FEDERAL COURT OF AUSTRALIA

DUR16 v Minister for Immigration and Border Protection [2020] FCA 1155

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of Judge Emmett made on 25 October 2018 be set aside and in lieu thereof:

(a)    A writ of certiorari be issued quashing the decision of the second respondent dated 17 November 2016.

(b)    A writ of mandamus issue to the second respondent requiring it to determine, according to law, the appellant’s application for a safe haven enterprise visa.

3.    The first respondent pay the costs of the appeal.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    BACKGROUND

1    The appellant is a male citizen of Sri Lanka and is of Tamil ethnicity. He arrived in Australia on or about 20 September 2012 as an unauthorised maritime arrival. On or about 15 February 2016, the appellant applied for a Safe Haven Enterprise visa (SHEV). His application was refused by a delegate of the Minister for Immigration and Border Protection. As the delegate’s decision was a “fast track reviewable decision” under Part 7AA of the Migration Act 1958 (Cth), the appellant’s application was referred to the Immigration Assessment Authority (IAA).

2    On 17 November 2016 the IAA affirmed the decision not to grant the appellant a protection visa. The appellant made an application to the Federal Circuit Court of Australia (FCCA) for judicial review of the IAA’s decision. His application was heard by the FCCA on 25 October 2018 and on the same day it was dismissed: DUR16 v Minister for Immigration & Anor [2018] FCCA 3030. On or about 5 November 2018, the appellant filed a Notice of Appeal in this Court.

3    On 15 February 2019 the appellant filed an interlocutory application seeking leave to rely on further evidence on appeal and leave to rely on new grounds of appeal. Leave was subsequently granted to the appellant to rely on one additional ground of appeal, but leave to rely on further evidence was refused: DUR16 v Minister for Immigration and Border Protection [2019] FCA 2043.

4    The sole ground of appeal is as follows:

The appellant claimed on a number of occasions that he had been subject to extortion demands by members of the Sri Lankan authorities. The [IAA] did not deal with this integer of the appellant’s claims. This is a jurisdictional error.

5    The appellant was represented by Mr Ben Zipser of counsel, and filed written submissions in advance of the hearing. The Minister was represented by Mr Bora Kaplan of counsel, and also filed written submissions.

6    The essence of the appellant’s case may be summarised briefly as follows:

(1)    The appellant made a number of claims that he was the subject of extortion, first by paramilitary groups, and secondly by members of the Sri Lankan authorities and in particular the police and the Criminal Investigation Department (CID). The latter are summarised in section 2 below and referred to collectively as the police and CID extortion claims.

(2)    Whilst the IAA summarised the appellant’s claims of extortion in its decision at [11], it referred only to claims of fear of extortion by paramilitary groups, but not to the police and CID extortion claims, which it failed to address.

(3)    That failure by the IAA was material, and amounts to jurisdictional error.

2.    THE POLICE AND CID EXTORTION CLAIMS BEFORE THE DELEGATE

7    The police and CID extortion claims were summarised by the delegate as follows: the appellant “was asked regularly by Police for money”; “the Criminal Investigation Department (CID) also threatened him for money”; and upon his return from Malaysia his uncle “informed him that he had given money to the CID and that the problem was over”.

8    The delegate then proceeded to assess these claims under the heading “Claims of Extortion”, where the delegate dealt with both the police and CID extortion claims as well as claims of extortion by other bodies including paramilitary groups. In one paragraph, the delegate describes in further detail the police and CID extortion claims:

The applicant also claims that he was frequently asked for money by Police during vehicle check point stop and searches. Further to this the applicant claimed that he was threatened by CID officers who wanted money from him or they would destroy him and his van. Again he claimed that the CID made their threats by phone and although he could not positively identify the persons as being CID, he stated that he believed that they were so. In reference to the CID threats, the applicant stated in the PV interview “They wanted money and if I refuse to comply they would harm me.” He further claimed that the CID tried to extort him “many times”. In regard [to] his claim about the threats from the CID the applicant stated that in 2011 he sold his truck to raise funds for his journey to Malaysia. Shortly after the transfer of ownership, a group caused a lot of damage to the vehicle under the belief that he still owned it. The applicant stated in the PV interview that he was not sure who did the damage but he thought that it may have been the CID as he did not pay them the money they demanded.

