AMU18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 649
•12 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AMU18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 649
File number(s): SYG 275 of 2018 Judgment of: JUDGE GIVEN Date of judgment: 12 May 2025 Catchwords: MIGRATION - Whether Authority misapplied real chance test – whether Authority erred by finding improvement in security situation equated to absence of real chance of harm – whether Authority failed to consider material question of fact Legislation: Migration Act 1958 (Cth) ss 5H, 5J, 36, 473CC, 473EA Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 535
Division: General Federal Law Number of paragraphs: 75 Date of hearing: 13 June 2024 Counsel for the Applicants: Mr B Zipser Solicitor for the Applicants: Rasan T Selliah & Associates Counsel for the Respondents: Mr G Johnson Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
SYG 275 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMU18
First Applicant
AMV18
Second Applicant
AMX18 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
12 MAY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application filed on 2 February 2018, as amended, is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
Before the Court is an application for judicial review of a decision of the Immigration Assessment Authority (Authority) made on 24 January 2018 (Court Book (CB) 359), by which it affirmed a decision of a delegate of the first respondent (delegate) to refuse to grant the applicants Safe Haven Enterprise (subclass 790) visas (visas).
The first and second applicants are (respectively) the father and mother of the third and fourth applicants. The third applicant was born in Australia and has now attained Australian citizenship. Accordingly, by order of the Court on 13 June 2024, the third applicant was removed from the proceedings.
BACKGROUND
The background to the matter and summary of the Tribunal’s decision is derived primarily from the written submissions made for the applicants, and the material available in the Court Book. Unless otherwise indicated, the below does not appear to be in dispute.
On 25 April 2013, the first and second applicants arrived in Australia as unauthorised maritime arrivals (CB 243). On 27 May 2013, the first and second applicants participated in separate entry interviews (CB 13, 30 and 243).
On 18 August 2014, the Minister notified the applicants that he had lifted the bar pursuant to s 46A of the Migration Act 1958 (Cth) (Act) and invited them to apply for protection (CB 36). On 31 March 2017, the applicants lodged applications for the visas (CB 41 to 211).
On 9 June 2017, the first and second applicants attended an interview with the delegate (CB 228). On 28 June 2017, the delegate made decisions refusing to grant the visas (CB 243 to 254).
On 7 July 2017, the matter was referred to the Authority for review under s 473CC of the Act (CB 276).
On 30 July 2017, the applicants provided a written submission (CB 293 to 298) (July submission) and country information to the Authority (CB 294 to 349).
On 24 January 2018, the Authority made its decision to not grant the applicants protection visas (CB 359 to 377).
Authority’s decision
Information before the Authority
In identifying the material before it, the Authority first had regard to the material provided by the Secretary, pursuant to s 473CB of the Act (CB 360 at [4]).
The Authority acknowledged receipt of the July submission, together with a statement dated 28 July 2017, a copy of a report from the International Truth and Justice Project (ITJP report), a document titled “Sri Lanka: Country of origin information relating to the targeting of ex-LTTE members/combatants” (2014 report) and a statutory declaration made by the second applicant on 20 January 2018 (2018 statutory declaration). The Authority had regard to parts of the July submission and the 2018 statutory declaration, which addressed the delegate’s decision and reiterated claims previously made by the second applicant (CB 360 at [5] to [7]).
The Authority observed that, by her 2018 statutory declaration, the second applicant requested that the review be conducted (at least in respect of her) by a female decision-maker, saying that her claims had not been properly considered in accordance with the UNHCR Guidance Note on Refugee Claims relating to Sexual Orientation and Gender (guidance note) (CB 361 at [8]). The Authority observed that the guidance note was not before the Minister and was, therefore, new information. The Authority was not satisfied that the guidance note was credible personal information, nor that it could not have been provided before the delegate’s decision was made. The Authority was also not satisfied that there were exceptional circumstances to justify considering the guidance note (CB 360 at [8]).
The Authority went on to identify information contained in the 2018 statutory declaration which had not been before the Minister, including that the second applicant was suffering from post-traumatic stress disorder (PTSD), general statements about the past situation in Sri Lanka, and the second applicant’s familial connection to the LTTE (CB 361 at [10]). While the Authority accepted that the claim of the second applicant to be suffering from PTSD might be credible personal information, it was not satisfied that had the information been known, it may have affected the consideration of the applicants’ claims. This finding was made in light of the second applicant’s previous disclosure to the delegate that she had suffered stress and trauma (CB 361 at [11]). The Authority was not satisfied there were exceptional circumstances to consider that information.
