ANA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1651
•23 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
ANA17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1651
File number(s): MLG 260 of 2017 Judgment of: JUDGE BLAKE Date of judgment: 23 July 2021 Catchwords: MIGRATION – Immigration Assessment Authority - Safe Haven Enterprise (subclass 790) visa – whether the Immigration Assessment Authority failed to consider the Applicant’s claim to fear harm – whether the Immigration Assessment Authority failed to consider the Applicant’s claim that there would be a renewed adverse interest in the Applicant and the Applicant’s family – whether the Immigration Assessment Authority failed to consider the Applicant’s claim that the Applicant would be mistreated by prison authorities – no jurisdictional error – Application dismissed. Legislation: Migration Act 1958 ss 36(2)(a), 36(2)(aa) Cases cited: SZSSC v Minister for Immigration and Border Protection [2014] FCA 863 Number of paragraphs: 57 Date of hearing: 26 May 2021 Place: Melbourne Counsel for the Applicant: Ms Grinberg Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondents: Mr Knowles Solicitor for the Respondents: Mills Oakley ORDERS
MLG 260 of 2017 BETWEEN: ANA17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
23 JULY 2021
THE COURT ORDERS THAT:
1.The Application filed on 9 February 2017 be dismissed.
2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $7,467.
REASONS FOR JUDGMENT
JUDGE BLAKE:
INTRODUCTION
This is an application for review of a decision made by the Immigration Assessment Authority ('Authority') on 31 January 2017. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the Applicant a Safe Haven Enterprise (subclass 790) visa ('visa').
For the reasons that follow, I have decided to dismiss the application for review.
BACKGROUND
The Applicant is a Sri Lankan national. The Applicant arrived in Australia on 26 August 2012 as an unauthorised maritime arrival. He applied for the visa on 19 November 2015.
On 31 August 2016, a delegate of the Minister ('delegate') refused to grant the Applicant the visa.
On 6 September 2016, the delegate's decision to refuse the Applicant the visa was referred to the Authority for review. Submissions were submitted by the Applicant's former legal representative on 26 September 2016.
On 31 January 2017, the Authority affirmed the decision not to grant the Applicant the visa.
The Applicant commenced proceedings in this Court by filing an Application for review and affidavit in support on 9 February 2017. An Amended Application for Review ('Application') was filed on 10 May 2021. The Applicant also relied on an affidavit filed by Gregory Hanson on 11 May 2021 and a written outline of submissions. The Minister filed a Court Book and a written outline of submissions.
This matter was heard before me together with proceeding MLG 261 of 2017. There is some degree of overlap between the claims for protection advanced by the applicant in that proceeding, and the Applicant in this proceeding, the applicants being related. Further, Grounds 2 and 3 in the Amended Application before me are substantially similar Grounds 2 and 3 of the Amended Application in MLG 261 of 2017. During the hearing, both counsel made submissions on Grounds 2 and 3 on the basis that these were common grounds of review as between the applications. The written submissions filed in each matter in respect of Ground 2 and 3 are largely identical, except for some minor matters of syntax; and an additional subparagraph to Ground 3 in the Amended Application currently before me in the present matter.
THE APPLICANT’S CLAIMS
The Applicant’s claims for protection were summarised by the Authority at paragraph [9] of its reasons as follows:
•He fears serious harm on return to Sri Lankan because of:
•his Tamil race;
•his real or imputed political opinion of being opposed to the Sri Lankan Government and/or being suspected of being a Liberation Tigers of Tamil Eelam (LTTE) supporter or sympathiser for the combined reasons of his Tamil race; being from a former LTTE controlled area; his father's detention, mistreatment and imprisonment on the grounds of being suspected of assisting the LTTE in 1997; his evidence to the International Truth and Justice Project (ITJP) about his abduction by the Karuna Group including a Sinhalese member of the security forces; and being returned as a failed asylum seeker who left Sri Lanka illegally;
•his being a member of a particular social group, namely being perceived as wealthy or a wealthy jeweller; and
•his being a Tamil failed asylum seeker from the Eastern Province of Sri Lanka.
