ABE18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 472
•28 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ABE18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 472
File number: MLG 22 of 2018 Judgment of: JUDGE BLAKE Date of judgment: 28 May 2024 Catchwords: MIGRATION – Application to review decision of the Immigration Assessment Authority (‘Authority’) – whether Authority failed to consider relevant considerations – whether Authority acted unreasonably – HELD that application for judicial review dismissed. Cases cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Minister for Immigration and Citizenship v Li [2013] HCA 18
Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17
Division: Division 2 General Federal Law Number of paragraphs: 52 Date of hearing: 18 April 2024 Place: Melbourne Counsel for the Applicant: Mr Krohn Solicitor for the Applicant: Vrachnas and Co Lawyers Advocate for the Respondents: Mr O’Shannessey Solicitor for the Respondents: Mills Oakley ORDERS
MLG 22 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABE18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
28 MAY 2024
THE COURT ORDERS THAT:
1.The Application filed on 5 January 2018, as amended 5 April 2024, be dismissed.
2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
This is an application to review a decision made by the Immigration Assessment Authority (‘Authority’) on 1 December 2017. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the Applicant a Safe Haven Enterprise (subclass 790) visa (‘visa’) (Court Book (‘CB’) 208).
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant is a Sri Lankan national. The Applicant arrived in Australia on 13 October 2012 (CB 173). He applied for the visa on 5 March 2017 (CB 145). The visa application was accompanied by a statutory declaration dated 27 February 2017 (CB 105-107).
On 9 June 2017, the Applicant attended a Protection Visa interview before the delegate (‘PV interview’) (CB 159). On 27 June 2017, a delegate of the Minister (‘delegate’) refused to grant the Applicant the visa (CB 170).
On 29 June 2017, the decision of the delegate was referred to the Authority (CB 185). Pre-hearing submissions were submitted by the Applicant’s former legal representative on 21 July 2017 (CB 195).
On 1 December 2017, the Authority affirmed the decision not to grant the Applicant the visa (CB 205).
The Applicant filed his Application for Review in this Court on 5 January 2018. The Application was accompanied by a supporting affidavit. At the time he filed his application, the Applicant was represented, however, his solicitors subsequently withdrew.
The matter was listed before me for hearing on 18 March 2024. On the morning of the hearing, the Applicant applied for an adjournment of the matter on the basis that he had re-engaged legal representation recently. I granted the adjournment.
The Applicant relies on his Amended Application dated 5 April 2024 (‘Application’), a written outline of submissions, and other information he took me to which includes a report from the Department of Foreign Affairs and Trade (‘DFAT’) entitled ‘DFAT Country Information Report Sri Lanka’ dated 24 January 2017 (‘2017 Report’). The Minister relies on a written outline of submissions filed 12 April 2024. The Minister also prepared a Court Book in the matter that I have had regard to.
