Ahn19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1787
•4 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
AHN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1787
File number(s): ADG 28 of 2019 Judgment of: JUDGE EGAN Date of judgment: 4 August 2021 Catchwords: MIGRATION – adverse credibility findings against the applicant – no basis demonstrated for a finding that the Authority failed to actively and intellectually engage in the issues before it – claims made with eyes too keenly attuned to error – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth), ss 5H, 5J Cases cited: MZZYE v Minister for Immigration and Border Protection [2015] FCA 1378
Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 236 FCR 593
Singh v Minster for Home Affairs [2019] FCAFC 3
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Number of paragraphs: 39 Date of last submission/s: 27 July 2021 Dates of hearings: 24 March 2021, 6 May 2021, 27 July 2021. Place: Brisbane Counsel for the Applicant: Mr Schipp Solicitor for the Applicant: Australian Presence Legal Solicitor for the First Respondent: Mr Chan of Sparke Helmore Second Respondent: Submitting appearance save as to costs ORDERS
ADG 28 of 2019 BETWEEN: AHN19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
4 AUGUST 2021
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The Further Amended Application for Review filed on 4 June 2021 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review, fixed in the amount of $7.467.00.
REASONS FOR JUDGMENT
JUDGE EGAN:
Introduction
The applicant is a citizen of Sri Lanka who arrived in Australia on 10 September 2012 as an unauthorised maritime arrival. On 24 June 2016, the applicant applied for a Safe Haven Enterprise Visa (‘SHEV’).
On 10 September 2018, a delegate of the Minister refused to grant to the applicant a SHEV.
On 12 September 2018, the applicant applied to the Immigration Assessment Authority (‘the Authority’) for a review of the decision of the delegate.
On 14 January 2019, the Authority affirmed the decision of the delegate.
The Reasons of the Authority
At [3] of its reasons, the Authority noted that it had received a submission from the applicant’s representative on 3 October 2018. Notwithstanding that the Authority was satisfied that such submission reiterated information already before the delegate, and that it did not constitute new information, the Authority stated that it had had regard to such submission in its entirety.
At [4] of its reasons, the Authority set out the applicant’s claims for protection as follows:
•“He is a Tamil citizen of Sri Lanka, born in [town omitted].
•He is seen as belonging to an LTTE supporter family:
•In the 1990s his father unwittingly assisted an LTTE member to carry out an attack in Colombo by helping the member to buy a motorbike that was used in the attack. His father was imprisoned from 1993 - 1997 and the family members were investigated with their details recorded. His father was badly beaten while in prison and he passed away from an illness after his release in 1997.
•His brother 'V' drove a taxi between the government and LTTE controlled areas and passed messages/letters between LTTE operatives on each side. In May 2006, V went missing after being questioned about LTTE connections at Omanthai checkpoint. He had been allowed to pass through but was followed and then abducted. The applicant's family believe he was abducted by members of the Criminal Investigation Department (CID).
•In October 2006 his brother TK’ voluntarily joined the LTTE and secured the release of their youngest brother who had been forcibly recruited. TK fought in many battles with the LTTE and at the time of his death in April 2008, he held the rank of Captain and presided over a group of 42 LTTE members. His photograph and LTTE martyr's notice were published and may be found on the internet.
•The applicant also supported the LTTE, digging bunkers and gathering food parcels for them from the community and arranging for the provision of other goods they required from the government controlled area through his work at the Co-operative Society in 2008.
•His family were displaced in 2008 and then detained in [town omitted] detention centre in [district omitted] from September 2008 - January 2010. Upon entering the centre, someone identified him as an LTTE supporter and he was separated from his family and interrogated, beaten, threatened and denied sufficient food and water for around two and a half months. The army recorded his details and fingerprints and warned him that he would be punished severely if they learned he supported the LTTE.
•After re-settling, in February 2010 he returned to work in the Co-operative Society and was closely monitored by the CID who did not want LTTE member families to benefit from any relief. In January 2011 they started visiting the Co-operative Society to check distributions. They questioned the applicant weekly under threat of sending him to prison, asking about whether he had previously distributed items to LTTE members during the war, and about other LTTE supporters.
