CLW16 v Minister for Immigration and Border Protection

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.

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