FEDERAL COURT OF AUSTRALIA

DLN16 v Minister for Immigration and Border Protection [2019] FCA 1945

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    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

NICHOLAS J:

Introduction

1    Before me is an appeal from a judgment of the Federal Circuit Court of Australia (Judge Manousaridis) dismissing an application for judicial review of a decision of the second respondent (“the Authority”) affirming the decision of a delegate of the first respondent (“the Minister”) not to grant a Safe Haven Enterprise (Class XE790) visa to the appellant. Whether or not he should be granted such a visa depended on whether he satisfied the criterion specified in either s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (“the Act”)

2    The appellant was represented by a solicitor before the primary judge but was not legally represented on the appeal. The notice of appeal filed by the appellant contains a bare assertion that the primary judge erred in not finding that the Authority’s decision was affected by legal error.

3    The appellant is a Sri Lankan national and a Tamil. He arrived in Australia by boat on 10 September 2012 but did not lodge a valid visa application until 22 December 2015. He was interviewed by the delegate on 6 April 2016 who refused his application on 13 July 2016. On 20 October 2016 the Authority affirmed the delegate’s decision not to grant the appellant a visa.

The AuthoritY’S Decision

4    The appellant’s claim for protection was set out in a statutory declaration made by him on 13 September 2013. A more detailed account of the appellant’s claims appears in the Authority’s reasons for decision.

5    The appellant claimed that in 2008 he and his brother-in-law had witnessed the shooting of the appellant’s cousin in Sri Lanka by members of the Karuna group, two of whom were subsequently arrested. He claimed that several days after the shooting he and his brother-in-law were captured, beaten and held overnight by the Karuna group, and that, following their release, they travelled to Colombo because they feared for their lives. The appellant also claimed that in 2008 he received two letters sent to him by the Karuna group which were delivered to his family home and which demanded that he attend what he referred as to the Karuna camp.

6    The appellant also claimed that the Karuna group frequently visited his family home to ask about him, and that this continued up until early 2016 after he departed Sri Lanka for Australia. The appellant claimed that his brother-in-law fled to Germany in 2012, and that at some point in time, a summons was issued for his brother-in-law to attend court to give evidence in relation to the 2008 shooting. The appellant did not claim that any such summons had been issued to him.

7    The Authority did not accept most of the appellant’s claims including that he was a witness to the 2008 shooting incident. The Authority said at [12]:

The claimed incident occurred in 2008 and was reported to the police immediately after. The applicant resided in Sri Lanka until 2012. He claimed he remained in hiding during this period to avoid harm from the Karuna group however I do not accept this. Between 2008 and 2012 the applicant worked in his usual place of employment, a jewellery shop in Colombo, where he had been working since 1999. He worked there until a few days before his departure for Australia when he returned to his home village. In 2010, he also travelled from Sri Lanka to India for a wedding … I am not satisfied the applicant was in hiding during this period nor am I satisfied the applicant feared or faced any harm from the Karuna group. I do not accept the applicant was a witness to a shooting in 2008. On his own evidence, it was his brother in law who was summonsed to court to provide evidence. The applicant has never been summonsed. I am not satisfied the applicant has ever faced any harm from the Karuna group in the past, including being held and tortured for one night, receiving verbal and written threats, having the Karuna group attend his home or any other type of harm.

8    The Authority considered the appellant’s involvement with the Tamil National Alliance (“TNA”) and whether the appellant may suffer harm as a result of that involvement. It was not satisfied that the appellant faced any such harm. The Authority also considered whether the appellant may suffer harm on the basis that he had departed Sri Lanka illegally and would be returning as a failed Tamil asylum seeker. The Authority was not satisfied he would face such harm.

9    In the result, the Authority was not satisfied the appellant met the criterion specified in either s 36(2)(a) or (aa) of the Act.

The PRIMARY JUDGE’S DECISION

10    The sole ground of review that was pressed by the appellant before the primary judge asserted that the Authority failed to consider a claim by the appellant to the effect that he had a well-founded fear of persecution, or that there was a real risk he would suffer significant harm, because he was related to a person who had fled Sri Lanka and who had been summoned to appear before a court to give evidence regarding the 2008 incident.

11    The relevant ground of review, as set out in the primary judge’s reasons, was as follows:

The IAA failed to consider a claim that was made out on the facts.

