Ait17 v Minister for Immigration

[2020] FCCA 785

FEDERAL CIRCUIT COURT OF AUSTRALIA

AIT17 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 785

Catchwords:
MIGRATION – Application for remedies under s.476 of the Migration Act 1958 (Cth) in relation to decision of Independent Assessment Authority (Authority) not to grant applicant a safe haven enterprise visa – whether Authority properly applied “real chance test” having regard to findings it made – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36(2)(aa), 473DC, 476

Federal Circuit Court Rules 2001 (Cth), Schedule 1, Part 3

Applicant: AIT17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 252 of 2017

Judgment of: Judge Manousaridis

Hearing date: 1 October 2019

Date of Last Submission: 4 October 2019

Delivered at: Sydney

Delivered on: 8 April 2020

REPRESENTATION

Solicitors for the Applicant: Mr S Hodges of Hodges Legal

Solicitors for the First Respondent: Ms A Lucchese of Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 252 of 2017

AIT17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In his amended application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) the applicant claims the second respondent (Authority), in deciding to affirm a decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise visa (SHEV), misapplied the “real chance test”. To be in a position to understand and determine that claim, it will be necessary to set out the applicant’s claims for protection, the delegate’s reasons for not granting the applicant a SHEV, additional information the applicant provided to the Authority, and the Authority’s reasons for not accepting those claims.

Claims for protection

1. The applicant is a citizen of Sri Lanka, a Tamil, and a Hindu. He is from the Jaffna District, Northern Province, Sri Lanka. The applicant stated his claims for protection on a number of occasions. It will be convenient to set out the claims the applicant made in the statutory declaration that formed part of the applicant’s SHEV application;[1] and they are as follows:

   [1] CB54-61

   a)In April 2009 the applicant and his family moved to a government controlled area in a particular zone in Northern Province, due to the civil war. Before moving to that zone the applicant and his family had been displaced, and lived with relatives in another district of Northern Province. The applicant and his family moved into the zone after the Sri Lankan Army (SLA) won control of the area in which the applicant and his family had been living.

   b)The area had been historically controlled by the Liberation Tigers of Tamil Eelam (LTTE), and the LTTE controlled that area when the applicant and his family were there. The applicant had also lived in other areas the LTTE controlled. The applicant interacted with the LTTE, and this included the LTTE requiring the applicant to undertake physical training with them, although the applicant did not use weapons.

   c)In early 2010 the applicant and his family were released from the zone, and they went to live with relatives in a particular area. In August 2010 the applicant and his family returned to their home village. The applicant and his family, however, were unable to return to their property because it was on the seashore near which the SLA had constructed camps. The applicant and his family lived in an area the SLA allocated to them. They lived in tents, and the office of the United Nations High Commissioner for Refugees (UNHCR) provided the applicant and his family with food, clothing, and other assistance.

   d)Shortly after the applicant and his family resettled in their home village, the applicant purchased a fishing boat, obtained from the SLA a fishing permit, and commenced fishing. Members of the SLA frequently visited the shore and took from the fishermen whatever fish they wanted. The applicant and the other fishermen had no choice but to give them their fish because if they had refused they would either get into trouble, or their fishing permits would be withheld.

   e)During the first week in which the applicant started fishing the SLA took some of his catch. Ten days later some members of the SLA returned to take more fish. The applicant “interjected” because he had very few fish. The SLA recorded the applicant’s boat registration, and told the applicant to come to their camp that was 300 metres away. The applicant went to the SLA camp, where three members of the SLA asked him why he refused the SLA fish, accused the applicant of being involved with the LTTE, and then they physically assaulted the applicant. After being forced to sit for several hours, the SLA released the applicant, and they warned the applicant he had to obey them if they wanted any fish. The SLA did not issue the applicant a fishing permit for the following week.

   f)In around April 2012, four months before the applicant left Sri Lanka, the SLA asked the applicant to go to their camp. The applicant went there with his wife. The SLA told the applicant that given the area in which he lived he must have been involved with the LTTE. In the face of his denials, the SLA told the applicant not to lie, and they accused him of being a member of the LTTE. The SLA beat the applicant with a rifle to get a confession out of him. The SLA made the applicant sign a document before he left, but the applicant does not know what he signed.

