SZVJI v Minister for Immigration

[2017] FCCA 936

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVJI v MINISTER FOR IMMIGRATION [2017] FCCA 936

Catchwords:
MIGRATION – Judicial review of an International Treaties Obligations Assessment made by an officer of the Department of Immigration and Border Protection – whether officer failed to consider integer of claim – whether officer asked the wrong question – whether officer acted unreasonably – whether officer failed to accord applicant procedural fairness – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss. 36(2)(aa), 36(2A), 474(3), 476

Cases cited:

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

SZNRM v Minister for Immigration and Citizenship [2009] FMCA 1049

SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125

Applicant: SZVJI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 2983 of 2014

Judgment of: Judge Manousaridis

Hearing date: 4 March 2016, 15 April 2016

Date of Last Submission: 15 April 2016

Delivered at: Sydney

Delivered on: 10 May 2017

REPRESENTATION

Counsel for the Applicant:  Mr S.E.J. Prince

Solicitors for the Applicant: SBA Lawyers

Counsel for the Respondents: Mr B. O’Donnell

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2983 of 2014

SZVJI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application under s.476 of the Migration Act 1958 (Cth) (Act) for relief in relation to a decision (Decision) made by an officer (Assessor) of the Department of Immigration and Border Protection (Department) that the applicant was not a person to whom Australia owed any “non-refoulement” obligations.

2. The Decision was the outcome of the application to the applicant of a process the Department “had in place for a number of years for a variety of reasons called an International Treaties Obligations Assessment” (ITOA).[1] The respondent (Minister) accepts the Decision is a decision within the meaning of s.474(3) of the Act, the Decision was made before s.197C of the Act came into effect, and, therefore, the Court has jurisdiction under s.476 of the Act to determine the applicant’s challenge to the Decision.

   [1] SZSSJ v Minister for Immigration and Border Protection [2015] FCAFC 125 at [14]

Claims for protection

1. The applicant is a citizen of Colombia. He arrived in Australia in February 2008 on a student visa and, on 10 November 2008, he applied for a Protection (Class XA) visa (Protection visa).

2. In a statement dated 6 November 2008 that accompanied his application for a Protection visa,[2] the applicant claimed that “late last year” his father was captured and extradited to the United States of America (USA) for his involvement in drug trafficking. The applicant claimed his father had “never told us about this”. The applicant claimed “[w]e practically lost everything except for the house where we always lived, which in the end we sadly had to sell”. The applicant said he was sent to study in Australia but he later found out that his parents had sent him to Australia “for security reasons”, because “most of my life I lived with my father and so I was the son who [sic] people knew the most”.

   [2] CB27

3. A delegate of the Minister refused the application and, in May 2009, the Refugee Review Tribunal (RRT) affirmed the delegate’s decision. The applicant applied to this Court for judicial review of the RRT’s decision, but that application was dismissed.[3] As will be apparent later in these reasons, findings the Court made when deciding to dismiss that application for judicial review are relevant to one of the grounds on which the applicant relies in the proceeding before me.

   [3] SZNRM v Minister for Immigration and Citizenship [2009] FMCA 1049

4. In July 2014 the applicant sent a letter to the Minister in which he asked “if [he] could have [his] refugee case examined under the legislation introduced in 2012 for complementary protection”.[4] The applicant claimed he was frightened to return to Colombia because his father had been involved in drug trafficking when the applicant lived with him. The applicant claimed his father had been arrested, and that fact was widely reported in the press in Colombia. The applicant’s father was subsequently extradited to the USA, where he was tried and imprisoned.

   [4] CB44-45

5. The applicant made the following claims in his letter to the Minister:

   a)The applicant is targeted because he had lived with his father for many years, and he knows many of the people involved in drug dealing.

   b)The applicant is his father’s first born, which also makes the applicant a target.

   c)The applicant went to school with the children of drug traffickers and because of his broad knowledge of drug dealers, the applicant is a serious threat to them. The applicant believes he will be killed because of this knowledge if he does not become a drug dealer himself.

   d)In September 2007, when the applicant’s father was captured for drug trafficking, the applicant’s mother began receiving death threats during which time the applicant had gone back to live with his mother. In January 2008 the applicant received a student visa, and he immediately made arrangements to come to Australia.

