FEDERAL COURT OF AUSTRALIA

CED17 v Minister for Immigration and Border Protection [2018] FCA 877

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs as agreed or assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

INTRODUCTION:

1    The appellant arrived in Australia as an unauthorised maritime arrival on 17 August 2012. He is a citizen of Sri Lanka and, prior to his arrival in Australia, he resided in Trincomalee in the Eastern Province of Sri Lanka. He is of Tamil ethnicity and Hindu faith.

2    On 1 April 2016, the appellant applied for a Safe Haven Enterprise visa. On 16 December 2017, the first respondent (the “Minister”), by his delegate, refused to grant that visa. The matter was referred to the second respondent (the “IAA”), which, on 27 March 2017, affirmed the Minister’s decision. The appellant sought judicial review of that decision in the Federal Circuit Court of Australia (the “FCC”). The FCC dismissed his application on 31 January 2018. By notice of appeal filed on 9 February 2018, the appellant now appeals the FCC’s decision to this Court.

Background

3    In support of his visa application, the appellant made the following claims:

(1)    The appellant and his family were displaced during the Sri Lankan civil war and fled to India. In 1994, the United Nations High Commissioner for Refugees (the “UNHCR”) assessed them as refugees and assisted with their return to Sri Lanka. Upon their arrival, the appellant and his family were unable to return to their home, and so resided in a refugee camp in Trincomalee, where the appellant remained until around 2000.

(2)    Around 1997, the UNHCR handed administration of the camp to the Sri Lankan government, which impacted adversely on the appellant’s freedom. Residents of the camp needed permission to enter and leave the camp. On occasion, certain residents were required to line up in a row so that a masked informant could identify people to the Sri Lankan Army (the “SLA”) to be taken for questioning. In 1999, an informant, for reasons unknown to the appellant, identified the appellant to the SLA. The SLA detained the appellant for 15 days, during which time he was interrogated about the Liberation Tigers of Tamil Eelam (the “LTTE”) and tortured. After this experience, the appellant fled to India in around 2000, where he lived in a refugee camp before returning to Sri Lanka again in 2001.

(3)    Around December 2003, the appellant’s mother went missing after his sister saw her being taken by Sri Lanka Navy officers. Her body was subsequently found in 2004. The appellant’s uncle was shot, but not killed, while travelling by bus to court to give evidence about the murder.

(4)    Around 2005, the appellant become the secretary and treasurer of a “Fisherman Development Society” (the “Society”). The SLA and Navy routinely demanded money from the Society, which it would pay. An LTTE splinter paramilitary group, known then as the Karuna Group, also started demanding money from the Society in around 2007, and eventually from the office bearers personally as well. After refusing to comply with demands of the Karuna Group, the appellant was detained for 10 days and was beaten and threatened.

(5)    In April 2012, the appellant’s uncle was killed. When interviewed by police, the appellant explained that the Karuna Group had been demanding money from the Society. The Karuna Group subsequently went to the appellant’s home on two occasions to threaten him.

(6)    Shortly after the appellant fled to Australia, men went to his Sri Lankan home on a few occasions and asked his wife about his whereabouts. In 2015, men claiming to be from the Criminal Investigation Department (the “CID”) (but unable to produce identification when asked) also went to his home on a few occasions. His wife informed them the appellant was in Australia and, on their second visit, gave them his mobile number. The appellant has not received a call from them.

(7)    In August 2015, a distant relative of the appellant was killed (along with another person, whose connection to the appellant is unclear). During the same month, the appellant’s friend went missing.

PRoceedings before the IAA

4    The IAA considered each of the appellant’s claims set out at [3] above and ultimately concluded that the appellant did not satisfy the criteria in s 36(2)(a) or, alternatively, s 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”).

5    The IAA first considered the claims connected with the appellant’s profile as a young Tamil male from the east of Sri Lanka and any real or imputed pro-LTTE political opinion. This basis for the appellant’s claims for protection was rejected. The IAA was satisfied that Sri Lankan authorities had not demonstrated any further interest in the appellant since 1999 (when he was detained and interrogated by the SLA) and noted, at [12] of its reasons, that the “trend of monitoring and harassment of Tamils in day-to-day life has significantly eased since the war ended”.

