AKP18 v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 762
•22 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AKP18 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 762
File number(s): SYG 233 of 2018 Judgment of: JUDGE LAING Date of judgment: 22 August 2024 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) – whether the IAA unreasonably failed to consider exercising, or exercise, its discretion to invite the applicant to give new information – whether the IAA failed to give proper, genuine and realistic consideration to a claim – application dismissed Legislation: Migration Act 1958 (Cth) ss 473DC, 473DD
Immigrants and Emigrants Act 1948 (Sri Lanka)
Cases cited: AAL19 v Minister for Home Affairs [2020] FCAFC 114; (2020) 277 FCR 393
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
BNB17 v Minister for Immigration and Border Protection [2020] FCA 304
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352
DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134
DZU16 v Minister for Immigration and Border Protection [2018] FCAFC 32
FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; (2020) 274 FCR 456
Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of hearing: 7 August 2024 Place: Sydney Counsel for the Applicant Mr R Chia (Direct Brief) Solicitor for the First Respondent: Ms S Lloyd of MinterEllison Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 233 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AKP18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
22 AUGUST 2024
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to “Minister for Immigration and Multicultural Affairs” dispensing with the need for filing any further document in this regard.
2.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicant a Safe Haven Enterprise (Subclass 790) visa (protection visa).
BACKGROUND
The applicant is a citizen of Sri Lanka who arrived in Australia in 2013 as an unauthorised maritime arrival.
In 2016, the applicant applied for a protection visa. On 16 August 2017, the Delegate refused the application. The matter was then referred to the IAA for review.
On 12 January 2018, the IAA affirmed the decision of the Delegate.
THE IAA’S DECISION
The IAA considered the procedural history to the matter, the claims made by the applicant and the evidence before it at [1]-[7] of its decision.
The IAA accepted that the applicant was a Tamil Hindu citizen of Sri Lanka who lived in a village (Village) in the Batticaloa district (at [8]).
The IAA made the following findings regarding the applicant’s claims of harassment and forced recruitment:
(a)The IAA accepted that the Liberation Tigers of Tamil Eelam (LTTE) had harassed the applicant and his family, and tried to recruit both the applicant and his brother. The IAA accepted that the applicant’s family bribed the LTTE to protect the applicant and his brother from being taken for training (at [13]).
(b)The IAA accepted that the applicant’s home area was an LTTE stronghold in which many Tamil youths were involved in training camps (at [13]).
(c)The IAA accepted that people living under LTTE control would have necessarily interacted with both the military and civil administration of the group (at [13]).
(d)The IAA further accepted that claims of harassment and demands for money by the LTTE and the Karuna Group were not implausible (at [13]).
The IAA made the following findings concerning the authorities’ interest in the applicant:
(a)The IAA accepted that Karuna members, police and the army actively searched for and arrested LTTE supporters and cadres, with torture also utilised on certain suspects (at [15]).
(b)The IAA accepted that the applicant and other Tamil people were required to register with the relevant authorities. However, while the IAA accepted that house searches and harassment occurred, it did not find the evidence sufficient to suggest that the applicant was of specific interest to the authorities or that he was treated differently than any other Tamil in the area at the time (at [15]).
(c)The IAA was not satisfied that there was any adverse interest in the applicant by the relevant authorities or that he was suspected of being LTTE trained or an LTTE cadre (at [18]).
(d)The IAA accepted that after his travel from an area (Area), the applicant had experienced some harassment, and was beaten and threatened, by Karuna members and the authorities. The IAA did not accept that the applicant had any LTTE related profile above being a young Tamil male from the Village (at [19]).
(e)The IAA accepted that the applicant’s uncle was extorted by unknown individuals who threatened the applicant with abduction and harm. The IAA was not satisfied on the evidence that the perpetrators were members of the authorities or any linked paramilitaries. The IAA considered that the extortion was criminal in nature and not linked to any imputed profile on the part of the applicant (at [20]).
(f)The IAA did not accept that the UNP or any another party in the election forced the applicant to support them, or that the applicant was beaten and his uncle was forced to pay if he did not assist. The IAA did not accept that anyone threatened the applicant at his home for engaging in such support (at [22]).
(g)Although the IAA accepted that the applicant’s uncle was a victim of criminal extortion, the IAA considered the amount claimed to have been demanded to be implausible (at [23]).
(h)The IAA did not accept a claim that the applicant’s uncle was held by the authorities or that he was of any adverse interest to the authorities at the time they departed Sri Lanka. The IAA also did not accept that the applicant’s uncle told him that on the second occasion the authorities threatened to burn the applicant alive (at [24]).