The Authority noted that the 2017 statement referred to a number of reports and articles including the ITJP report. The Authority noted that the ITJP report was before the delegate and was not new information, but found that other reports and articles referred to in the statement which discussed the past situation in Sri Lanka were new information (CB 361 to 362 at [12]). The Authority was not satisfied that the new information could not have been made available to the Minister, or that it was credible personal information. Accordingly, the Authority was not satisfied that exceptional circumstances justified consideration of the new information.
It was noted that the reference in the 2018 statutory declaration to the applicants’ familial connection to the LTTE was inconsistent with the statements made by the applicants at their protection visa interview that neither they, nor their family, had any connections to the LTTE (CB 362 at [13]). The Authority was not satisfied that the information was credible personal information, nor that it could not have been provided before the delegate’s decision was made. Accordingly, the Authority was not satisfied that exceptional circumstances existed so as to justify considering the new information (CB 362 at [13]).
The 2014 report was not before the delegate and therefore was regarded as new information by the Authority. The Authority noted that the 2014 reported was dated 3 February 2014, which predated the delegate’s decision. Further, the document was observed to relate specifically to ex-LTTE members and combatants and in light of the applicant’s disavowal of any association with the LTTE at their interviews, and the Authority was not satisfied it constituted credible personal information. Furthermore, the Authority was not satisfied that any exceptional circumstances justified considering the 2014 report (CB 363 at [14]).
Applicants’ claims for protection
The Authority separately summarised the claims for protection made by the first and second applicants, and jointly summarised the third and fourth applicants’ claims (CB 362 to 364).
The claims of the first applicant (applicant) can be summarised in the following way:
(a)he is a Tamil from Sri Lanka and his father was killed by the army in 1990;
(b)the applicant worked on a casual basis for the husband of his non-biological sister (whose full name he did not know) (employer) as a lorry driver. The applicant claimed that the CID regularly came to that business, harassed him for money and threatened him;
(c)in September 2009, the first and second applicants married. At this time, the applicant was working full time for the same employer;
(d)sometime after the applicant’s marriage, his employer disappeared. The applicant said he was told that the employer had been taken by the CID. About a week later the applicant’s friend (who also worked at the business) was taken by the CID and killed. The applicant believed his friend was taken because the CID thought he would know where his employer’s money could be found;
(e)after this, the applicant claimed he was harassed by the CID at the business because he was the only remaining employee. The applicant was asked about the whereabouts of his employer and his money, and said that although he believed his employer was taken by the CID, the officers who attended the business “would not have known he was taken by the CID because there are different sections” in it;
(f)in December 2009, the CID came to the business, bashed the applicant, blindfolded and took him in a van to an unknown location. The applicant said he was held for three days, beaten and asked about the money, and that he was left physically scarred as a result. The applicant was told to “give [the CID] information about the money” and then released to his home;
(g)the following day, some armed people with a handgun came to the applicant’s house asking about the employer. The applicant said they threatened him, searched his house, took his passport and some family jewellery. Soon after this incident the applicant left Sri Lanka and travelled illegally to India. He did not inform his wife that he was leaving and when he did not come home, she reported to the police that he was missing. The applicant claimed he rang her from India shortly after and told her where he was;
(h)the second applicant remained living in Sri Lanka with her parents. The CID visited her parents’ home, and the officers were aggressive and threatening. On one occasion the second applicant was sexually assaulted by the CID and suffers considerable distress from this incident;
(i)the employer’s wife was also harassed by the CID and had subsequently sold the business. The employer’s wife and children were missing and the applicant does not know their whereabouts, but has heard that she has left Sri Lanka. The applicant claimed that although he and his brother worked at the business together the applicant does not know about his brother’s experience as they are not close and do not talk about their problems;
(j)in 2013 the second and third applicant joined the applicant in India via aeroplane;
(k)the first and second applicant decided to come to Australia and in April 2013 (along with the third applicant) came to Australia via boat. The next day after boarding the boat the applicant became aware that his brother and his brother’s family were also on board the same boat;
(l)the applicant became aware that his employer had also come to Australia;
(m)the applicant claimed that the CID continued to visit his mother in Sri Lanka to threaten and harass her and had most recently visited her in early 2017; and
(n)the applicant feared that he would be abducted or killed in Sri Lanka because he is Tamil and because of his interaction with the CID. The applicant fears for the safety of his children and fears harm because he departed Sri Lanka illegally.