APPLICABLE PRINCIPLES
There was not any dispute between the parties as to the general principles that I am required to apply on an application for judicial review of this kind. Those principles were conveniently set out in paragraphs [26]-[28] of the Minister's written submissions and are reproduced below (citations omitted):
26.It is well settled that an administrative decision, such as the Authority’s decision, must be read fairly and as a whole and must not be “construed with an eye keenly attuned to the perception of error”. It is not the role of the Court, when exercising judicial power, to review the merits of an administrative decision.
27.It is also well established that a body such as the Authority must consider the case articulated by the visa applicant as well as any unarticulated claim raised clearly or squarely on the material before it.
28.It does not follow, however, that the Authority is obliged to refer to every submission or piece of evidence before it. The obligation to give reasons does not require a line-by-line refutation of evidence contrary to material findings of fact. It may also be unnecessary to make a finding about a particular issue 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.
While there was not any dispute as to the principles above, each party emphasised different aspects of them. This arose particularly in respect of ground two of the grounds of review, and I address that issue later in these reasons.
THE APPLICATION
There are three grounds of review in the Amended Application. I propose to consider Grounds 2 and 3, before coming to consider Ground 1.
Ground 2
The second ground of review in the Application is:
The IAA erred by failing to consider and deal with a substantial, clearly articulated claim made by the applicant in relation to why the Karuna group would renew their interest in him and his father upon return to Sri Lanka.
Particulars
a) In response to issues raised by the delegate of the first respondent, the applicant claimed that the Karuna would renew their interest in him and his father if they returned to Sri Lanka because it will become known that they have returned from Australia and they will be perceived as being even wealthier than before.
b) It was also submitted the Karuna group would seek to punish them for avoiding paying the outstanding ransom money.
c) It was also submitted that the Karuna group stopped pursuing the applicant’s family in Sri Lanka because it became known that the applicant and his father had left, and the remaining family did not have money to extort.
d) The IAA failed to consider these submissions.
The Authority accepted a number of the Applicant's claims in relation to the Karuna Group at paragraphs [24]-[26] of its reasons as follows:
24.I accept that on the morning of 14 April 2012 he visited a temple in Colombo and when he was leaving he was kidnapped by the Karuna Group; he was kept in a single room, tied to a chair for most of his captivity, his captors were S and B and he was beaten and cut at various times, usually by S; he was held for six days before a demand for a ransom of 25 lakhs was made by his kidnappers in a telephone call to his father; in a subsequent call his father negotiated to pay 15 lakhs for his release with the other 10 lakhs to be paid in two to three months; six or seven days after the first phone call to his father he was released at a lodge in Colombo after his father paid the money; that he and his father immediately returned home to Batticaloa, stopping at Batticaloa hospital for a few hours to obtain treatment for the applicant in the form of pain killers, medication and dressings; and that it was three weeks or so before the applicant was fully recovered from his treatment during the kidnapping.
25.I accept that the applicant returned to Colombo two days after his release to report his abduction to the police station near the temple he was abducted from; that the police promised to contact him in two days but he never heard from the police; that three weeks after his release he identified B as a CID officer after an article appeared in a Sinhala newspaper and a similar article appeared in a Tamil newspaper later on 2 June 2012; that about a month after he saw the article in the Sinhala newspaper he attended the ITJP enquiry in Colombo with his father’s friend K, who was to give evidence about the disappearance of his own brother, and the applicant gave evidence about his abduction in April 2012 and a copy of the Sinhala newspaper article about B; he received a copy of the ITJP’s report on the enquiry in the post; and he did not tell his father about giving evidence to the ITJP until after they arrived in Australia.
26.I accept that a few days after he got back from the ITJP enquiry some men from the Karuna Group came to his family home and threatened his father about the outstanding ransom money; that Karuna Group men harassed and threatened his father about the money both over the phone and in person; that his father told the Karuna Group men that he needed more time; that because they were afraid of the Karuna Group he and his father fled Sri Lanka on 7 August 2012; that after he and his father left Sri Lanka his mother and siblings stayed at night at relatives’ houses for a year or so; and that a month or so after they left Sri Lanka, neighbours told his mother that Karuna Group men visited his family’s house and killed their dog while yelling out that they would kill them if they didn’t pay and those men came back looking for them a few times.
The Authority also accepted at [45] of its reasons that the Applicant and his family may be perceived in Sri Lanka as possessing wealth.
While the Authority made the findings above, it ultimately concluded at paragraphs [47]-[49] that the chance that the Applicant will experience any harm from the Karuna Group if he returned to Sri Lanka now or in the reasonably foreseeable future was remote.