6    The IAA secondly considered the claims connected with the Society and the Karuna Group. The IAA accepted certain incidents as described by the appellant but was satisfied that the Karuna Group had not maintained an interest in the appellant sufficient to warrant a finding that there is a real chance the appellant would face serious harm from the Karuna Group upon return to Sri Lanka. In reaching this finding, the IAA took into account country information indicating that the Karuna Group is no longer operating as a government-sponsored paramilitary organisation and that paramilitary related extortion, abductions and killings have fallen significantly in the Eastern Province as groups such as the Karuna Group have become less active. The IAA also took into account its finding that the appellant was no longer responsible for management of the Society’s funds.

7    The IAA finally considered the risk of harm arising from the appellant’s illegal departure from Sri Lanka and found, having considered the country information, that the penalties the appellant has a real chance of facing upon return to Sri Lanka as a failed asylum seeker do not amount to serious harm.

8    The IAA’s findings are detailed further below at [16] and [17] of these reasons.

Proceedings befOre THE FCC

9    At the hearing before the FCC, the appellant was represented by Mr Zipser of counsel on a direct-access basis. The appellant was granted leave to rely upon an amended application for judicial review of the IAA’s decision. He was also granted an extension of time pursuant to s 477 of the Act in order to make that application.

10    The amended application set out the following grounds of review:

1.    Between 2005 and 2012 the applicant was the treasurer and secretary of the [X] Fisherman Development Society. He suffered persecution at the hands of the Karuna group in this period.

The Immigration Assessment Authority (“the IAA”) failed to consider whether the applicant may resume being treasurer and secretary of the Society if required to return to Sri Lanka and, in this way suffer further persecution at the hands of the Karuna group. The IAA's failure to consider this aspect or integer of the applicant's claims was a jurisdictional error.

2.    The applicant feared harm from a number of sources. Specifically, he feared harm from the Karuna Group for two reasons and he feared harm from the Sri Lankan authorities for a few reasons. In considering whether the applicant had a well-founded fear of persecution for a Convention reason, the IAA considered the applicants claims individually. This was a jurisdictional error.

11    The FCC rejected the first ground of review on the basis that, on the material before the IAA, no claim that the appellant feared harm on the basis that he may resume his position as treasurer and secretary of the Society arose and as such, there was no obligation for the IAA to make a finding in respect of this claim.

12    As to the second ground of review, counsel for the appellant submitted that the IAA failed to consider the appellant’s claims cumulatively for the purposes of determining whether the appellant had a well-founded fear of persecution. In support of the proposition that the IAA was required to consider the appellant’s claims cumulatively, counsel took the FCC to certain findings of the IAA which were favourable to the appellant in relation to his Tamil background and family encounters with Sri Lankan authorities and the Karuna Group.

13    The FCC considered that the IAA made dispositive findings on the appellant’s claims and found at [36]:

…as a factual matter, no amount of accumulative consideration of those rejected claims as a matter of logic is capable of producing a different result in circumstances of the present case. The Court finds the circumstances of the present case fall within what was said in Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [32] - [35] and that no express cumulative consideration was required by the Authority.

14    The FCC further found that, on a fair reading of the IAA’s reasons as a whole, an inference should be drawn that the IAA did take into account the whole of the appellant’s claims in considering whether the appellant had a well-founded fear of persecution.

DISPOSITION

15    On appeal, the ground of appeal narrowed to a contention that the IAA had failed to consider the appellant’s claims cumulatively for the purposes of determining whether there existed a well-founded fear of prosecution. Mr Zipser again appeared for the appellant on a direct-access basis. The Court is grateful to him for his assistance.

