ACN18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 907
•17 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ACN18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 907
File number(s): SYG 68 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 17 September 2024 Catchwords: MIGRATION -Whether Immigration Assessment Authority failed to properly apply test in relation to new information – whether decision unreasonable Legislation: Migration Act 1958 (Cth) ss 36, 473DD Cases cited: AUS17 v Minister for Immigration Border Protection (2020) 269 CLR 494
Djokovicv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
SZSDP v Minister for Immigration and Border Protection[2013] FCCA 1647
Lamb v Sherman (2023) 298 FCR 79
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Division: General Federal Law Number of paragraphs: 80 Date of hearing: 4 March 2024 Place: Sydney Solicitor for the Applicant: Mr S Hodges, Stephen Hodges Solicitor Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
SYG 68 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ACN18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
17 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The application made on 10 January 2018, as amended, is dismissed.
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 GIVEN:
Before the Court is an application filed on 10 January 2018, seeking judicial review of a decision of the Immigration Assessment Authority (Authority) made on 15 December 2017 which affirmed a decision of a delegate of the first respondent (delegate) refusing to grant the applicant a Safe Haven Enterprise visa (visa).
BACKGROUND
The following background and summary of the Authority’s decision is derived primarily from the submissions of the parties and, unless otherwise indicated, does not appear to be in dispute. Some claims and details have been generalised in these reasons for judgment to limit the possibility they may cause the applicant to be identified.
The applicant is a male Sri Lankan citizen of Tamil ethnicity. He arrived in Australia on 14 November 2012, as an unauthorised maritime arrival.
On 9 June 2016, the applicant applied for the visa (CB 29 to 85).
The applicant claimed that his father had come to the attention of the Sri Lankan authorities for the first time in 2000, after he had beaten an intruder who tried to enter a dormitory where his family were sleeping. It transpired that the intruder was a member of the Sri Lankan Army (SLA). This beating was allegedly reported to SLA personnel in the lower ranks, and the applicant’s family were subjected to harassment and denial of certain civil liberties. The applicant claimed he had been specifically targeted for harassment because he was the oldest son.
The applicant's father owned a well-established business in a particular place. In 2002 the applicant's father was forced to host a group of 30 Liberation Tigers of Tamil Elam (LTTE) fighters dressed in civil clothing, to obtain financial and community support. Following the event, the SLA began to target the applicant and his family on suspicion that they had strong connections with the LTTE.
In June 2007 the applicant's father, mother and brother were taken by the SLA to a camp where his father was tortured. The following day a member of the Eelam People's Democracy Party (EPDP) was killed. The applicant's house was searched because the applicant's father was suspected of having been involved in that murder. The applicant claimed that while the house was being searched, someone tried to shoot his father, but the applicant and his cousin managed to fight the assailant.
On 4 September 2007, the applicant's father sought protection from the EPDR and the SLA, and asked to be relocated to a safe house. The applicant's father was placed in a safe house in a particular place from 4 September 2007 to 26 December 2007, and again from 22 September 2008 to 9 January 2009. From 1998 to 2009 the EPDP took over and occupied a part of some land owned by the applicant's father.
In 2010, the applicant's father commenced Court proceedings to recover his land, and was successful in that action in 2015.
Between 2008 and 2010 the applicant's house was occupied by the SLA. The applicant's father made requests for the SLA to vacate, which caused further friction. In August 2012 the applicant was stopped by the SLA, beaten and left on the footpath. This was the catalyst for the applicant leaving Sri Lanka.
The applicant claimed that since his departure from Sri Lanka, his father has been approached by representatives of the Sri Lankan Government on two occasions, and questioned about the applicant's whereabouts.
The applicant claimed to fear harm on the basis of his family's profile, by reason of the above claims. The applicant also claimed to fear harm for leaving Sri Lanka illegally and seeking asylum.
The delegate interviewed the applicant on 1 February 2017 (delegate interview). At the delegate interview the applicant raised a new claim to have attended a “Martyrs (Heroes) Day” celebration in Australia in 2015. He claimed that he was photographed at that event, that the photo was placed on Facebook (but later removed), and that his father was questioned by the authorities as a result. The applicant also claimed that he went into hiding in 2007 because the authorities wanted to get information from the applicant about his father's involvement in the LTTE.
The delegate refused to grant the visa on 16 February 2017 (Court Book (CB) 145 to 167). On 21 February 2017, that decision was then referred to the Authority review.