9    The delegate further stated:

In consideration of the applicants [sic] claims in this regard, I find that it is plausible that as a businessman he may have been imputed by the EPDP and the security authorities as being wealthy. He claimed in the PV interview that the Police were frequently asking for money during traffic stops. As a result I also find it plausible that in his day to day business activities he may have been subjected to demands for money from the organisations he identified.

I find that the applicant’s claims of the security authorities, namely the CID and Police and the EPDP demanding money from him are credible and consistent with country information.

10    Although the delegate found that the appellant’s claim to fear harm from the police and CID was made out, in assessing whether the appellant engaged Australia’s protection obligations pursuant to ss 36(2)(a) and 36(2)(aa) of the Act the delegate concluded that there was not a real chance that the appellant would face harm from those bodies upon his return to Sri Lanka:

I acknowledge that Tamil businessmen were imputed by many to have wealth and as such they were susceptible to being the targets of extortion. However, as the above cited country information shows, under the Sirisena government anti-corruption committees and agencies have been formed and the Sri Lankan law enforcement bodies have taken on the responsibility of investigating such criminal actions and corrupt governing bodies. The country information cited indicates that the frequency of extortion has been statistically reduced.

As such I find that, based on the evidence before me, there is foreseeably not a real chance that the applicant would return to Sri Lanka and be subjected to extortion from the same bodies identified in his claim.

11    Having regard to the reasons of the delegate, I reject the secondary submission advanced by the Minister in oral submissions, but not in writing, to the effect that the appellant had not expressly made a claim of fear of persecution in the form of extortion from the CID and/or the police upon his return to Sri Lanka. I am satisfied that a basis advanced by the appellant before the delegate of fear of persecution upon his return to Sri Lanka was that he will be the subject of extortion at the hands of the police and the CID.

3.    THE DECISION OF THE IAA

3.1    The IAA’s summary of the appellant’s claims

12    The appellant’s first contention is that the IAA failed to direct attention to the police and CID extortion claims. It is accordingly necessary to consider the summary given by the IAA of the appellant’s claims at [11] of its reasons (lettering and emphasis added):

The applicant’s claims are contained in the information referred and subsequently given to the IAA. They can be summarised as follows:

(a)     The applicant is a Tamil from [city], Sri Lanka;

(b)    As a Tamil growing up in Sri Lanka he experienced ongoing harassment and discrimination.

(c)    During the time the Indian Peace Keeping Forces (IPKF) was present in Sri Lanka the applicant’s father was suspected of being a LTTE supporter. He initially claimed his father went to Qatar for work before being murdered by the paramilitary Eelam People’s Democratic Party (EPDP). After the 2002 peace agreement his father felt it was safe to return from Qatar and he came back to Sri Lanka and subsequently died of natural causes.

(d)    From 2006/2007 the ceasefire collapsed and the applicant experienced difficulties with the security forces. The applicant was regularly harassed and rounded up by the army and detained for periods of one to two hours until his mother, with the assistance of his school, could secure his release. He was assaulted on these occasions.

(e)    In 2007 two of his cousins were accused of LTTE involvement. One was shot and killed. It had been assumed that the second cousin was also killed but his family recently found out that he is still alive and is working as informant for the CID and army.

(f)    At one time the applicant was detained in the same camp as these cousins. When he was stopped by the army they asked questions about his cousins.

(g)    The applicant was arrested and detained for two weeks in 2008 by the army. He was released following the intervention of his mother and a school teacher.

(h)    The applicant moved to [city] in 2008 to live with an uncle and work as a driver in his business. He had to register with the authorities who asked him questions about his residence and his intentions. Throughout 2009 the army were arresting many Tamils and he was stopped and asked to prove his identity and registration many times.

(i)    During a local council election the applicant was harassed by the army and CID to support the United National party (UNP) and was contracted to drive UNP members. The applicant also drove members of the opposing Tamil National Alliance (TNA) party. The UNP objected to him also working for the TNA and threatened him to stop doing so. The UNP performed poorly in the election and took retribution by harassing the general Tamil population. The applicant was arrested, taken to a camp and badly beaten until his uncle secured his release.

(j)    Paramilitary groups had an interest in the applicant and harassed him at home and stopped him while he was working as a driver. They demanded money from him. After three of them visited his uncle’s home looking for him the applicant decided to leave Sri Lanka and travel to Malaysia for his safety. He sold his vehicle to fund his travel to Malaysia. The vehicle was vandalised and the applicant believes this was retribution for not paying money to the paramilitary group.

