FEDERAL COURT OF AUSTRALIA

CLW16 v Minister for Immigration and Border Protection [2018] FCA 299

ORDERS

THE COURT ORDERS THAT:

1.    Leave to amend the notice of appeal be refused.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

GLEESON J:

1    This is an appeal from a decision of a judge of the Federal Circuit Court of Australia (“FCCA”) dismissing an application for judicial review of a decision of the second respondent (“IAA”): CLW16 v Minister for Immigration [2017] FCCA 2386. The IAA affirmed a decision of a delegate of the first respondent (“Minister”) to refuse to grant the appellant a protection visa.

Background

2    The factual background, including a summary of the IAA’s findings, is set out at [2]-[15] of the FCCA judge’s reasons.

3    The appellant is a Sri Lankan citizen of mixed Tamil and Muslim heritage. He arrived in Australia by boat without a visa at the Cocos (Keeling) Islands on 26 October 2012. On 3 December 2015, the appellant was notified that the Minister had exercised his discretion to allow him to apply for a protection visa. On 29 December 2015, the appellant applied for a Safe Haven Enterprise Visa (“SHEV”).

4    At [3] of his Honour’s reasons, the FCCA judge recorded that the appellant claimed to fear harm from the Sri Lankan Army (“SLA”) and security authorities as a suspected supporter of the Liberation Tigers of Tamil Eelam (“LTTE”); secondly, from Muslim men in his community because he had worked for the Tamil National Alliance (“TNA”) in local elections in 2012; and thirdly, from the Sri Lankan authorities because he had left Sri Lanka illegally and sought asylum in Australia.

Application for leave to amend

5    At the commencement of the appeal, the appellant’s counsel, Ms Okereke-Fisher sought leave to rely on an amended notice of appeal filed on 16 February 2018, containing the following two grounds of appeal:

GROUND ONE

The [FCCA] judge and the IAA failed to consider whether extortion of the [appellant] by the SLA was for convention reason and if so, whether such extortion by itself could constitute persecution. Having found that (i) the [appellant] had suffered serious harm at the hands of the SLA; and (ii) the reason for the serious harm was not because of the [appellant’s] claimed profile of a suspected LTTE Supporter but for SLA’s extortion, intimidation exploitation purposes and personal gain (“Actual Reasons”). The [FCCA] judge failed to exercise jurisdiction by failing to consider whether it was open to the IAA to consider whether [there] was a real chance that the [appellant] would suffer persecution for the Actual Reasons, if he returned to Sri Lanka.

…

GROUND TWO

The [FCCA] judge erred in finding that the [appellant] had not raised the [appellant’s] proposed grounds – “whether the threats of harm made by the Muslim men [might] have amounted to persecution and if so, should have considered whether such threats might recur in the future” – in circumstances where the [appellant] had articulated that ground. Subsequently, the [FCCA] judge erred by basing his decision not to grant leave on the erroneous assumption, amounting to a constructive failure to exercise jurisdiction.

6    Rule 36.10 of the Federal Court Rules 2011 permits an appellant, without the Court’s leave, to amend a notice of appeal during the period of 28 days after filing the notice of appeal. A party seeking leave to amend bears an onus of satisfying the Court that grounds exist for exercising the discretion in his or her favour: cf. Brisbane South v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 547. Leave to amend will not be given where the proposed amendment would be futile: cf. Caason Investments Pty Ltd v Cao [2015] FCAFC 94; (2015) 236 FCR 322 at [19]-[21]. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46] (“VUAX”). Whether this is so will involve a consideration of whether:

(1)    there is an adequate explanation for the failure to take the point at first instance;

(2)    there is any prejudice to the respondent in permitting the point to be agitated; and

(3)    the point has merit (VUAX at [48].)

7    The Minister opposed the grant of leave to amend the notice of appeal on the grounds that there is no appealable error by the FCCA judge and the proposed grounds of appeal lack sufficient merit. Accordingly, to the extent that the proposed grounds of appeal raise issues not ventilated before the FCCA judge, I have proceeded on the basis (favourable to the appellant) that leave should not be refused by reason of any want of explanation for that omission or by reason of any prejudice to the Minister.

8    The appellant accepted that, if leave to amend the notice of appeal is refused, then the appeal must be dismissed.

Proposed ground 1: extortion for a convention reason

9    The proposed ground of appeal concerns the IAA’s reasons for rejecting the appellant’s claim based on an imputed connection with the LTTE. The relevant passage of the IAA’s reasons is as follows:

16.    I accept that the applicant experienced harassment, threats and physical mistreatment at the hands of the SLA from 2009 onwards. I accept that this was serious harm and that it has had profound consequences for the applicant’s mental health. I accept that, as he claims, he was stopped at checkpoints two or three times a month, and taken to the army camp once or twice a month. I accept that on these occasions he was slapped, had a gun pointed at his head and was detained in a dark room for up to two and a half hours. I accept that he was accused of helping the LTTE and threatened with harm.