   g)Shortly after this incident, the SLA took the applicant and three others from the beach to the SLA camp for questioning. The SLA told the applicant and the other three that the SLA know the applicant and the other three lived in an area that had been controlled by the LTTE and that they were involved with the LTTE. The applicant and the three others denied this. The SLA then brought the applicant and the three others into their kitchen to clean pots. The SLA eventually released them, and told the applicant and the three others to return to the SLA camp on Monday of every week to “sign in confirming that we were still in the area”.

   h)On a day in August the SLA came to the applicant’s home and accompanied him to the SLA camp. The applicant had forgotten to sign in two days before. When he arrived at the SLA camp, the applicant was taken to a room. “They” produced a piece of paper stating the applicant was involved with the LTTE, and the applicant was told to sign it. The applicant refused. “They” assaulted the applicant saying the applicant must have been involved with the LTTE because the applicant did not attend the SLA camp to check in. “They” pointed a rifle to the applicant and threatened to shoot him. The SLA released the applicant, and told him he was required to check in every week, and that if he failed there would be very serious consequences.

   i)The applicant felt he had to leave Sri Lanka because nothing would change. He heard stories of people disappearing, typically after they had been interrogated or visited by the SLA. Occasionally there were stories of persons who went to check in but never returned.

   j)After the applicant left Sri Lanka, the applicant learnt from his wife that the SLA visited his home several times for about two months, asking for the applicant. They were angry when they were told the applicant was not there, and they harassed the applicant’s wife.

Delegate’s reasons

1. The delegate:

   a)accepted the applicant is a Tamil who was born and resided in various areas in the Northern Province;

   b)accepted the applicant was a fisherman in the Northern Province, and he remained in that occupation until he left for Australia in August 2012;

   c)accepted the applicant assisted the LTTE while living in an LTTE controlled area from 2006 to 2009, but he did not engage in any military activity or hostilities;

   d)accepted that in 2009 the applicant and his family were relocated to a particular area and remained there until early 2010;

   e)accepted that the applicant returned to his village, and the SLA would take his fish, and likely question him because he is a Tamil who resided in a former LTTE controlled are;

   f)found the SLA perceived the applicant to be a civilian living in areas formerly controlled by the LTTE;

   g)accepted the applicant would have been questioned by the SLA while he was fishing because it was during these activities that he would come into contact with the SLA since they had a base at the beach from which the applicant was fishing; and

   h)did not accept the applicant was asked to report to the SLA on a weekly basis and beaten on nearly every occasion (as the applicant claimed before the delegate).

New information

1. After the matter was referred to the Authority, the applicant’s representative provided a submission to the Authority to which there was attached a statutory declaration made by the applicant (second statutory declaration) in which he states that on the last day of his training with the LTTE the applicant was shown how to load and shoot with a rifle.[2] The applicant also stated that when the three members of the SLA accused the applicant of being in the LTTE and the applicant denied his involvement, the SLA showed the applicant a photograph. A copy of that photograph is annexed to the applicant’s second statutory declaration. The photograph depicts a number of men each kneeling and holding a gun.[3]

   [2] CB190-191

   [3] CB192

Authority’s reasons

1. The Authority first identified the information that was before it. It considered the second statutory declaration and the photograph to which it referred constituted “new information” within the meaning of s.473DC, and found there were exceptional circumstances justifying the Authority’s considering that information.[4]

   [4] CB198, [7]

