law that was not applied in a discriminatory manner, and was not satisfied the applicant would face a real chance of serious harm on the basis of being a returned asylum seeker and/or for illegal departure.

24. The Authority referred to the applicant’s ethnicity, district and province of origin, the family connections to the LTTE, having travelled and resided in LTTE controlled area, the provided support to LTTE members, and that the applicant had not been detained, charged or subjected to rehabilitation by the authorities or impeded from undertaking overseas travel to Saudi Arabia between 1993 and 1996, or renewing his passport in 2012. The Authority made reference to the applicant having been threatened and extorted for money by members of the EPDP, and that his business ceased once he departed Sri Lanka, and that country information does not indicate that the EPDP continued to engage in extortion activity. It was in these circumstances that the Authority made reference to the applicant’s history and profile, and having regard to the country information about the political and security situation in Sri Lanka, including the reduced involvement of the EPDP in extortion activity, the Authority was not satisfied the applicant faces a real chance of serious harm now or in the reasonably foreseeable future. The Authority found the applicant did not meet the requirements or the definition of refugee in s 5H(1) of the Act, and found the applicant did not meet the requirement under s 36(2)(a) of the Act.

1. The Authority then turned to the issue of complementary protection and was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka from Australia, there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criteria under s 36(2)(aa) of the Act, and affirmed the decision under review.

Before this Court

1. The grounds of the application are as follows:

   Ground 1

   The Authority erred in consideration of the Applicant's link to LTTE in that the Authority failed to address whether the Applicant could be subject of harm upon return to Sri Lanka and failed to take into account the relevant UNHCR guidelines and other information in respect of and failed to assess if the Applicant was at risk (thereby failing to ask correct question or asking incorrect questions and failed to give these claims realistic consideration and thereby committed jurisdictional error.

   Particulars

   (a) The Authority accepted the Applicant's cousin was high ranking LTTE member;

   (b) The Authority accepted that the Applicant was involved providing assistance to LTTE; employed to run errands; providing support to injured LTTE members and providing housing to L TTE members  (at [14]).

   (c) His mother's Sister's daughter's high ranking role (IAA at [18]).

   (d) The Tribunal failed to engage with these claims.

   (e) The Authority fell into jurisdictional error.

   Ground 2

   The Authority erred in failing into account relevant considerations and I or failed to give realistic consideration to the Applicant's LTTE connection and family links and thereby committed jurisdictional error. The Authority has erred in the consideration of 2 cousins to LTTE referring to these as "recent invention". The Tribunal has ignored all the circumstances and I or decision is irrational and I or illogical..

   Particulars

   (a) The Applicant submitted the family links (father, brother and cousins; IAA at [16] - [17]) as having connections to family link.

   (b) The Applicant was involved in providing services to LTTE;

   (c) This is relevant to the consideration of the risks under the various guidelines.

   (d) Such links is directly relevant in consideration of the Applicant's political opinion I imputed political opinion and the basis of assessing the risks to the Applicant ('persons with LTTE links') upon return. The Authority ignored the claims.

   (e) The Authority ignored the relevant considerations such as son's departure to Switzerland.

   (f) The Applicant claimed that he was victim of extortion.

   (g) The Authority has not assessed the impact the interest in the Applicant by these persons and whether extortion suffered could amount to significant I serious harm.

   (h) The Authority has failed to engage with the claims I integers and I or issues.

   (i) The Authority failed to address whether the claims gave rise to complementar.

   (j) The Authority has not properly considered the Applicant's payment of monies.

   (k) The Tribunal has asked incorrect question and has failed to ask the correct question and address a claim or integer of claim.

   (1) The Authority thereby committed jurisdictional error.

   Ground 3

   The Authority's decision is affected by jurisdictional error when it asked incorrect questions I failed to ask correct questions in regard to the Applicant's potential arrest and detention upon return to Sri Lanka but whether the Applicant failing to take son for monthly reporting and arranging passage of son and himself departing Sri Lanka illegally would create risks for the Applicant (asking incorrect questions regarding "arrest warrant" (IAA at [20]). The Authority has fallen into jurisdictional error.

   Particulars

   3.1 The Authority did not properly consider the Applicant's involvement in taking his son for reporting.

   3.2 The Authority has presumed that the Applicant would not have problems owing to previously obtained passport.

   3.3 The Tribunal ignored the events after the issue of passport (including departing illegally and sending his son who the Applicant was required to take in for reporting).

