FEDERAL COURT OF AUSTRALIA

CVZ16 v Minister for Immigration and Border Protection [2018] FCA 309

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BANKS-SMITH J:

Background

1    This is an appeal from a decision of the Federal Circuit Court of Australia in CVZ16 v Minister for Immigration and Border Protection [2017] FCCA 401. The primary judge dismissed an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (IAA), to affirm a decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a Safe Haven Enterprise (Class XE) Subclass 790 visa (SHEV).

2    The appellant is a male citizen of Sri Lanka, who arrived in Australia on 3 October 2012 and is an unauthorised maritime arrival.

3    By letter dated 10 December 2015, the appellant was informed that the Minister had exercised his discretion under s 46A(2) of the Migration Act 1958 (Cth) allowing him to lodge a valid application for either a temporary protection (subclass 785) visa or a SHEV. The appellant subsequently applied for a SHEV.

Appellant’s claims in SHEV application

4    The appellant provided a statutory declaration in support of his application. On 11 May 2016 the appellant attended a visa interview with a Tamil interpreter present. His representative (a solicitor and migration agent) provided certain country information to the relevant officer shortly after the interview and on the same day.

5    In summary, the appellant claimed to fear harm on account of his Tamil ethnicity, as an imputed supporter of the Liberation Tigers of Tamil Eelam (LTTE) because his sister is considered a ‘LTTE martyr’, and as a failed asylum seeker who departed Sri Lanka illegally.

6    The appellant has five sisters, one of whom voluntarily joined the LTTE and died in combat in 2000. The appellant worked as a baker at the US army base in Iraq from 2007-2010. He left to travel to Iraq and returned lawfully. At some point before he left Sri Lanka the appellant was arrested and detained in a police station and repeatedly asked if he was a member of the LTTE. Upon his return he was subjected to threats and harassment including visits to his family home.

7    On 19 July 2016, a delegate of the Minister refused to grant the appellant a SHEV and provided detailed reasons.

8    The delegate's decision was a fast track reviewable decision and was accordingly referred by the Minister to the IAA for review.

IAA decision

9    The IAA had regard to the review material. No new information was obtained or received.

10    The IAA rejected the appellant's claims on the basis that they did not give rise to a real chance of serious harm or a real risk of significant harm. The IAA found that the appellant was credible and accepted much of his evidence, making the following findings:

(a)    the appellant resided in Colombo until 2005;

(b)    the appellant was arrested at a checkpoint in 1999, interrogated, beaten and detained for three days on suspicion of being an LTTE member. The authorities at that time had not identified a link to his sister;

(c)    the appellant lived and worked in Iraq from 2007-2010, travelling on his own passport and re-entering Sri Lanka without incident;

(d)    he then resided in Munnaitheevu which was then under LTTE control;

(e)    taking into account that the authorities did not seek to question or detain him again after his first detention, he was not of adverse interest to the authorities for any reason since his release from detention and his return from Iraq;

(f)    despite repeated interactions with the Sri Lankan Army (SLA) and police between 2000 and 2012, he was never arrested again;

(g)    the authorities became aware of his sister’s involvement in LTTE. Different members of the local SLA and police units, having ascertained that the appellant had returned from abroad, used knowledge of his sister’s involvement to extort money and jewellery from him on numerous occasions, the last time being in May 2012. When he could not pay he was threatened but no threats were carried out and he was not physically harmed;

(h)    the extortion was the result of opportunistic corrupt behaviour by local officers and were empty threats which did not amount to serious or significant harm;

(i)    his father and a sister continued to reside in the family home and other family members continued to live in the same area. The appellant did not claim any members of his family were extorted or threatened or confronted about his sister’s involvement in the LTTE;

(j)    he was subject to harassment and discrimination on account of his sister’s LTTE involvement and his profile as a young Tamil male;

(k)    he was monitored and questioned throughout 2010-2012 but was not detained, arrested or sent to a rehabilitation camp.

11    Two further matters were noted:

(a)    the IAA did not accept that the authorities had visited his parents after he arrived in Australia because that claim was 'internally inconsistent' with other evidence and was not raised in his written statement or at the delegate interview; and

(b)    the appellant provided different dates in relation to when he was arrested and detained by the CID but had ultimately clarified at the visa interview that it occurred in 1999. The delegate’s reasons noted that in the entry interview the appellant referred to 2009. In the screening interview he said it was 1999. In the SHEV application he referred to it being prior to departing to Iraq in 2006. The IAA accepted the arrest occurred in 1999.