2. The Authority then made a number of findings. The Authority:

   a)accepted the applicant lived in LTTE controlled areas during the war, and that he helped the LTTE as the applicant claimed;[5]

   b)accepted the applicant did some physical training with the LTTE, including some weapons training;[6]

   c)was not satisfied the applicant was a LTTE member or combatant, or that he otherwise engaged in active conflict;[7]

   d)accepted the applicant’s family had been displaced  towards the end of the war in 2009 and detained in an internally displaced camp until their release from that camp in early 2010;[8]

   e)was satisfied the applicant was not suspected to be an LTTE member or supporter, or was ever accused to be an LTTE member or supporter at any time before August 2010 when he resettled in his home village;[9]

   f)accepted the applicant bought a boat and resumed working as a fisherman one week after resettling in his home village; and he suffered harassment, discrimination, and extortion from local SLA officers who would frequently take his catch without payment and threaten to withhold the applicant’s fishing permit when he protested;[10]

   g)accepted that between late 2010 and August 2012 the applicant was called to the SLA camp for enquiry and interrogated about LTTE membership and support because of his previous residence in LTTE controlled areas, and was coerced to sign a confession “linking him to the LTTE”;[11]

   h)accepted the applicant was interrogated on one occasion in 2011 about the photograph of the applicant performing weapons training the applicant attached to his second statutory declaration, and on another occasion about his failing to sign in;[12]

   i)accepted the applicant was mistreated by the authorities, including in 2012, by continuing to extort fish from him, and intermittent call-ins to SLA camps involving threats and physical violence;[13] but found the applicant embellished the frequency of the call-ins, the severity of the harm he suffered, and his perceived profile;[14] and

   j)accepted the photograph the applicant’s representative had provided to the Authority was authentic, and that during an interrogation in 2011 the SLA showed the applicant the photograph, and that, the SLA knew from it, and from the applicant’s subsequent admission that he trained with the LTTE.[15]

   [5] CB200, [12]

   [6] CB200-201, [13]

   [7] CB201, [14]

   [8] CB201, [15]

   [9] CB201, [17]

   [10] CB201, [18]

   [11] CB201-202, [18]

   [12] CB202, [18]

   [13] CB202, [21]

   [14] CB202, [21]

   [15] CB204, [29]

3. Although the Authority was satisfied the applicant suffered physical harm and threats, it did not accept this amounted to torture, and it was not satisfied the applicant was tortured on any occasion; the Authority was not satisfied the applicant was harmed with such severity or frequency that it affected his daily activities once he was released.[16] The Authority relied on its findings that the applicant had provided “some inconsistent details”, and that “some aspects of his account” were “implausible”.[17] The Authority referred to the following matters:

   a)At his entry interview the applicant said he had forgotten to sign in in 2012; but at his interview before the delegate (SHEV interview), after initially stating he had forgotten to sign in, the applicant said that he deliberately did not sign in because he feared being shot or transferred to another camp.[18]

   b)In his statutory declaration the applicant gave a date on which he was required to sign in, but at the SHEV interview the applicant was unable to recall the precise dates.[19]

   c)The Authority found the applicant’s evidence about the frequency of his visits to the SLA camps in 2012 to be confused and at times contradictory. The Authority accepted that in 2012 the applicant was required to report to the SLA camp from time to time, but it was not satisfied the applicant was subject to a strict weekly reporting regime, or that he was detained overnight after failing to sign in.[20]

   d)The Authority found implausible the claim the applicant made at the SHEV interview that the only reason he had not been transferred to another camp was because his family had blocked the road, and that when he was taken to the camp after failing to sign in he was released because his wife and children had waited outside. The Authority did not find it plausible that the SLA would have been influenced by the applicant’s family if they in fact suspected the applicant to have engaged in LTTE activity or for any other reason. The Authority, therefore, did not accept the SLA ever threatened to transfer the applicant to a different camp.[21]

   [16] CB202, [23]

   [17] CB202, [21]

   [18] CB202, [24]

   [19] CB202-203, [24]

   [20] CB203, [25]

   [21] CB203, [26]

4. Although the Authority accepted that: (a) between late 2010 and August 2012 the applicant was called to the SLA camp for enquiry and interrogated about LTTE membership and support because of his previous residence in LTTE controlled area; (b) the applicant was coerced to sign a confession linking him to the LTTE; and (c) the applicant suffered physical harm and threats, the Authority was not satisfied the authorities suspected him to be an LTTE member or supporter. The Authority instead found that the Sri Lankan authorities’ interest in the applicant was routine monitoring and questioning of the sort to which Tamils in the Northern Province were subjected to at that time.[22] The Authority relied on the Sri Lankan authorities’ not using the photograph, the admissions the applicant made to the SLA, and the confession he signed, as evidence to arrest, charge, or send the applicant to a rehabilitation camp at any time. The Authority considered it “implausible that the authorities maintained suspicion on him but did not charge, arrest or seek to rehabilitate him”.[23]