6. Under cover of a letter dated 31 July 2014, the applicant’s representatives, the Franciscan Missionaries of Mary, “attached further material in support of” the applicant’s “request for Ministerial intervention”.[5] That material consisted of a letter dated 31 July 2014 from the applicant’s representatives to the Minister (Submission), and documents referred to in the Submission.[6] Under the heading of “New Information”, the Submission referred to the applicant’s having “consistently alluded to the fact that his father might reveal damning information regarding high profile people involved in the trafficking of drugs and the paramilitary”, and that a letter from the applicant’s father’s lawyer “has confirmed this”. The letter noted, however, that “[d]ue to time constraints”, the applicant’s father’s lawyer “has not been able to acquire the information” the applicant’s father “reported to the USA Attorney”.

   [5] CB46

   [6] CB47-128

7. The Submission then referred to a number of documents or classes of documents. The first was a copy of the applicant’s birth certificate. The second was a letter dated 16 July 2014 purportedly from the applicant’s father’s lawyer.[7] It stated:

   I represent [the applicant’s father] who is currently incarcerated in the United States of America. [The applicant’s father] is assisting the United States’ Government by providing significant and detailed information regarding several high profile Colombian drug traffickers. [The applicant’s father’s] cooperation has been publicly acknowledged . . . . Indeed [the applicant] would be the main target for retaliation as his father remains incarcerated.

   [7] CB75

8. The third document is a copy of a plea agreement dated 15 December 2008 into which the applicant’s father had entered.[8] The fourth document is titled “Superseding Information”, which records the applicant’s father’s criminal case having been entered into a court docket on 12 December 2008.[9] That document charges the applicant’s father with conspiracy “with other persons, both known and unknown to the United States”, to import a controlled substance into the USA. The fifth document is a “Superseding Indictment” charging a number of defendants, including the applicant’s father, with conspiracy to import a “controlled substance” into the USA.[10] That document is recorded as having been entered into the court docket on 18 March 2009. The sixth document to which the Submission refers is an “[e]mail stating the sentence” the applicant’s father received. The email states that, on 31 March 2009, the applicant’s father was sentenced to prison for 135 months.[11]

   [8] CB78

   [9] CB85

   [10] CB89-99

   [11] CB96

9. The Submission then refers to the following four documents or sets of documents the applicant claimed illustrate the danger the applicant will be in if he has to return to Colombia.

   a)One document[12] contains claims made by reference to other documents[13] that relate to the summary execution of seven Colombians on 4 August 2008.[14] The applicant claimed that one of the persons who had been executed (FP) was one of the applicant’s father’s co-defendants in the USA criminal proceeding;[15] the “[t]rustees and partners” of FP have since been killed;[16] former members of the military had been involved in the executions;[17] and the person who kidnapped the applicant’s father (Mr B) was one of the persons accused of the executions.[18] The applicant claimed he is fearful of Mr B and his associates whom he claims kidnapped his father.[19]

   b)Another document appears to be a report about persons who had been murdered.[20] The applicant claimed that although the “family members were all in gangs possibly involved in drugs”, the applicant “fears that once he is recognised perpetrators won’t discriminate and will target him to punish his father, regardless of the fact that he is not into drug trafficking”.[21]

   c)A set of documents reports on two pairs of drug dealers who had fallen out resulting in the death of each one of each pair.[22] The applicant claimed he fears being recognised by people with whom he attended school that were now into drug trafficking.[23]

   d)Another set of documents relates to a report about properties of drug dealers that have been seized.[24] The applicant claimed this section of his claims “gives accounts of properties accumulated, and also indicates that not all the traffickers have been [put] in jail”.[25]

   [12] CB97

   [13] CB99-105

   [14] CB100

   [15] CB99

   [16] CB97, 101

   [17] CB97, 100

   [18] CB104

   [19] CB97

   [20] CB106-109

   [21] CB106

   [22] CB110-111

   [23] CB110

   [24] CB112-115

   [25] CB112

10. The Submission provided further information, and made a number of claims and submissions. The structure of, and the principal claims contained in, the Submission may be summarised as follows:

    a)The Submission presents “a picture of the environment in which the [applicant’s father] lived and ‘worked’”.[26] This section[27] includes claims that the applicant’s father’s brother was killed when the applicant was two years old; in 2003 the applicant’s father was accused of having supplied drugs that were switched to poor quality drugs on one occasion, resulting in a loss of $1.8 million; and the applicant’s father’s driver was shot at a service station in 2007 when getting petrol to help the applicant’s father escape.