•To escape their repeated enquiries, in March 2011 he stood in the local council elections as a candidate for the United People's Freedom Alliance (UPFA), which was Rajapaksa's party, an anti-LTTE party. As soon as he became a UPFA candidate, the CID enquiries stopped but he faced problems from pro-LTTE groups who accused him of working against LTTE principles and also anti-LTTE groups from competing parties who came to know about his LTTE family history and accused him of being an undercover agent. He was kidnapped by people from the anti-LTTE Eeiam People's Democratic Party {EPDP). They took him to a remote area and threatened to shoot him if he did not suspend his campaign. He agreed. He ceased campaigning and lost the election but even after this he continued facing problems from the EPDP and LTTE supporter groups. The CID enquiries also re-started.
•In January 2012 he left his job in the Co-operative Society and started working as a clerk in the local administration office ('the AGA'). But he still faced continuous harassment from different angles. The CID enquiries continued (at least once per month outside the office) and agents/thugs representing the other political factions threatened to kill him if he did not resign and leave the area.
•He resigned and went to stay with another brother 'TH' in [town omitted].
•One week before he left Sri Lanka some Terrorist Investigation Department (TID) officers visited him and asked him to report to their Colombo office, the Fourth Floor. He feared he would be tortured and not released so he left Sri Lanka.
•In 2012 (after he left Sri Lanka) some thugs went to his home looking for him. They threatened his mother and obtained information about him staying with TH. They kidnapped and threatened TH to obtain the applicant's whereabouts. Under duress, TH told them he had gone to Australia by boat and the thugs then complained to the police about TH assisting a people smuggler. The police arrested TH, held him for three days and released him on bail. He was then required to report for one year (weekly for six months then monthly). In 2014 TH moved to Jaffna and in 2016 he faced further problems with authorities enquiring about the applicant's whereabouts. Since October 2017 TH has been in hiding in a forest area in [district omitted].
•Most recently, in December 2017, the CID visited his mother's home asking for TH's and the applicant's whereabouts. She denied any knowledge.
•Owing to his experiences in Sri Lanka he has required counselling from STARTTS in Australia and has back problems.
•The applicant cannot return to Sri Lanka as he will be targeted by:
•The EPDP, the Mythiri Balasrisena party (the current ruling party) and his other election opponents;
•Unscrupulous agents (thugs) supported by powerful politicians engaged in ethnic cleansing because he is Tamil and Hindu and they do not want him entering politics;
•the authorities because they consider him an LTTE activist from an LTTE supporter family and have already threatened to detain and get rid of him and because he tried to enter politics to support the Tamil community, and because he departed illegally and sought asylum; and
•LTTE loyalists who consider he has betrayed them and want to take revenge as a lesson for others who support the government.
•He cannot relocate to avoid harm. He does not know Sinhalese language and cannot go to Sinhalese areas. He would also have to register and the CID would treat him with suspicion and hand him over to the CID in his home town.”
[Names of towns omitted]
At [6] – [10] of its reasons, the Authority set out the aspects of the applicant’s claims which it accepted as follows:
“[6]I accept the applicant's claims regarding his father and brothers V and TK and his familial links to the LTTE. I also accept that being a Tamil residing under LTTE control in Mullaitivu, the applicant helped the LTTE along with other Tamil civilians in the area to dig bunkers and gather food parcels from members of the community. I also accept he held a managerial position In the Co-operative Society (CS) in which he managed the distribution of supplies (food items, personal items, medicines and fuel) sourced from the government controlled area to civilians in his designated region and that through this work he also similarly arranged for the acquisition and provision of such things as required by the LTTE.
[7]I accept the applicant faced some problems from the Sri Lankan authorities as a result of his family's LTTE links and his work in the Co-operative Society.
[8] I accept he was separated from his family upon entering Poonthottam detention camp in 2008 and spent the next two and a half months being interrogated about his family's LTTE connections and his own support. He has described being mistreated with beatings and having insufficient food and water. He has also mentioned that he was tortured and while it is not clear what he meant by this, I accept he suffered mistreatment which may have amounted to serious harm in this period. On the applicant's own evidence, he was not charged with any offences and was released to re-join his family in the other section of the camp, although he was subjected to reporting requirements until he left the camp in January 2010.