   [22] CB204, [30]

   [23] CB204, [29]

5. Finally, although the Authority accepted the applicant suffered harassment, discrimination, and extortion from local SLA officers who would frequently take his catch without payment and threaten to withhold the applicant’s fishing permit when he protested, the Authority found the applicant was a target of opportunistic extortion by corrupt officers who took advantage of the ongoing monitoring of Tamils in the Northern Province. The Authority was not satisfied the extortion was such that the applicant’s livelihood was threatened, or that, after the applicant’s departure from Sri Lanka, the applicant’s wife and family have been subjected to any ongoing extortion, or that their livelihoods have been threatened.[24]

   [24] CB205, [32]

6. Having made these findings, the Authority considered whether the applicant was a “refugee” within the meaning of s.5H of the Act. The Authority considered this question by reference to: (a) the applicant’s being a Tamil, given the findings the Authority made about the applicant’s interactions with the SLA; (b) the applicant’s being a Tamil, quite apart from the findings it made in relation to the applicant’s interactions with the SLA; (c) the applicant’s having been the subject of opportunistic extortion; and (d) the applicant’s returning to Sri Lanka as a failed asylum seeker who had departed Sri Lanka illegally.

Assessment of risk of harm given applicant’s ethnicity and interactions with SLA

1. The Authority repeated its findings that the Sri Lankan authorities know the applicant lived in an LTTE controlled area in the final stages of the war, and that they are aware from the photograph and the applicant’s subsequent admission that he helped the LTTE, and that he did some weapons training with the LTTE. The Authority then said that in assessing the risk of harm to the applicant, it had regard to the UNHCR’s advice. After noting the UNHCR does not indicate Tamils are at risk of persecution in Sri Lanka purely on account of their race, or because they originate from an area previously controlled by the LTTE, the Authority made the following findings:[25]

   The UNHCR does include in its identified risk profiles inter alia ‘former LTTE combatants or cadres’ and ‘former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE’. However the UNHCR also advises that such a person’s need for protection depends on the specifics of the individual case. I am satisfied that the authorities’ interest in the applicant was intermittent and I am satisfied he was never arrested, detained overnight or even subject to reporting requirements. I have not accepted the applicant was considered by the authorities to be an LTTE member or supporter.

   [25] CB206, [38]

2. The Authority also referred to country information the applicant provided to the delegate after the SHEV interview. The Authority accepted that detainees have been detained, released, and re-arrested, but the Authority noted that the post-war period spanned seven years, and that the updated information on the situation in Sri Lankan politics and security, particularly in the Northern Province, indicates an improved, less militarised security environment with decreasing monitoring, and harassment, and a government with a focus on anti-corruption.[26] The Authority referred to country information that showed that after the war, “and particularly in the four years that the applicant has been in Australia”, the situation for Tamils in Sri Lanka has changed considerably,[27] and the Authority summarised that information in some detail.[28]

   [26] CB207, [40]

   [27] CB207, [41]

   [28] CB207-208, [41]-[42]

Assessment of risk of harm given applicant’s being a Tamil

1. The Authority accepted that Tamils in Sri Lanka, particularly in the north and east, still face discrimination and harassment, and the re-possession of land by Tamils whose land was occupied by the SLA is still an issue; but the Authority noted the applicant did not claim his family’s land was occupied by the SLA, and it found that the discrimination and harassment to which country information showed Tamils suffered was not at the level amounting to serious harm.[29] The Authority, therefore, was not satisfied the applicant would suffer harassment or be monitored on his return to Sri Lanka; or that he would face a real chance of serious harm through official or societal discrimination or harassment.[30]

   [29] CB208, [43]

   [30] CB208, [46]