    b)The Submission then sets out the applicant’s claims. These included the following: since he was two years of age, the applicant lived with his father, who had an on-and-off relationship with his mother; the applicant believed his father was abducted at least once, and the applicant’s father lost all his assets in meeting the ransom; the applicant socialised with his father and his father’s friends and, in so doing, met people the applicant later identified as traffickers; the applicant has since discovered that some of the boys he mixed with at school have trafficking fathers, and they themselves were now traffickers; because of “[t]hese acquaintances [the applicant] believes he could be recognised anywhere in Colombia” and that, once recognised, “information about his whereabouts will spread instantly through the trafficking networks”; and the applicant believes “he will be targeted for retribution by traffickers disenchanted by the activities of his father”.

    c)The Submission then refers to a number of reports issued by the United Nations High Commissioner for Refugees, and to the RRT decision.

    [26] CB48

    [27] CB48-49

11. The applicant also provided a copy of a letter from the applicant’s mother dated 22 July 2014.[28] The mother claimed, among other things, that she had been separated from the applicant’s father; the applicant’s father, however, had the right to see the applicant and, because the applicant was the eldest, the applicant’s father “would take him from [the applicant’s mother] and because of this [the applicant’s father’s] friends knew [the applicant] from the time he was a child”. The letter also stated:

    The father’s friends sent him word with my children themselves when they went to see him in  . . . jail, where they take them first and later extradite them . . . . They took advantage of the fact that I was away and bought the tickets for my children to go and visit their father and when they were on the bus they said to them to tell their father that if he opened his mouth, his family was here and they would pay for everything. Then some strange things we did not expect started happening: they started watching us in cars and threatening us by telephone, mainly [the applicant]. . . . I had to sell my house worth 200 million pesos for 100 million pesos to save the life of [the applicant] firstly because they knew he was the light of his father’s eyes.

    [28] CB116-117

12. Before the Assessor the applicant confirmed the claim he had made to the RRT that his father was involved in paramilitary organisations.[29]

    [29] CB148.8

Assessor’s decision

1. The Assessor assessed the applicant’s claims against the Refugees Convention[30] and, against Australia’s non-refoulement obligations under Art.3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and Art.6 and Art.7 of the International Covenant on Civil and Political Rights (ICCPR). The Assessor was of the view that Australia’s non-refoulement obligations under the CAT and the ICCPR arise “where there are substantial grounds for believing that, as a necessary and foreseeable consequence of a person being removed from Australia to a receiving country, there is a real risk the person will suffer significant harm”; and s.36(2)(aa) and s.36(2A) of the Act reflect Australia’s interpretation of its non-refoulement obligations under the CAT and the ICCPR.[31]

   [30] 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees

   [31] CB157.3

Assessment under Refugees Convention

1. The Assessor considered the applicant made the following three claims under the Refugees Convention: [32]

   a)The applicant fears he may be killed by persons formerly associated with his father in conducting criminal activities because his father has provided information to the USA about their activities. The Assessor regarded this as the applicant’s “central claim”.[33]

   b)The applicant’s father was involved in paramilitary organisations.

   c)The applicant fears persecution because he is a member of a particular social group, namely “Colombians where one or more family members are adversely affected by illegal activities involving drug trafficking”.

   [32] CB154.6

   [33] CB155.6

2. The Assessor accepted that the applicant’s father was arrested in Colombia in September 2007; in September 2008 his father was extradited to the USA and convicted of importing cocaine into the USA; the applicant’s father is currently serving a term of imprisonment in the USA in relation to the offence; the applicant’s mother may have received threats in 2008 that prompted her to seek police protection at that time; and the applicant’s father signed a plea agreement in which he agreed to provide information to the USA government, if required to do so.[34]  The Assessor, however, was not satisfied the applicant’s “central claim is Convention related”. The retribution the applicant fears “can be characterised as a personal vendetta on the basis of [the applicant’s] father’s claimed actions associated with criminal activity”.[35] The Assessor was also not satisfied that:

   a)the applicant’s father had any links to paramilitary organisations beyond that of possibly providing financial support related to his own criminal enterprises; or

   b)the social group, of which the applicant claimed he was a member, was a “particular social group” within the definition of “refugee” given in Art.1A(2) of the Refugees Convention.[36]