The Authority’s decision
New information
The applicant made two submissions to the Authority (CB 185 to 189 and 190 to 192).
To the extent the first submission contained arguments responding to the delegate's decision, and reasserted claims and information already before the delegate, the Authority was satisfied that this did not constitute new information and had regard to the first submission (CB 199 at [3]).
The Authority was also satisfied that there were exceptional circumstances to justify considering a 2017 DFAT Report on Sri Lanka in circumstances where it had not been considered by the delegate (CB 199 at [4]), and given that it contained information which was directly relevant to the risks posed to the applicant on return to Sri Lanka and the evolving security situation for people with profiles similar to the applicant.
In relation to a Daily Mirror article dated 15 March 2017, the Authority accepted that this could not have been provided before the delegate made their decision. However, the Authority observed that the applicant had been represented throughout the visa application process and also accepted existing country information about returnees and the ongoing risks of torture and serious and significant harm to those with certain profiles in Sri Lanka. In those circumstances, the Authority was not satisfied that there were exceptional circumstances to justify consideration of the new information (CB 199 at [5]).
Otherwise, the Authority was not satisfied that the remaining other country information cited in the submission and which pre-dated the delegate’s decision was not, and could not have been, provided to the delegate (CB 199 at [5]).
The second submission contained a medical opinion about the applicant, dated 21 March 2017. The applicant referred to his medical condition in the delegate interview and the delegate also expressed concerns about the condition. The Authority was satisfied this was credible, personal information that was not previously known and, had it been known, may have affected the consideration of the applicant’s claims. Given its relevance, and the applicant’s earlier claims, the Authority was satisfied that there were exceptional circumstances to justify consideration of the new information (CB 199 at [6]).
Claims for protection
The Authority accepted the applicant was a Tamil male from the Northern Province and accepted his family background was as claimed, including that his parents and siblings continued to live and work in the applicant’s home area (CB 202 at [10]).
The Authority found the applicant's claims that his father had beaten an intruder in 2000 to be plausible, and consistent with country information. The Authority therefore accepted that the beating incident occurred but did not accept that the applicant was targeted for harassment as a result because he was the eldest son. The Authority noted that the applicant was only eight or nine years old when it allegedly occurred and that he did not make any claims of specific harm faced by him as a result. Further, during the delegate's interview the applicant claimed that his issues with the authorities started in 2007, (CB 202 at [15]). The Authority found given the time that had since passed, and as such incidents were common during the conflict, that whatever profile the applicant faced because of this incident was no longer ongoing (CB 202 at [16]).
The Authority found that because of the pervasiveness of LTTE control in the north and east during the conflict, most Tamils from those areas were likely to have paid taxes or to have provided a low-level of material support to the LTTE. The Authority accepted the claims in that regard, but found that the applicant's family's support for the LTTE was involuntary and unremarkable (CB 203 at [20]).
The Authority found the claim that the applicant's father was connected to the murder of a high-ranking EPDP member, or alternatively earmarked for extrajudicial killing by the SLA, to be problematic. The Authority took the view that that if the applicant's father had such a profile as claimed, it was implausible that he would have been able to avoid further investigation, interrogation, charge or harm from the Sri Lankan authorities or the paramilitary EPDP (CB 204 at [29]). The Authority also considered there to be a disconnect between the applicant's written and oral evidence (CB 204 at [28]).
The Authority found the applicant's claims that his home was occupied by the SLA, and that the EPDP occupied and sought to obtain the title to parts of his father's land, to be credible and plausible when considered against the country information (CB 204 to 205 at [32]). While the Authority accepted the claims related to the properties, it found that the claim made at the delegate interview that the applicant petitioned a senior official to return their home, to be an embellishment (CB 205 at [33]).
The Authority noted that the applicant's father continued to live in the same general area, continued to operate his business and continued to pursue his property interests against the SLA and the EPDP. The Authority found that this undermined the claimed profile attributed to the applicant’s father (CB 205 at [34]).
While noting some discrepancy with the dates it was alleged the applicant's father was in a safe house, the Authority did not find those anomalies to be of concern. Instead, the Authority was concerned as to the reasons why or how the applicant's father came to be in some form of protective custody (CB 205 at [35]). The Authority referred to the documents supporting that claim and noted that no specific reference was made to the persons or group the applicant's father was allegedly at risk from, and that the documents instead referred to unidentified persons (CB 205 at [36]). The Authority found it implausible that the applicant's father would have been able to obtain the protection of the Sri Lankan authorities through the courts, from the SLA or paramilitary forces during the civil war, with reference to relevant country information (CB [37] to [38]).