17.    The applicant does not claim to have ever provided any support or assistance to the LTTE. He claims that members of the Muslim community who did not like him visiting his Tamil relatives informed the SLA that he was helping the LITE, but I do not accept that this was the real reason for the harassment and mistreatment the applicant suffered at the hands of the SLA after 2009. First, country information indicates that it would have been very unusual for Muslims to support the LTTE after 1990 when significant massacres of Muslims by the LTTE occurred. Second, during the civil war and after, people suspected of supporting the LTTE were subject to serious human rights abuses, including extra-judicial killing, detention without charge under the Prevention of Terrorism Act (PTA) or extrajudicially, and torture. After the war, any association with the LTTE was grounds for arrest. The fact that the applicant was never detained for longer than a couple of hours, and never questioned in detail about LTTE activity leads me to conclude that he was not actually suspected of helping the organisation. I do not consider that there was any genuine belief on the part of the SLA that the applicant was actually assisting or involved with the LTTE. I consider that this was an accusation made against the applicant, which the SLA knew to be without foundation, but which was used as a threat to intimidate him and extort money and goods. I consider that the SLA was corruptly exploiting its powerful position for personal gain.

18.     I do not accept that the applicant really has a profile as a supporter of the LTTE with the Sri Lankan security forces. I do not consider that there would be any records suggesting that he was ever subject to any formal investigation or under real suspicion of supporting the LTTE. I do not consider that he faces harm on return to Sri Lanka as a person suspected of having supported the LTTE or having links of any kind with the LTTE.

19.     Furthermore, I do not consider that there is a real chance that the applicant would continue to be subjected to such harm if he were to return to Sri Lanka. Country information indicates that the military presence in eastern Sri Lanka has decreased since the end of the conflict, and particularly since the election of the Sirisena government in 2015; and monitoring and harassment of the local (mostly) Tamil population of those areas in day to day life has generally eased. This is essentially because, since its military defeat in 2009, the LTTE no longer exists as an organized force, and is not a threat to the national security of the country (although the government remains concerned about its potential revival). In these circumstances, I consider that there is no real chance that the applicant would be subject, on return, to the kind of mistreatment that he was in the past.

20.    In any event, I consider that there are areas of Sri Lanka where the applicant would not be subject to the mistreatment to which he was vulnerable in his local area because of the enmity of local Muslims from his home town and because he was known to local soldiers. I do not accept that either the local Muslims who informed on him, or the security authorities would seek to pursue the applicant if he lived outside his home area. As discussed above, I do not consider that the applicant was actually suspected of supporting the LTTE. I consider that this was an excuse for the local soldiers to harass, bully and extort money from him. I do not consider that he would be subject to ongoing monitoring or surveillance, or that there would be any centralised record of the allegations that were made against him. I do not consider that he would be of any interest whatsoever to security authorities outside his local area. I consider that the past mistreatment of the applicant arose out of specific local conditions, so that even if there were a real chance that such mistreatment would continue if the applicant returned to his home town, I am not satisfied that this relates to all areas of Sri Lanka. I consider that there are areas of Sri Lanka where the applicant could reside without experiencing harm and extortion from the SLA. I am therefore not satisfied that any real chance of harm relates to all areas of the receiving country, as required by s.5J(1)(c).

10    The contention is that the IAA should have considered whether its findings at para 17 provided a basis to conclude that there was a real chance that the appellant would suffer persecution if he returned to Sri Lanka.

11    That is, having found that the serious harm suffered by the appellant was not because of the appellant’s claimed profile of a suspected LTTE supporter, the IAA should have considered whether the appellant had a “well-founded fear of persecution” within the meaning of the Migration Act 1958 (Cth) (“Act”) for the reasons that the IAA itself identified as reasons why the appellant had suffered harm. Those reasons are identified in the proposed notice of appeal as “SLA’s extortion, intimidation exploitation purposes and personal gain”.

12    The appellant referred to the following passages from the reasons of Logan J in SZTAP [2015] FCAFC 175 at [15] and [16]:

[15]    Extortion related refugee claims require very particular care in the analysis of the underlying occasion for the claimed extortion. This may reveal that the occasion for the extortion is multi-factorial but nonetheless founded in part in a particular vulnerability to extortion for a Convention-based reason.