   [34] CB153.8-154.1

   [35] CB155.6

   [36] CB156.4

Assessment under complementary protection

1. The Assessor’s assessment of the applicant’s non-refoulement claim under the CAT and ICCPR was as follows:

   a)The Assessor found the harm the applicant claimed he feared was “significant harm” within the meaning of s.36(2A) of the Act.[37]

   b)The Assessor did not accept the applicant’s father had been kidnapped in 2006 because the applicant had not previously raised this claim, and he gave no plausible explanation for not having previously raised it.[38] In any event, the Assessor found there was no evidence to indicate the applicant or any members of his family have been threatened by anyone during the past six years.[39]

   c)Because there was no evidence to indicate the applicant or his family have been subject to any tangible or identifiable threat during the past six years, the Assessor found that the summary execution of the drug dealers in Colombia on 4 August 2008 does not provide a basis for a finding of real risk to the applicant in this case.[40]

   d)The Assessor accepted the applicant may have attended school where children of other drug traffickers attended, and that the applicant may know the son of a drug trafficker that was formerly associated with the applicant’s father. The Assessor, however, was not satisfied there was any evidence of the applicant or his family being threatened as a result of these matters.[41]

   e)The only evidence to support the applicant’s claim that the applicant’s father provided information to the USA government, and that the applicant fears his father’s former criminal associates because the applicant would be considered the eldest son of an informant, was a statement by a person “purporting to be” the applicant’s father’s lawyer to the effect that the applicant’s father “is assisting the United States Government by providing significant and detailed information regarding several high profile Colombian traffickers”, and that the applicant’s father’s “cooperation has been publicly acknowledged”. The Assessor concluded, however, there was no evidence of the nature of the information the father allegedly provided, or to whom the applicant’s father provided such information, or when it was provided; and there was no evidence to support the assertion that the applicant’s father’s cooperation has been publicly acknowledged.[42]

   f)No evidence had been submitted to indicate any non-criminal family members of any of the applicant’s father’s co-defendants have been killed over the last six years.[43]

   [37] CB157.8

   [38] CB159.3

   [39] CB159.4

   [40] CB159.5

   [41] CB159.8

   [42] CB160.6

   [43] CB160.8

2. The Assessor accepted that, “due to the initial apprehension of [the applicant’s] mother after his father was extradited, she was prompted to seek police protection, and even to have travelled briefly to Costa Rica”.[44] The Assessor found, however, that the applicant’s mother has for the past six years remained living in Medellin, at different addresses in reasonably close proximity, and she has not sought any subsequent protection orders. The Assessor also found there “has been no evidence presented to indicate that his family have been subject to any tangible or identifiable threat since 2008 and that they are not living what could be regarded as a normal life”.[45]

   [44] CB160.9

   [45] CB160.9

Grounds of application

1. The applicant relies on the further amended application which contains five grounds. The applicant, however, does not press ground 1.

Ground 2 – failure to consider integer of claim

1. Ground 2 is as follows:

   In making the ITOA, the Delegate of the Respondent failed to consider an integer of the applicant’s claims in that he failed to consider whether there was a real chance that the applicant would be subject to significant harm should he be returned to Columbia [sic] by reason of his father being suspected or believed to have become an informant to the US authorities following a plea bargain made with the US Government.

2. In his written submissions,[46] the applicant states more narrowly the integer the applicant claims the Assessor failed to consider. The applicant claims the Assessor failed to assess the applicant’s claim based on his being the eldest son of an informant. The applicant relies, among other things, on the following statement the applicant gave at his interview before the Assessor:[47]

   . . . what happened is like the oldest son is – is like a stamp. No – no other one, is the oldest is the stamp – of the person . . . . I grew up in that environment . . .

   [46] Applicant’s Outline of Written Submissions, [15]

   [47] Affidavit of W David, exh. WD-1, T20.1

3. The applicant also relies on the following statement the Assessor made at the interview:[48]

   . . . . I know you’re making a point about being the oldest son but I mean it’s now six or seven years since your father was arrested, all your family are still living in Medellin, they’ve not moved away, your brother’s a musician, he’s working, your brother’s at school. Okay, your mother’s had some difficulties, she probably did receive some threats . . . at some stage . . . and they’re still alive and well. . . .