The Authority found that the applicant’s father was not a person of interest to the SLA or the EPDP, or that he otherwise had an adverse profile as a supporter of the LTTE, as someone who knew about the location of LTTE weapons, or as someone who supported or was implicated in the killing of an EPDP officer by the LTTE. For the same reasons, the Authority did not accept there was an assassination attempt (CB 206 at [39]).
The Authority found that if the applicant's father did have a risk profile in the past, the profile no longer existed. The Authority also found that the applicant had no adverse actual or imputed profile in connection with these claims (CB 206 to 207 at [40] and [41]). The Authority found the family moved (to a particular place) because their home was occupied by the SLA and noted that the applicant's continued studies were not consistent with his claims that he was in hiding in 2007 (CB 206 at [40]).
Having found that the applicant's father did not have an adverse profile connected to the LTTE, the Authority did not accept that the applicant was targeted for reasons connected with his father or his profile. The Authority accepted that the applicant faced harassment, mistreatment and at least one serious assault at the hands of the SLA, including a groin injury. The Authority did find however, that the treatment experienced by the applicant was consistent with the systematic mistreatment and harassment of young Tamil males from the east and north of the country in the years during and immediately after the civil war (CB 207 at [46]. Further the fact that the applicant was not subjected to arrest, detention or charge was an additional factor in the Authority concluding that the applicant had no adverse profile (CB 207 to 208 at [46]).
The Authority accepted that the applicant's great uncle may have been killed during the civil war, but found this did not change the applicant's risk profile (CB 208 at [50] to [52]).
The Authority accepted that the applicant's father was questioned on two occasions after the applicant left Sri Lanka, but did not accept that this monitoring occurred because of any reason beyond the fact that widespread monitoring occurred in the east and north of the country at this time (CB 209 at [55]).
The Authority found the applicant's new claim about the Martyrs (Heroes) Day celebration to not be credible, and did not accept it (CB 209 at [56] to [57]).
The Authority found that the applicant had no actual or imputed profile or connection to the LTTE and therefore had no adverse profile and was not on any watch list (CB 210 at [58]).
The Authority was not satisfied that there was a real chance the applicant would be seriously harmed by the SLA, the CID, the EPDP, the Sri Lankan authorities, or any other group or persons for reasons of his ethnicity, or as a Tamil male from the north of the country, any actual or imputed opinion, profile or connection to the LTTE, or any other profile related to these factors (CB 210 to 221 at [63]).
While the Authority found there remained a degree of societal and official discrimination in Sri Lanka towards Tamils, the Authority was not satisfied it would threaten his capacity to find employment, that he would be denied access to basic services, that it would threaten his ability to subsist or earn a livelihood in the country, or otherwise constitute serious harm (CB 211 at [64]).
The Authority accepted that the applicant left Sri Lanka illegally (CB 211 at [67]) and may be charged under the Immigrants & Emigrants Act (I&E Act) by the Sri Lankan authorities (CB 212 at [71]). However, the Authority found he would not be subjected to a period of detention beyond that required for ordinary returned (CB 213 at [74]) and that the applicant had not satisfied the Authority that he would be unable to have a family member act as guarantor if required, or that he would be unable to meet any fine or bail (CB 213 at [75]).
The Authority was not satisfied that the applicant would be imputed with any higher adverse profile or political opinion because of his time in Australia and protection claims, and therefore found there was no real risk of him being harmed for these reasons (CB 214 at [78]).
The Authority found that the applicant may be detained and questioned at the airport for up to 24 hours, but the chance of the applicant being detained in prison was remote. If it were to occur, the Authority found it would not constitute serious harm for the reasons set out at [80] to [83] (CB 214 to 215). The Authority also found that the I&E Act was a law of general application and its application to the applicant would not amount to persecution (CB 215 at [83]).
The Authority therefore found the applicant did not meet the definition of refugee and did not satisfy s 36(2)(a) of the Migration Act 1958 (Cth) (Act) (CB 215 at [86]).
The Authority found that neither the low-level official and societal discrimination, nor the fact that the applicant would be detained at the airport, amounted to significant harm (CB 216 at [89] to [90]).
With respect to the applicant's other claims, the Authority was not satisfied there was a real risk of significant harm, for the reasons already given (CB 216 at [91]).
APPLICATION TO THIS COURT
The applicant commenced these proceedings by an application to show cause filed on 10 January 2018. He has been represented throughout the proceedings.