(i)The IAA accepted that the applicant took steps to end his own life out of fear and that disappearances of young Tamil people were an occurrence in the area at that time. However, the IAA did not accept that the applicant was exposed to all of the threats and the beatings that he had claimed or that he was of any interest to the authorities (at [25]).
(j)The IAA accepted that the applicant was affected by the disclosure of his personal information on a website by the Department in 2014 (2014 Disclosure). The IAA accepted that his uncle’s death was publicised in the Sri Lankan media and that a connection could be made between the applicant’s and his uncle’s departures (at [28]).
(k)The IAA did not accept that the authorities assaulted, arrested or threatened the applicant’s father, or interrogated and threatened his mother, after learning of his uncle’s death in 2016. The IAA also did not accept that threats had been made against the applicant in this context (at [30]).
(l)The IAA did not accept that the applicant’s family were bribing the authorities not to arrest, harm or kill his brother, or that his brother was sent to Qatar to save his life (at [32]).
(m)The IAA did not accept that the applicant or his brother were ever tortured (at [33]).
Having regard to the above and country information, the IAA did not accept that the applicant faced a real chance of relevant harm from political supporters, the Karuna group, extortionists or the authorities in Sri Lanka (at [36]-[82]). In relation to the applicant’s claims regarding extortion, the IAA considered that the applicant’s changed circumstances (including the death of his uncle) and improvements in the country situation had resulted in the circumstances that led to the previous threats to the applicant no longer existing (at [39]-[41]).
Although the IAA accepted that there remained a degree of discrimination and harassment in the country, it did not accept that this would result in the applicant facing a real risk of harm amounting to serious or significant harm (at [50] and [76]).
The IAA accepted that the applicant was affected by the 2014 Disclosure and that he would be identifiable to the authorities at the airport as a failed or returning asylum seeker from Australia who departed Sri Lanka illegally (at [51]). However, based upon country information and what it had found regarding the applicant’s lack of profile, the IAA did not accept that the applicant faced a real chance of relevant harm on this basis (at [56]).
The IAA accepted that the applicant may be questioned and charged under the Immigrants and Emigrants Act 1949 on account of his illegal departure. This may result in him being detained for a limited period in unpleasant conditions as well as a fine. The information before the IAA did not indicate that these penalties or processes would be discriminatory. The IAA did not accept that they would result in a real chance of harm amounting to serious harm, even considering the information that it possessed regarding the applicant’s mental health condition. The IAA also did not accept that the applicant faced a real chance of significant harm on this basis (at [57]-[80]).
In relation to the applicant’s mental health condition, the IAA did not consider that it had sufficient information before it to find that such problems would reignite or otherwise develop upon his return to Sri Lanka. The IAA did not accept that the applicant’s mental health condition, developmental issues or financial situation would result in the applicant facing a real chance of serious or significant harm if he were required to return to Sri Lanka, even when considered in relation to other matters that the IAA accepted regarding his return (at [66]-[68], [77] and [79]).
On the basis of the above, the IAA affirmed the Delegate’s decision not to grant the applicant a protection visa.
PROCEEDINGS BEFORE THIS COURT
The applicant commenced the current proceedings through an application filed on 31 January 2018. The applicant ultimately relied upon a second further amended application containing the following grounds:
1.The failure of the second respondent (Authority) to consider exercising its discretion or the exercise of discretion not to invite the applicant to give new information was legally unreasonable.
2.Further or in the alternative, the Authority failed to give proper, genuine and realistic consideration, if at all, to the applicant’s claim regarding the 2014 departmental data breach
Ground 1
Ground 1 contended that the IAA unreasonably failed to consider exercising, or exercise, its discretion to invite the applicant to give new information under s 473DC of the Migration Act 1958 (Cth) (Act). That provision was as follows:
MIGRATION ACT 1958 - SECT 473DC
Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
The applicant contended that this was demonstrated in relation to three categories of information.
The first related to the applicant’s ability to participate in the protection visa interview. The applicant observed that the IAA had considered that exceptional circumstances justified consideration (under s 473DD of the Act) of new information he had given in relation to his vulnerability and fear, and his uncle’s concerns about him committing suicide following his previous suicide attempt.
The applicant observed that the IAA had accepted (at [12] and [25]) that he had been so fearful in Sri Lanka at the age of 19 that he had tried to commit suicide and that he had been saved by his uncle. The applicant observed that the Delegate had not expressly dealt with his ability to give evidence and submitted that the IAA was unable to make a finding on this from listening to the audio recording of the interview alone. In these circumstances, the applicant submitted that the IAA’s finding at [12] that there was no evidence that he was unable to participate in the process, without considering or exercising its power under s 473DC, lacked any evident or intelligible justification.