12    In light of these findings and relevant country information (including from the United Nations High Commissioner for Refugees, the United Kingdom Home Office and the Department of Foreign Affairs and Trade (DFAT)), while accepting that the appellant may face some discrimination or harassment on return to Sri Lanka, the IAA found that the appellant would not suffer harm on account of his Tamil ethnicity or as a perceived supporter of the LTTE. The country information indicated that the situation for Tamils had improved with a decrease of monitoring and harassment. Taking into account that authorities had shown no adverse interest in the appellant’s family since his sister’s death, monitoring was unlikely to apply to the appellant. The country information did not indicate that there is discrimination or harassment of a level amounting to serious harm.

13    No harm came to the appellant from the extortion attempts. There was no other evidence of his family being targeted for money or suffering serious harm since the appellant left Sri Lanka.

14    The IAA accepted the appellant would return as a failed asylum seeker who departed illegally. However, in light of country information and the appellant's profile, the IAA did not accept that any experiences or penalties on return would amount to serious harm. DFAT had assessed that returnees are not subject to mistreatment while undergoing process checks upon their return. Re-entry procedures are applied without discrimination. The IAA also found that any conviction or punishment for his illegal departure would be the result of a law of general application. On the basis of country information the appellant would be fined and released or released on his surety.

15    For those reasons, and considering the appellant's claims cumulatively, the IAA found that the appellant did not meet the requirements of the definition of 'refugee' in s 5H(1) of the Act and so did not meet the criterion under s 36(2)(a).

16    The IAA also specifically addressed the appellant's claims in the context of complementary protection and s 36(2)(aa).

17    On the basis of its findings, the IAA did not consider harassment or discrimination or monitoring of the appellant would manifest in a way that would arbitrarily deprive him of his life or indicate he will be subject to torture or punishment that would amount to significant harm.

18    In light of the country information the IAA did not consider he faced a real risk of significant harm in the reasonably foreseeable future by reason of race, gender or origins. Even taking into account his sister’s involvement in the LTTE and the extortion, he was not of interest to the authorities such that he would face a real risk of significant harm. Country information did not support that persons who have worked abroad are targeted for extortion or that the appellant faces a real risk of extortion.

19    The IAA was not satisfied there was any reason the appellant would not receive bail if detained upon return. If he were imprisoned while waiting to come before a Magistrate, based on the country information such prisons would not meet international standards. However, there is no evidence that prisoners who suffer short periods of detention are tortured. Nor is there evidence that the authorities would intentionally inflict pain or suffering so as to meet the definition of significant harm. The appellant was more likely to be fined. Questioning and the imposition of a fine does not amount to humiliation that comprises significant harm.

20    The IAA concluded that the appellant's claims in the cumulative circumstances did not give rise to a real risk of significant harm within the meaning of s 36(2A). The appellant did not meet the requirements of s 36(2)(aa).

The Federal Circuit Court decision

21    The appellant was represented by a solicitor before the Federal Circuit Court. He relied on an application for judicial review that contained 5 grounds, each of which was particularised.

22    By Ground 1 the appellant asserted the IAA erred in assessing the risk to the appellant arising from his familial links with his sister who was a member of the LTTE.

23    The primary judge considered the facts accepted by the IAA relevant to that issue and its reasoning process. For example, the primary judge took into account the IAA’s reference to the appellant’s 1999 arrest, the fact authorities became aware of his sister’s role in the LTTE but the harassment received by the appellant did not amount to serious harm, the country information as to the risk profile of persons with family links to the LTTE and that a person’s need for protection depends on their specific circumstances. His Honour held that it was open to the IAA to make its findings as to risk on the material before it and those findings were not ones that no reasonable decision maker could come to on the same evidence and did not lack an evident and intelligible justification.

24    Grounds 2, 3 and 4 together addressed the threats and extortion that had been directed to the appellant. By those grounds the appellant contended that the IAA erred by assuming that threats and extortion cannot amount to serious harm and that there was no Convention nexus to the extortion. His Honour noted that the IAA had accepted that the Sri Lankan authorities knew of the appellant's work abroad and had used their knowledge of his sister's LTTE involvement to commit extortion. His Honour held that the IAA had in fact considered the appellant's claims and circumstances and had concluded that his experiences did not amount to, nor give rise to, a risk of serious harm. The IAA did not presuppose that threats and extortion cannot amount to serious harm: rather, the finding was that in the circumstances the appellant’s experiences did not amount to nor give rise to a risk of serious harm. His Honour further held that those findings were open to the IAA.