…

[16]    In this case, to conclude that the “overriding aim” of the CID officers was “simply to extort money from [the appellant’s] mother” (Tribunal reasons, paragraph [51]) was to fail to grapple with why the mother was a target for extortion at all. Yet that is what the claim as made by the appellant required.

13    The appellant also referred to Rajaratnam v Minister for Immigration and Multicultural Affairs [2000] FCA 1111; (2000) 62 ALD 73 at [46] and [48] (“Rajaratnam”), where Finn and Dowsett JJ stated:

[46]    As this court has indicated on several occasions, care needs to be taken when considering whether extortion has been practised upon a person for a reason: see, eg, Minister for Immigration and Multicultural Affairs v Sarrazola [1999] FCA 1134; (1999) 95 FCR 517 [at 521-522]; [1999] FCA 1134; 57 ALD 8; 166 ALR 641 at 645-6. The need for this is apparent enough. In the usual case of extortion the extorting party will be acting for a self-interested reason (ie to gain an advantage for himself or herself, or for another). In this sense, his or her interest in the person extorted can always be said to be personal. What needs to be recognised, though, is that the reason why the extorting party has that interest may or may not have foundation in a convention reason. The extorted party may have been chosen specifically as the target of extortion for a convention reason, or may have become the subject of extortion because of the known susceptibility of a vulnerable social group to which he or she belongs, that social group being identified by a convention criterion. Or, conversely, the person may have been selected simply because of his or her perceived personal capacity to provide the particular advantage sought and for no other reason or purpose.

... [48]    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.

14    The fundamental difficulty with the appellant’s proposed argument is that his claims propounded a single reason for why he was subject to extortion, being his imputed support of the LTTE. That reason was rejected by the IAA.

15    The appellant’s proposed case fails to address the requirement of s 5J(1)(a) of the Act that the requisite fear of being persecuted is “for reasons of race, religion, nationality, membership of a particular social group or political opinion” and the requirement of s 5J(4)(a) that the relevant reason “must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution”.

16    Even on the appeal, the appellant did not attempt to explain how the findings of the IAA could provide a reason for his persecution being a reason “of race, religion, nationality, membership of a particular social group or political opinion”. The appellant’s submission did not explain how the extortion was Convention related (apart from the rejected ground of imputed LTTE support) but only submitted that the IAA should have considered whether the reason for the extortion was Convention related. While the IAA may be required to address a claim that is unarticulated but raised “squarely” on the material before it, this does not extend to a claim whose exposure depends on “constructive or creative activity” by the IAA: cf NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58].

17    In the absence of such an explanation, there is no merit in the proposed argument that the IAA should have considered whether the facts found by it led to a conclusion that the appellant had a well-founded fear of persecution within the meaning of the Act by reason of the acts of extortion and the other serious harm that the appellant was found to have experienced.

18    As to the reasons of the FCCA judge, the grounds of review did not raise this ground squarely. The appellant’s written submissions conceded that the proposed ground of appeal was “not pressed at first instance”, however, in oral submissions, there was a suggestion that the proposed appeal ground was related to [36] of his Honour’s reasons. In this passage, the FCCA judge addressed an argument that the IAA “failed to consider the established principles in relation to relocation”. His Honour said:

The third way the argument was put was that the local soldiers extorting money were arguably motivated by personal interest that was also Convention related. That may well be so, but the IAA found otherwise. It was the task of the IAA, not the Court, to determine what inferences to draw and findings of fact to make on the material. The argument rises no higher than an attack on the merits of the IAA’s conclusion.

19    In this passage, the FCCA judge correctly observed that the IAA had found that the local soldiers’ misconduct was not Convention related. As explained above, the IAA rejected the claim that the misconduct was motivated by the appellant’s imputed support of the LTTE.

20    The submission to which [36] is directed was set out a written submission filed on 6 July 2017. The relevant passage sets out part of the passage from Rajaratnam set out above.

21    The submission continues:

It was submitted that as it was the SLA, an agent of the state that subjected the applicant to extortion and also as the applicant was accused of assisting or was involved with the LTTE, the local soldiers extorting money from the applicant is arguably motivated by personal interest that is also Convention related.

22    For the reasons set out above, the submission to the FCCA went nowhere in the absence of any identification on behalf of the appellant of a Convention related motivation apart from the appellant’s imputed support of the LTTE, which motivation was rejected.

23    Accordingly, the proposed ground of appeal does not point to error in the FCCA judge’s reasons at [36], or in his Honour’s failure to consider whether there was some other Convention related motivation that might have explained the harm to which the appellant was found to have been subjected.