The second category of information that the applicant submitted that the IAA ought to have sought, or considered seeking, related to the IAA’s finding that the applicant was not of interest to the Sri Lankan authorities for reasons including that he had not claimed to have been questioned or to have hidden whilst in the Area. This was notwithstanding the applicant’s claim that he had left the Area because the authorities had started to question youths about involvement in the LTTE.
The third category of information concerned the IAA’s finding at [18] that it was implausible that the applicant could have travelled to the Area by bus and not been stopped at a checkpoint, detained and questioned. In relation to the second and the third categories, the applicant submitted that the IAA’s failure to invite him to give new information was legally unreasonable because the applicant did not have the opportunity to address aspects of his claims that had not been doubted by the Delegate but which the IAA found to be implausible.
The applicant relied upon the case of Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 (M174), in which it was considered that failure to address a denial of procedural fairness before the Delegate “would risk transgressing the bounds of reasonableness”: at [49] per Gageler J (as his Honour then was), Keane and Nettle JJ.
The applicant also relied upon Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475. In that case, at [82], it was stated:
82.Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.
The applicant further relied upon DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134. In that case, the IAA was aware that the Delegate had accepted the applicant’s account through reliance upon demeanour at interview. The IAA subsequently rejected the applicant’s credibility without considering inviting the applicant to an interview in order to undertake its own assessment of his demeanour. Instead, the IAA relied upon inconsistencies the Delegate had indicated would not be given substantial weight. This approach by the IAA was found to have been legally unreasonable.
Each of the above cases occurred within particular factual contexts. The same may be said of DZU16 v Minister for Immigration and Border Protection [2018] FCAFC 32, in which the IAA considered a different potential area for relocation to that which had been considered by the Delegate and then incorrectly invoked a statutory procedure for inviting response to material that was before it.
In assessing grounds involving legal unreasonableness, each case must turn on its own facts. It is also to be recalled that the general position intended by the legislature under Part 7AA is that the IAA is not under an obligation to seek or consider new information. The default position is consideration only of the review material referred to the IAA. The IAA has no general duty to get, request or accept any new information: BNB17 v Minister for Immigration and Border Protection [2020] FCA 304 at [54] per Anderson J.
I accept the Minister’s submissions as to why, on the facts of this particular case, the first ground relied upon by the applicant is unable to succeed.
In relation to the applicant’s capacity, the IAA had regard to the applicant’s personal circumstances as indicated in the review material. These included reference to the applicant’s suicide attempt in Sri Lanka, to the applicant having been described as “vulnerable” by his representative, and to the “shock and distress” that he had experienced following his uncle’s death in 2013 (at [9]). The IAA did not, as the applicant suggested in written submissions, accept that the applicant “was unable to recover from the shock”.
In any event, the applicant did not claim that his mental health had meant that he was unable to participate effectively in the protection visa interview. No medical evidence to this effect was provided by the applicant.
Whilst the Delegate did not question the applicant’s mental capacity to participate in the interview, this did not preclude this being raised on his behalf at the IAA stage if the applicant had wished to do so. No such claim was made in the written submissions that were made to the IAA. This is despite the applicant being legally represented by that time. Although the IAA took a different view of the credibility of certain evidence, this was always a possibility. The fact that the applicant did not seek to address that possibility through identifying any issues that he had experienced in giving evidence tends against the argument that it was unreasonable for the IAA not to have sought such information. This is notwithstanding the IAA’s consideration, in the applicant’s favour, of the potential for the applicant’s mental condition to have impacted upon his evidence. It was open to the IAA to have nonetheless not accepted, for logical reasons, that this possible explanation sufficiently accounted for the difficulties in his evidence: see AAL19 v Minister for Home Affairs [2020] FCAFC 114; (2020) 277 FCR 393 at [27]. The fact that the applicant may have been able to provide some further information in this regard does not mean that it was legally unreasonable for the IAA not to have sought it.
I accept that the IAA made findings that were different from the Delegate’s. Those findings included the IAA’s conclusion that the applicant was not of interest to the Sri Lankan authorities, in part, because (a) he did not claim to have been personally questioned or to have hidden whilst in the Area, and (b) it was implausible that the applicant travelled to the Area by bus without being stopped at a checkpoint, detained and questioned, if he were of adverse interest (at [17]-[18]).
However, the IAA’s general conclusions in this regard did not entirely depart from those of the Delegate. As was observed by the Minister, the Delegate similarly found that the applicant did “not have a history of being of interest to the Sri Lankan authorities” (CB 195). This was so even though the Delegate’s reasons for finding this were not identical to those of the IAA. It is so even though the IAA doubted aspects of the applicant’s claims that had not been doubted by the Delegate.