   3.4 The Authority has fallen into error.

   Ground 4

   The Authority erred in consideration of the SHRC letter (IAA at [31]) provided by the Applicant and failed to give these claims realistic consideration and thereby committed jurisdictional error.

   Particulars

   (a) The Authority fail to engage with the Applicant's documents

   (b) The Authority fell into jurisdictional error.

   Ground 5

   The Authority erred in consideration of the Applicant's ability to subsist ([36].

   Particulars

   (c) The Authority fail to engage with the Applicant's ability to subsist given that the Applicant had difficulties and suffered extortion (at [36])

   (d) The Authority fell into jurisdictional error.

   Ground 6

   The Authority committed jurisdictional error when it failed to properly identify, assess and address the risk of harm in respect of the Applicants' particular social group.

   Particulars

   (a) The Authority did not consider the social group with characteristics relevant to the Applicant as Tamil businessman.

   (b) The Authority did not deal with the claim of being Tamil posing as particular risk to the Applicant.

   (c) The Authority did not consider particular social group of Tamil businessman family from north/east. 

2. Mr Kumar of counsel on behalf of the applicant confirmed that the applicant did not press ground number 7 and that ground 7 was abandoned. 

Ground 1

1. In relation to ground 1, Mr Kumar of counsel submitted that there was no express reference to the UNHCR guidelines in the Authority’s reasons. Mr Kumar submitted that it could be inferred that the Authority had failed to take into account UNHCR guidelines and had failed to properly assess the applicant’s risk in relation to LTTE links. Mr Kumar drew the Court’s attention to the fact that the UNHCR guidelines were referred to in the footnotes to the delegate’s decision. The Court notes that in the submissions to the delegate dated 12 February 2017, which summarised the applicant’s claims on pages 162-163 of the Court Book of the submissions and which was also repeated at pages 197-198 of the Court Book  of the submissions comprising 38 pages, that at page 22, there is a reference to the return of asylum seekers from Australia and it was alleged that the applicant had issues with the Sri Lankan authorities and paramilitary before he fled Australia and in addition, it was submitted the applicant falls under the UNHCR guidelines.

2. Mr Kumar argued that the Authority had failed to take into account the UNHCR guidelines in assessing the applicant’s risk and it thereby failed to ask the correct question or asked the incorrect question and failed to give the applicant’s claims realistic consideration and thereby committed a jurisdictional error. The Authority’s reasons as summarised above, clearly identify having focused on the applicant’s profile in relation to the applicant’s LTTE alleged connections. There is no requirement for the Authority to refer to all country information before the Authority. I do not regard the reference in the submissions to the delegate to the UNHCR guidelines as giving rise to circumstances in which the Authority had to expressly refer to the UNHCR guidelines.

3. Given the reference in the Authority’s reasons summarised above, to the applicant’s profile, I am not prepared to infer that the Authority failed to take into account the UNHCR guidelines. Further, the Authority’s reference to the applicant’s profile is consistent with the Authority taking into account the consideration of country information, including the UNHCR guidelines and having an active intellectual engagement with the submissions. I do not accept that the Authority failed to assess the applicant’s risk in the circumstances of the present case without taking into account the country information, including the UNHCR guidelines. I find the Authority did not ask an incorrect question and did not fail to give realistic consideration to the applicant’s claims in relation to alleged links to the LTTE. The Authority’s reasons as summarised above reflect genuine consideration to the applicant’s alleged LTTE links and adverse findings that were open for the reasons given by the Authority. No jurisdictional error as alleged in ground 1 is made out. 

Ground 2

1. In relation to ground 2, Mr Kumar contended that the Authority’s reasoning in relation to the applicant’s claims concerning fear and harm because of LTTE connections were irrational or illogical.  Both orally and in his submissions, Mr Kumar, focused on the son’s departure and the extortion claims. It is apparent from a summary of the Authority’s reasons, as referred to above, that the Authority took into account the son’s departure and accepted that the son had made an attempt to depart and was the subject of a reporting requirement.  The Authority did not, however, accept that a warrant had been issued for the applicant.  Given the time of the son’s alleged departure and the reasons given by the Authority as summarised above, there is no failure by the Authority to consider the whole of the applicant’s circumstances.  Nor were the reasons of the Authority, in rejecting the applicant’s claims in the circumstance of the present case, irrational or illogical. The Authority made reference to the applicant never having been questioned or pursued by the CID. Accordingly, the adverse finding by the Authority was open on the material before the Authority.