The second applicant’s claims can be summarised in the following way:
(a)she is a Tamil from Sri Lanka and married the first applicant in 2009;
(b)she claims that the applicant was harassed by the CID because of his employment. He was kidnapped by people in a white van and the second applicant reported this incident to the police, but no action was taken. The applicant was released three days later and shortly thereafter the CID came to their family home and tortured him and took some jewellery;
(c)the second applicant claimed that the applicant travelled to India without telling her and she reported him missing. In January 2010, CID officers came to the family home and asked of the whereabouts of the applicant, and she told them she did not know where he was. The applicant telephoned the second applicant two days later to tell her his whereabouts;
(d)in February 2010, the CID made a further visit to the family home to enquire about the first applicant, where she claims that she was threatened and sexually assaulted. She provided a detailed account of this incident in her statement of claims and reported her claims at the SHEV interview and explained later complications with her pregnancy. She did not report the assault to the police;
(e)after this incident she feared for her safety. After her child was born, she hid at the homes of friends and in the jungle to evade the CID. She contacted the second applicant and asked to join him in India. Between 2010 and 2013 the CID went to her father’s house on four occasions and beat him. The CID continues to visit the second applicant’s parents to about her and to demand money;
(f)the second applicant travelled to India in January 2013 with the third applicant, and subsequently came to Australia in April 2013; and
(g)the second applicant fears she will be harmed in Sri Lanka because of her Tamil ethnicity and because her husband was previously targeted because of his employment. She fears for her daughter’s safety as there is no safety for females in Sri Lanka.
The third and fourth applicants did not advance their own protection claims, relying instead on their membership of the family unit.
The Authority’s decision
The Authority was concerned that the first applicant’s claims were not genuine and noted overall “inconsistencies and implausibilities” (CB 368 at [27]) in his account. The Authority accepted that the applicant worked for the employer in question, and that the employer was harassed by groups who may have been the CID who were seeking money, and that the first applicant may have witnessed such an encounter. The Authority did not accept that the applicant was harassed and threatened by the CID for information. The Authority said that aspects of the applicant’s account were implausible, and did not accept that the CID abducted, detained and beat him for three days. Nor did the Authority accept that the CID came to his house after they released him, threatened him again and took his passport and possessions (CB 368 at [27]).
The Authority accepted that the first applicant travelled to India in December 2009 without his passport, having departed Sri Lanka illegally without his wife and child (CB 368 at [28]).
The Authority did not accept that the CID made a number of visits to the home of the second applicant to enquire about the applicant. As the applicant had not been involved with the LTTE or been of a concern to the authorities for any other reason, it did not accept that the CID continued to visit his mother and enquire about him. It did not accept that the applicant was harassed by the CID and that they continued to enquire about him after he departed Sri Lanka. The Authority found that the applicant fabricated these claims in an attempt to enhance his claims for protection.
In relation to the second applicant, the Authority noted that her claims to fear harm in Sri Lanka were largely based on the claims made by the first applicant, however the Authority did not accept those claims which casts further doubt on the claims made by the second applicant. The Authority did not accept that the CID continued to visit the family home, and make ongoing visits to the second applicant’s parents’ home, from January 2010 to ask the second applicant about the whereabouts of the first applicant.
The Authority was prepared to accept that the second applicant was sexually assaulted in 2010 by the CID during a visit to her home. It accepted that this incident would have been very distressing for her and that there were complications with her pregnancy, but it did not accept that the CID visit was for the purposes of asking about the whereabouts about her husband, nor that the CID later continued to ask about her.
The Authority accepted that the first applicant had scars on his body, but found that this was unlikely to attract adverse attention to the authorities. The Authority was not satisfied that this would result in a real chance of harm to the applicant, and said as follows at [46] (CB 372):
I have not accepted that the applicant was harassed by the CID and I find that he does not have a profile that would attract attention on return to Sri Lanka. Considering the country information overall I am not satisfied that he would be harmed on the basis of being a Tamil or his scars.
