CFG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Ground 2 11 It is convenient first to deal with ground 2 of the appellant's grounds of appeal in which the appellant claims that the primary judge failed to identify jurisdictional error because the delegate failed to deal with a material claim made by the appellant being the extortion claim made by the paramilitary groups. 12 The appellant's claim that the delegate failed to deal with an extortion claim was dealt with by the primary judge at [30]-[31] of the primary judge's reasons. 13 As the Minister accepted, the delegate was required to consider all the integers of the claims put by the appellant. However, the delegate was not required to deal with claims which were not articulated or which did not clearly arise from the materials before the delegate. I discuss the relevant authorities in AEG16 v Minister for Immigration and Border Protection [2019] FCA 585 at [21]-[25]. 14 It is clear that the appellant made various allegations concerning "underworld figures" or "paramilitary groups". Those allegations are set out above in the material relied upon by the appellant. The fact that those allegations were made appears to have been appreciated by the delegate in one or more of the points referred to in the delegate's summary of "protection claims" made by the appellant, as follows: • Various criminal and paramilitary elements have sought to use the applicant's vehicles. The applicant had refused all such demands as long as possible. • When travelling to Colombo in the course of his business, an unidentified gang consisting of two people on a motorcycle, armed with pistols, came to his house enquiring after him. • On another occasion the same unidentified people returned while the applicant was home. The applicant's father told them he was away while the applicant fled from the rear of his house to stay with his friend, MALIK, who advised him to leave for Colombo by nightfall. • Whilst in the UK, the applicant's father informed him it was not safe for the applicant in Sri Lanka as on several occasions armed gangs had gone to his house, demanding his rent-a-car vehicle then operated by his wife. • On 08 August 2008 two people with a weapon came to the applicant's house for unknown reasons (possibly after refusing to give his rental car to someone or because of his support for MALIK and the Muslim Congress. 15 Unfortunately, the delegate's decision is poorly constructed. Part 4 of the Decision, from which the matters extracted above have been taken, purports to be a summary of the appellant's "claims for protection". In fact what is summarised is not the appellant's claimed fears of persecution, but the various factual allegations made by the appellant of various incidents relied upon by him in support of the claims made. 16 Neither the application of the appellant (where his claims are detailed), nor the reasons of the delegate are well-ordered and clear. However, fairly read, the appellant's application indicates that he fled Sri Lanka for the UK in 2008 by reason of one particular fear and that after returning to Sri Lanka from the UK, he then fled to Australia in 2012 for a different fear. So far as the appellant explained why he fled to Australia, that was based upon the appellant's fear that Sri Lankan authorities (either directly or with the assistance of paramilitaries) would harm him because of his involvement in transporting medical supplies for the LTTE. 17 That claimed fear is not relevant to the appellant's second ground of appeal. The claimed fear that is relevant to that ground is the alleged reason why the appellant fled to the UK. 18 Fairly understood, the appellant claimed that the immediate reason he left Sri Lanka for the UK was because he feared being harmed by persons who, on 8 August 2008, came looking for him with weapons. The appellant was not able to affirmatively inform the delegate as to the reason those persons were seeking to harm him. He suggested that it may have been because he had refused to "give his rental car to someone". In the context of the appellant's evidence that he had been operating a rental car business and read with the allegations made in the appellant's application which are here relied upon and set out at [6]-[7] above, the appellant made a sufficiently clear connection between his fear of physical harm from the persons looking for him and the possibility that the intended harm was by reason of his refusal to comply with the demands of "underworld figures" or "paramilitary operators" that he provide his car or cars to those persons. 19 It is necessary to observe, that none of the material put by the appellant before the delegate suggested that the appellant held a fear that he had been financially harmed by reason of being extorted. To the contrary, the appellant alleged that he had resisted demands made upon him to give over his vehicle or vehicles. What, however, the appellant's evidence pointed to was a fear of physical harm, the possible or likely cause of which was the appellant's resistance to the extortion afflicted upon him. 20 By the second ground of appeal, the appellant contended that he made an "extortion claim … regarding paramilitaries". If that contention was intended to suggest that a claim was made by the appellant of extortion unconnected to his allegations or fears of physical harm by persons looking for him in 2008, I would reject it. What I accept was claimed by the appellant was that he held a fear that he would be physically harmed in the context of his belief that a possible or likely reason for that intended harm was his resistance to extortion demands made upon him by paramilitary or criminal groups. 21 The delegate seems to have determined the appellant's claim on that basis. He did so by assessing the appellant's allegation of intended harm. The delegate's assessment was confined to the allegation of intended harm said to have occurred on 8 August 2008, being the incident that the appellant claimed led him to flee to the UK. The delegate rejected the appellant's allegation that two armed assailants had come to his house on 8 August 2008 causing the appellant to flee to the UK to seek protection. Simply put, the delegate rejected the appellant's claim that paramilitaries or criminal groups were intent on harming the appellant. 22 In so doing, the delegate did not expressly consider whether or not the appellant's allegations that demands upon him for his car had been made by the paramilitaries or criminal groups. Those allegations were, however, referred to by the delegate when the delegate considered the appellant's complimentary protection claim. Relevantly, the delegate said this: I note the applicant claimed in his PV application that various people would seek the use of his cars for political or untoward purposes, however, as he claimed he was able to refuse the request (with the exception of transporting medical suppliers, which I have found not to be credible), I am satisfied they do not represent a real risk of significant harm. 23 It would appear therefore, that the delegate proceeded on the basis that he was prepared to accept that demands by various persons had been made upon the appellant for his cars and that those demands were refused by him. What the delegate, in essence, was not prepared to accept was that as a possible consequence of those refusals, the appellant had been subjected to threatened physical harm. 24 For those reasons, I would conclude that a claim that the appellant feared being subjected to physical harm, possibly or probably because he had resisted the attempts made by criminal or paramilitary groups to extort his cars, was raised by the appellant and was dealt with and dismissed by the delegate on the basis that the threat and claimed fear of physical violence was not accepted. The primary judge concluded that the material before the delegate did not appear to imply an extortion claim beyond the threat of physical violence that the appellant had articulated. In my view his Honour's conclusion was correct. 25 For those reasons, the primary judge did not err and the appellant's second ground of appeal must be rejected.

Ground 3 26 The appellant's third ground of appeal is contingent upon there having been a claim made which the delegate failed to consider. As that premise is incorrect the appellant's third ground must also be rejected.

Ground 1 27 Under ground 1, the appellant contended that the delegate failed to ask questions to extract information about the paramilitary groups. That argument was essentially dealt with by the primary judge at [21]-[29]. His Honour determined that the delegate did not have an obligation to make the inquiries which the appellant asserts the delegate should have made. 28 There is no error in the approach taken by the primary judge. As his Honour observed, the delegate was not required to prompt an elaboration of the matters that the appellant chose to claim: SZSXH v Minister for Immigration and Border Protection [2014] FCA 914 at [22] (Edmonds J). This was not a case where the delegate failed to make an obvious inquiry about a critical fact, the existence of which was easily ascertainable and which supplied a sufficient link to the outcome as to constitute a failure to review: see MZARY v Minister for Immigration and Border Protection [2018] FCA 374 at [10]-[11] (Bromberg J). 29 For those reasons the appellant's first ground of appeal must also be rejected.

Conclusion 30 As I have rejected the appellant's grounds of appeal, the appeal must be dismissed. I will make an order to that effect and an order that the Minister's costs of the appeal be paid by the appellant. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.