As was considered in FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; (2020) 274 FCR 456 at [60]:
60.… Within the decision-making framework established by Part 7AA, the fact that the Authority came to a different conclusion to the delegate did not trigger an obligation to seek further information from the appellant. In those circumstances, it was not legally unreasonable for the Authority to decide the issue without exercising the power under s 473DC(3) of the Act to invite the appellant to give new information.
Although a different approach taken by the IAA to the Delegate may, in some cases, form part of the factual matrix informing a finding of unreasonableness, the mere fact that the IAA takes a different view to the Delegate does not itself establish unreasonableness. I am not persuaded that such a finding has sufficient basis in this case. This is notwithstanding the different approach that was taken by the IAA and the potential for the applicant to have provided further, relevant information had that information been sought.
The IAA’s decision in this matter was based upon the same material as the Delegate, save for the new information that the applicant had submitted that the IAA decided to take into account. It was open to the IAA, on the material, to have considered that the fact the applicant was not questioned in the Area indicated that a lack of adverse interest in the applicant when others were being questioned in the Area at the time. This is so even though the applicant claimed he had moved from the area due to others being questioned. The fact that he had not been questioned whilst he was there, and before he relocated, was capable of supporting an inference that he was not of any particular adverse interest to the authorities. Similarly, it was an available inference, on the material that was before the IAA, that the fact the applicant had been able to pass through checkpoints whilst travelling indicated a lack of adverse interest in the applicant.
At hearing, the applicant submitted that there may have been some ambiguity regarding his evidence at interview in relation to his travel to the Area. This was by reference to page 15 of the transcript that is in evidence (Transcript), where the applicant referred to going to the Area in 2011 by bus. The applicant submitted that this could have been a reference to another occasion.
However, the applicant did not contend that the IAA’s interpretation of his evidence was relevantly closed to it. Whilst he may have given additional evidence if asked, and may have clarified his evidence in this regard if this had occurred (or if he had otherwise chosen to do so), I am not persuaded that this is sufficient to demonstrate unreasonableness on the part of the IAA.
In the above circumstances, I am not persuaded that it has been demonstrated that the IAA unreasonably failed to consider exercising, or declined to exercise, its powers under s 473DC of the Act. Grounds such as legal unreasonableness have high thresholds. I have not been persuaded that those thresholds have been met in the present case.
Ground 2
Ground 2 contended that the IAA failed to give proper, genuine and realistic consideration to the applicant’s claim regarding the 2014 Disclosure.
The applicant relied upon what was said in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (WAEE) at [47]:
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.
The applicant also cited authorities supporting the need for a decision maker to give “proper, genuine and realistic consideration” to a claim, including Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 at [25] (per Gummow J) and Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [25] per the Court (Griffiths, White and Bromwich JJ). To those authorities, I would add the caution expressed in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 at [26] per Kiefel CJ, Keane, Gordon and Steward JJ.
The applicant observed that the Transcript demonstrated that he had claimed the following in relation to the 2014 Disclosure:
… there was a information in the website leaked and ah, and ah some, some people ST[F] or Karuna and police they came and threatened my mother and said ah you are, I know that your son ran away to Australia. Somehow Australia will send him back. If he is sent back ah we will capture him, arrest him and taking him and he will actually, we will see that he is umm ah, we will ah destroy him without identity.
The applicant submitted that the IAA did not deal with, or give proper, genuine and realistic consideration to, his claim in this regard.
The applicant submitted that although the claim was referenced at [27] of the IAA’s decision, the IAA went on to deal with a different claim at [28]-[30]. That claim concerned threats said to have been made after his uncle’s death was publicised in Sri Lanka. Alternatively, the applicant submitted that the combination of these two claims was found to be implausible. This, it was submitted, was insufficient to find that the 2014 Disclosure claim itself was implausible. The applicant submitted that the claim was not dealt with in [51], where the IAA found that the applicant would be identified as a failed asylum seeker who had departed Sri Lanka illegally.
I am unable to accept the applicant’s submissions in relation to this ground.
The claim to which the applicant has directed attention was limited in its form. The applicant claimed he had been affected by the 2014 Disclosure and that certain people came to his house and threatened his mother.