[9] I accept that after resettling in Vavunikulam and returning to work in the Co-operative Society, while he was not under reporting obligations, the applicant faced monitoring and harassment and repeated enquiries from the authorities including the CID. I accept that on the advice of some local elders, the applicant tried to change the CID's perception of him by running in the March 2011 local council elections as a candidate for the UPFA). This seems an unorthodox strategy for someone in the applicant's circumstances and I have carefully considered the plausibility of these claims in light of the UPFA being an anti-LTTE/government party and the applicant's and his family's history of LTTE links as well as his limited involvement with the party. However the applicant's oral and documentary evidence on the matter has been convincing. I accept his claimed motivations for joining and running for the UPFA and that being an educated young person, he met the party's candidature needs. The applicant confirmed at the SHEV interview that his involvement with the UPFA was limited to around one month from February 2011 - March 2011 and that while he did not withdraw, he ceased campaigning before the election was held, and did not win enough votes to secure a seat. I accept his evidence that he remained in touch with the party for the month afterwards but not subsequently.
[10] I accept the applicant's claims that he faced problems from various angles as a result of his political activity including from pro-Tamil/pro-LTTE groups who considered his UPFA association a betrayal. Country information that was before the delegate confirms there was election related violence around the time claimed and given this and the applicant's particular circumstances at the time, I accept he faced problems on account of his campaign involvement and the party he joined. However since his evidence about the problems he faced and from whom is vague and as his evidence about being kidnapped is also vague and not mentioned in his mother's letter outlining the troubles he faced, I do not accept he was kidnapped and taken to a remote location. I do accept he was taken aside and interrogated about his and family's LTTE links and his own support for them, and his newfound association with the UPFA. I accept he was threatened to cease his campaign involvement - which he did. I also have some concerns about the applicant's evidence on the identity of perpetrators varying between being people from different factions (2016 Statement) to the EPDP (Supplementary Statement) to unidentified men whom he suspected belonged to the EP0P but he wasn't sure (SHEV interview). On reflection of the applicant's evidence I am not satisfied he knows who it was that interrogated and threatened him in this incident.”
At [11] of its reasons, the Authority recorded that it had concerns about the credibility of the applicant’s claims that he continued to face threats and problems from other political factions and from the authorities after the 2011 election. The Authority found that the applicant’s evidence about facing problems from the EPDP, TNA and former LTTE supporters was said to have been “considerably vague”. Having considered all of the evidence before it, including a letter from the applicant’s mother, the Authority recorded that there were no claimed examples of any attempts on his life, noting that the applicant had proffered no evidence that any problems arising from his political involvement had involved any actual threats or harm. The Authority found that after the applicant had stopped campaigning he had faced no alleged further threats or harm from any political faction or any thugs supporting such factions.
At [12] of its reasons, the Authority noted that the applicant had raised claims of continuing interest from the CID and the authorities after the election – the Authority noting further that such claims were mentioned in some of the applicant’s supporting material including the letter from his mother. Though the Authority accepted that the applicant had been detained in 2008, it found that the authorities had not detained the applicant after that, and that no further reporting requirements or any requirement that he be sent for rehabilitation had been made. The Authority recorded that the applicant had said that throughout 2011 and 2012 he was not subject to any reporting conditions, his having stated that the CID were not present in the re-settlement period. The Authority found that such responses were inconsistent with the applicant’s own claims that the CID were monitoring Tamils in his village, and the interest of the CID in the Co-Operative society over that period. The Authority found that it was un-persuaded by the applicant’s explanations, finding that the applicant was not of sufficient interest to the authorities to warrant any formal action being taken against him.
At [13] and [14] of its reasons, the Authority addressed the applicant’s claims that after he commenced working at the AGA (local government office) there had been increased CID visits with there being an elevation of investigation about him by the TID from the “Fourth Floor” in Colombo, and that he had been prompted to leave Sri Lanka because he feared he would be tortured, held indefinitely or killed. The Authority was un-persuaded by such claims. The Authority pointed out that the applicant had not been arrested, even after the applicant took up a position with the AGA in local government administration, that being at a time after his having stayed living in the Mullaitivu District whilst occupying in the same house. The applicant responded that he was under CID surveillance, but that because the police were in charge the CID needed permission from high authorities before they could go to his house or arrest him. The Authority did not accept such response. It did not accept that the CID, TID or any of the relevant authorities could not have gone to the applicant’s home, or that any of them needed special permission to make any arrest, particularly in circumstances where the Prevention of Terrorism Act remained in operation in 2011/2012. That Act was recorded by the Authority as having been used to arrest and detain Tamils suspected of LTTE involvement, or others suspected of separatist activities, at the time. The Authority also found that the fact that the applicant took a job in local government was incongruous with his claimed fear of the authorities, and his claims that he was at the time a person of adverse interest to the authorities.