THE DECISION OF THE AUTHORITY
The Authority made its decision on 1 December 2017 (‘Reasons’). The Authority:
(a)set out the Applicant’s claims at paragraph [6] of its Reasons. Those claims included:
(i)that the Applicant’s uncle was with the Liberation Tigers of Tamil Eelam (‘LTTE’) and died in battle in either 1993 or 1995;
(ii)that the Applicant was harassed by the Sri Lankan Army (‘SLA’) and the Criminal Investigation Department (‘CID’) between 2002 and 2004;
(iii)that he left Sri Lanka legally and worked overseas between 2005 and 2007. He returned to Sri Lanka in 2007 for a short period and then returned to Qatar until 2009;
(iv)that on his return in 2009, the Karuna Group took a tractor from him, damaged it and that he was then held and beaten for refusing the demands of the Karuna Group;
(v)that he left the country legally in 2011 and flew to Malaysia before travelling by boat to Australia in 2012;
(vi)that Karuna Group members who harassed him previously are now CID officers who have attended his home on three occasions looking for him, the last occasion being in mid-2013; and
(vii)that he fears for his life at the hands of government security services and/or affiliated paramilitary organisations should he return to Sri Lanka because of his past interaction with the Karuna Group, his perceived involvement with and support for the LTTE and his relationship to his uncle;
(b)accepted at [8] that the Applicant’s uncle may have joined the LTTE in some capacity during the Civil War and been killed in battle, however, noted that the Applicant had not suggested he had experienced any harm from, or been the subject of suspicion by, the Sri Lankan authorities because of his family links to his uncle;
(c)accepted at [9] that the Applicant had been harassed in 2003 and 2004 by the CID, but also found that the CID had no contact with him from 2004 when he was no longer required to report at the army camp;
(d)noted at [10] the Applicant’s movements in and out of Sri Lanka in the period 2007 to 2009 and considered that the issuing of the passport and approval for travel suggested that the Applicant was not viewed adversely by the Sri Lankan authorities at this time;
(e)accepted at [11] the Applicant’s claims in relation to the incident concerning the tractor and that the Applicant was beaten and detained by members of the Karuna Group in retribution for refusing to provide the tractor and his services. The Authority noted also that there was no information to indicate that the Karuna Group had any intention to target the Applicant once he was released, and stated it was not satisfied the Applicant was of any further interest to the Karuna Group or the SLA or the CID between 2009 and November 2011 when he left the country;
(f)accepted at [12] that the Applicant left the country legally in 2011;
(g)accepted at [13] that the CID may have visited the Applicant’s home after he left the country in 2011, however, did not accept the Applicant’s claim that the CID are trying to get information about his support and knowledge of the LTTE, given his lack of involvement in the LTTE, lack of ramification from the dispute with the Karuna Group in 2009 and absence from the country during the latter stages of the war;
(h)accepted at [16] that the Applicant had a subjective fear of the Karuna Group based on his experience of being harassed, detained and beaten by them in 2009 in relation to the dispute over the tractor;
(i)considered Country Information at [17] before stating that ‘I am satisfied that the applicant only had a single problematic interaction with the Karuna Group related to the dispute over the tractor in 2009 which resulted in his detention for a short period and a beating. The applicant has not reported any harm by the Karuna Group since that event. I note that there were no reported ongoing ramifications for the applicant, he committed no crime and there was no involvement by the police or the CID. Further he was allowed to leave the country freely in 2011 without any consequence, and I am not satisfied he has been identified or targeted as an LTTE supporter or threat to the Sri Lankan government on the basis of the 2009 dispute. The applicant has not reported that the Karuna Group has targeted his family in any way since this dispute. I have considered the applicant’s particular circumstances that he has not experienced any adverse treatment by the Karuna Group outside of the events of 2009 and his family are still living in [sic] safely in the same area. I have also considered country information that states that the political climate in Sri Lanka has changed significantly since the end of the war in 2009, the TMVP has renounced paramilitary activity and there has been a lack of reports of paramilitary violence since 2015. I am satisfied that, while country information indicates that the Karuna Group may still be operational, there is not a real chance that they would have an interest in the applicant or consider him to be an LTTE supporter’;