The Authority found there was no indication in the material before it to indicate that the first applicant’s status as a failed asylum seeker would bring him adverse attention on return to Sri Lanka. While it accepted that there were reports of mistreatment of returned asylum seekers who have an actual or imputed profile of LTTE links, the Authority found that the first applicant did not have such a profile and was not satisfied that there was a real chance the first applicant “would face any harm as a returning failed Tamil asylum seeker” (CB 373 at [56]).
In relation to the second applicant, the Authority observed that the country information did not support a finding that she “would be harmed in Sri Lanka for reason of her Tamil ethnicity” (CB 373 at [58]). The Authority found that the improved security situation in Sri Lanka mitigates against the possibility that the second applicant would come to future harm in Sri Lanka as a woman or a Tamil woman. The Authority was not satisfied that there was a real chance the applicant would be harmed or assaulted by the CID (or others) on return to Sri Lanka. It acknowledged observed that the second applicant would return to Sri Lanka as a failed asylum seeker, but noted the general improvement in the security situation it was not satisfied that there was a real chance that the applicant would face any harm on that basis.
The Authority considered the totality of the material before it and it was not satisfied that the applicants would be harmed on return to Sri Lanka for reason of being Tamil and failed asylum seekers returning on temporary travel documents. It observed that the applicants do not meet the requirements of the definition of refugee in s 5H(1) or s 36(2)(a) of the Act.
The Authority noted that the real risk test for complementary protection is the same standard as the real chance test, and observed that it was satisfied that there was not a real risk that the first applicant would face significant harm for the following reasons previously identified. The Authority concluded that there were not substantial grounds for believing that. As a necessary and foreseeable consequence of being returned from Australia to a receiving country that there was a real risk that the applicants would suffer significant harm and did not meet the s 36(2)(aa) criteria.
On 24 January 2018, the Authority affirmed the decision not to grant the applicants protections visas (CB 377).
Application to this Court
The applicants commenced these proceedings by an application to show cause filed on 2 February 2018, at which time they were unrepresented. The matter was initially docketed to another Judge of the Court (first primary Judge). On 18 May 2018, the first primary Judge made orders including for the preparation of the Court Book by the first respondent’s solicitors, litigation guardian orders for the third and fourth applicants and an opportunity for the applicants to file and serve any amended application and Affidavit evidence by 10 August 2018. The proceedings were to be listed for a final hearing before the first primary Judge on a date to be fixed administratively. The proceedings were instead later placed in the central migration docket.
The proceedings were subsequently docketed to me on 13 March 2024, on which date I made orders in Chambers listing them for final hearing and granting leave to the applicants to file and serve any amended application and any Affidavits by 10 April 2024. The parties were to file and serve written outlines of submissions and lists of authorities 14 and 7 days (respectively) before the hearing. Due to an administrative oversight, the procedural orders made on 13 March 2024 were not sent to the parties. On 28 March 2024, the parties were notified via email of the oversight and fresh procedural orders (dated 28 March 2024) (March orders) were entered. The proceedings were therefore re-listed for a final hearing before me on 13 June 2024 and I granted leave for the applicants to file and serve any amended application and any Affidavit evidence by 16 May 2024. The parties were to file and serve written outlines of submissions and list of authorities 14 and 7 days (respectively) before the hearing.
On 28 March 2024, my chambers also wrote to the solicitor for the first respondent noting that the applicants’ most recent Notice of Address for Service (filed on 31 July 2019) indicated that that the applicants’ Counsel on a direct access basis appeared to be Mr Ashok Kumar. It was the Court’s understanding that Mr Kumar was deceased. The Court asked the solicitor for the first respondent to take steps to ensure that the applicants were made aware of the March orders. On 2 April 2024, the solicitor for the first respondent emailed the Court to say that they had (emphasis in original):
…made the applicant aware that Mr Kumar was deceased (in order for the applicant to consider making alternative arrangements for legal representation) by email dated 25 September 2019.
On 3 April 2024, the Court was informed that another Counsel had accepted instructions from the applicants, again on a direct access basis.
At hearing, the parties were represented by their respective Counsel, each of whom made oral submissions in addition to those filed in advance of the hearing. I have been assisted by all the submissions made for the parties.