At [15] of its reasons, the Authority recorded that there had been a significant delay in the raising of the critical claim that investigations concerning him had been elevated to the TID from the Fourth Floor at Colombo. Though the applicant had arrived in Australia on 10 September 2012, it was not until the provision of his supplementary statement in April 2018, one week before the SHEV interview, that the applicant had first raised issues concerning the TID, or any alleged requirement that he was to report to the Fourth Floor. Notwithstanding that the applicant had given reasons for his not having earlier made reference to any TID interest in him, or any requirement that he visit the Fourth Floor at Colombo, at [16] of its reasons the Authority found that because the applicant had failed to make any reference to such material, and other critical claims, at an earlier time, without any satisfactory explanation, the delay weighed adversely against the applicant’s credibility. At [17] of its reasons, the Authority found that the applicant had not faced repeated inquiries from the CID about him, nor that consideration of him by the authorities had been escalated either to the TID, or to any other authority. The Authority also found that the applicant was not a person of interest, or a security concern, after the March 2011 election, nor at the time he left Sri Lanka.
At [18] and [19] of its reasons, the Authority considered the applicant’s claims that since his arrival in Australia, his mother and brother TH had been questioned by the authorities about his whereabouts. The applicant had also claimed that TH was in hiding because he had been arrested, bailed, and required to report for a year after having had problems with the CID in 2016. The applicant also claimed that his mother had been approached in December 2017. The Authority recorded that the applicant gave inconsistent evidence as to whether it was the authorities or “thugs” who had first approached TH, and further, whether TH had been arrested in connection with the applicant’s profile, or because thugs had told police that he was connected with people smugglers. The Authority was concerned about the vague nature of the applicant’s evidence concerning the circumstances of the arrest of TH and the laying of charges against him, as well as to the alleged problems TH faced from the authorities in 2016 which allegedly prompted TH to go into hiding. The Authority also noted its concern about the applicant’s mother having been approached concerning the applicant’s whereabouts some five (5) years after she was first allegedly approached. The Authority noted that in the light of its having found that the applicant was not under the surveillance of the authorities, or of any concern to them at the time that the applicant left Sri Lanka in 2012, the Authority did not accept that any claimed inquiries were made to the applicant’s mother, or to TH, for any reason such as the applicant having an LTTE profile of significance, or because the applicant had some other adverse security profile. The Authority did not accept that TH had been arrested, had faced problems from the authorities or thugs, or that he was living in hiding.
At [20] of its reasons, the Authority found that the applicant had not left Sri Lanka as a person wanted by the CID, the TID, any branch of the authorities or by any other political group. It found that there was no credible evidence before it to indicate that the applicant had become of adverse interest at all to those named by the applicant as having an interest in him.
At [21] and [22] of its reasons, the Authority accurately set out the requirements for a person being found to be a refugee under s. 5H of the Migration Act 1958 (Cth) (‘the Act’), and what constituted a well-founded fear of persecution under s. 5J of the Act.
Consideration of Grounds of Review
The Grounds of Review relied upon by the applicant at the hearing before the Court, as set out in the Further Amended Application for Review filed on 4 June 2021, were relevantly as follows:
“1. Failed to give intellectual consideration to the likelihood of post-election harassment of candidates, including by consideration of country information.
2. Reasoned illogically, inconsistently or unreasonably in regard to:
i. The evidence of the Applicant’s brother,
iiThe reasons for the Applicant’s acquisition in employment with the government.
3. Made findings without evidence as to the existence of a regime of routine registration and general enquiries.
4. Failure to consider all of the evidence in determining the profile of the Applicant and his family including:
a. The Applicant’s mother’s statement about the Applicant’s questioning by the CID,
b. The Applicant’s use of his identity card,
c. The Applicant’s family’s complaints to international bodies, and
d. The evidence regarding the Applicant’s monitoring by the CID.