(j)noted at [19] that the ‘applicant fears that if he is returned to Sri Lanka, he will be stopped by Sri Lankan authorities because the CID will consider that he has the profile of an LTTE supporter based also his [sic] being a Tamil from a former LTTE controlled area and on his uncle being an LTTE member’. On these matters, the Authority noted that the Applicant’s uncle had died over 20 years ago, the Applicant was absent from Sri Lanka in the final years of the war, and that the Applicant did not know his uncle’s rank or role. The Authority therefore stated ‘Given the passage of time and the applicant’s young age when his uncle died I am not satisfied the applicant would be considered to be close to his uncle, and I do not consider his activities would be of interest to the Sri Lankan authorities’. The Authority went on to record that the Applicant had been able to travel freely out of Sri Lanka over the last 10 years. The Authority noted that DFAT is aware of, but cannot verify, reports where close relatives claim to have been arrested and detained because of their family connections with former LTTE members, and that DFAT assesses that close relatives of high-profile former LTTE members who remain wanted by Sri Lankan authorities may be subject to monitoring. The Authority considered that the Applicant did not have that kind of profile;
(k)stated at [22] that it did not ‘consider that the applicant fits the profile of a person that the weight of the evidence indicates is likely to be of interest to the Sri Lankan authorities on his return to Sri Lanka particularly as he has had no ongoing issues with the Karuna Group, and there is a lack of credible evidence that he was of interest to the Sri Lankan authorities after 2005’;
(l)stated at [24] that it had considered the Applicant’s claims both separately and cumulatively and that it was ‘not satisfied that the applicant faces a real chance of any harm on the basis of being an LTTE supporter, by relationship to his uncle, because of a dispute with the Karuna Group, on the basis of Tamil ethnicity or being a Tamil from Batticoloa or any combination of those circumstances, should he return to Sri Lanka’;
(m)noted at [25] the Applicant’s claim to fear harm on return to Sri Lanka as a ‘failed asylum seeker’ and considered that it was not satisfied the Applicant is a person with that kind of profile that would result in him facing a real chance of harm due to being a failed asylum seeker from Australia;
(n)stated at [26] that the Applicant had lost his passport and that Sri Lankans without passports are able to re-enter the country on temporary travel documents issued by diplomatic and consular missions, and that it did not consider that ‘the applicant will have any difficulties returning to Sri Lanka having lost his passport after leaving the country legally’;
(o)stated at [27] that it had regard to the Applicant’s claims individually and cumulatively and found that he does not have a well-founded fear of persecution;
(p)stated at [31] that there is not a real chance the Applicant faces serious harm including by returning as an unsuccessful asylum seeker; and
(q)affirmed the decision not to grant the Applicant a protection visa.
THE APPLICATION
There are two Grounds of Review in the Application.
Ground 1
The first Ground of Review is set out below:
1.The Authority fell into jurisdictional error in that it failed to consider a relevant consideration.
Particulars
(a) The Authority failed to have regard to information before it in that it failed to consider an articulated claim raised by the applicant in that his return to Sri Lanka on an Australian travel document as a failed asylum seeker would provide him with an adverse profile and lead to the discovery of his close familial link to his uncle who was killed fighting for the LTTE. The applicant articulated in his statement of claim that he feared his close familial link to the LTTE will become known to the Sri Lankan authorities during their standard investigation of his background due to his return as a failed asylum seeker on a travel document. (CB 106, 196) The Authority failed to consider whether the applicant would undergo investigation and would be at risk upon return to Sri Lanka for this reason. The Authority therefore failed to consider whether when considered cumulatively the applicants return to Sri Lanka as a failed asylum seeker together, investigation on return, and taken with his close familial association to the LTTE will result in a real chance of him encountering serious or significant harm upon return to Sri Lanka.
(b) The Authority failed to have regard to information before it in that it failed to cumulatively consider all of the integers of the applicant’s claim, including his stated claim that his return to Sri Lanka as a failed asylum seeker and the resulting investigation would cause the Sri Lankan authorities to consider him to have an adverse profile. The Authority’s cumulative assessment does not expressly deal with the possibility that, when considered cumulatively, the risks to the applicant might become significant.
(c)The Authority noted but did not consider and determine the Applicant’s claim that many former members of the Karuna Group had become members of the CID. (CB 212, [16]) This affected the Authority’s rejection of the Applicant’s claim
“… that the CID are trying to get information about his support and knowledge of the LTTE…”
(CB 212, [13]),
and the Authority’s finding that
“I am satisfied that, while country information indicates that the Karuna Group may still be operational, there is not a real chance that they would have an interest in the applicant or consider him to be an LTTE supporter.”