16    The appellant did not take issue with any of the particular findings made by IAA. Nor did he contend that a mere failure to state expressly in the IAA’s reasons for decision that it had cumulatively considered all of the claims made by the appellant was a sufficient basis for a finding that there was jurisdictional error. The appellant’s case was more subtle. The appellant contended that the IAA had accepted a large number of the appellant’s contentions of fact. It had accepted:

(1)    that the authorities had “detained and tortured” the appellant in the past;

(2)    that since he has been in Australia several men, who have said they are from the Sri Lankan CID, have asked about the appellant on a few occasions;

(3)    that the appellant had departed Sri Lanka illegally and was a returning asylum seeker; and

(4)    most of the appellant’s claims concerning past events involving the Karuna Group, including that from approximately 2007 the Karuna Group had started to demand regular payments of cash and fish from the Society; that in 2010 the Karuna Group abducted and tortured the appellant for ten days; that the Karuna Group demanded money from him three more times after they had released him; that the Karuna Group knew the appellant had told the police about the extortion demands; and that the Karuna Group had threatened the appellant on two occasions prior to his departure from Sri Lanka.

17    Notwithstanding these findings, the IAA found that the appellant did not have a well-founded fear of prosecution. It reached ostensibly separate conclusions about how each of the historical events set out above did not justify such a finding following the end of the war in Sri Lanka. Thus:

(1)    at [15], the IAA concluded, after considering the claims at [16](1)-(2) above, that it was not satisfied that the appellant has “a well-founded fear or prosecution because he is a Tamil male from the Eastern Province, or his or his family’s previous interactions with the Sri Lankan authorities”;

(2)    at [30], the IAA concluded that it was “satisfied there is no real chance the [appellant] would face serious harm from the Karuna Group, for any reason, should he return to Sri Lanka”;

(3)    at [40], the IAA concluded that it was satisfied that the appellant “is not currently of any interest to the Sri Lankan authorities because he is a Tamil male from the Eastern Province, his and his [family’s] previous interactions with the authorities, or because of his profile with the authorities”;

(4)    at [41], the IAA concluded that it was not satisfied that the appellant “would face harm as a returning Tamil asylum seeker from Australia, who departed Sri Lanka illegally, now or in the reasonably foreseeable future.”

18    The appellant’s contention was that the IAA had not considered the specific findings which underlay these conclusions in any cumulative way. It had not, for example, asked the question as to whether the historical events concerning the Karuna Group, when taken together with the fact that in 1999 the appellant was detained and tortured by the SLA, could justify, in aggregate, a finding that he had a well-founded fear of prosecution.

19    For that purpose the appellant relied upon the judgment of Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, and in particular, his Honour’s acceptance (at 236) of Drummond J’s view, expressed in Thanh Phat Ma v Billings (1996) 71 FCR 431 at 436, that:

…unless the decision-maker can dismiss as unfounded factual assertions made by the applicant, the decision-maker should be alert to the importance of considering whether the accumulation of circumstances, each of which possesses some probative cogency, is enough to show, as a matter of speculation, a real chance of persecution, even though no one circumstance, considered by itself, is sufficient to raise that prospect.

20    Without in any way attacking the correctness of the conclusions reached by the IAA at [15], [30], [40] and [41], supra, the appellant’s complaint was that no attempt had been made to consider whether the accumulation of the historical circumstances set out above at [16], each of which possessing probative cogency and which the IAA had found to exist, could show a real chance of persecution.

21    It was not suggested by the Minister that this is a case where, when the reasons of the IAA are read in totality, it should be found as a matter of substance that the IAA did assess the all of the positive findings of fact in a cumulative way: cf SZQFC v Minister for Immigration and Citizenship (2012) 126 ALD 530 at [65] per Yates J. It is therefore unnecessary for me to decide whether I should infer, as the primary judge did, that the IAA did assess all of the findings of fact cumulatively. Rather, the Minister contended that this was a case in which accumulative consideration was not required. He relied upon the following passage from the judgment of Gilmour, Markovic and O’Callaghan JJ in Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188 at [32]-[34]:

Counsel appearing for the respondent ultimately, and quite properly, did not seriously dispute the Minister’s submission that no obligation to make a “cumulative assessment” arises where individual claims have been rejected as a factual matter, or have been the subject of findings that they did not or would not lead to ongoing problems for the visa applicant were he or she to return to a receiving country (and no claim is made that any of those individual findings were the subject of appellable error): see SZNKO v Minister for Immigration and Citizenship [2013] FCA 123; 140 ALD 78 at [135]-[136]; W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]; Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31].