5. “The IAA failed to bring an independent mind and make an independent determination, by failing to independently consider country information and reasons for the attendance of Sri Lankan authorities on the Applicant’s mother and brother."”
As to Ground 1, the applicant claimed that the Authority:
(a)Misunderstood the applicant’s claim that he would be at risk as a result of his earlier involvement in elections and, therefore, the risk of election violence in later elections was not relevant (applicant’s submissions [30]);
(b)Was wrong to say that the applicant had “proffered no evidence” about the post-election harassment claims (applicant’s submissions [31]);
(c)Had “no rational reason to dispute” the applicant’s claims regarding post-election harassment (applicant’s submissions [34]); and
(d)Was wrong to say at [12] of its reasons that the applicant had not been detained since 2008, when he was in a detention camp until 2009 or 2010 (applicant’s submissions [32]).
At [23] – [24] of its reasons, the Authority clearly gave intellectual consideration to the likelihood of post-election harassment when it said as follows:
“[23] I have accepted the applicant ran as a candidate for the UPFA in the March 2011 local council elections but ceased campaigning after he was threatened by unknown persons. He fears he will be targeted by LTTE loyalists, unscrupulous agents (thugs) and other supporters of other political factions. However as l found above, once the applicant desisted campaigning in 2011 he faced no further threats or harm from any political factions, their thugs or supporters and I note that he remained in Sri Lanka for around another 18 months after the election. I found he was not wanted by any political groups or the authorities when he left Sri Lanka. The applicant has not had any association with the UPFA since his short campaign stint in 2011and there is no credible evidence of anyone recently taking an interest in the applicant's political activities. The country information considered by the delegate demonstrates a significant reduction in election related violence in the several subsequent elections which have occurred in Sri Lanka since the applicant was involved, and DFAT's 2018 report also indicates that Tamils do not face unwarranted attention from the authorities because of their political involvement and that there are no barriers to Tamil political participation. Furthermore, country information does not support that Tamils and Hindus entering politics are targeted in ethnic cleansing campaigns. Weighing all these factors together, l find the applicant does not face a real chance of harm from anyone (including the EPDP, the Mythiri Balasrisena party, the TNA, LTTE loyalists, anyone associated with political factions, the authorities, or any other individuals or groups) on account of his previous UPFA association and activities. I do not accept the applicant faces a real chance of harm from people who do not want Tamils and Hindus entering politics.
[24]I am satisfied the applicant's political activities were limited to around one month of a political campaign in February- March 201L He is no longer involved with the UPFA and has not on the evidence been politically active in any way in Australia. I am not satisfied that the applicant has any motivation to re-join the party, or to become involved in any political campaigns (with any party) upon return. I am not satisfied he would be politically active upon return. Given this and the country information discussed above about the improved situation for Tamils and others involved in political campaigns, I find he does not face a real chance of harm from any future such involvement.”
By referring to country information which recorded a significant reduction in election related violence for several subsequent elections after the involvement of the applicant, as well as to the 2018 DFAT report which indicated that Tamils did not face unwarranted attention from the authorities because of their political involvement or participation, the Authority was entitled to find that the applicant did not face a real chance of harm by reason of his previous UPFA association and activities. It was also entitled to find that the applicant did not face a real chance of harm from people who did not want Tamils and Hindus entering politics.
The Authority found that Tamils faced a low risk of official or societal discrimination on the basis of their ethnicity at [28] of its reasons. The Authority did so having considered DFAT reports dated 2017 and 2018, a United States State Department report of 2017, a United Kingdom Home Office report of 2017, as well as an International Truth and Justice Project report. There was no basis for the assertion that the Authority did not turn its own mind to a consideration of the applicant’s claims, or that in doing so, the Authority only repeated what was found by the delegate.
The Authority had recorded the applicant’s claims at [4] of its reasons, and it referred to the mother’s statement at [11] – [12] of its reasons. The Authority was not required to accept the applicant’s claims carte blanche. It was entitled to note that the applicant had not received any threats or harm arising from his political involvement in the 2011 elections. It did so in circumstances where it had found that the applicant had:
(a)desisted campaigning after 2011;
(b)faced no further threats or harm thereafter;
(c)remained in Sri Lanka for 18 months after the election;
(d)not been wanted by any political groups or the authorities when he left;
(e)not had any association with the UPFA since his short campaign stint in 2011; and
(f)not provided any credible evidence of anyone recently taking an interest in the applicant’s political activities.