(CB 213, [17])
(d) Further or in the alternative to Particulars (a), (b) and (c) to this Ground, the Authority did not consider all the evidence and material before it relating to whether the Applicant would have a real chance of suffering persecution or a real risk of significant harm by reason of torture or other serious abuse while being detained, such as to meet the criteria for protection under sections 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (“the Act”).
(e) Further to particulars (a), (b), (c) and (d) to this Ground, the Authority did not consider and determine the question whether, if the Applicant were to return to Sri Lanka, the Applicant would have a real chance of suffering persecution or a real risk of significant harm by reason of torture or other serious abuse while being detained, such as to meet the criteria for protection under sections 36(2)(a) or 36(2)(aa) of the Act.
The Applicant addressed me on each of the particulars to Ground One above. It is therefore convenient to deal with the matter in that way.
Particular (a)
The submissions made by the Applicant in respect of this particular were also made and relied on in respect of particular (b), considered below.
The Applicant submitted that he advanced a claim that if he returned to Sri Lanka on an Australian travel document as a failed asylum seeker, this would direct attention to him. The Applicant submitted that he also claimed he would undergo investigation on return and would face a period of longer detention during which he would fear serious harm. The Applicant says the Authority failed to make any finding about whether or how the Applicant would undergo investigation on return, and given it did not make a finding, the Authority failed to consider whether this would lead to fresh realisation by the CID and other authorities of his close familial link to his uncle, who was killed fighting for the LTTE, thereby placing the Applicant at risk of harm.
In advancing the above submission orally, the Applicant referred me to the source documents which evidenced his advancing of the above claims. Those documents included a letter from his representative to the Department dated 28 February 2017 (CB 20, 21), a statutory declaration made by the Applicant (CB 105-107) and a letter from his representative to the Authority dated 21 July 2017 (CB 196, 198-199).
The Applicant also referred to item 5.20 of the 2017 Report which provides as follows:
For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal and court records. DFAT assesses that returnees are treated according to these standard procedures, regardless of their ethnicity and religion. DFAT further assesses that detainees are not subject to mistreatment during processing at the airport.
The Applicant submitted that the 2017 Report was accepted as being reliable, and that the 2017 Report is evidence that the Applicant would face a serious or thorough investigation on return. Despite having this material and the claims before it, however, the Applicant submitted that the Authority did not engage with his explicit submission and claims that the investigative process he would face on return would put him at risk of suffering serious and significant harm. Indeed, the Applicant submitted that this was a failure by the Authority to grasp and seriously consider the material before it and to consider the claim and each integer of his claim as a mandatory consideration: Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [20]-[28].
I accept the Applicant made the claims to which he refers above.
In its Reasons, the Authority accepted various claims made by the Applicant including his claims of harassment by the CID and the SLA in 2002-2004, his claims to have been harassed and beaten by members of the Karuna Group in 2009, that his uncle was with the LTTE and that the CID visited his home after he left the country in 2011. Critically though, it also:
(a)noted that the Applicant had not suggested that he had experienced any harm from, or been the subject of suspicion by, the Sri Lankan authorities because of his uncle at [8];
(b)found the CID had no contact with him from 2004 at [9];
(c)stated there was no information to indicate that the Karuna Group had any intention to target the Applicant once he had been released in 2009, and made an express finding that it was not satisfied that the Applicant was of any further interest to the Karuna Group or the SLA or the CID at [11];
(d)weighed all of those matters before concluding there was not a real chance the Karuna Group would have an interest in the Applicant or consider him to be an LTTE supporter at [17]; and
(e)weighed all of the evidence before concluding that given the Applicant’s young age and the passage of time, it was not satisfied the Applicant would be considered to be close to his uncle and was not satisfied that his activities would be of interest to the Sri Lankan authorities at [19].
Thus, while the Authority accepted aspects of the Applicant’s claims to have been mistreated, it made a series of findings that he would not be of interest to authorities.