…

Particulars

1.    The IAA did not accept that the applicant was a witness to a shooting incident that occurred in 2008 …

  2.    The IAA made no finding if in fact the claimed 2008 incident did not occur.

3.    The IAA appears to impliedly accept that that the applicant’s brother in law “was summoned to court to provide evidence” …

4.    The IAA was on notice that the applicant’s brother in law “fled to Germany in 2012”.

5.    Therefore, it would only have been reasonable to assess if the applicant would face serious and or significant harm on account of his brother in law having fled to Germany when he had been summoned to court to provide evidence regarding the 2008 incident.

6.    The IAA failed to consider if the applicant would face harm on account of his familial link to an individual who fled Sri Lanka and was summoned to court to provide evidence.

12    The primary judge considered the relevant authorities dealing with the decision-maker’s obligation to consider not only claims expressly made by an applicant for a protection visa but also those that clearly arise on the materials before the decision-maker. In this regard, his Honour referred to the Full Court decision in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (“NABE”). His Honour also referred to the decision in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 (“NAVK”) in which Allsop J (as his Honour then was) considered the effect of the decision in NABE. In NAVK, Allsop J said at [15]:

The Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [55]–[63] dealt with the question of what claims must be dealt with by the Tribunal to complete its statutorily required task (its jurisdiction) even though they may not be expressly articulated. See also Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389, 394 [24], 408 [95] and Applicant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 112. From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

13    In deciding whether the Authority was required to consider what was said by the appellant to constitute a claim arising out of the materials before it, the primary judge applied the decision in NABE as explained in NAVK. As to the submission that the Authority was required to consider the possibility that the appellant may be at risk of harm by the Karuna group due to his relationship to the victim of the 2008 shooting and a witness who had fled to Germany and who was summoned to give evidence in relation to the incident, the primary judge said at [21]:

This submission is not arguable, given the findings the Authority made. The Authority did not accept the applicant witnessed the shooting he claimed he witnessed; it did not accept the Karuna group visited his home; it did not accept the applicant had been held and tortured by the Karuna group; it did not accept the applicant received any verbal or written threats; it did not accept the applicant hid in Colombo; and it found the applicant received no summons to give evidence. In these circumstances, the material before the Authority was incapable of suggesting a claim that the applicant faced a real risk of reprisal from persons associated with the persons who have been charged with the shooting the applicant claimed to have witnessed.

14    The question in this appeal is whether his Honour’s conclusion on this issue was affected by error.

CONSIDERATION

15    The primary judge correctly noted that what he referred to as the asserted claim was said by the appellant to arise on the assumption that the Authority did not accept many of the appellant’s claims including, in particular, that he had witnessed the 2008 shooting. In essence, the issue for his Honour was whether, given those claims expressly articulated by the appellant that were rejected by the Authority, there was any room to find that an additional claim arose on the material before the Authority to the effect asserted, that was not expressly articulated in such material, but that the Authority was nevertheless also required to consider.

16    The question was then whether the Authority, acting reasonably, should have appreciated in light of the material before it that, in spite of the Authority’s rejection of many of the appellant’s claims, a claim arose for its consideration based on the appellant’s relationship to a person who had witnessed the 2008 shooting, fled to Germany, and been summoned to appear in court to give evidence in relation to that incident.

17    Given that the Authority did not accept that the appellant witnessed the 2008 shooting, or that he had been held, tortured or threatened by the Karuna group, or that he had hidden in Colombo, and given that he accepted that he had not received a summons to give evidence, the primary judge found that the material before the Authority was incapable of giving rise to the asserted claim. I respectfully agree with that conclusion.

18    There does not appear to have been any material before the Tribunal that would have suggested that the Karuna group may harm the appellant merely because he was related to a person who had fled to Germany and to whom a summons to give evidence had been issued in relation to the 2008 shooting. In this regard, the appellant’s acceptance that he was not issued with a summons is significant because there could in those circumstances be no reason for the Karuna group to suppose that the appellant had been a witness to the 2008 shooting or that he was otherwise involved in any criminal investigation or proceeding relating to that incident. It follows that there was no reason why it should have occurred to the Authority that the appellant might be at risk of harm due to his relationship to another person who, unlike the appellant, may have witnessed the 2008 shooting (assuming it actually took place). In my opinion the asserted claim did not arise on the material before the Authority.

19    The appeal will be dismissed with costs.

Associate:

Dated:    21 November 2019