   [48] Affidavit of W David, exh. WD-1, T25.9-6.1

4. The applicant submits the Assessor “entirely failed to consider whether the fact that the Applicant was the eldest son of a drug trafficking father (turned informant) and having been in contact with other persons within the Colombian drug cartels (as opposed to being any other family member) would result in a real chance of significant harm upon return”.[49]

   [49] Applicant’s Outline of Written  Submissions, [17]

5. There are two matters to note about this submission. First, the relevance of the applicant’s claim that he is his father’s first-born to his overall claims for protection was premised on the claim that: the applicant’s father had turned informant; his father had provided significant and detailed information regarding high profile Colombian drug traffickers; and the applicant’s father’s cooperation has been publicly acknowledged. The applicant claimed he “would be the main target for retaliation as his father remains incarcerated”.[50] The Assessor, however, did not accept these claims. While the Assessor accepted the applicant’s father entered into a plea agreement, the Assessor was of the view there was no evidence of the nature of the information the father allegedly provided to the USA government, or to whom the applicant’s father provided such information, or when it was provided. And the Assessor found there was no evidence to support the assertion that the applicant’s father’s cooperation has been publicly acknowledged.[51] Given the applicant’s claim that he feared harm because he was the first-born of his father was premised on claims the Assessor did not accept, the question of whether or not the applicant was exposed to significant harm because he was the first-born did not arise.

   [50] These are the words that appear in the letter dated 16 July 2014 purportedly from the applicant’s father’s lawyer – CB75

   [51] CB160.6

6. Second, the Assessor was aware the applicant relied on his being the eldest son. The Assessor referred to that aspect of the applicant’s claims during his interview of the applicant,[52] and in the Decision.[53] In particular, the Assessor understood the applicant’s claim to be that “his father . . . provided information to the US government and that he fears his father’s former criminal associates as he would be considered the eldest son of an informant”.[54] The Assessor, however, did not accept this claim because he was satisfied there was no evidence to support the applicant’s claim that his father had provided significant and detailed information regarding high profile Colombian drug traffickers, and that the applicant’s father’s cooperation has been publicly acknowledged. 

   [52] Affidavit of W David, exh. WD-1, T25-6

   [53] CB160.3

   [54] CB160.3

7. The applicant also submits the Assessor failed to consider whether harm to the applicant could result from police or military personnel.[55] The applicant submits that claim was made by the applicant’s representative, and it appears the applicant relies on the following passage from his representative’s letter dated 31 July 2014 to the Minister:[56]

   [The applicant] particularly fears he will be targeted by people engaged in the trafficking of drugs who have been offended and because his father might of [sic] named them in his testimony to the United States’ Attorney; and also those seeking retribution for other trafficking misdemeanours of his father. These ‘individual criminal interests’ could include police or military personnel as UNHCR acknowledges their involvement.

   [55] Applicant’s Outline of Written  Submissions, [17]

   [56] CB63

8. This claim was premised on the applicant’s claim that his father had turned informant as a result of which he had provided significant and detailed information regarding several high profile Colombian traffickers, and the applicant’s father’s cooperation was publicly acknowledged. As I have already noted, the Assessor did not accept this part of the applicant’s claims because the Assessor was satisfied there was no evidence to support it. It follows it was unnecessary for the Assessor to consider whether the applicant would face harm from police or military personnel.

9. For these reasons, ground 2 fails.

Ground 3 – asking the wrong question

1. Ground 3 is as follows:

   The Delegate asked himself the wrong question, namely whether there was evidence that the Applicant’s father had informed on members of the Columbian [sic] cartel, rather than the true question which was whether, in the circumstances, there was a real chance that he would face serious harm on return to Columbia [sic] by reason of his father’s knowledge of Columbian [sic] drug cartel operations, incarceration in the US and his plea bargain with the US authorities which resulted in a significantly lesser term than the maximum period of imprisonment for the charged offences and which required him to co-operate with US authorities.

2. It is true the Assessor considered whether there was evidence to support the claim made in the letter purportedly from the applicant’s father’s lawyer that the applicant’s father “is assisting the United States Government by providing significant and detailed information regarding several high profile Colombian traffickers”, and that the applicant’s father’s “cooperation has been publicly acknowledged”. Whether or not there was evidence to support that claim was a question the Assessor was required to consider. The Assessor, therefore, made no error by addressing that question.