Country information referred to by the Authority supported the proposition that any past political activity on the part of the applicant would not, in the reasonably foreseeable future, give rise to a real chance of his suffering harm should he return to Sri Lanka. Further, at [11], [23] and [24] of its reasons, the Authority dealt with the applicant’s post-election harassment claims. The Authority gave active intellectual consideration to such claims but rejected them as it was entitled to do. The applicant was found to have been inconsistent in his claims about detention. In his statement dated 1 May 2016, the applicant claimed that he had been detained between September 2008 and January 2010. [1] In his statement dated 13 April 2018, the applicant stated that he had been released after two and a half months of severe interrogation to live with his family. [2] The applicant stated that from then on, he was required to report every week to the Sri Lankan CID office until January 2010. The Authority was entitled to have regard to such inconsistencies when making its findings. Such inconsistency in evidence was a reasonable basis, along with the other findings made by the Authority as referred to above, for the Authority to not accept the applicant’s claims, either about his alleged post-election harassment, or about his claim to have been detained post 2008 until 2010. There is no merit to the claims raised by Ground 1 of the Further Amended Application for Review.
[1] Court Book (CB – Ex 1) p. 71 – paragraph 49 of statement of applicant dated 1 May 2016.
[2] CB pp. 114 - 115 – paragraphs 9 and 10 of statement of applicant dated 13 April 2018.
As to Ground 2, which was of two (2) parts, the applicant contended that the Authority was illogical, inconsistent or unreasonable in relation to its consideration of the evidence of the applicant’s brother, and the reasons for the applicant’s commencement of employment with the local authority.
As to what was claimed to have been the evidence of TH, the Authority was entitled to critically assess such evidence in the context of all of the evidence before it. The Authority was not required to accept what was claimed to have been said by TH. The Authority considered the claims concerning TH at [18] and [19] of its reasons, the Authority finding that there were significant inconsistencies around the alleged involvement of TH, and the circumstances of TH’s alleged arrest and his having allegedly been charged with offences. In the context of the Authority considering evidence given by the applicant about his brother TH, it was not the evidence of TH but the evidence of the applicant which was under consideration. Ground 2(i) of the ground of review did not make that distinction. Further, country information, including the 2018 DFAT report, [3] suggested that as at the date of such report, Tamils in the north and east of Sri Lanka were being monitored by military intelligence. There was no basis for the claim that the Authority failed to have regard to such country information, or otherwise acted illogically, inconsistently or unreasonably in relation to its assessment of the applicant’s claims when making its findings.
[3] 2018 DFAT Report – p. 283 of Annexure F to affidavit of Shamili Kugathas filed on 31 March 2021.
Ground 2(ii) of the ground of review was similarly without merit. The applicant submitted that it was illogical/unreasonable for the Authority on the one hand to have found at [9] of its reasons that the applicant’s claims as to why he was a candidate for UPFA in the council elections (the UPFA being an anti-LTTE party) were convincing, whereas on the other hand the Authority, at [14], had found that the fact that the applicant had taken a local government job was incongruous with his claims that he, as a person of alleged adverse interest to government authorities at the time, was fearful of the authorities. Such submission fails to have regard to the inconsistencies in the applicant’s evidence as found by the Authority, as well as the finding by the Authority that the applicant lacked credibility because he had only raised claims concerning the CID and the TID at a very late stage of his visa application process. The Authority was entitled to make the findings it did based upon its comprehensive appreciation of all of the evidence before it, as well as after a consideration of the substantial country information before it. There is no merit to such claim.
Ground 3 was based upon a claim that the Authority made findings without any factual evidentiary basis for any practice of “routine registration and general enquiry”, or as to findings made by the Authority, at [14] of its reasons, that the CID, TID or other authorities would have been able to go to the applicant’s home without first needing or obtaining permission to make an arrest. First, as set out in paragraph 23 of this judgment, there was evidence of monitoring and surveillance as detailed in the 2018 DFAT report. The Authority had the benefit of the findings of the delegate in relation to CID/TID practices and, in any event, the Authority was entitled to examine the applicant’s claims about the CID requiring permission before it could make an arrest in light of country information which was suggestive of the CID being autonomous and having extensive powers. In such circumstances, the Authority was entitled to assess the applicant’s claims, and not accept them, after careful consideration. It did so after it looked at all of the applicant’s claims contextually.