24    The Minister also noted that the IAA found that:

(1)    based on country information, there is not a real chance that the appellant would be subject, on return, to the kind of mistreatment that he was in the past;

(2)    the past mistreatment of the appellant (including by way of extortion) arose out of “specific local conditions”; and

(3)    there were areas of Sri Lanka where the appellant could reside without experiencing harm and extortion from the SLA.

25    The Minister argued that the appellant’s proposed new challenge on appeal does not impugn any of these findings and cannot overcome them.

26    The appellant’s argument seemed to be that these findings could not withstand scrutiny where the reasons for the extortion were not adequately explored. I do not accept that this argument has merit. The IAA’s findings were evidently based on country information. It was open to the IAA to make those findings without any further analysis of the reasons for the extortion, particularly in the absence of any alternative explanation by the appellant himself.

27    It follows that the first proposed ground of appeal has no merit and I decline to grant leave to rely on that ground of appeal because it would be futile to do so.

Proposed ground 2: threats by Muslim men

28    This proposed ground of appeal concerns the FCCA judge’s decision, recorded at [58] of his Honour’s reasons, not to address a “possible argument”. In full, [58] states:

In addition to the proposed grounds raised by the applicant, the Minister’s written submissions dealt with whether the IAA ought to have considered whether the threats of harm made by the Muslim men might have amounted to persecution and, if so, should have considered whether such threats might recur in the future. While I appreciate that the Minister may have done this because the applicant’s proposed grounds and his written submissions were not very clear, I consider that I ought not to deal with this possible argument. It was not in fact one raised by the applicant, and I have not had the benefit of full submissions about it. It may have been different if the applicant had been unrepresented, but he was not.

29    The appellant argued that the FCCA judge was wrong to state that the issue identified in the first sentence of [58] was not raised, and that it was raised by particular (e) of the proposed grounds also referred to in the first sentence of [58].

30    Whether the FCCA judge may have made an error of the kind identified by proposed ground 2 depends upon the identification of “this possible argument”, referred to in the third last line of [58].

31    The background to how the “proposed grounds” mentioned in [58] came to be raised by the appellant is set out at [40] of the FCCA judge’s reasons, which states:

At the hearing an issue arose as to whether the IAA’s reasoning in [24] of its statement revealed a misunderstanding of the meaning of persecution in the Act. Although Counsel for the Minister was able to present cogent oral arguments in relation to that issue, orders were made allowing the applicant to file written submissions setting out any proposed grounds arising from [24] of the IAA’s decision. The question of leave was left to be dealt with on the papers.

32    As the Minister submitted, the issue thus raised by the primary judge was whether the Tribunal misunderstood or misapplied the law. More specifically, it concerned the concept of threats in the context of serious harm.

33    Paragraph 24 of the IAA’s decision record states:

I accept that the applicant faced threats from local Muslim men during the 2012 elections because he supported the Tamil candidate for the TNA. Country information indicates that historically there was bad feeling between the Tamil and Muslim communities in [town]. Information relied on by the delegate to support his finding that there were “multiple cases of voter intimidation and violence” in that election, which he found consistent with the applicant’s claim that he had been threatened by a mob of Muslim men, in fact refers only to “reports of threats and intimidation” and a massive police and army presence in an election “mired in controversy”. Based on the applicant’s evidence, however, I accept that a group of Muslim men came to his home on election night. It is possible that they intended to harm him on that occasion, although given his evidence that he had experienced previous warnings – either when he met them on the road or possibly when they came to his home and he was able to avoid them by going to his sisters’ neighbouring houses – I consider that they had ample opportunity to harm him had they intended to do so. I am not satisfied that there is a real chance that he would face serious harm from local Muslim men if he were now to return to his village, almost four years after the election campaign in which he helped the TNA. His own evidence indicates that any interaction he had with the men prior to election night consisted of warnings only. It would appear that if they had any intention of actually harming him they had ample opportunity to do so. Accepting that they did come to his home on election night, I am not prepared to accept, on the basis of this incident alone, that they intended to do him serious harm. I consider that the possibility that they would seek to harm him now, four years later, is remote. While I note the applicant’s claims that people have continued to inquire about him during his absence, I am not satisfied that these are people who are looking for the applicant because they intend to harm him, or that these inquiries indicate the existence of a real chance that the applicant would face serious harm on return.

34    The “proposed grounds” are three proposed new grounds identified by the applicant following the orders referred to at [40] of the FCCA judge’s reasons. In summary, the three proposed new grounds were that:

(1)    the IAA failed to assess the appellant’s risk of harm from Muslim men in connection with the 2012 elections when it assessed the appellant’s claims against the complementary protection criterion;

(2)    the IAA failed to assess the appellant’s risk of harm from Muslim men in connection with the 2012 elections when it assessed the appellant’s claims under s 5J of the Act; and

(3)    when assessing if the appellant would face a real chance of serious harm from local Muslim men, the IAA failed to consider that the appellant avoided his persecutors/serious harm by going to his sisters’ neighbouring houses.