2. In particular, the Authority referred to the applicant having been released by the authorities when he was earlier detained and also referred to the applicant’s ability to obtain a passport.  The findings by the Authority in relation to the applicant’s family members reflect the Authority actively engaging in a meaningful way with the applicant’s claims and the Authority made adverse findings that were open to the Authority for the reasons given by the Authority and cannot be said to be unreasonable. Ground 2 is, in substance, an invitation for this Court to engage in impermissible merits review. No jurisdictional error, as alleged in ground 2, is made out. 

Ground 3

1. In relation to ground 3, Mr Kumar submitted that in considering the consequences of the applicant returning and the implications of the Immigrants and Emigrants Act, the Authority should have taken into account the existence of the warrant and that the Authority had accordingly fallen into jurisdictional error. It is apparent that the Authority did not accept that an arrest warrant was issued and made findings dispositive of the applicant’s claims in that regard.  Accordingly, it was not necessary for the Authority to refer again to the claims that had been rejected in dealing with the consequences of the applicant’s illegal departure. No jurisdictional error as alleged in ground 3, is made out.

Ground 4

1. In relation to ground 4, the Authority’s reasons as summarised above, clearly identify engaging with and considering the applicant’s letter from the Human Rights Commission of Sri Lanka. The Authority did not reject the letter as not being genuine but rather, identified reasons why the letter did not provide corroborative assistance for the applicant in respect of the applicant’s claims. Those reasons were logical and rational and there is no failure to engage with the applicant’s claims and/or alleged supporting material. No jurisdictional error as alleged in ground 4 is made out.

Ground 5

1. In relation to ground 5, Mr Kumar submitted that the Authority had erred in its finding as to the applicant’s ability to subsist. In that regard, Mr Kumar focused on the part of the Authority’s reasons dealing with assessing the applicant’s capacity to present his claims where, as the Authority noted, the Authority had referred to the applicant allegedly having a mental health issue. This is a case where there was no medical evidence provided in respect of any such medical issue. No claim was advanced that the applicant’s capacity to subsist was affected by his mental health.

2. Mr Kumar argued that such a claim arose on the material before the Authority. I do not accept that any such claim fairly arose on the material before the Authority. Insofar as the issue of extortion is concerned, the Authority considered and took that into account in determining the applicant’s ability to subsist, even if the applicant returned to the position of a storekeeper. No jurisdictional error as alleged in ground 5 is made out.

Ground 6

1. In relation to ground 6, Mr Kumar submitted that the Authority had failed to address the applicant as being a member of a particular social group of Tamil businessmen from the north/east. The submissions developed by Mr Kumar, orally and in writing refer to the applicant being a member of a particular social group of Tamil businessmen from the north/east.  Mr Kumar submitted that such a claim fairly arose on the material before the Authority.

2. Attention was also drawn by the first respondent to the fact that at page 182 of the Court Book, in the submission to the delegate, there was a reference to a heading, “Membership of a Particular Social Group (Failed Asylum Seeker/a Tamil Businessman from the Northern Province)”. That heading does not identify two social groups an materially, the substance of the submissions under the heading did not do so. In those submissions, neither the summary of claims at the commencement of the submissions as referred to above, or at the end identified the applicant as fearing harm by reason of being a member of a particular social group of Tamil businessmen from north/east. The submissions to the delegate developed on page 182 – 183 of the Court Book to do deal with the applicant being a failed asylum seeker but in the body of those submissions, there is no argument developed to the effect that the applicant is a member of a separate social group of Tamil businessmen from north/east.

3. The Authority, in the Authority’s reasons, expressly dealt with the applicant’s claims arising out of having been a businessman and having been the subject of extortion. I do not accept that any claim that the applicant was a member of a social group comprising Tamil businessmen family from north/east fairly arose on the material before the Authority. A claim that did not arise on the material before the Authority cannot give rise to any jurisdictional error. Accordingly, no jurisdictional error, as alleged in ground 6, is made out.

Conclusion

1. As the application fails to make out any jurisdictional error, the application is dismissed.  

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 7 June 2018