Counsel for the respondent adopted as correct the following submissions made on behalf of the Minister:

Broadly speaking, it can be accepted that there is an obligation to consider the parts of a Visa applicant’s claim for protection cumulatively. It can also be accepted that the same principles as to whether a visa applicant meets the criteria for protection as a refugee apply, by analogy, to the complementary protection criteria in s 36(2)(aa) of the [Act] [citing MZZUG v Minister for Immigration and Citizenship [2015] FCA 1151 at [47]].

The obligation to give cumulative consideration to a visa applicant’s claims arises as part of the decision-maker’s obligation to consider the case before them. In that context, a decision-maker is required to consider each integer of a visa applicant’s claims, whether they are raised expressly or arise clearly on the material [citing Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at 139 [7]]. Further, as part of the decision-maker’s duty to address the case raised by the material before them, the decision-maker must consider the whole of the case put forward by the visa applicant [citing Khan v Minister for Immigration and Citizenship [2000] FCA 1478 at [31]]. There may be a combination of factors that create the profile of the person who meets (relevantly here) the complementary protection criteria [citing MZZUG at [47]], or causative factors that may not give rise to the relevant risk on their own, but may do so collectively [citing W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [21]].

In our view, however, such considerations have no application in a case such as this and are of no assistance to the respondent. It seems to us, as a matter of inexorable logic, that if, as is common ground here, all individual claims or bases for establishing an entitlement to a visa are dismissed (here, dismissed as not giving rise a real or significant risk of harm upon return to the country of nationality or receiving country), then no amount of “cumulative consideration” of those rejected claims is capable of producing a different result. It follows, in our respectful view, that the primary judge was wrong to hold otherwise.

22    This passage from DDK16 was cited recently in a decision of this Court: BHY15 v Minister for Immigration and Border Protection [2018] FCA 187. BHY15 turned on “whether [the assessor] was required to undertake a cumulative assessment of the various claimed integers which the appellants asserted underpinned their claim to a fear of persecution” (see [9]). Derrington J held at [11] that, given that there was no individual factor of the appellants’ claims which the assessor accepted as existing, “there could have been no point in any purported “cumulative assessment” of all of those non-existent factors”.

23    In the Minister’s submission, a cumulative consideration of the IAA’s findings made at [15], [30], [40] and [41] would not be capable of producing any different result than that reached by the IAA. Each “claim” was dismissed by the IAA.

24    The difference between the parties lay in what were the matters that had to be considered cumulatively. The appellant focused on the individual specific findings about historical events set out above. These, he submitted, should have been considered in aggregate. The Minister focused on the conclusions reached concerning each claimed fear which followed from both a consideration of the existence of those historical events, and how those events might have consequences for the appellant now, or in the reasonably foreseeable future.

25    In my view, and with respect to the appellant, based on the Full Court’s decision in DDK16, the Minister’s position is correct. What must be considered in a cumulative way are the “claims or bases”, to use the language of DDK16 (at [34]), for establishing the existence of a well-founded fear of persecution. Here, the “claims or bases” relied upon by the appellant were:

(1)    fear arising from being a young Tamil from the East with real and imputed pro-LTTE political opinion;

(2)    fear arising from the actions of the Karuna Group; and

(3)    fear arising from having left Sri Lanka illegally.

26    The findings of the IAA at [15], [30], [40] and [41], supra, addressed each of these claims and rejected each of them as a basis for the existence of a well-founded fear of persecution. It follows that this is a case where it can be said, as it was in DDK16: “that no obligation to make a “cumulative assessment” arises where individual claims have been rejected as a factual matter, or have been the subject of findings that they did not or would not lead to ongoing problems for the visa applicant were he or she to return to a receiving country” (at [32]).

27    This appeal will be dismissed with costs as agreed or assessed.

Associate:

Dated:    13 June 2018