35    Particular (e) of the second proposed ground is:

The existence of “threats” coupled with an actual “intention” to carry out the threats / harm on at least one occasion raises an obligation to assess future harm to the applicant from Muslim men in connection with the 2012 elections.

36    The proposed grounds were addressed and rejected at [42] to [57] of the FCCA judge’s reasons. As Mr Bevan observed, the three proposed grounds did not adopt or reflect the issue identified at [40] of the FCCA judge’s reasons, but rather raised different issues.

37    In deciding that the second proposed ground of review had insufficient merit to warrant its inclusion in the appellant’s grounds of review, the FCCA judge said, relevantly, at [49]:

The proposition that the IAA did not apply a forward looking test cannot stand in light of the plain findings by the IAA that there was no “real chance that (the applicant) would face serious harm ... if he were now to return to his village”, that the possibility “that they would seek to harm (the applicant) now, four years later, is remote”.

38    The “Minister’s written submissions” in [58] are dated 3 August 2017. The submissions are principally directed to each of the three proposed additional grounds. Under the heading “proposed additional ground 2”, there is a sub-heading “The Authority’s approach accords with the statutory test and the authorities”. Under that sub-heading, the Minister addresses the meaning of the word “threat” and the circumstances in which a “threat” can amount to persecution. Although they do not refer explicitly to the question identified at [40] of the FCCA judge’s reasons, after setting out relevant law, the submissions address (at [27] and [28]), the IAA’s reasoning in para 24 of its decision record.

39    I accept that the issue that the FCCA judge decided not to address was the issue of whether the IAA’s reasoning in para 24 of its statement revealed a misunderstanding of the meaning of persecution in the Act, canvassed by the Minister under the sub-heading “The Authority’s approach accords with the statutory test and the authorities”. It follows that at [58] the FCCA judge did not record a decision to decline to address the issue raised by particular (e) and did not make a finding that the appellant had not raised a matter raised by his proposed grounds.

40    To the contrary, the FCCA judge addressed the issue raised by particular (e) and concluded that it “could not stand” at [49] of his Honour’s reasons.

41    The appellant made a submission that para 24 of the IAA’s decision record discloses jurisdictional error, apparently in support of the proposed second ground of appeal. The submission appeared to be that, if the FCCA judge had addressed the issue identified in [58], his Honour would have concluded that there was jurisdictional error. The submission involved six numbered propositions.

42    The first two propositions concerned the requirement for assessment of both subjective and objective elements in determining the existence of a well-founded fear of persecution involves. The third and fourth propositions were to the effect that the IAA had failed to consider the appellant’s subjective fear of harm. However, as Dawson J said in Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 396:

There must be a state of mind – fear of being persecuted – and a basis – well-founded – for that fear. Whilst there must be fear of being persecuted, it must not all be in the mind; there must be a sufficient foundation for that fear.

43    The IAA’s consideration of the risk of harm to the appellant from local Muslims, especially at para 24, was directed to whether there was a sufficient foundation for a fear of persecution. As the IAA was not satisfied that such a foundation existed, it was not required to assess the appellant’s state of mind.

44    The fifth and sixth propositions contend that the IAA failed to assess whether the warnings received by the appellant constituted serious harm and should have “evaluated evidence of past events of persecution” (threats of harm and past visits from Muslim men) “for the purpose of determining whether there was a real chance of harm from this group in the future”. There is no basis for the contention that the IAA was obliged to assess whether the previous warnings constituted “serious harm”. The issue was whether there was a well-founded fear of persecution involving serious harm for a Convention reason: Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610 at [49]. This is the very issue that the IAA addressed at para 24, including evaluating whether past events demonstrated a real chance of future harm.

45    As the Minister’s submissions on the appeal noted, the FCCA judge’s refusal of leave to amend to raise any of the proposed grounds is a discretionary decision and does not disclose any error of the kind required by House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505.

46    For these reasons, I conclude that proposed ground 2 misunderstands the FCCA judge’s reasons at [58] and raises no issue that has any prospect of success on appeal. It follows that it would be futile to grant leave to amend to add proposed ground 2 to the notice of appeal.

Conclusion

47    Leave to amend the notice of appeal should be refused. It follows that the appeal should be dismissed. Costs should follow the event.

Associate:

Dated:    15 March 2018