The Applicant’s claim under this particular rest in part on his claim that his ‘close familial link to his uncle who was killed fighting for the LTTE’ will become known to Sri Lankan authorities on his return. It is important to observe that the Authority expressly considered and dealt with that issue at [19], stating that ‘Given the passage of time and the applicant’s young age when his uncle died I am not satisfied the applicant would be considered to be close to his uncle, and I do not consider his activities would be of interest to the Sri Lankan authorities’.
The Authority was plainly aware that the Applicant feared harm on return to Sri Lanka as a failed asylum seeker – see paragraphs [6], [19] and [25] of its Reasons. It was also aware that the Applicant would be returning on an Australian travel document. It dealt expressly with these matters at paragraphs [25]-[27] of its Reasons. Critically, having considered the evidence before it, and the Applicant’s claims, the Authority was satisfied (given its earlier findings) that the Applicant was not a person with the kind of profile that would result in him facing a real chance of harm due to being a failed asylum seeker from Australia.
As to the Applicant’s explicit submission that there was a failure by the Authority to consider whether the Applicant would undergo an investigation on return to Sri Lanka as a failed asylum seeker, I observe the following. First, as noted above, the Reasons of the Authority, properly read, show that the Authority considered whether the Applicant had a profile that would bring him to the attention of authorities on return, and concluded that he did not have such a profile (at [25]). Second, the 2017 Report to which the Applicant took me, and which is extracted above, and which the Authority had regard to, makes it clear that ‘DFAT further assesses that detainees are not subject to mistreatment during processing at the airport’.
For the above reasons, particular (a) to Ground One is not made out. While the Authority made some factual findings in favour of the Applicant, it ultimately assessed that the Applicant was of no ongoing interest to the authorities. As a result of those findings, it did not matter whether the Applicant travelled on an Australian travel document, or whether his uncle was killed while fighting for the LTTE, because ultimately the Authority found that the Applicant did not have a profile that would bring him to the attention of authorities such that he would be investigated on his return, or mistreated at the airport, given the process that takes place on arrival at the airport. This particular is not made out.
Particular (b)
Under this particular, the Applicant says there was a failure by the Authority to consider the Applicant’s claims cumulatively including his claim that his return to Sri Lanka as a failed asylum seeker and the resulting investigation would cause him to have an adverse profile. There are two points to note about this. First, the Authority stated it had considered the Applicants’ claims cumulatively. Second, and to the extent there was any failure to conduct a cumulative assessment, I refer to my reasons under particular (a) above. The Authority had dealt with the Applicant’s claim to fear harm based on the familial link with his uncle and rejected it. It had considered his claims to fear harm on return (as set out under particular (a) above) and found that he did not have a profile that would result in him facing a real chance of harm due to being a failed asylum seeker from Australia. Given the nature and content of those findings, any assessment of these matters would have no material effect on any cumulative risk assessment. This particular is not made out.
Particular (c)
The Applicant claimed that many former members of the Karuna Group had become members of the CID and that his claim to fear harm was from particular members of the Karuna Group. The relevant part of the claim (for the purposes of this particular (c)) can be seen from an extract from the Applicant’s Statutory Declaration at Court Book 106 as follows:
Most of the people from the Karuna Group who harassed me have now become officers with the CID. Since my departure from Sri Lanka, they have attended my parents home on 3 occasions looking for me, with the last visit by them being in mid 2013.
The Applicant says there was a failure by the Authority to consider and determine this claim, and that the failure is material. He says the failure to consider this claim affected the Authority’s rejection of his claim that the ‘CID are trying to get information about his support and knowledge of the LTTE’ and its finding that ‘I am satisfied that, while country information indicates that the Karuna Group may still be operational, there is not a real chance that they would have an interest in the applicant or consider him to be an LTTE supporter’.