The IAA accepted that the applicant had been affected by the 2014 disclosure and that he may accordingly be identifiable as a failed asylum seeker who had left the country illegally on return to Sri Lanka (at [51]). The IAA rejected at [30] and [48] that the applicant’s mother was threatened by the authorities. In this regard, the IAA reasoned at [27]-[30]:
27. The applicant stated in the SHEV interview that around four to five months beforehand, he had travelled to Perth to participate in an enquiry into his uncle’s death when his mother informed him that the news about his uncle’s death on Christmas Island had spread like fire back in Sri Lanka. He claims that some information had been leaked from the website and that the authorities and the Karuna group had come and interrogated and threatened his mother, saying they knew the applicant had run away to Australia. They told her they had confirmed he was with the LTTE and Australia would send him back and they would capture and kill him upon return.
28. The delegate asked the applicant if (in regards to his comment about a leak from the website) he was referring to the website disclosure but he responded with reference to the court enquiry into the death. I am nevertheless prepared to accept the applicant was affected by the website disclosure, although I am not satisfied that it was to that that he was referring. I note that apart from the applicant’s claims, there is no evidence before me to support the assertion that the uncle’s death was publicised in the news in Sri Lanka. However, it is not implausible and I am prepared to accept that his uncle was identified in the Sri Lankan media in this manner and that the authorities and others would make a connection between the applicant’s and his uncle’s departures.
29. The delegate asked why the news about his uncle would have led to the authorities coming to threaten his family and he responded that he used to stay with his uncle and go places with him. He stated Karuna accused them of taking weapons away and threatened that his uncle must give him money or he would have them shot by the army. The delegate put to the applicant that there appeared to be no connection between the incidents and it seems very far-fetched. The applicant responded that Karuna’s people, the Special Task Force and army saw the news and they threatened his father, stating they had confirmed that he had escaped to Australia and was a member of the LTTE and they would kill him upon return. Later in the interview the applicant also stated that his father had been beaten.
30. However, given I do not accept the applicant or his late uncle had any adverse profile with the authorities in Sri Lanka at the time he departed, given the passage of time since they departed and given the country information below about the Sirisena government’s changed objectives and the general improvement of the situation for Tamils in Sri Lanka, I consider it implausible that members of the authorities would threaten, beat and arrest the applicant’s father and interrogate and threaten his mother after learning of the uncle’s death, in December 2016, more than three and a half years after their departure. I do not accept these events occurred or that the authorities told the applicant’s parents they would take the applicant and kill him for evading arrest. I note the claims regarding Karuna accusing the applicant and his uncle of taking weapons away and demanding money. I accept the Karuna group was aligned with the authorities and engaged in extortion, threats and other criminal activity in the aftermath of the war. However I have concerns about the nature of how this information was raised, being first raised at the SHEV interview, in response to concerns raised by the delegate and without any plausible contextual detail. The delegate put to the applicant that these claims seemed farfetched and implausible and while I have considered the applicant’s responses to these concerns, I too find that they are far-fetched and implausible.
The IAA therefore accepted as plausible that the applicant’s information had been disclosed through the 2014 Disclosure, but did not accept as plausible that this had resulted in the applicant’s family attracting adverse attention from the authorities (when considered in relation to his claims regarding the publicisation of his uncle’s death, or otherwise).
The IAA also did not accept that the applicant had any adverse profile with the authorities in Sri Lanka (at [30], [48] and [54]-[56]). After considering country information regarding the treatment of returnees, the IAA did not accept that the applicant faced a real chance of harm due to his status as a failed asylum seeker from Australia who had left the country illegally. This is notwithstanding the IAA’s acceptance that the applicant would be identifiable as such, for reasons including the 2014 Disclosure.
I accept that, in coming to these findings, the IAA made no precise findings regarding the extent of the data disclosed nor the response of the Sri Lankan authorities in its decision. The applicant has not demonstrated that the IAA was obliged to do so, by reference to the material that was before the IAA. The applicant has not demonstrated, for example, that he claimed or provided evidence that the authorities would have knowledge of him beyond his identity, relationship with his uncle, and status as a failed asylum seeker who had departed Sri Lanka illegally, on account of the 2014 Disclosure. It is apparent the IAA was not satisfied, after considering the country information regarding returnees, that the response of the authorities was such that the applicant would face a real chance of relevant harm due to this information being disclosed.
Considering the above, I accept the Minister’s submission that the IAA rejected the factual premise upon which the applicant’s claim in this regard rested i.e. that the applicant or his uncle had an adverse profile with the Sri Lankan authorities such that it would result in him facing a real chance of harm in Sri Lanka: see WAEE at [47].
I am therefore not persuaded that ground 2 is able to succeed.
CONCLUSION
For the above reasons, the application that is before the Court must be dismissed.
I will hear from the parties in relation to costs.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 22 August 2024
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