47.The Karuna Group released the applicant in late April 2012 after his father made a payment of 15 lakhs and promised to pay a further 10 lakhs within two to three months. In the three or so months that the applicant and his father remained in Sri Lanka, the Karuna Group made some threatening calls and visits to remind his father that they wanted the balance of 10 lakhs paid, but, unlike the incident in 2005, made no effort to take the payment in goods from the shop. Shortly after they left Sri Lanka the Karuna Group made a few unsuccessful visits to the family’s house at night looking for them and, on the first visit killed their dog and shouted threats at their empty house. The evidence does not suggest the Karuna Group made any effort to take goods or other property from the empty family home on any of these night time visits or that after these initial night time visits the Karuna Group made any further efforts to obtain the remaining ransom money, including making visits to the family during the day when they were home or making phone calls. I am satisfied that the Karuna Group made only a minimal effort to obtain the balance of the ransom money from the applicant’s father and family in the period immediately after receiving the original payment of 15 lakhs and soon lost interest in the matter.
48.Given the Karuna Group’s limited follow up actions around the time of their departure from Sri Lanka and that more than four years have passed without any further incidents or follow up, I am not satisfied that the Karuna Group would have any adverse interest in the applicant or his father because of the unpaid 10 lakhs. Additionally, as DFAT assesses there has been a considerable reduction in kidnapping for ransom since the war, that there is no mention of such activity by the Karuna Group in 2014 in the USDOS report and that more than four years have passed without any renewed interest by the Karuna Group in the applicant, his father or their family, I am not satisfied that there is a real chance that the applicant or his family will face any new attempts from the Karuna Group due to his father’s or his family’s perceived wealth, if he returned to Sri Lanka, now or in the reasonably foreseeable future.
49.As such, I am satisfied that the chance that the applicant will experience any harm from the Karuna Group, if he returned to Sri Lanka, now or in the reasonably foreseeable future is remote.
The Applicant complains that the approach of the Authority recorded above was deficient because the Authority failed to consider a claim he advanced. The claim advanced by the Applicant is set out in the Transcript of the delegate's interview with the Applicant on 9 February 2016 (‘Transcript’) at page 35, lines 17 -24 as follows:
[INTERVIEWER]: Why can’t you be safe there when your family, especially your brother, is living there safely?
THE INTERPRETER: Because, you know, they – for a year almost they were not living in the same house in the nights mostly and then they went back and now they don’t have money. They’re not letting the place, but if we go back then they will come to attention and they will start asking for – asking for money from us.
In addition to the transcript, the Applicant points to the Applicant's written submissions provided to the delegate after the interview which are as follows (Court Book 250):
We note their evidence, further to your questions about why the threats have stopped, that Karuna would likely have discovered after some time that [X] was no longer in the area running a jewellery business and would have stopped bothering the wife and younger children given they knew there would be no money to extort.
Further, the following was also submitted (Court Book 254):
We submit that our clients fled without paying the full ransom and that on return, the Karuna Group will seek the outstanding monies but to also punish them for avoiding payment despite striking an agreement for the release of [Y]. We submit that when it is discovered that they are returning from Australia, they will be perceived as being even wealthier than when [X] was working as a jeweller.
The Applicant submits that the error committed by the Authority in this matter is similar to the error identified by Griffiths J in SZSSC v Minister for Immigration and Border Protection [2014] FCA 863. In that matter, Griffiths J after setting out the obligation of the Tribunal at paragraph [81], the issue before the Court at [82], and the need to bear in mind other relevant principles at [83], identified at [86] a number of matters going to why the Tribunal in that matter did not comprehensively entertain all of the submissions on an important topic.
The Applicant's submissions in essence are that the Authority has failed to deal with aspects of the evidence going to why it is the Karuna Group may have lost interest in the Applicant and why the Karuna Group continue to present a risk to the Applicant. I have considered the Applicant's submissions. On balance I am not persuaded that the Authority failed to consider and deal with the claim by the Applicant that the Karuna Group would renew their interest in him on his return.
First, the acceptance by the Authority at [45] that the Applicant may be perceived as wealthy in Sri Lanka is demonstrative of direct engagement by the Authority of the matters the Applicant claims were not considered.