The Reasons of the Authority reveal the following. First, the Authority expressly acknowledged the Applicant’s claims at paragraph [6] of its Reasons. Second, the Authority accepted that given past circumstances, the Applicant had a subjective fear of the Karuna Group. Thirdly, the Authority expressly noted at [16] that ‘the applicant considers that Karuna Group members are now CID and they will continue to target him should he return to Sri Lanka’. I note that in oral submissions, the Applicant sought to downplay the significance of this sentence and suggested that this was a mischaracterisation of the Applicant’s claim i.e. it was submitted that the Applicant ‘wasn’t making an observation about a general organisational development at large…He was making a claim about particular members of the Karuna Group’. I do not accept there was any mischaracterisation. Read in context and fairly, the sentence used by the Authority is plainly directed to particular members of the Karuna Group to which the Applicant referred. So much can be seen from the Authority recording at [16] that the Karuna Group members ‘will continue to target him’. Fourthly, and critically, the Authority at [16]-[17] was satisfied that while the Karuna Group may be operational, there was not a real chance they would have an interest in the Applicant or consider him to be an LTTE supporter. That conclusion was based, inter alia, on the Applicant having had only had a single problematic interaction with the Karuna Group in 2009, that he had not reported any harm from the Karuna Group since that time, that he had been subsequently allowed to leave the country freely in 2011, that he had not experienced any adverse treatment by the Karuna Group outside of the events of 2009 and that his family remain safely living in the area.
In addition to the above, it is relevant to note that the Applicant submits that the failure to determine the claim identified in this particular (c) affected the Authority’s rejection of his claim that the CID are trying to get information about his support and knowledge of the LTTE, and its conclusion that there is not a real chance they would have an interest in him or consider him to be and LTTE supporter. As noted earlier, the Authority dealt expressly with the claim by the Applicant that he might be of interest to the authorities because of his close familial connection with the LTTE and rejected it.
Given all of the above, I am satisfied that the Applicant’s claim was dealt with.
Particular (d) and (e)
The Applicant submitted these points could be treated together and I propose to do so.
The Applicant submitted that there was extensive material about the history of abuse of human rights and torture in Sri Lanka that was not considered by the Authority. The Applicant says that the thrust of the material was that even after the end of the war and change of government, there was an entrenched culture of torture and abuse by police and other authorities. The Applicant says had the Authority expressly engaged with this material, its assessment of the risk of relevant harm may have been different. He says further that the Authority did not consider the question of whether the Applicant may suffer harm while in detention, simply as a person in detention, given the entrenched culture of torture and abuse of persons in detention that are referred to in the material to which he points.
The extensive material that the Applicant says was not considered by the Authority is contained within the Court Book at pages 23-53. It includes information from Human Rights Watch, the US Department of State, Amnesty International, the Human Rights Law Centre, Asylum Research Consultancy, and the UK Home Office. The Applicant summarised this material in written submissions and also orally before me, and I accept the thrust of those submissions insofar as they relate to the material contained within the reports referred to above.
The Applicant also criticised the reliance by the Authority on the 2017 Report. At paragraph [25] of its Reasons, the Authority stated that ‘DFAT has assessed that the risk of torture or mistreatment of returnees is low and continues to decrease’. The Applicant effectively complains that that does not adequately grapple with nuances (or other material contained) in the 2017 Report (see paragraphs 4.12 – 4.22) including at paragraph 4.12 where DFAT noted reputable organisations had published allegations of torture, and also at paragraph 4.15 which notes reports of torture carried out by police in relation to regular criminal proceedings.
The contentions by the Applicant need to be assessed in light of the following:
(a)the Authority had specific regard to a report from the ‘U.N.’s Office of the High Commission of Human Rights investigation into Sri Lanka’ at paragraph [17] of its Reasons;
(b)the Authority clearly had regard to the 2017 Report. See, for example, paragraph [17] of the Reasons; and
(c)the Authority expressly noted at paragraph [21] of its Reasons that the Applicant had relied on Country Information from a range of sources. The Authority stated ‘the applicant has pointed to country information that reports that Tamil people are still being detained, interrogated, tortured and killed by the Sri Lankan authorities. In his SHEV application the applicant’s representative has quoted extensively from news reports, reports from reputable Non-Government Organisations and country information to support his claims that Tamils and perceived supporters of the LTTE continue to experience of violence and discrimination in Sri Lanka, that this has not changed since the election of the Sirisena Government and that returning Sri Lankans are at fear of harm on their return including detention and torture particularly where they are perceived to have an association with the LTTE’.