The proceedings were initially docketed to another Judge of the Court. On 12 February 2018, a Registrar made procedural orders by consent which, inter alia, granted leave to the applicant to file and serve an amended application and listed the proceedings for callover on a date and time to be advised to the parties.
The proceedings were later placed in the central migration docket where they remained until 12 July 2023, on which date they were docketed to me, and I made orders listing the proceedings for final hearing on 19 September 2023. By those orders the applicant was further granted leave to the applicant to file an amended application by 22 August 2023. The applicant and the first respondent were ordered to file written submissions 14 and 7 days, respectively, before the hearing fixture.
At 5:40pm on 22 August 2023, an Amended Application was filed for the applicant. By reference to that time, the document is taken to have been filed on 23 August 2023[1] and was therefore made outside of the grant of leave.
[1] see Lamb v Sherman (2023) 298 FCR 79 at [54] per Rares, Rofe and Downes JJ.
The parties filed written submissions as ordered. The hearing was later adjourned to 4 March 2024, on which occasion the first respondent was represented by Counsel and the applicant was represented by his solicitor. The submissions of each of the parties’ legal representatives, both written and at hearing, have assisted the Court in the preparation of these reasons.
Grounds of review
Having been filed out of time, albeit on the correct day, the applicant required a further grant of leave to rely upon his Amended Application. That application being unopposed by the first respondent, I made an order at the commencement of the hearing granting that leave. By the Amended Application the applicant seeks judicial review of the Authority’s decision and relies on the following two grounds (particulars omitted):
1. The IAA committed jurisdictional error by failing to properly apply the correct test when considering whether there were exceptional circumstances for consideration of new information pursuant to s473DD of the Migration Act 1958 (Cth).
2. The IAA committed jurisdictional error by making a finding that was not based on evidence. In the alternate, that the decision was unreasonable and there was no probative connection between the findings particularised.
Ground 1
By this ground the applicant contends that the Authority erred in its application of s 473DD of Act in its decision to not consider the Daily Mirror article. The applicant says that, despite having accepted at [5] of its decision that the Daily Mirror article could not have been provided to the delegate (s 473DD(b)(i)), the Authority erred in reaching its subsequent finding that it was not satisfied there were exceptional circumstances to justify consideration of the new information because the Authority did not consider whether the information was credible personal information and did not consider the actual content of the article.
The applicant says that the Authority did not consider s 473DD(a) adequately, or at all.
At hearing, while not withdrawing the ground, the solicitor for the applicant did not seek to advance it with any particular vigour. While maintaining the ground, the applicant’s solicitor observed that the first respondent’s submissions had raised the question of materiality in respect of this ground and conceded that the applicant was not in a position to argue that, had the Daily Mirror article been considered, this could have realistically resulted in the Authority reaching a different decision.
Consideration
Paragraph [5] of the Authority’s decision is as follows:
In terms of the other country information cited in the submission that predates the delegate’s decision, I am not satisfied that this information was not, and could not have been, provided to the Minister before the delegate made their decision. I accept the Daily Mirror article, dated 15 March 2017, could not have been provided before the delegate made the decision. The applicant has been represented throughout this process, and I consider and accept existing country information before me about returnees, and the ongoing risks of torture and serious and significant harm to those with certain profiles in Sri Lanka. In the circumstances, I am not satisfied there are exceptional circumstances to justify consideration of the new information, and I have not considered the information pursuant to s.473DD of the Act.
The first respondent says that the Daily Mirror article could not constitute “personal information” within the meaning of s 473DD(b)(ii) as it was country information: see AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494 (AUS17) at [24] per Edelman J. I agree.
Even if it could, there remains no error in the Authority finding that s 473DD(a) was not satisfied. When regard is had to the applicant’s submission to the Authority dated 24 March 2017, the submission explained the content of the Daily Mirror article in any event, saying (original emphasis):
8. Risk of being processed “en masse”
It appears that when Tamil asylum seekers are returned to Sri Lanka they are returned in large groups. More recently 25 Tamil asylum seekers were returned as a group from Australia. Source: more recent DFAT report at paragraph 5.19 states: "Returnees are also processed en masse, and individuals cannot exit the airport until all returnees have been processed"
It is submitted that should the applicant be returned to Sri Lanka as part of a larger group of failed Tamil asylum seekers, there could be extensive amount of delays as DFAT states returnees cannot exit the airport until all have been processed.