At the outset of the hearing, it also was brought to the Court’s attention that the third applicant had recently attained Australian Citizenship and Counsel for applicants sought to have the third applicant removed from the proceedings.[1] As noted at [2] above, that order was made.
[1] Transcript dated 13 June 2024 at T04.5 to T04.11
Grounds of review
On 13 June 2024 a proposed amended application was filed for the applicants, outside the time allowed by the March orders. At hearing, Counsel for the applicants sought leave to rely on proposed amended application. That having not been opposed by the first respondent, the Court granted leave. Accordingly, by their Amended Application, the applicants raise the following grounds (errors in original):
1.The Immigration Assessment Authority (“IAA”) found in its decision at [46] that “considering the country information overall I am not satisfied that [the first applicant] would be harmed on the basis of being a Tamil…”. There are two errors in this finding as follows:
a) First, the IAA expressly applied the wrong test. The correct test was whether the first applicant faced a real chance of harm on the basis of being a Tamil, not whether the first applicant would be harmed on the basis of being a Tamil. The IAA repeated this error at [67] when it found that it was “not satisfied that the applicants would be harmed on return to Sri Lanka for reason of being Tamil”.
b) Second, even if the Court forms the view that the IAA made a typographical error in [46], the IAA in applying the real chance test. Country information indicates that during the civil war in Sri Lanka Tamils faced a real chance of serious harm from the Sinhalese authorities on the basis of being Tamils. Further, the IAA at [42] accepted that “after the war many Tamils in the east reported being monitored, harassed, arrested and detained… under Rajapaksa Government”. The IAA then reasoned that because of significant and great “improvements” (at [43] and [44]) in the security situation since then, and “political cooperation” (at [43]) and constructive engagement by the Sirisena government with Tamil political parties (at [44]), the first applicant does not face a real chance of harm on the basis of being a Tamil. That there have been significant improvements since a period during which Tamils faced a real chance of serious harm does not mean that, at the time of the IAA’s decision in January 2018, Tamils no longer faced a real chance of serious harm.
2.The IAA at [28] accepted that the first applicant travelled to India in December 2009 without his passport, thereby departed Sri Lanka illegally and left his wife and child in Sri Lanka. Such conduct is consistent with a person fleeing from a genuine fear of harm. The IAA, although it expressly rejected at [28] the applicant’s claim that “he was concerned for his safety” and “fled to India”, the IAA did not make a finding as to why the applicant travelled to India without a passport and therefore illegally. The IAA erred in not addressing this issue. If the IAA had addressed this issue, it might have accepted, or accepted the possibility, that the applicant travelled to India because he was concerned for his safety, which in turn may have affected the IAA’s assessment of the applicant’s claimed concerning events in Sri Lanka.
Ground 1
By this ground, the applicants contend that the Authority applied the wrong test in respect of whether the first applicant faced a real chance of harm. In the alternative, the applicant says that if the Court were satisfied that the relevant part of the decision demonstrates merely an infelicitous use of language, that the Authority’s conclusion on the issue was not open to it.
That is said to be because the Authority made findings as to whether the applicants had a well-founded fear of persecution based on its factual findings that the first applicant:
(a)was a Tamil (CB 371 to 372 at [41] to [46]);
(b)departed Sri Lanka illegally (CB 372 to 373 at [47] to [55]); and
(c)had the status of a failed asylum seeker (CB 373 at [56]).
The first error is said to be that by not being satisfied that the applicant “would be harmed” on the basis of being Tamil the Authority expressly applied the wrong test because the correct test was whether the first applicant faced a real chance of harm, not whether he would be harmed, on the basis of being a Tamil. The applicants say the Authority repeated the error at [67] of its reasons and that this repetition of the language reduces the possibility that the Authority’s language at [46] was merely a “typographical error”.
Next, the applicants say that even if the Court were to form the view that the Authority made a typographic error at [46], it erred in applying the real chance test by reference to country information about Tamils facing a real chance of serious harm from Sinhalese authorities during the civil war (see CB 370 at [42] and the country information at CB 248.8).
Section 5J(1)(b) of the Act provides that a person has a well-founded fear of persecution if “there is a real chance that, if the person returned to the receiving country, the person would be persecuted” for a Convention reason (CB 379). In support of ground 1, the applicants rely on Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572 the High Court said (citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 per McHugh J:
that a real chance of persecution excluded a far-fetched possibility of persecution but that as little as a 10% chance of persecution may constitute a well-founded fear of persecution.