Assessment of risk of harm given findings of extortion

1. After referring to its having accepted the SLA extorted and mistreated the applicant, the Authority said it was not satisfied that the applicant’s family have been targeted for money or faced harm after the applicant left Sri Lanka. It also referred to country information that since the end of the war, incidents of extra-judicial killing, disappearances and kidnapping for ransom have fallen considerably, and that no particular group has recently been the target of kidnapping or extortion.[31] On the basis of this country information, and given its findings it did not accept the Sri Lankan authorities considered the applicant to be an LTTE member or supporter, the Authority concluded it was not satisfied the applicant faced a real chance of serious harm through extortion.[32]

   [31] CB208, [45]

   [32] CB208, [46]

Assessment of risk of harm as a failed asylum seeker who departed Sri Lanka illegally

1. The Authority accepted that, if he were returned to Sri Lanka, the applicant would be identifiable to the authorities at the airport as a failed asylum seeker who had departed Sri Lanka illegally.[33] After describing procedures that are followed in the processing of involuntary returnees, and repeating its findings that the authorities’ interest in the applicant “was intermittent and consistent with the level of monitoring that was occurring at that time”, and that it was satisfied “the applicant is not perceived to be an LTTE member or to have an LTTE supporter profile”, the Authority found that on his return to Sri Lanka the re-entry procedures would be applied without discrimination on the basis of ethnicity.[34] The Authority considered what was likely to occur to the applicant on his return, including being charged for having departed Sri Lanka illegally, imprisoned for a short time awaiting bail, and being fined, but concluded that the applicant would not suffer significant or serious harm.[35]

   [33] CB209, [48]

   [34] CB209, [51]

   [35] CB210-211, [56]

2. The Authority concluded this part of its reasons as follows:[36]

   I have considered the risk of harm to the applicant, a Tamil male from . . . in the Northern province, who helped the LTTE and is known to have done some physical training and some weapons training, was called in for questioning between 2010 and 2012, signed confessions and was previously harmed. While the applicant suffered discrimination, harassment and extortion before he left Sri Lanka in 2012 I am not satisfied that the authorities suspected he was an LTTE member or supporter, or that he would be suspected as such on return to Sri Lanka. Even with these previous circumstances and that authorities asked after him after his departure, that they would be aware that he departed illegally, sought asylum in Australia and spent considerable time here, I am not satisfied that these circumstances cumulatively give rise to a well-founded fear of persecution.

   [36] CB211, [59]

Complementary protection

1. The Authority then considered whether the applicant satisfied the complementary protection criterion provided for by s.36(2)(aa) of the Act. The Authority repeated the effect of many of the findings it made in relation to its assessment of whether the applicant is a “refugee”, and concluded there are no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk the applicant will suffer significant harm.

Ground of application

1. The applicant relies on the following ground contained in the amended application:

   The Authority fell into error by not properly applying the real chance test.

   PARTICULARS

   a.At [38], the IAA decision noted that “the UNHCR does include in its identified risk profiles inter alia ‘former LTTE combatants or cadres’ and ‘former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE’

   b.At [12], the IAA accepted that, on the basis of the applicant’s reliable oral evidence, the applicant voluntarily assisted the LTTE by “digging bunkers, cooking at one of their camps and providing medical assistance” between 2006 and 2009.

   c.The IAA further accepted, at [13], that the applicant engaged in physical and weapons training with the LTTE.

   d.At [45], the IAA “accepted the applicant was extorted and mistreated by local SLA against the backdrop of the post-war environment” and at [69], it was accepted that the applicant “was extorted and intermittently questioned and harmed between 2010 and 2012”.

   e.The IAA did not consider the real chance that the applicant fell within the risk profile in subparagraph (a) above by reason of the findings in subparagraphs (b)-(d).

   f.The IAA did not consider the real chance of risk to the applicant on return to Sri Lanka due to him having signed a confession admitting involvement with the LTTE [13]. The IAA did not explore the risk to the applicant given that this confession was almost certainly on some record somewhere and available to the authorities.

   g.Similarly, the IAA did not consider the real chance of risk to the applicant on return to Sri Lanka due to the authorities having possession of a photograph of the applicant on a beach depicting the applicant doing LTTE firearms training.