3. The Assessor, however, did not only consider that question. He also considered whether the applicant would face harm if he were to return to Colombia. The Assessor concluded he was not satisfied the applicant “has a real chance of being subject to significant harm should he be returned to Colombia”;[57] and the Assessor so concluded largely because the Assessor found:

   a)the applicant’s mother remained living in Medellin, at different addresses, in reasonably close proximity to one another for most of the last six years;

   b)one of the applicant’s brothers is a musician and works in a factory, while another is at school;

   c)the applicant’s mother has not sought any subsequent protection order; and

   d)there was no evidence to indicate that the applicant’s family have been subject to any tangible or identifiable threat.

   [57] CB161.1

4. Further, as I discuss later in these reasons, the Assessor considered it was relevant to the applicant’s claim whether there was any publicity attached to the applicant’s father being an informant. The Assessor concluded, however, there was no evidence that the applicant’s father’s cooperation has been publicly acknowledged.

5. Ground 3, therefore, also fails.

Ground 4 – unreasonableness

1. Ground 4 is as follows:

   Further and in the alternative to grounds 2 and 3, the decision of the delegate was so unreasonable as to involve jurisdictional error.

2. The applicant presses this ground only if paragraph 21 of the “First Respondent’s Written Submissions” is correct. In that paragraph, the Minister submitted:

   On the contrary, the ITOA assessor considered the Applicant’s position as one of his father’s children, but concluded, on the basis that his mother and male siblings had lived in Columbia without any tangible or identifiable threats for the previous six years, that there was no “real risk that the non-citizen will suffer significant harm” if he were to return to Columbia [sic]  . . . The Tribunal was aware and took into consideration that the Applicant was his father’s eldest son . . .  and that he may have met his father’s former associates or their children . . . . Despite the Applicant’s submissions . . . , which notably fails to cite evidence, there appears to have been nothing before the ITOA assessor (aside from the specific evidence of association) to indicate that an eldest son would be in any different position from his brothers living in Columbia [sic].

3. The applicant submits it would be irrational to rely on a finding concerning the threat to people who are not the first-born son of a convicted Colombian drug trafficker, who had entered into a plea bargain with USA authorities, to ascertain the level of risk to the first-born son of such a person.[58] There might be some force in that submission if there were material that could reasonably have provided a basis for the Tribunal to find that the first-born son of such a convicted drug trafficker was exposed to a higher risk of harm, than other members of the same drug trafficker’s family. But there was no such material before the Tribunal, other than the applicant’s saying so.

   [58] Applicant’s Supplementary Outline of Submissions, [21]

4. Further, and in any event, the applicant’s submission ignores the particular claim the applicant made based on his father’s having been convicted and having entered into a plea bargain, and the manner in which the Assessor dealt with that claim. The applicant claimed his father “is assisting the United States Government by providing significant and detailed information regarding several high profile Colombian traffickers” and that the applicant’s father’s “cooperation has been publicly acknowledged”.[59] As I have already noted, the Assessor did not accept that claim because he was not satisfied there was any evidence to support it. Having not accepted that claim, the Assessor then considered whether the applicant, nevertheless, faced a real chance of significant harm if he returned to Colombia. Given the Assessor did not accept the applicant’s father had given significant and detailed information regarding several high profile Colombian traffickers, or that his cooperation had been publicly acknowledged, the applicant’s claim that he would be considered the applicant’s father’s oldest son lost the relevance it otherwise might have had to the question of whether there was a real chance the applicant would suffer significant harm if he were to return to Colombia.

   [59] These are the words that appear in the letter dated 16 July 2014 purportedly from the applicant’s father’s lawyer – CB75

5. The applicant also submits that the Assessor’s reliance on the applicant’s family experiencing no harm for the past six years has no rational connection to the question of the risk of harm to which the applicant would be exposed if he were to return to Colombia.[60] I do not accept that submission. The applicant claimed he feared harm because, among other things, drug traffickers, who had become aware of the applicant’s father’s cooperation with USA officials, would wish to retaliate against the applicant’s father by harming the applicant’s father’s first-born. But if drug traffickers in Colombia wished to retaliate against the applicant’s father by harming his first born, it could not reasonably be supposed that the desire to retaliate would be stayed only because the first born was not present in Colombia. It would be reasonably open to expect that the drug trafficker’s desire to retaliate would be directed to such members of the applicant’s father family as could be found in Colombia. In my opinion, therefore, it was reasonably open to the Tribunal to rely on the absence of any evidence of any harm being inflicted on the applicant’s family by any drug traffickers over the past six years to conclude it was not satisfied there was a real chance that drug traffickers in Colombia would harm the applicant if he were to return to Colombia as an act of retaliation against the applicant’s father.