Having the aforementioned exposition of the content of the article, I am not satisfied that the Authority was specifically required to read the entirety of the article as a precondition to applying the statute. I accept the first respondent’s submission that there is nothing to indicate that the Authority did not understand the summary of the Daily Mirror article at page 189 of the Court Book.
The first respondent also says that despite regarding the Daily Mirror article as credible, the Authority did not think it added significantly to the country information which was already before it. I accept that submission, particularly having regard to the further summary of the DFAT report to the same effect. The Authority’s reasoning at [5] was consistent with the interpretation of s 473DD which is found in AUS17 (supra) at [11] to [12] per Kiefel CJ, Gageler J (as his Honour then was), Keane and Gordon JJ..
Even if I was incorrect in the aforementioned conclusions, as the first respondent submitted that even if there was an error in the Authority’s application of s 473DD, the applicant has not demonstrated how this would be material in the above circumstances: see MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at [39]. Given the concession by the applicant, and that he bears the onus in that regard, I am also satisfied that even if the Authority did err resulting in its failure to consider the Daily Mail article as new information, such error was material.
Accordingly, ground 1 is not made out.
Ground 2
Noting the manner in which ground 1 was addressed, the applicant’s arguments focussed predominately on ground 2, by which he contends that the Authority’s decision was legally unreasonable, or that the Authority made findings not based on evidence.
The applicant firstly takes issue with the Authority’s finding at [20] that his family’s support for the LTTE was “involuntary and unremarkable”. The particulars allege that the Authority failed to consider the applicant’s father had a well-established business, was wealthy enough to have potentially contributed more than an “unremarkable” amount and that, having accepted the applicant’s family paid taxes (at [17] and [41]) the finding was not available in the absence of any evidence about the basis on which taxes were paid, because their tax contribution was potentially significant.
The second limb to ground 2 takes aim the Authority’s finding at [58] of its reasons, where it says as follows (emphasis added) (CB 210):
Weighing everything before me, I find the applicant has no actual or imputed profile or connection to the LTTE, whether directly or through his father or other family. I am satisfied he has no adverse profile. I am also satisfied he would not be on any watch list, or be seriously considered to have a role in relation to post-conflict Tamil Separatism. I find that he would not face a real chance of being seriously harmed for any of these reasons.
The applicant says that because there was no evidence at all to ground the Authority’s conclusion that the applicant “would not be on any watch list”, it cannot be one upon which reasonable minds may differ. The next relevant part of the Authority’s decision is said to be [51] which says (emphasis added) (CB 208):
Since that assessment, there have been significant shifts in the country advice about the potential risk profiles in Sri Lanka. In 2016, the UK Home Office stated that while the Sri Lankan government is still sensitive to the potential re-emergence of the LTTE, even a person who evidences past membership or connection to the LTTE would not warrant international protection unless they have, or are perceived to have, a significant role in relation to post conflict Tamil separatism or appear on a ‘stop’ list at the airport. I give that assessment significant weight given its relevance to the applicant’s circumstances.
The Authority is said to have reached this finding absent reference to any information about watch lists, much less information about how persons are added to them or what being on a such a list involves. By reference to a UK Home Office report, the applicant says that if he was on a watch list, that would be sufficient to place him at requisite risk.
Greater emphasis was placed for the applicant on the second limb of ground two. While the applicant’s solicitor did not abandon the first limb and the contentions about taxes, he stated that he did not wish to take those elements of Authority’s the decision any further and relied “almost entirely on the watchlist part of it.” The height of the submissions in respect of the tax findings was said to be that:[2]
It doesn’t really look at the fact that a person who is wealthy would clearly be in a position to be paying higher taxes and to such an extent that they would pay extraordinary amounts by way of tax. There’s no evidence one way or the other on those points. When the ground was formulated, I was perhaps anticipating that I could take this further, but I chose not to.
[2] Transcript dated 4 March 2024 at T5.44 to T6.03
The first respondent says that each of the findings sought to be impugned by this ground “were obviously open and based on evidence” and that, at most, being matters about which reasonable minds could differ, neither finding was illogical or irrational.
Consideration
The threshold for legal unreasonableness is a high one, and the applicant would need to demonstrate that no reasonable person could have arrived at the decision or that it lacked an evident and intelligible justification: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68] and [67], Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 per Crennan and Bell JJ at [135], Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 and Djokovicv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic) at [3] and [29] to [30] per Allsop CJ, Besanko and O’Callaghan JJ.