2. It should be apparent that although the ground claims the Authority did not apply the “real chance test”, and that, in the circumstances identified in paragraphs (e), (f), and (g) of the particulars, the Authority did not consider the “real chance test”, these do not appear to be the claims the particulars to the ground in fact make.

   a)Paragraph (e) of the particulars makes one and perhaps two claims. One is that the Authority found the applicant fell within the risk profile identified by the UNHCR 2012 advice (UNHCR risk profile) but it failed to consider whether, given the findings it made, the applicant faced a real chance of harm. The other claim, perhaps, is that it was not reasonably open to the Authority to find the applicant did not face a real risk of harm, given the findings the Authority made.

   b)Paragraph (f) of the particulars claims there was before the Authority a claim that on his return to Sri Lanka the authorities would have available to them the applicant’s confession and that this would give rise to a real risk of harm.

   c)Paragraph (g) of the particulars makes a similar claim to that made in paragraph (f), except that it relates to there being a risk the authorities would have available to them the photograph of the applicant holding a gun with a number of other persons.

Parties’ submissions

1. In his written submissions the applicant submits:

   a)the Authority did not accept the applicant “was considered by the authorities to be an LTTE member or supporter” (applicant’s emphasis);

   b)that finding could only relate “to a period of a few months  . . . between his detention by the authorities in 2012 and when the applicant left Sri Lanka, . . . August 2012”;

   c)the Authority accepted the authorities in Sri Lanka possessed at least one confession signed by him, and a photograph showing the applicant undergoing rifle training for the LTTE;

   d)the Authority accepted the authorities in Sri Lanka considered the “confession(s)” and the photograph in “the very short period prior to the applicant leaving Sri Lanka”;

   e)the Authority did not “properly apply the forward looking requirement of the real chance test and consider the risk to the applicant of returning to Sri Lanka, being a forward looking test”; the Authority found that “the interest in the applicant was intermittent and the applicant was not perceived to be [an] LTTE member or supporter” (applicant’s emphasis); and

   f)the Authority went on to deal with the possible arrest and other issues “in reference only to failed asylum seekers”; it did not “include in the consideration that the authorities have signed confession(s) and a photograph of the applicant engaging in weapons training”.

2. In his oral submissions Mr Hodges, who appeared for the applicant, referred to the Authority’s findings that the applicant had signed a confession, and that the authorities held a photograph depicting the applicant receiving weapons training with the LTTE, and submitted that those findings “have not been properly dealt with” by the Authority “in terms of looking at the reasonable chance or the well-founded fear of the applicant upon being returned to Sri Lanka”.[37] After Mr Hodges further submitted the Authority “has not adequately dealt with the risk to the applicant upon being returned to Sri Lanka”,[38] Mr Hodges emphasised the “very short space of time between the first confession and the second one, and then virtually no time between the August confession and the applicant leaving the country”.[39] Mr Hodges further submitted that the applicant’s confession about his LTTE involvement “would be on the applicant’s record”, and this would “almost certainly draw attention to the applicant at the airport”. Mr Hodges accepted that his submission was that “having accepted that the army was in possession of a photograph, which the authority accepted showed he was in . . . weapons training with the LTTE, [the Authority] ought to have considered whether that sort of information would have been on the files of the authorities and, for that reason, he would have been treated differently from your run-of-the mill returnees”.[40] Mr Hodges submitted the Authority did “not include into its forward-seeking risk assessment consideration of the photograph and admissions being on record with no exculpatory comments to the effect that, as if, rarely, from the army we coerced this admission confession so we don’t really think the applicant is an LTTE member”.[41]

   [37] T5.15

   [38] T11.10

   [39] T12.10. It is not clear to what Mr Hodges intended the “August confession to refer”. In his statutory declaration the applicant referred to having only signed one document during an interrogation in April 2012.