Second, as can be seen from paragraphs [47]-[48] of the reasons which I have set out above, the Authority recorded various reasons as to why it considered the Applicant would not be subject to renewed interest from the Karuna Group. Among other things, the Authority:
(a)noted that the Karuna Group had not made any attempt to take goods or property from the empty family home;
(b)noted that the Karuna Group had not made any further effort to obtain the remaining ransom money, including by making visits to the family home during the day when the family might have been home;
(c)concluded that the Karuna group had made a minimal effort to obtain the balance of the ransom money from the Applicant and his family in the period immediately after receiving the original payment and soon lost interest in the matter;
(d)noted that there had been limited follow-up actions by the Karuna Group from around the time of the Applicant's departure from Sri Lanka;
(e)observed that 'more than four years have passed without any further incidents of follow-up';
(f)concluded that as a result of the above, it could not be satisfied that the Karuna Group would have any adverse interest in the Applicant because of the unpaid ransom; and
(g)finally, observed that Country Information assessed that there had been a considerable reduction in kidnapping and ransom since the war.
A number of additional observations may be made about what is set out above. First, the findings by the Authority as to the Karuna Group losing interest in the Applicant demonstrates the Authority had regard to evidence concerning whether the Karuna Group would continue to have an interest in the Applicant and his family. Second, the findings to the effect that the Karuna Group had lost interest in the Applicant were findings that were open to the Authority to make. Third, the Authority has clearly had regard to other matters in reaching its views about the risks posed by the Karuna Group. That includes the passage of time, and also the availability of Country information. That information was used by the Authority to underpin its findings that the Karuna Group did not pose any ongoing threat to the Applicant.
In my view, the findings and observations of the Authority deal with and address the Applicant's claims, including the claim that the Applicant says was not considered by the Authority under this ground of review.
For all of the above reasons, I dismiss Ground 2 of the grounds of review.
Ground 3
The third ground of review in the Application is:
The IAA erred by failing to consider a claim made by the applicant that he would be targeted by the prison authorities for severe mistreatment, punishment and torture on account of his adverse profile:
Particulars
a) The applicant expressly claimed to fear harm in prison, not only from the conditions he would be held in, but also because he would be targeted by the prison authorities for severe mistreatment, punishment, and torture on account of his adverse profile.
b) The IAA accepted that the applicant may be held in prison if returned to Sri Lanka and considered whether the ‘brief period’ of detention would amount to serious harm to the applicant having regard to the poor prison conditions.
c) However, the IAA failed to consider the applicant’s claim that he faced a real chance of serious harm, in addition to the poor conditions in prison, because he would be targeted by the prison authorities for severe mistreatment, punishment and torture on account of his adverse profile.
The Authority dealt with the risks the Applicant may face on return to Sri Lanka by the Sri Lankan authorities. Among other things:
(a)the Authority accepted that on return to Sri Lanka, the Applicant would be considered by the authorities to be a failed asylum seeker who departed Sri Lanka illegally: at [58] of the reasons;
(b)the Authority considered the Constitution of Sri Lanka, legislation in Sri Lanka, Country Information and advice from the Department of Foreign Affairs and Trade (‘DFAT’) in respect of the treatment of returnees to Sri Lanka by various Sri Lankan authorities: at [59]-[65] of the reasons;
(c)the Authority found the Sri Lankan authorities have shown no interest in the Applicant since he departed Sri Lanka, and also the Authority did not accept that the Applicant will be at risk of adverse attention from the Sri Lankan authorities when scrutinised on arrival: at [65] of the reasons;
(d)the Authority did not accept there is a real chance the Applicant would face harm on his return as a failed Tamil asylum seeker despite the fact Country Information confirmed the Applicant was likely to be detained: at [66] of the reasons;
(e)the Authority accepted that the Applicant could be held in a nearby prison for a short period of time on his return: at [67];
(f)the Authority found that the Applicant may be detained and questioned at the airport for up to 24 hours, may face a fine and may face a short period being held in prison: at [68];
(g)the Authority was satisfied that the Applicant would face only a brief period of detention and did not consider that such a brief period would constitute the necessary level of threat to life or liberty or otherwise amount to serious harm for the Applicant: at [70];
(h)the Authority considered separately, together or cumulatively whether a brief period of detention, questioning of the Applicant, the imposition of surety and the imposition of fines would amount to serious harm, and did not consider it to be the case: at [71];
(i)the Authority was not satisfied that the Applicant faced a real chance of persecution on the basis of being a failed Tamil asylum seeker who departed Sri Lanka illegally, now or in the reasonably foreseeable future: at [73];
(j)the Authority accepted that the Applicant may be subjected to questioning, arrest, fingerprinting and being photographed on his arrival at the airport. It considered Country Information relating to prison conditions and in light of this information and other information, concluded that it was not satisfied that the Applicant will face a real risk of significant harm during any processing at the airport, from any brief period of detention, any bail surety or any fine imposed: at [81];
(k)the Authority, inter alia, did not accept there is a real risk that the Applicant would face being arbitrarily deprived of life or tortured for any reason as a returned Tamil failed asylum seeker: at [82].