   [60] Applicant’s Supplementary Outline of Submissions, [22]

Ground 5 – failure to accord procedural fairness

1. Ground 5 is as follows:

   In making the ITOA on 26 September 2014, the Minister, by himself or his Department, officers, delegates or agents failed to accord the Applicant procedural fairness.

   Particulars

   a.The Delegate did not put the applicant on notice that he would disregard the risks to the applicant arising from a perception that his father was or may be an informant and that the only issue was whether his father was, in fact, an informant.

   b.In circumstances where the Delegate was conducting an ITOA assessment which necessarily involved an assessment of information not previously considered, the Delegate was dismissive of any new material and refused to consider new material because it had not been provided before.

   c.The Delegate did not put the applicant on notice that there was an issue as to whether or not to accept the earlier acceptance by the RRT (and the Minister in SZNRM [2009] FMCA 1049 (at [41] and [87]) that the mother and siblings had suffered harassment from ‘individual criminal interests [which] were at play”[sic].

2. I will consider each particular in turn.

Particular (a)

1. Particular (a) assumes the Assessor disregarded the risks to which the applicant claimed he would be exposed because the applicant’s father may be perceived to be an informant, and that the Assessor only considered whether the applicant’s father was in fact an informant. The complaint is the applicant was not given notice of the Assessor’s intention to proceed in that way.

2. The assumption on which this particular relies is incorrect. The Assessor’s reasons cannot reasonably be read as proceeding on the basis that the applicant’s father’s being perceived to be an informant, as opposed to the father in fact being an informant, was irrelevant to the assessment of the risk of harm to the applicant. The Assessor specifically found there was no evidence that the applicant’s father’s cooperation has been publicly acknowledged. That indicates the Assessor considered relevant to the applicant’s claim whether there was any publicity attached to the applicant’s father being an informant. There was, therefore, no occasion for the Assessor to have given to the applicant any notice that the Assessor proposed to disregard consideration of whether the applicant’s father could be perceived to be an informant. Particular (a), therefore, does not succeed.

Particular (b)

1. Particular (b) baldy asserts the Assessor was dismissive of new material. In his written submissions, the applicant refers to the part of the assessment set out at page 159 of the Court Book. The Assessor there considered information contained in documents the applicant had submitted. It is true the Assessor was not satisfied the information the applicant provided supported his claims. The Assessor, however, gave reasons for not being satisfied. In those circumstances, it cannot be said the Assessor was dismissive of the information on which the applicant relied. Particular (b), therefore, fails.

Particular (c)

1. Particular (c) is directed to a claim the applicant submits had been accepted by the RRT and by the Minister in the applicant’s application for judicial review to this Court in 2009 (RRT claim).[61]  That claim was contained in a statutory declaration the applicant made in which he claimed his mother and brothers were attacked on 12 February 2009 following a telephone call from the applicant’s father telling the mother and the other children to flee.[62] The applicant claimed that, after the telephone call, the applicant’s brothers were assaulted when people on a motorbike fired several shots at them.[63] The applicant’s claim “was corroborated by an eyewitness account from a neighbour”.[64] The applicant submits that, in the application for judicial review of the RRT’s decision, the Minister submitted, and, therefore, accepted, that the RRT had accepted the applicant’s claim that his mother and his brothers were attacked. The applicant further submits the Court found that, “on any fair reading, the Tribunal did not reject that aspect of the applicant’s claims relating to the attack on his mother and siblings”, but that the RRT “could not be satisfied that such harassment was due to any Convention reasons, but was due to criminal interest seeking to (possibly) protect their position”.[65]

   [61] SZNRM v Minister for Immigration and Citizenship [2009] FMCA 1049

   [62] SZNRM v Minister for Immigration and Citizenship [2009] FMCA 1049 at [17]