Plainly then, the Authority was aware of and considered a range of Country Information, including Country Information relied on by the Applicant. It is also plain that in assessing the information before it, the Authority preferred and gave weight to the 2017 Report. I note that it did so after having considered a submission by the Applicant’s representative expressing concern about the ‘most recent DFAT country reports’. The Authority therefore took into account the submissions of the Applicant’s representative in deciding what weight to give the 2017 Report. It is well-established that it is for the Authority to determine what weight it gives to particular pieces of evidence.
As to the Applicant’s submissions that the Authority did not adequately grapple with the content of the 2017 report and its treatment of other sources of information, the following should be noted. First, the 2017 Report itself concludes at paragraph 4.20 (after reviewing information from other sources about the prevalence of torture in Sri Lanka) that ‘DFAT assesses that irrespective of their religion, ethnicity, geographic location, or other identity, Sri Lankans face a low risk of mistreatment that can amount to torture’. Second, in dealing specifically with the risk of torture and mistreatment to returnees, having considered the competing information, DFAT concludes at paragraph 4.22 of the 2017 Report that ‘DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low’.
Finally, and at the risk of repeating what has previously been stated, while the Authority had material before it and was prepared to accept that human rights abuses may still occur, it was not satisfied given, among other things, the Applicant’s profile, the claims advanced by him and the rejection of the factual premise of some of those claims (see my earlier reasons), that the Applicant faced a serious risk of harm or abuse.
When all of these matters are considered, I am satisfied that the Authority did consider all of the evidence and material before it relating to whether the Applicant would have a real chance of suffering persecution or serious harm by reason of torture or other serious abuse. The Authority considered the material but ultimately concluded that the Applicant did not have a well-founded fear of persecution having regard to his profile.
Insofar as particular (e) is concerned, I would add the following to what I have set out above. First, as I have noted, the Authority was not satisfied that the Applicant would be detained for any of the reasons he claimed. The claim for detention rested upon a factual premise that was rejected by the Authority, those premises being his familial connection to an uncle who fought for the LTTE, that the Karuna Group was still interested in him and that returning on an Australian travel document would lead to harm. Second, the Authority relied on the 2017 Report. The 2017 Report at paragraph 4.20 noted the low risk of mistreatment that can amount to torture faced by Sri Lankans, and further at paragraph 4.22 assesses the risk of mistreatment of returnees as low and continuing to reduce. These matters are further reasons why the Ground in particular (e) cannot be sustained.
Conclusion
For all of the above reasons, I dismiss Ground One of the Grounds of Review.
Ground 2
The second Ground of Review in the Application is:
2.The Authority fell into jurisdictional error in that it was legally unreasonable.
Particulars
(a)Having accepted the truth of the Applicant’s claims, including his claim that his uncle fought for the LTTE and was killed in fighting, his claim to have been harassed, detained and beaten by the Karuna Group, and his claim that the CID had visited his home after he left Sri Lanka (CB 210-214, [7]-[20]), the Authority had no logically probative basis to reject the Applicant’s claim “that the CID are trying to get information about his support and knowledge of the LTTE…” (CB 212, [13])
(b)Further or in the alternative to particular (e) to Ground 1, and in light of the material before it concerning abuse of human rights, including abuse of persons under investigation or detention by the authorities of Sri Lanka, the authority was legally unreasonable not to find that the Applicant would have a real chance of suffering persecution or a real risk of significant harm by reason of torture or other serious abuse while being detained, such as to meet the criteria for protection under sections 36(2)(a) or 36(2)(aa) of the Act.