It has been held that the “no evidence ground” is not satisfied in a claim such as the present if there is even a skerrick of evidence on a matter. In MZZYE v Minister for Immigration and Border Protection [2015] FCA 1378 at [54], Murphy J said as follows:
“[54] Third, the appellant’s contention that there was “no evidence” for the Tribunal’s conclusions in respect of these two matters is untenable. As Weinberg J noted in Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 at 587; [2005] FCA 1707 at [575] the “no evidence” ground will not be made out unless it is established that there was “no evidence, or other material, to justify the findings of fact made”. The learned authors Aronson and Groves in Judicial Review of Administrative Action (Fifth Edition at 246, [4.600]) suggest that the “no evidence” ground “cuts out when even a skerrick of evidence appears”.”
There was no merit to Ground 3 of the Further Amended Application for Review.
Ground 4 was based upon a contention that the Authority had failed to consider all of the evidence regarding the applicant’s profile, including:
(a)The applicant’s mother’s statement;
(b)Evidence relating to the applicant’s use of his identity card;
(c)The applicant’s family’s complaints to international bodies;
(d)The evidence regarding the applicant’s monitoring by the CID; and
(e)“All of the relevant matters which heighten the applicant’s profile”.
First, it is well established that a decision maker such as the Authority is not required to refer in its reasons to each and every aspect of the evidence upon which it has based its findings. [4] Second, the Authority had regard to relevant aspects of the evidence when assessing the applicant’s profile. The Authority specifically referred to the applicant having been mistreated badly in 2008, albeit in the context of the applicant having said that he was not charged with any offence at the time, and that he was released to re-join his family in another part of the Poonthottam Camp. The Authority referred to the applicant’s mother’s statement [5] in its reasons. Reference was made by the Authority to the applicant’s claim that he had been required to report to the authorities up until January 2010. The Authority expressly considered the question of the disappearance of the applicant’s brother (V) at [2], [4] and [32] of its reasons. At [32] – [33] inclusive, the Authority specifically dealt with issues which went to his profile when it said as follows:
“[32] In determining whether the applicant may fall into any of these categories of interest, or may otherwise attract the authorities' adverse attention, I have given careful consideration to his profiles and circumstances. He does have varying extents of connections to the LTTE though his father who was jailed from 1993 - 1997 for (albeit unwittingly) helping the LTTE carry out an explosion, his brother TK who was an LTTE captain killed in combat in 2008 and their younger brother who was forcibly recruited and held by the LTTE until TK joined, and his other brother V who was abducted having carried messages for the LTTE prior to 2006, as well as having his own history of supporting the LTTE through the Co-operative Society and as a civilian in Mullaitivu. However the applicant's father and brother TK died in 1997 and 2008 respectively, his brother V has been missing since 2006 and his brother who was briefly with the LTTE after being forcibly recruited was released from them in 2008 and on the evidence has been living in Sri Lanka without repercussions from this involvement. I am satisfied the applicant's family members would not still be wanted by the Sri Lankan authorities. While I accept the applicant has had some numerous adverse interactions with the authorities, he has not been detained since 2008 and was never subject to formal charges or rehabilitation and I found he was not of adverse interest to the authorities when he left Sri Lanka. I am also am not satisfied the authorities have been searching for the applicant in his absence. Taking into account these factors, and the significant passage of time which has passed since he left Sri Lanka in 2012, the changed risk profiles and security objectives and the overall easing of the security situation, I am not satisfied that the applicant would be an adverse security interest for LTTE or separatist reasons, nor any other reasons in the event that he is returned to Sri Lanka. I do not accept he would be on a stop and watch list.