(k)    The applicant returned from Malaysia after three weeks as his uncle advised him he had paid money to the paramilitaries and that it was safe to return.

(l)    After his return the applicant was working and hiding in a rice mill. While he was working there he was identified by someone and the paramilitary groups came to look for him. The applicant believes that they knew his uncle had paid money previously and they also demanded money.

(m)    In August 2012 the applicant was working as a driver for a businessman and he was involved in an accident with a bus. The bus driver and passengers were all Sinhalese and they accosted the driver and his employer. The police were called and ignored the evidence that the bus caused the accident. The applicant was released by the police on the condition that he pay 10 lakhs to the bus driver. The applicant’s employer did not have the money to pay and advised the applicant to leave the country. The applicant’s uncle also did not have the money to pay and agreed that he should leave the country. The applicant left Sri Lanka illegally in September 2012. His uncle paid a people smuggler 2 lakhs when the applicant boarded the ship and the remaining 8 lakhs when the applicant arrived in Australia. The bus incident has led to the applicant being accused of being a LTTE cadre who deliberately tried to kill a busload of Sinhalese people.

(n)     His mother has reported that after his departure a person spoke to her in the local market, saying “your son is in Sydney”.

(o)    Recently, in 2016, the applicant’s sister went missing for a period and his mother visited neighbouring houses in search of her. A neighbour asked his mother to enter that neighbour’s house where she found the applicant’s sister being held tightly by two men. These men told his mother they were asked by the CID to find out about the applicant and how he left Sri Lanka. They said the applicant had escaped arrest during the war and the CID now had information to prosecute him. They demanded money from his mother, which she paid to secure the release of her daughter.

(p)     The applicant fears that he will be targeted by the authorities and paramilitary groups as he has been imputed with an LTTE profile, has left Sri Lanka illegally and claimed asylum. He fears that he will be subject to ongoing extortion demands.

(q)     He fears that on return to Sri Lanka he will be forced to join his cousin as an informant for the authorities.

(r)    The applicant has referred to reports that indicate a high level of cancer in ex-LTTE cadres.

3.2    Did the IAA fail to consider the police and CID extortion claims?

13    The appellant submits that whilst the IAA addressed one incident of extortion by the police, namely the bus incident summarised in paragraph (m), it did not consider the more general police and CID extortion claims. The Minister contends otherwise, and emphasises the passages set out in bold.

14    I disagree with the Minister. At best the summary in [11] is ambiguous on the point. Plainly, paragraph (p) makes reference to fears on the part of the appellant that he will be “targeted” by the authorities, but that reference would appear to be directed to the concern identified in (m) that the appellant would be accused of being an LTTE cadre. The final sentence in (p) concerns ongoing demands, but most naturally refers to demands made by the paramilitary groups which are thoroughly addressed in earlier paragraphs.

15    The IAA next proceeded to make factual findings in [12] to [27]. At [24] to [26] it considered the claim concerning the bus incident and, having regard to various inconsistencies in the information provided by the appellant, it rejected that the incident occurred. The other factual findings of the IAA made no reference to the police and CID extortion claims, or any of the factual matters underpinning those claims.

16    Next, the IAA considered whether the appellant has a well-founded fear of persecution. In this context the appellant contends that no mention is made of, or consideration given to, the police and CID extortion claims. The Minster draws attention to following paragraphs of the decision of the IAA to contend otherwise (footnotes omitted, emphasis added):

[41]     I accept as plausible that the applicant was harassed and threatened by paramilitaries when working as a driver for his uncle and at the mill. I accept he has a subjective fear of ongoing harm from paramilitary groups in Sri Lanka. The applicant's claim to have been the victim of harassment and extortion threats is plausible and country information indicates that paramilitary groups have resorted to criminal activities and extortion to raise funds. Reporting in 2010, the Danish Immigration Service noted the high crime rate in Jaffna and that it was assumed that paramilitary groups were the cause and are "engaged in criminal activities, including kidnappings and abductions for ransom." The same report stated that "abductions now take place at a very reduced scale. Today there are groups targeting local business people, but it is unknown which groups are behind [this]."

[42]    The independent country information before me reports widely on extortion rings operated by various paramilitary groups, including the EPDP. However, I find that there has been a significant change in Sri Lanka since the applicant departed in 2012 and I am not satisfied that his fear of facing serious harm from paramilitary groups on return is well-founded.