The applicants say that on a fair reading of the Authority’s decision (CB 370 to 372 at [41] to [46]), it reasoned that because of the improved country situation in Sri Lanka, the first applicant did not face a real chance of harm on the basis of being Tamil. The applicants contend that just because there may have been significant improvements from a time in which Tamils did face a real chance of serious harm, does not mean that at the time of the Authority’s decision Tamils no longer faced a real chance of serious harm. The applicants say the error is material, citing LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152.
The first respondent says that while it may be accepted the Authority used the expression “would be harmed” in relation to the first applicant at [46] and [67], use of that expression was not necessarily inconsistent with a proper application of the real chance test.
In relation to second part of ground 1, being the contention the Authority erred by reference to country information about improvements in the security situation, the first respondent says that this is not in fact the Authority’s reasoning process.
Consideration
It is well established that identification of jurisdictional error through scrutinising isolated findings of a decision-maker is to be avoided Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. In XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 280 FCR 535, upon which the first respondent also relied, the Full Federal Court (Perry, Banks‐Smith and Anderson JJ) found at [27] that a beneficial construction is to be adopted in construing the reasons of the decision‐maker, saying:
In this regard, it is well established that the reasons of an administrative decision‐maker “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271 –272 (Brennan CJ, Toohey, McHugh and Gummow JJ (quoting with approval Collector of Customs v Pozzolanic [1993] FCA 456; 43 FCR 280 at 287 )). As such, when it is said that such reasons should be read beneficially, ultimately this means that “a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying”: Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1044 at [14] –[15] (Allsop J (as his Honour then was)).
Undertaking a beneficial reading of the Authority’s reasons for decision, I am not satisfied that the Authority misapplied the requisite test as alleged nor, in the alternative, that its conclusions were not open to it.
Paragraphs [46] and [67] of the Authority’s decision must be read in the context of what those broader context of the Authority’s reasons, throughout which there are correct statements by the Authority, which properly recognise that its task was to consider the question of whether there was a real chance in any of the applicants having a real chance of harm by reference to s 5J of the Act. This can be seen at [40] and [45] where the Authority specifically deals with a question of risk by reference to the applicant having scars and makes reference to a real chance of harm. Further references to the s 5J tests can also be found in paragraphs [53], [54], [55], [56] and then also at [67].
The first respondent submitted that a finding that a person would not face harm might, in the appropriate context, be read as tantamount to a finding that the person is only at remote (or no real) risk of being harmed. In the context of the Authority’s findings where it rejected as fabrication the first applicant’s claims to have suffered harm in the past because he was a Tamil, and where it referred to the correct statutory test including at [45], [63], [64] and [67], the Authority’s findings at [46] and [67] should be read consistently as findings applying the real chance test. Indeed, the findings at [67] indicate that the Authority was essentially using the different expressions in an interchangeable way. I agree there was no error in so doing.
I accept the submission of the first respondent that, read as a whole, the Authority did not proceed under any misapprehension as to the question it needed to ask itself and apply. A contextual and holistic reading of the reasons also demonstrates that when addressing country information, and also the applicant’s scars, the references to the test are correct.
While the first respondent accepts there may be some laxness to the language employed by the Authority at [46], the statement is not necessarily inconsistent that the Authority would find a person would not be harmed when the correct test is one of real chance. As an aside, care should be taken in using the term “typographic errors” as a catchall phrase: see EBQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 222 at [169].
In any event, I agree that when regard is had to how that conclusion appears in the broader context, in particular following the Authority’s conclusions rejecting the first applicant’s claims to have faced harm in the past because of his ethnicity, the Authority’s conclusions at [46] that it was not satisfied the first applicant would be harmed on the basis of being a Tamil was based on both the country information, as well as its finding that he did not have a profile that would attract adverse attention if he returned to Sri Lanka. It was contended by the first respondent that it was permissible for the Authority to reason in this way and does not indicate that it misunderstood the relevant test.
Accordingly, I am not satisfied that there is an error of the kind alleged by ground 1(a).