   [40] T13.2

   [41] T13.30

3. At the end of his submissions, I put to Mr Hodges what I understood was the essence of the applicant’s submissions:[42]

   [42] T14.25

   HIS HONOUR: . . . .your complaint is that having regard to the findings it made it is reasonable to expect that, had it done its job properly, it ought to have appreciated the fact that there would be matters of record or could be matters of record and it ought to have considered whether there would be – make some assessment about that and then make an assessment that – assuming that they would be on record somewhere, whether that would impact on its assessment of future risk.

   MR HODGES:   Yes, and also making the obvious assumption that I referred to before that any exculpatory material would not be on the record.

   HIS HONOUR:   Well, that will be included ‑ ‑ ‑

   MR HODGES:   Yes.

   HIS HONOUR:   ‑ ‑ ‑ in its overall assessment.

   MR HODGES:   Yes.

   HIS HONOUR:   I understand your submission.

   MR HODGES:   Thank you, your Honour.

4. The Minister filed his written submissions before the applicant filed his written submissions and before, therefore, the applicant notified the Minister that he abandoned ground 1 of the application as it was originally filed, and proposed to amend the application by adding paragraphs (f) and (g) of ground 2, being the only ground on which the applicant relies. The Minister’s written submissions, therefore, only address ground 2 as it existed before I granted the applicant leave to amend the application by removing ground 1 and adding paragraphs (f) and (g) to the particulars to ground 2. The Minister submitted that ground 2 mischaracterises the UNHCR guidelines as part of the relevant criterion for the grant of a protection visa; and that the Authority considered the applicant’s particular circumstances in light of the relevant risk profile, and found that the applicant’s individual case did not give rise to a need for protection. The Minister further submitted the Authority applied the correct statutory test to its findings.

5. At the hearing before me Ms Lucchese, who appeared for the Minister, submitted the Authority accepted the applicant had been coerced to give a confession, and that the authorities held a photograph depicting the applicant undertaking weapons training but nevertheless was not satisfied the authorities in Sri Lanka considered the applicant to be an LTTE member or supporter, or that the authorities developed that sort of suspicion after his departure. Ms Lucchese further submitted that the applicant does not claim that the Authority made any jurisdictional error in making these findings; and, in those circumstances, the Authority, as it was entitled to do, assessed the risk to the applicant on his return to Sri Lanka on the basis of those findings.

The ground as advanced at the hearing

1. It is true the Authority did not consider whether authorities who were to assess the applicant on his return to Sri Lanka would access information about the applicant that would include the applicant’s confession and photograph. That, however, does not disclose any jurisdictional error. The applicant did not claim in his application for a SHEV, or before the delegate or the Authority, that the confession that had been coerced from him, and the photograph that had come into the hands of the SLA, would be included in a file associated with the applicant, without any exculpatory material or otherwise to the effect that the confession was coerced from the applicant. The possibility of that claim was first raised by the applicant in his application to this Court. The possibility is based on a number of assumptions.

   a)First, it assumes that the confession and photograph would be available in some file (electronic or otherwise) the Sri Lankan authorities have held and continue to hold in relation to the applicant; and that this file will be readily accessible by those officers of the Sri Lankan authorities who would likely be involved in the processing of the applicant. The applicant, however, has pointed to no material that was before the Authority that could reasonably have suggested such a claim.

   b)Second, the possibility assumes that, assuming the Sri Lankan authorities did maintain a file in relation to the applicant that included the confession and the photograph, the file would have contained no other information; and, in particular, what Mr Hodges referred to as “exculpatory material”, that is, information to the effect that the applicant was of no adverse interest to the authorities. Again, there is no evidence to support such assumption; and, in any event, assuming the authorities did maintain a file in relation to the applicant, the more plausible assumption would be that the file contained information that related to all of the SLA’s dealings with and assessment of the applicant.