[43]     I place significant weight on the improved security situation since 2012. There are indications the paramilitary groups have renounced their paramilitary activities although DFAT are aware of credible reports that these groups continue to be active in criminal activity. The US Department of State, Overseas Security Advisory Council advises that "kidnappings occur infrequently and ... the motive is usually political or business-related". Country information indicates that the police are pursuing criminals and paramilitary groups involved in extortion.

[44]     The EPDP is increasingly becoming part of the mainstream and won a parliamentary seat at the 2015 general election. The authorities are taking steps to prosecute members of paramilitary groups for past crimes and the indications are that the police are pursuing crimes of extortion and related threats and kidnappings. I note the credible reports that paramilitary groups are involved in criminal activities and I accept that extortion continues to happen. However, the weakening of the paramilitary groups and their renunciation of paramilitary activities, their move into the mainstream and the prosecution of past members for violent crimes leads me to conclude that the chance the applicant would face instances of extortion amounting to serious harm, or violence or other harm, is remote. I find there would not be a real chance that the applicant would suffer serious harm on return to Sri Lanka.

17    The Minister accepts that in these passages the IAA does not expressly refer to the police and CID extortion claims, but submits that they were impliedly considered in the bold passages in [42], [43] and [44]. He submits that these findings indicate that the position in Sri Lanka had changed since the appellant’s departure for Australia in 2012 such that there did not, and would not on his return to Sri Lanka, exist a real chance of the authorities being the agents of harm. The Minister submits that in circumstances where the IAA had identified the police and CID extortion claims earlier in its reasons, the Court should be slow to infer that the claims were overlooked from the absence of an express finding that dealt with it in [41] to [44], citing Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [47] (French, Sackville and Hely JJ).

18    In considering the present case I am conscious of the cited passage in Applicant WAEE, which is set out below:

[46]    It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.  It may be that some evidence is irrelevant to the criteria and some contentions misconceived.   Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court.  It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications.  Each of the applications it decides is, of course, of great importance.  Some of its decisions may literally be life and death decisions for the applicant.  Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’.  Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

[47]    The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons.  But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.  It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.  Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

19    I do not accept that it may be inferred from paragraphs [41] to [44], or the decision of the IAA as a whole, that the IAA considered and determined the police and CID extortion claims. In my view, on a fair reading of the entirety of the decision of the IAA it is apparent that it failed to consider it.

20    First, no clear reference is made in the summary of the appellant’s claims at [11] to the police and CID extortion claims.

21    Secondly, no finding of fact is made in relation to the police and CID extortion claims in [12] to [27]. One would have expected that had the IAA turned its mind to the claims, then reference would have been made to them. As the appellant points out, determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past, because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; 191 CLR 559 at 575 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ). Despite there being some detail attending to the claims of extortion advanced by the appellant before the IAA (as to which see [12] above as an example), no mention is made of the police and CID extortion claims in this section.

22    Thirdly, it is plain that [41] to [44] of the IAA’s reasons focus on and make findings on the basis of the claims advanced that the appellant was harassed and threatened by paramilitaries. The references to the “authorities” and the “police” in these paragraphs are incidental only and in the context of actions taken to address the conduct of the paramilitary organisations.

23    Fourthly, the Minister places particular emphasis on the final sentence of [43]: “Country information indicates that the police are pursuing criminals and paramilitary groups involved in extortion”. He submits that it may be inferred that because the police are pursuing criminals and paramilitary groups that are engaged in corrupt activities, they cannot themselves be engaged in corruption. In my view that is a non sequitur; corrupt police may nonetheless pursue criminals engaged in corrupt activities. The final sentence in [43] says nothing about whether or not investigations are being made to limit or curtail police or CID corruption. The same may be said of the bold passages in [44], which the Minister also emphasised.

24    The Minister in oral submissions contended that the delegate made no finding that the police and CID are engaged in extortion. That, however, tends to distract rather than assist. The relevant question is whether the IAA considered the issue, not what the delegate did.

25    I am conscious that one does not too readily draw an inference from a failure expressly to deal with an issue that the IAA has not considered a claim, but in my view in this instance it did so fail.

3.3    Was the failure to consider the police and CID extortion claim material?

26    The foregoing is not dispositive of the appeal. Before concluding that there has been a jurisdictional error it is first necessary to conclude that the failure on the part of the IAA was material. There is no dispute between the parties as to this requirement.