Turning then to the second part of ground 1 the applicants say that, by its analysis of country information referable to the risk for Tamils, the Authority erred by finding that improvement in the security situation or human rights situation for Tamils in Sri Lanka (without more), equated to the absence of a real chance of harm.
However, I accept the submissions of the first respondent that, again read fairly and in context, the Authority did not analyse the information in the way alleged. Rather at [43] and [44], the Authority identified not only the information which might be against the applicants on risk, but also information which may support the risk as alleged.
At [43] the Authority said as follows (footnotes omitted):
The Human Rights Watch report published 20174 submitted by the applicant details past abuses in Sri Lanka and torture and ill-treatment conducted by the police and quotes the UN special rapporteur report that torture by the police and the CID was common. I also note the Human Rights Watch report dated 20 February 20175 critical of the government and stating it had failed to meet its pledge to curtail police abuse. This report goes on to note that the Prevention of Terrorism Act is still used to arbitrarily detain terrorism suspects and that police arrests are still being made using white vans. I accept that the applicant may be concerned that the government and its authorities are persecuting Tamils and I accept that during the civil war more Tamils were detained under emergency regulations than any other ethnic group, primarily due to LTTE members and supporters being almost entirely Tamils. I also accept that after the war many Tamils in the east reported being monitored, harassed, arrested and detained by security forces under the Rajapaksa Government.
As will be seen from the foregoing passage, the Authority commences with a consideration of sources which did not support a conclusion that Tamils were being systematically targeted and a reference to there being a decrease in the monitoring and harassment of Tamils. I accept the first respondent’s submission that monitoring or harassment may or may not equate to a person suffering a real chance of harm in the foreseeable future.
Next, at [44] the Authority accepted that:
…there continue to be reports of arbitrary detention and harm perpetrated by the security forces in Sri Lanka, particularly of Tamils...there continue to be reports of arbitrary detention and harm perpetrated by security forces, particularly of Tamils.
However, that statement must be read in the context of what follows, namely that:
The US Department of State continued to report human rights abuses in 2015 and noted cases of harassment, arbitrary arrest, detention and torture of civil society activists, journalists, and LTTE sympathisers.
Based on the material before it, the Authority acknowledged reports of certain kinds of harm affecting particular categories of person (which presumably included Tamils). This became relevant later when the Authority found the applicant did not have a profile of interest. I accept the submissions of the first respondent that the Authority focused on analysing the import of the country information and applying that to the applicant’s own profile. The DFAT report in question said that improvement in the security situation had resulted in a decrease in Tamils held in detention. The DFAT report also record that torture in Sri Lanka (perpetrated by either the military, intelligence or police forces) is not presently systemic, which again, supported the information the Authority had which indicated that the particular harm in question was not systemically applied against Tamils but rather, against certain individuals who attracted attention by for reason of their own particular profiles. So understood, and having regard to the conclusions which follow at [46] that the applicant was not harassed by the CID nor did he have a profile which would attract attention on return to Sri Lanka, it is clear that the Authority did not discount a risk of harm to the applicant from the country information simply because the information said the security situation in Sri Lanka was improving.
To the extent that the applicant relies on Guo (supra), I accept that the task of the decision maker is not to engage in any form of calculus as to the percentage risk, but instead to focus upon whether the risk is a real chance, namely one which excludes a far-fetched possibility of persecution. I am satisfied that the Authority’s analysis in this case acknowledged there were particular risks in Sri Lanka for some individuals and some Tamils, but that these related to certain situations and certain individuals with certain profiles which the applicant did not have. The Authority engaged in a proper analysis and having done so, did not accept that the applicant’s claims of past harm had, in fact, occurred at all.
The error alleged by ground 1(b) is also not established and, accordingly, ground 1 does not demonstrate error.
Ground 2
By ground 2, the applicants take aim at [28] of the Authority’s decision. It therefore warrants being set out in full:
I accept that the applicant travelled to India in December 2009 and, while I do not accept that his passport was taken from him by the CID, I am willing to accept that he did not use his passport to travel to India and that he departed Sri Lanka illegally. However I do not accept that he left Sri Lanka because he was being harassed by the CID and because he was concerned about his safety. As I have not accepted the applicant “fled to India” I do accept that he did not tell his wife he was leaving Sri Lanka and that she subsequently reported him as missing to the police.