The Applicant contends that the Authority fell into jurisdictional error because its findings were illogical in the sense that no reasonable decision-maker could have so acted: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; and also Minister for Immigration and Citizenship v Li [2013] HCA 18 at [68]. The alleged unreasonableness or illogicality is said to have arisen in two ways. I deal with each below.
Particular (a)
The Applicant submits that there was not a logically probative basis to reject his claim that ‘the CID are trying to get information about his support and knowledge of the LTTE’ (Reasons at [13]) in circumstances where the Authority accepted the following matters: that his uncle fought for the LTTE, that he himself had been harassed by the CID, had been detained and beaten by members of the Karuna Group and that the CID had visited his home following his departure from Sri Lanka. The Applicant submits that the error of the Authority was material.
I have summarised the Reasons of the Authority earlier. In my view, the Authority had a probative basis on which to reject the Applicant’s claim that the CID were trying to get information about his support and knowledge of the LTTE, even though it made various factual findings that the Applicant considers favourable. The probative bases on which the Authority rejected the Applicants claim are as follows. First, the Authority noted at [8] that the Applicant had not suggested he had experienced any harm from, or been the subject of suspicion by, Sri Lankan authorities because of the links with his uncle. Second, the Authority found the CID had no contact with the Applicant after 2004 (at [9]). Third, the Authority found the Applicant had a lack of involvement with the LTTE (at [13]). Fourth, the Authority found there was a ‘lack of ramification’ from the dispute with the Karuna Group in 2009 (at [13]). Fifth, the Authority found that the Applicant had been absent from the country during the latter stages of the war (at [13]). I observe that each of the last three of these matters emerged from the Applicant’s own evidence. Taken together with the other matters which I have outlined, in my view, they provide a logical basis for the rejection by the Authority of the claim advanced by the Applicant that is the subject of this particular Ground of Review.
For all of the reasons above, particular (a) of this Ground of Review does not disclose any unreasonableness on the part of the Authority.
Particular (b)
The particular to this Ground of Review has some overlap with particular (e) to Ground One. The Applicant contends that the Authority made only passing references to sources of Country Information other than the 2017 Report, and relied principally on the 2017 Report. The Applicant says the Authority was not entitled to gloss over or ignore the substantial body of other Country Information that he referred to and that by doing so, it acted unreasonably. The Applicant further submits that to the extent the Authority relied on the 2017 Report to exclude the prospect of a real chance of relevant harm to the Applicant, that too was legally unreasonable because that 2017 Report indicated a tension between various other sources of Country Information and reports (see paragraphs 4.12 – 4.22 of the 2017 Report).
In respect of these submissions, I have already noted that the 2017 Report, in considering information from a range of sources, ultimately concluded that there is a low risk of torture or mistreatment for the majority of returnees. In respect of the Authority, I have already found that the Authority was aware of the body of other Country Information before it, including information submitted by the Applicant. It clearly had regard to that information, and also to the 2017 Report. What weight it decided to give to particular pieces of evidence before it was a matter for the Authority. Further, the failure by the Authority to make the finding the Applicant contends should have been made is the result of the Authority having made findings to which I have already referred in these reasons, including that the Applicant would not be suspected of having links to the LTTE, that he was of no interest to the Karuna Group, that he would not have a profile that would attract the attention of the Sri Lankan authorities, and that returning on an Australian travel document would not raise a red flag. For these reasons, the failure by the Authority to make the finding sought by the Applicant was not unreasonable.
For all of the above reasons, I dismiss Ground Two of the Grounds of Review.
CONCLUSION
Given my reasons above, the Application is dismissed.
The Minister seeks costs in accordance with scale in the amount of $8,371.30. The Applicant has been entirely unsuccessful in respect of his claim. In those circumstances, I award costs to the Minister of $8,371.30.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 28 May 2024
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