The claim which the Applicant submits was not considered by the Authority is contained within post interview submissions made to the delegate on 25 February 2016 at Court Book 257 as follows:
We also submit that if our clients are held in remand, detained and/or imprisoned, apart from the deplorable prison conditions they would encounter, they would, given their cumulative adverse profiles, be targeted by the prison authorities for severe mistreatment, punishment and torture (including of a sexual nature) and that such mistreatment would be specifically targeted against them because of their cumulative adverse profiles.
As can be seen from the extract above and the ground of review, the Applicant advances this ground upon a factual premise or assumption. That premise or assumption is that the Applicant had or has an 'adverse profile'. It is therefore necessary to consider what the Authority found in relation to the profile of the Applicant.
The first matter to note is what the Authority set out at paragraph [43] of its reasons. The Authority addresses there in some detail a number of the Applicant’s claims, and the circumstances of the Applicant, and makes a finding about the profile of the Applicant based on eight separate factors considered to that point. Paragraph [43] of the reasons is as follows:
43.Having regard to the UNHCR guidelines and the other information before me, I do not consider the applicant to be at risk of harm now or in the reasonably foreseeable future for a number of reasons. First, on the evidence residing in a LTTE controlled area of itself does not give rise to a need for protection. Secondly, although his father was imprisoned for a few months in 1997 to 1998 as a suspected LTTE sympathiser or supporter, his father was not subsequently arrested, detained or questioned by the Sri Lankan authorities at any time after 1998. Thirdly, the applicant was never arrested, detained or questioned by the Sri Lankan authorities in relation to any suspected LTTE connections or for any other reason. Fourthly, although the applicant and his family were held in an IDP camp for a period from 2007, it was due to displacement caused by the war and the applicant does not claim he was questioned or mistreated during that time. Fifthly, although B, a CID officer, was one of his captors in his April 2012 kidnapping, I am satisfied that the kidnapping was for the purpose of obtaining a ransom, as the applicant was only questioned about his father’s phone number by S and B, and not asked about LTTE connections or anything else during his 12 to 13 days of captivity. Sixthly, the Sri Lankan authorities have not approached the applicant’s family about his or his father’s whereabouts or otherwise enquired after the applicant or his father since they left Sri Lanka in August 2012. I am not satisfied that the former Sri Lankan authorities would have had any adverse interest in the applicant, or his father, if he had remained in Sri Lanka or that he, or his father, would be of any adverse interest to the current Sri Lankan authorities on return. Given the above factors, and the country information, I consider any risk of harm to the applicant from the authorities based on his profile, including as a young Tamil male from the east, and/or as his father’s son, to be remote.
The next aspect of the reasons of the Authority is what is set out at paragraph [52]-[53] of the reasons. In those paragraphs, the Authority finds, inter alia, that the Applicant has not claimed that he or any of his family have received adverse attention from the Karuna Group, B, the Sri Lankan authorities or anyone else because he gave evidence to the International Truth and Justice Project (‘ITJP’). The Authority makes a finding that it is not satisfied that there is a real chance that the Applicant would face harm because he gave evidence to the ITJP inquiry either now or in the foreseeable future.
Consideration of the Applicant and his particular circumstances by the Authority next occurs at paragraph [56] of the Authority's reasons. The Authority commences that paragraph by noting that 'The applicant's evidence is that he was not connected to the LTTE or involved in politics in Sri Lanka and that he was not involved in any LTTE activities in Australia'. The Authority then states that it is not satisfied that attending one 'Heroes day celebration in Brisbane in 2013 would result in the Sri Lankan authorities viewing the applicant as a high profile leader of a pro-LTTE diaspora group or in any other way increasing his risk profile which, as discussed above, is that of a person who was not of adverse interest to the Sri Lankan authorities'.