[33] Overall, having regard to the applicant's particular circumstances and profile and the country information depicting a changed country situation in Sri Lanka which has altered the government's security focus and radically affected the country's security and political landscape, I am satisfied the applicant does not face a real chance of harm on account of his Tamil race, nor for any LTTE/separatist/anti-government imputations arising from his race, gender, age, origins from Mullaitivu and the Northern Province, his assistance given to the LTTE during the war, nor any other factors in his or his family member's profiles or circumstances.”
[4] Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 236 FCR 593 at [46].
[5] CB pp. 124 – 125
There is no merit to the claim that the Authority failed to consider all relevant evidence relating to the applicant and the asserted level of his profile.
Ground 5 was a contention that the Authority failed to bring an independent mind to its consideration of the claims before it. It was submitted that the Authority had recounted and adopted the findings of the delegate in the assessment of country information, and that the Authority had merely adopted those findings and had failed to actively intellectually engage with the claims being made to it. It was otherwise submitted that when read as a whole, the Authority had not brought an independent mind to the claims made to it. There is no merit to such claims.
The Authority was entitled to assess the claims in the light of all of the material before it. In Singh v Minster for Home Affairs [2019] FCAFC 3 at [37] and [38], the Court (Reeves, O’Callaghan and Thawley JJ) said as follows:
“[37] In determining whether the decision-maker had an active intellectual engagement, the following matters are relevant:
(1) First, the degree of consideration which is necessary for the jurisdiction to have been exercised, and exercised in a manner which is authorised, is affected by the centrality of the matter, which it is said was not engaged with, to the issues and the prominence the matter assumed.
(2) Secondly, in examining the reasons of the decision-maker to determine whether there was a lack of intellectual engagement:
(a) the reasons should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao at [45], quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30];
(b) it is necessary to read the reasons in light of the whole case as it was before the Tribunal, which might have involved more issues than are raised, and more evidence than is, before courts on judicial review and subsequent appeal. The failure to mention a particular paragraph of a particular piece of evidence should be analysed by reference to the whole of the material before the Tribunal and its prominence assessed by reference to all of the issues and the way in which the matter was conducted in the Tribunal; and
(c) a conclusion that the decision-maker has not engaged in an active intellectual process “will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof”: Carrascalao at [48].”
[38] In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1], Gleeson CJ made the following observations about the recasting or narrowing of focus that often occurs in an applicant’s case as it proceeds through the various stages of decision-making constituting the system of judicial review of administrative action. While these observations concerned a refugee visa application, we consider they apply with equal force to a visa application of the present kind:
The system of judicial review of administrative action, as it operates in relation to visa applications by people seeking acceptance as refugees, often means that, by the time a case reaches this Court, it is at the fifth level of decision-making. It may be, as in this case, that there have been adverse decisions at the first and second levels (the Minister’s delegate and the Refugee Review Tribunal (“the Tribunal”)) and that the Tribunal’s decision has been upheld at the third (Federal Court of Australia) and fourth (Full Court of the Federal Court) levels. It may not be surprising that, at the fifth level, an appellant will look for a new way of putting a case that has already failed on four occasions. The case put to this Court may bear little relationship to what was previously advanced, considered, and rejected. There is a risk that criticism of the reasoning of a decision-maker at an earlier stage might overlook the forensic context in which such reasoning was expressed; a context that may have changed almost beyond recognition. Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process ...”
It was not surprising that the Authority made findings which were similar to those of the delegate in circumstances where the delegate was dealing with the same factual scenario as that which was before the Authority. Neither was it surprising that the Authority would at times paraphrase its findings in the context of evidence which had been clearly referred to in the reasons of the delegate. It ought not to be inferred that simply because the Authority was referring to country information recorded by the delegate in the delegate’s reasons that the Authority did not independently have regard to the content of such country information. The applicant has sought to find fault on the part of the Authority with eyes too keenly attuned to error. As was said in Applicant WAEE at [46] – [47] per French, Sackville and Healy JJ:
“[46] It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
To the extent that it was conceded by Counsel for the applicant conceded that any error on the part of the Authority needed to be material, the Court finds that even if the Authority had not independently assessed and considered all country information referred to as having been considered by the delegate, any such error was immaterial in the light of the other findings of the Authority about the vagueness and inconsistencies in the applicant’s claims. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:
“[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”
Further it cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. 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.
…
[135]On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Authority be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to establish jurisdictional error on the part of the Authority.
The Further Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 4 August 2021
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