   [63] SZNRM v Minister for Immigration and Citizenship [2009] FMCA 1049 at [18]

   [64] SZNRM v Minister for Immigration and Citizenship [2009] FMCA 1049 at [19]

   [65] SZNRM v Minister for Immigration and Citizenship [2009] FMCA 1049 at [81]

2. The applicant submits the Assessor did not accept the RRT claim because the Assessor found there “has been no evidence presented to indicate that his family have been subject to any tangible or identifiable threat since 2008 and that they are not living what could be regarded as a normal life”.[66] The applicant further submits, however, that the Assessor was required, but failed, to give the applicant notice that he might not accept the RRT claim and, thus, give the applicant an opportunity to make submissions about whether the Assessor should accept the RRT claim. That submission, in turn, is based on two further submissions. The first is that whether or not the applicant’s mother and siblings were attacked, as claimed in the RRT claim, was a critical issue, or at least, an issue, before the Assessor. The second is that, because the Minister and the Court had accepted the RRT claim, the applicant assumed or, at least, was entitled to assume, that the Assessor too would accept the RRT claim the Assessor gave notice to the applicant that it might not accept the RRT claim.[67]

   [66] CB160.9

   [67] Applicant’s Outline of Written  Submissions, [12]-[17]

3. The applicant and the Minister accept the Assessor was under a duty to accord the applicant procedural fairness. The applicant and the Minister also accept that the principles stated in the following passage from the judgment of the Full Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd:[68]

   Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.

   [68] (1994) 49 FCR 576 at 591-592

1. There are, therefore, two issues to consider:

   a)Was the RRT claim a critical issue before the Assessor?

   b)If so, or in any event, did the Assessor notify the applicant the Assessor might not accept the RRT claim?

2. I do not accept the RRT claim was a critical issue before the Assessor. The applicant relied on a letter from his mother, but the letter did not make a claim to the effect of the RRT claim. The letter referred to “some strange things happening”, namely, “they started watching us in cars and threatening us by telephone, mainly [the applicant]”, and that she had to sell the house. Having submitted to the Assessor a letter from his mother, which did refer to strange happenings, but not to being assaulted and shot at, is a circumstance that prevents me from being satisfied the applicant assumed the RRT claim formed part of his claim to the Assessor or that it would be accepted by the Assessor, or that it would have been reasonable for the applicant to have believed that the RRT claim would not be in issue before the Assessor.

3. In any event, the Assessor asked the applicant questions that ought reasonably to have suggested to the applicant the Assessor might not necessarily accept the RRT claim. The Assessor refers in his reasons to the questions the Assessor asked the applicant about the RRT claim:[69]

   He was asked about the claim he made to the RRT that his mother was attacked in the street after he lodged his PV application. He was asked what his mother told him about that. He said after that happened she went to Costa Rica and asked for asylum. He said, “it was hard…. luckily nothing happened and she is still OK … but there was a time when she had to go to Costa Rica and seek help but she came back”. He was asked if he knew any details about her being attacked as he claimed to the RRT that his mother had been attacked in the street. He was again asked if he knew any details about this. He did not offer any response.

   It was put to him that his mother had obtained a protection order from the Public Prosecutor’s Office in October 2008. He said that his mother told him she was seeing strange people around. It was put to him that the protection order did not appear to be related to her being attacked as that occurred after this as he had said she was attacked after he lodged his PV application which was in November 2008. He was asked if he knew whether his mother had sought any other protection orders. He said she had not.

   [69] CB148.7

4. This summary reflects the substance of what the transcript records was said at the hearing.[70]  The transcript, however, reveals more clearly that the Assessor was not proceeding on any assumption that he would accept the RRT claim. For example, the Assessor said the following:[71]

   So you don’t know anything about the time she was attacked, she didn’t tell you any details about when she was attacked because you said in the RRT that your mother was attacked in the street, so I’m asking you whether you know any details about that but if you don’t, well there’s not much we can do about it. . . .

   [70] Affidavit of W David, exh. WD-1, T20.4-21.2

   [71] Affidavit of W David, exh. WD-1, T20.8

5. This passage ought to have suggested to the applicant that in the absence of his providing any of the details of his mother’s attack, the Assessor was unlikely to accept that such attack occurred.

6. Particular (c) of ground 5, therefore, also fails.

Disposition

1. I propose to order that the application be dismissed.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 10 May 2017