25    His Honour noted that not only had the IAA not made any express finding to the effect that there was no Convention nexus with the extortion claim, but no such conclusion could be inferred from the IAA's reasons. On the contrary, given the IAA accepted that corrupt local officials had used the sister's LTTE involvement to extort the appellant, a Convention nexus could be assumed, and the IAA had proceeded on the ‘unspoken assumption’ that a Convention nexus existed.

26    His Honour considered there to be more force in a claim by the appellant that the IAA had erred by limiting itself to a consideration of whether the extortion had resulted in physical harm rather than whether it amounted to serious or significant harm. However, notwithstanding the focus on physical harm in part of the IAA's reasons (IAA Reasons [15]), when the reasons are read in context it is clear that the IAA considered the issue of serious or significant harm as a whole. For example, the IAA referred to the threats of harm, that the appellant went into hiding, that he could have been located by the extortionists had that been their intent, that the authorities did not consider him to be an LTTE member or supporter on the basis of his sister’s involvement and that country information indicated improved circumstances for Tamils. In conclusion, his Honour considered that the IAA had found that the extortion of the appellant in the past did not amount to serious or significant harm and that his risk profile had decreased markedly since he left Sri Lanka.

27    The IAA also dealt with the extortion claim in the context of complementary protection and his Honour found that it had not erred in its finding that the past extortion of the appellant did not amount to serious or significant harm.

28    Ground 5 concerned whether the IAA had failed to deal with the appellant's claim that he had been arrested and detained for three days in 2006. The primary judge noted that there had been some lack of clarity about dates. He noted that the IAA had recorded in its reasons that the appellant claimed to have been arrested by the CID in 2006 (IAA Reasons [4]). He noted that the delegate’s decision records that the appellant clarified that the arrest occurred in 1999. He then noted that the IAA accepted that the events occurred in 1999 (IAA Reasons [9]). Although the IAA did not expressly find the events happened in 1999 rather than 2006, it is implicit in its reasons.

29    The primary judge, having found there was no jurisdictional error established, dismissed the application.

The appeal to this Court

30    The appellant is not legally represented in this appeal. He originally filed a notice of appeal which contained one generalised ground. Shortly before the hearing the appellant filed an outline of submissions which incorporated two proposed substituted appeal grounds. Those grounds engaged with the decision of the primary judge. Counsel for the first respondent properly did not oppose the appeal proceeding on the basis of the substituted grounds set out in the submissions. I granted leave to amend the appeal grounds accordingly.

31    The amended grounds are to the following effect:

(a)    first, that the primary judge erred in law by accepting the appellant’s risk profile would be increased because of close family ties to the LTTE but then did not accept that the IAA failed to deal with risk profile;

(b)    second, the IAA did not refer in its reasons to whether there was a Convention nexus in the context of the extortion claims, and so the primary judge erred in assuming there was an unspoken nexus and in saying it was ‘probably a combination of perceived wealth and the [appellant’s] involvement with the LTTE’ and failed to properly apply the law as set out in Rajaratnam v Minister for Immigration and Multicultural Affairs [2000] FCA 1111 [46]–[48].

32    The first ground in effect seeks to re-argue the first ground before the primary judge. It is clear that the IAA did take into account the effect on risk profile of the involvement of the appellant’s sister with the LTTE. The complaint seeks in essence a merits review. As the summary of the findings and reasoning of the IAA above discloses, the IAA considered the treatment of the appellant (and to some extent his family) by authorities both before and after the time when they had knowledge of the sister’s involvement, and also considered the relevant country information. The primary judge considered carefully the IAA’s findings and reasoning on that issue. The primary judge’s rejection of the appeal ground before him was correct and no error is disclosed.

33    By the second ground, the appellant contends in effect that the IAA failed to have regard to an integer of the extortion claim, being that the appellant was extorted because of his links through his sister to the LTTE.