In SZMDS (supra) at [131] Crennan and Bell JJ also said that:
The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
The High Court has described the test for unreasonableness as “stringent and extremely confined”: see Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541.
While not having been abandoned, the applicant did not especially press the first limb of ground 2. As noted at [64] above, the submissions on this aspect were limited.
The first limb of ground 2 relies on the Authority’s reasons at [20]. It is useful to set that paragraph out in full:
The information before me indicates that because of the pervasiveness of LTTE control in the north and east during the civil conflict, most Tamils from these areas were likely to have paid taxes to or provided a low-level of material support to the LTTE. I accept the applicant’s claims in this regard, however I also find that in terms of the use of his father’s furniture store, the payment of taxes, or the provision of food to LTTE members, the applicant’s family’s support for the LTTE was involuntary and unremarkable.
Paragraph [48] of the Authority’s reasons cross-refers to [20] and says as follows (footnotes omitted):
As cited above, in 2014 DFAT assessed that because of the pervasiveness of LTTE control in the north and east during the civil war, most Tamils from these areas were likely to have paid taxes or provided a low-level of material support to the LTTE. DFAT assessed that those Tamil civilians who were not members of the LTTE, including those who may have provided a low level of support to the LTTE, may be monitored by the Sri Lankan authorities, but were at a low risk of being detained or prosecuted. I consider this was the situation for the applicant’s family and I am satisfied that he had and has no higher profile with the LTTE than this.
Having regard to the Authority’s reasoning at [48], I agree that there is no error as alleged in the Authority’s description at [20] of the level of support provided by the applicant’s family as “unremarkable”. The applicant has not established that the descriptor and/or conclusion was one at which no reasonable person could have arrived, nor that it lacked an evident and intelligible justification. I am not satisfied that the finding in question was unreasonable or illogical, nor that it was unavailable on the evidence before the Authority.
Turning to the applicant’s main contention arising from ground two, namely that there was no evidence before the Authority about watch lists to ground its findings, a full and contextual reading of the Authority’s reasons does not bear that out.
At [69] (CB 212) the Authority said as follows (footnote omitted):
I accept the applicant does not have his passport in his possession. It follows that I am satisfied he would likely return to Sri Lanka on a temporary travel document. DFAT advice is that those returning to Sri Lanka on temporary travel documents are subject to police investigations to confirm a person’s identity, to address whether someone was trying to conceal their identity due to a criminal or terrorist background, or court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home area or town police, and contacting the person’s claimed neighbours and family, and checking criminal and court records. Returnees are checked against the Sri Lankan authorities’ sophisticated intelligence on former LTTE members and supporters, including ‘stop’ and ‘watch’ electronic databases.
Next, at [70] (CB 212), the Authority said (footnote omitted, emphasis added):
In that processing I accept the authorities will acquire a full history of the applicant’s past. For the reasons above, I am satisfied it would be determined that his past profile is low level and would not be of adverse interest to the authorities, nor would he have an adverse profile through his family. I am satisfied he would not be listed on any stop or watch lists. I am also satisfied he would not be identified as someone trying to conceal their identity, or as a person who has outstanding court orders/arrest warrants or a criminal/terrorist background. As I am satisfied he has no current adverse profile, I am satisfied there is no real chance that he would be seriously harmed or detained by the Sri Lankan authorities for these reasons.
Contrary to the applicant’s submission that the basis for the Authority’s conclusions regarding watch lists was not exposed, the Authority’s reasoning is expressed with tolerable clarity as being that because the applicant did not have links to the LTTE, and was not of interest, he would not be on stop lists/watch lists.
While that conclusion may involve a degree of inference that the persons who may be on such lists would be those who were of interest to the Sri Lankan authorities, it cannot be said to be unreasonable or illogical particularly when considered in relation to the applicant’s claims. The inference did not require any particular evidence before it could be drawn. Rather, it was open to be made based on common sense or ordinary human experience: see Djokovic (supra) at [39] per Allsop CJ, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403 at [17] to [21] per Keane, Gordon, Edelman, Steward and Gleeson JJ, and SZSDP v Minister for Immigration and Border Protection[2013] FCCA 1647 at [45] per Judge Manousaridis.
The applicant has not established that the descriptor and/or conclusion was one which no reasonable person could have arrived at it, or that it lacked an evident and intelligible justification. I am not satisfied that this finding was unreasonable or illogical, nor that it was unavailable on the evidence before the Authority.
CONCLUSION
In the absence of jurisdictional error the application, as amended, must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 17 September 2024
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