The applicants say that the first applicant’s conduct is consistent with a person fleeing from a genuine fear of harm. The applicants say that the Authority expressly rejected the first applicant’s claim that he was “concerned for his safety” and “fled to India” and erred by not addressing the question as to why the first applicant travelled to India illegally and without a passport. The applicants say that the finding breached the Authority’s statutory obligation in s 473EA(1) of the Act to give reasons for its decision and rely on Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69] in which it was say that a Court may:
…infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution…
The applicants contend that the failure to analyse the reason/s for first applicant’s travel to India was material because the conduct, in the absence of an alternative explanation strongly suggests he feared harm in Sri Lanka in December 2009. The applicants submit that, by not addressing the applicant’s motivation, the Authority’s findings at [28] involved a rejection of the first applicant’s claims which lacked an evidence and intelligible justification in circumstances where a natural and compelling inference arising from the first applicant’s conduct in travelling to India without a passport is that he was concerned for his safety. It was submitted that the Authority’s error was material because, if the Authority had addressed the question of the motivation of the applicant’s travel, this might have caused the Authority to accept other aspects of his claims.
The first respondent says that, as a general proposition, it is unnecessary as a jurisdictional requirement of the decision-making of the Authority for it to address, or express findings about, every matter raised in an applicant’s claims for protection. That is said to be because resolving every factual contention advanced may not be material to the decision-maker’s decision. The first respondent contends that such is the case here. It was submitted that it was unnecessary considering the Authority’s rejection of the claim that the applicant was targeted by the CID to deal expressly with the question of why in fact he decided to leave. The fact that the first applicant was found to have departed Sri Lanka for India without his passport was not proof he was at risk of harm or had a fear of harm. The first respondent says that the real question was whether the Authority was satisfied the applicant left for India because of a risk of harm arising from the events he claimed had occurred. The Authority considered that question and rejected those claims. Accordingly, the Authority found that the first applicant did not depart Sri Lanka for that reason and that, the first respondent submits, was a logical and rational course of reasoning.
It is also argued that it was unnecessary for the Authority to speculate about the first applicant’s true reasons for leaving Sri Lanka for India in the way that he did. The critical point it had to consider was whether he departed in that way because he was escaping harm as he claimed. The first respondent contends that as the Authority rejected the reasons proffered for that departure, that was the end of the matter.
Consideration
In essence, the applicants say there was a material question of fact that the Authority needed to consider, namely why the applicant left Sri Lanka for India without his passport and in an illegal way, and that it failed to do so. The first respondent says that the Authority was not required to ask itself the question, but rather that it needed to ask itself whether the applicant faced a real chance of harm if he returned to Sri Lanka. The first respondent says that the applicant’s claim of having departed Sri Lanka for India without his passport was not itself a claim of harm. Rather, it is contended to be an alleged consequence of the claimed harm.
In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (Applicant WAEE) the Full Court of the Federal Court said the following at [47] per French, Sackville and Hely JJ:
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.
In the present case the applicant said he had been apprehended by the CID, harassed (as had is family), tortured and threatened. At [17] to [26] of its reasons the Authority dealt with those claims in detail and rejected them. So understood, it is the case that the fundamental basis for the applicant’s claim to have departed Sri Lanka for India for a particular reason, was also rejected. It was entirely a matter of fact finding within the Authority’s remit to determine.
I accept the submissions of the first respondent that, if it were the case that there was no other possible explanation for the applicant having departed Sri Lanka in 2009, ground 2 might have more force. The Authority was required to ask itself whether the applicant’s departure was motivated by the reasons claimed, namely that certain events had occurred at the hands of the individuals whom he suspected were from the CID. I accept the first respondent’s submissions that the Authority did ask itself that question and gave detailed reasons for its conclusions. Applying Applicant WAEE, I am satisfied that pursuing the line of inquiry now contended for by the applicant was not in error and that having rejected the foundation of the applicant’s claimed, it became unnecessary to ask itself the questions about the applicant’s departure because this part of a claim had been subsumed in other findings made by the Authority.
Accordingly, ground 2 is also not made out.
CONCLUSION
I am satisfied that the decision of the Authority is not affected by error as alleged, or in fact at all. The decision is therefore a privative clause decision, and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 12 May 2025
SCHEDULE OF PARTIES
SYG 275 of 2018 Applicants
Fourth Applicant:
AMY18
0
12
1