34    The issue of potential reasons for extortion was addressed by the primary judge. His Honour referred to his previous decision in BMQ16 v Minister for Immigration [2017] FCCA 150 in which he noted that there may be a range of reasons for extortion, including ethnicity or family connection to the LTTE or perceived wealth. In that case, the IAA had rejected a claim that the appellant had been harassed by extortionists because of some imputed association with the LTTE. The IAA had not expressly considered whether the appellant was a ‘soft target’ for extortion because as a Tamil, he was less likely to complain or receive protection if he did. The IAA reasoned that there was a simple criminal motive for the extortion attempt. His Honour considered it did not matter in that case that the IAA did not consider each potential motive for extortion expressly because while the appellant had suffered harm in the past (for whatever reason) the governance of Sri Lanka had improved since the election in January 2015 and the lapse of time since the extortion attempt meant that it was unlikely that the appellant would be of any continuing interest to the extortionists: BMQ16 [61] - [62]. The decision was affirmed on appeal: BMQ16 v Minister for Immigration [2017] FCA 1197, and a special leave application dismissed.

35    There is no doubt that care must be taken when considering whether extortion has been practised upon a person for a Convention reason: Rajaratnam [46]. The question arises as to whether the person extorted has been selected because of a Convention reason or whether that person may have been selected because they are perceived to provide the advantage (for example, money) sought by the extorting party.

36    The appellant refers in his grounds to the court’s determination in Rajaratnam at [46] and [48]. Paragraph [48] is as follows:

In a particular setting, then, extortion can be a multi-faceted phenomenon exhibiting elements both of personal interest and of Convention-related persecutory conduct. For this reason the correct character to be attributed to extorsive conduct practised upon an applicant for refugee status is not to be determined as of course by the application of the simple dichotomy: “was the perpetrator’s interest in the extorted personal or was it Convention related?” In a given instance the formation of the extorsive relationship and actions taken within it can quite properly be said to be motivated by personal interest on the perpetrator’s part. But they may also be Convention-related. Accordingly any inquiry concerning causation arising in an extortion case must allow for the possibility that the extorsive activity has this dual character.

37    The primary judge’s reference to potential multiple reasons for extortion is consistent with the passage from Rajaratnam relied upon by the appellant.

38    In this case, it is clear that the IAA in fact considered the connection between the appellant, his sister and extortion. Whilst it did not use the language of ‘Convention nexus’ or ‘Convention reasons’, that is not decisive. The question is whether it had regard to such matters in the context of extortion. The IAA made a factual finding that corrupt local officials previously used the appellant’s sister’s martyrdom to extort the appellant (IAA Reasons [15]). It also concluded that, ‘while corrupt officials have used his sister’s LTTE activity against him I am not satisfied that he was subject to serious harm or that he would face a risk of such harm upon return’ (IAA Reasons [41]). Whilst the IAA also found that the extortion was opportunistic extortion by corrupt officials, it cannot properly be said that it ignored or failed to give proper weight to the sister’s connection with the LTTE in the context of extortion or harm. The IAA went on to consider that the appellant’s circumstances did not amount to or give rise to a risk of serious or significant harm, and that is the critical finding.

39    The primary judge’s comment that the reason for extortion was ‘probably a combination of perceived wealth and the appellant’s sister’s involvement with the LTTE’ must be viewed in the context of the matters at IAA Reasons [15] and [41] that I have referred to in the preceding paragraph. There was a legitimate basis for drawing such inference, taking into account that the IAA clearly had both factors in mind and made findings as to both when considering the particular circumstances of the appellant.

40    The primary judge considered there was no error established on the part of the IAA as to its treatment of the appellant’s extortion claims. I agree that the IAA properly disclosed its reasoning, it took into account the connection between the appellant’s sister and the LTTE and its findings were open to it on the basis of the evidence of the appellant’s circumstances and the country information. In the circumstances, there is no error on the part of the primary judge established. The second appeal ground also fails.

41    For completion, I note that before me the appellant raised the factual issue of whether the arrest incident occurred in 1999 or 2006. He said that he made a mistake before the delegate and that it occurred in 2006. The delegate considered and determined that issue based on the information provided at the time. The delegate noted the appellant had ultimately clarified at the visa interview that it occurred in 1999. The IAA considered the arrest. The IAA addressed the case as clarified by the appellant before the delegate and was not in error in doing so. It was aware of the claim that it occurred in 2006 (as noted above). The primary judge considered the issue in dealing with ground 5 of the grounds before him and his reasoning does not disclose error. In light of the delegate’s statement as to the appellant’s clarification, there were reasonable grounds for the IAA to proceed on the basis that the arrest occurred in 1999 and not 2006. Assuming the appellant’s submission to me to be a request to consider an amended or additional ground of appeal, I would decline leave on the basis that it has no real prospect of success.

Conclusion

42    There will be orders that the appeal be dismissed and the appellant pay the first respondent’s costs to be assessed if not agreed.

Associate:

Dated:    26 March 2018