27    The principles relevant to determining whether an error is material are as follows:

(1)    The question is an ordinary question of fact in respect of which the appellant bears the onus of proof. It is to be determined by inferences drawn from evidence adduced on the application: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [46] (per Bell, Gageler and Keane JJ).

(2)    The test is whether compliance with the relevant requirement could realistically have resulted in a different decision: SZMTA at [45]. The test is not whether compliance would have resulted in a different decision: EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; 268 FCR 299 at [40], [42] (Allsop CJ, Markovic and Steward JJ); Dang v Administrative Appeals Tribunal [2019] FCAFC 220 at [65] (Colvin and Jackson JJ, Kerr J generally agreeing). To put it another way, the question is whether the same result is “inevitable”: Wehbe v Minister for Home Affairs [2018] HCA 50; 92 ALJR 1033 (Edelman J).

(3)    The “realistic possibility” test is a hypothetical exercise: Umi v Minister for Home Affairs [2019] FCA 2148 at [73] (Mortimer J), upheld on appeal in Umi v Minister for Home Affairs [2020] FCAFC 101 at [40] (Middleton, White and Burley JJ). The Court cannot usurp the statutory task entrusted to the decision-maker and form its own view as to what the result should have been: Dang at [65].

(4)    While the Court cannot assume the fact-finding function of the decision-maker, it must also be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose before the decision-maker that the decision-maker’s failure to take the document or information into account could not realistically have affected the result: SZMTA at [48].

28    In the present case, I am satisfied that the breach is material in the requisite sense. There is a realistic possibility that had the IAA considered the police and CID extortion claims, it could have decided that the claims were made out as a matter of fact. That was the view reached by the delegate, as set out at [9] above.

29    In my view there is also a realistic possibility that, having considered the police and CID extortion claims in the context of the available country information, the IAA could have arrived at the conclusion that the appellant’s claim to fear harm upon his return to Sri Lanka was well founded. In this regard, the following points may be made.

30    The appellant bases his case on materiality on the reasoning of the delegate. This contention may at first appear to be counterintuitive, because the delegate relied on country information to decide that there is foreseeably not a real chance that the appellant upon his return to Sri Lanka would be subjected to extortion from the same bodies identified in his claim, including the police and CID. However, the appellant convincingly argues that the delegate drew on five different aspects of country information and made an evaluative decision that the frequency of the extortion had been statistically reduced to eliminate the prospect that the appellant would realistically be the subject of extortion upon his return. In exercising the review power, the IAA may consider those materials from a different perspective and consider that the frequency of extortion had not statistically reduced, or had reduced somewhat but not sufficiently to enable the IAA to be satisfied that the appellant would not foreseeably face harm upon his return to Sri Lanka. For instance, the IAA may consider that reports in the media as to police activity to address corruption should be given little weight, whereas the delegate gave them some emphasis.

31    While the IAA evaluated four of the five sources considered by the delegate, given the IAA’s failure to address the police and CID extortion claim, the IAA did not evaluate these sources to ascertain whether the appellant would foreseeably face harm from the CID or police upon his return to Sri Lanka. The consideration by the IAA at [42] to [44] bears only on the relevance of changed circumstances concerning the criminal and military activities of paramilitary organisations operating in Sri Lanka. Contrary to the submission advanced by the Minister, in my view these paragraphs do not address the circumstances as at the date of the IAA’s decision concerning corruption and extortion within the police and the CID. These sources required evaluation by the IAA in the context of the claim that it failed to address. Furthermore the appellant in the course of argument pointed to other country information that referred to acts of CID or police extortion which were before the delegate and the IAA. One, dated January 2016, refers to corruption, ransoms, abductions, torture and rape by members of the CID, army and police continuing. In my view, there is a realistic possibility that the IAA, considering all of the materials could have come to a different conclusion than the delegate and found that the appellant would face a foreseeable risk of harm from the police or CID upon his return to Sri Lanka.

4.    DISPOSITION

32    Accordingly, I will make the following orders:

(1)    The appeal be allowed.

(2)    The orders of Judge Emmett made on 25 October 2018 be set aside and in lieu thereof:

(a)    A writ of certiorari be issued quashing the decision of the second respondent dated 17 November 2016.

(b)    A writ of mandamus issue to the second respondent requiring it to determine, according to law, the appellant’s application for a safe haven enterprise visa.

(3)    The first respondent pay the costs of the appeal.

Associate:

Dated:    12 August 2020