2. There is an additional matter, and that is the submission Ms Lucchese made at the hearing. The Authority made a finding the applicant does not claim is affected by any jurisdictional error, namely, the Authority was not satisfied the authorities in Sri Lanka suspected the applicant to be an LTTE supporter.[43] The Authority repeated that finding when assessing the risk of harm to the applicant on his return to Sri Lanka, and it assessed that risk on that basis.[44] Further, the Authority found it was not satisfied not only that the authorities suspected the applicant was an LTTE member or supporter; it was also not satisfied the applicant “would be suspected as such on return to Sri Lanka”.[45]

   [43] CB204, [31]; CB205, [33]

   [44] CB209, [51]

   [45] CB211, [59]

3. For these reasons, I do not accept the Authority made any jurisdictional error by not considering the possibility the applicant, on his return to Sri Lanka, would be assessed by the authorities on the basis of a confession and photograph without reference to any material that showed the applicant is not of any adverse interest to the authorities.

Paragraph (e) of the particulars

1. As I have already noted, paragraph (e) of the particulars claims that, having found the applicant fell within a UNHCR risk profile, it failed to consider whether the applicant faced a real chance of harm. I do not accept that claim. The Authority referred to the UNHCR guidelines, including the advice that the needs for protection of a person who has one of the risk profiles the UNHCR advice identifies “depends on the specifics of the individual case”.[46] The Authority then repeated the findings it had already made, namely, that it was satisfied the authorities’ interest in the applicant was intermittent, that the applicant was never arrested, detained overnight or even subjected to reporting requirements, and that it did not accept the applicant was considered by the authorities to be an LTTE member or supporter.[47] Having made that and other findings, the Authority was not satisfied the applicant had a well-founded fear of persecution.[48]

   [46] CB206, [38]

   [47] CB206, [38]

   [48] CB211, [59]

2. As I have already noted, paragraph (e) perhaps also claims it was not reasonably open to the Authority to find the applicant did not face a real risk of harm, given the findings the Authority made. I asked Mr Hodges whether that was the claim the applicant intended to make, but Mr Hodges said it was not. That is evident from the following exchange:[49]

   HIS HONOUR:   But hasn’t it actually – it has considered it, because, ultimately, it said that, notwithstanding these findings, the applicant would not be at risk.  Your point must be, surely, that, having made these findings, it was unreasonable or irrational for it to have concluded as it did, because I think what’s put against you is that they did – that the authority did consider it.  I think the basis of its reasoning is, “Yes, I accept all of this happened, but country information tells you that if the authorities are particularly suspicious of you being an active LTTE member, you’re arrested, you’re detained, you’re put in rehabilitation camps and none of those things the applicant alleged occurred to him.”  I think – that’s what I understand to be its ultimate reasoning.

   MR HODGES:   Well, your Honour, I know that’s the counterargument, but ‑ ‑ ‑

   HIS HONOUR:   But that’s – so that what it has done and you’re saying to me, “Well, it really hasn’t considered it”, but why?  It must be the underlying premise of what you’re saying to me, is that these facts so obviously point to a risk, but the fact that it actually hasn’t counted them as risk must indicate some flaw and its error, or hasn’t properly done the job.  It must – that’s the sort of reasoning.

   MR HODGES:   Well, the way the ground is framed and particularised, your Honour, the submission is that the authority has not properly dealt with the risk into the future.

   [49] T11.20

HIS HONOUR:   Yes.  All right.

1. Thus, I do not take paragraph (e) of the particulars to claim that, given the findings the Authority made, it was not reasonably open to the Authority to find the applicant did not face a real risk of harm.

Paragraphs (f) and (g) of particulars

1. Paragraph (f) of the particulars claims there was before the Authority a claim that, on his return to Sri Lanka, the authorities would have available to them the applicant’s confession and the photograph depicting him undergoing weapons training, and that this would give rise to a real risk of harm. These claims formed part of the ground Mr Hodges advanced at the hearing. Given I have not accepted the ground, as so advanced, the claims made in paragraphs (f) and (g) also fail.

Disposition

1. The applicant has failed on the ground and submissions on which he relied. I propose, therefore, to order that the application be dismissed.

2. As for costs, Mr Hodges and Ms Lucchese agreed that costs should follow the event, and the costs should be set in the amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) as at the day on which the applicant commenced this proceeding, being 25 January 2017. I propose to order that the applicant pay the Minister’s costs, and that those costs be set in the amount of $7,206.

I certify that the preceding thirty-three paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  8 April 2020