Further findings are made by the Authority in relation to the Applicant's circumstances and his profile at paragraph [65] of the reasons. This paragraph commences with the Authority accepting that the Applicant 'will be considered a failed asylum seeker on his return'. The Authority then refers to DFAT notes and Country information. It then states as follows:
I accept that an asylum seeker with actual or perceived links to the LTTE may be at risk of harm when processed at the airport. However, as discussed above, notwithstanding his father’s imprisonment as a suspected LTTE sympathiser or supporter in 1997 and 1998, his and his family’s former residence in a LTTE controlled area, and B’s involvement in his kidnapping, the applicant was not of any interest to the former Sri Lanka authorities at the time he left Sri Lanka and the authorities have shown no interest in him since he departed Sri Lanka. Taking into account those findings and the country information, I do not accept that the applicant will be at risk of adverse attention from the Sri Lankan authorities when scrutinised on arrival in Sri Lanka.
The gravamen of the Applicant's complaint under this ground is that the claim he raised expressly has not been dealt with by the Authority when it came to assess the application of the refugee criterion in section 36(2)(a) of the Migration Act 1958 (Cth) (‘Act’) and the complementary protection criterion in section 36(2)(aa) of the Act to him. I am unable to accept the Applicant's submissions. First, as I have noted above, the Authority gave detailed consideration to the risk the Applicant may face from the Sri Lankan authorities (including prison authorities) on his return. Second, and significantly, the Applicant's contention is that he will be targeted for mistreatment by the Sri Lankan authorities because of his 'adverse profile'. However, as I have noted above, the Authority found the Applicant did not have a profile that would attract adverse attention of the authorities. The Authority made extensive and thorough findings that the Applicant did not have an adverse profile that would attract the attention of prison authorities on his return to Sri Lanka. Any findings by the Authority as to the risk the Applicant may face on return to Sri Lanka from the prison authorities need to be considered in light of the findings the Authority made about the Applicant's profile.
When all of these matters are considered, it was open to the Authority to conclude that it was not satisfied that there was a real chance of the Applicant being exposed to torture or other intentional harm from prison authorities during any brief period of detention.
In my view, the Applicant has not satisfied the Court that the Authority committed jurisdictional error in respect of this ground of review, and therefore it should be dismissed.
Ground 1
The first ground of review in the Application is:
The Immigration Assessment Authority (IAA) erred by failing to consider the applicant’s claim to fear harm when questioned on return to Sri Lanka due to his reporting of his kidnapping to police, and evidence given by the applicant to the International Truth and Justice Project (ITJP) identifying the police officer from the Criminal Investigation Department (CID) involved in the kidnapping:
Particulars
a. The IAA accepted the applicant’s claim that prior to leaving Sri Lanka he had been kidnapped, beaten, and held for ransom by two men. One of those men was an officer in the CID.
b. The IAA also accepted that the applicant reported this incident to police and sometime later gave evidence at the International Truth & Justice Project (ITJP) in Sri Lanka where the applicant identified the CID officer to the ITJP by providing a newspaper article that included a photo of him.
c. A significant aspect of the applicant’s fear of harm if returned to Sri Lanka was that he would be interviewed by the CID on return to Sri Lanka and it would become known that the CID officer was involved in his kidnapping and that he gave evidence of this to the ITJP.
d. The IAA incorrectly stated that the applicant had not claimed that the Sri Lankan authorities had ever questioned, arrested, or detained him for any reason.
e. The IAA failed to understand and consider the applicant’s claim to fear harm when questioned by the CID upon return to Sri Lanka due to his reporting of the kidnapping to police and the evidence he gave to the ITJP identifying the CID officer.
During the interview with the delegate, the Applicant was asked why he feared going back to Sri Lanka now. At page 33 of the Transcript, the following is recorded:
[INTERVIEWER]: Okay. Why do you fear going back to Sri Lanka now?
THE INTERPRETER: Firstly, I – when I left Sri Lanka illegally, I don’t know what’s – what they’re going to do to me. So when they still – they have the special law. They can – they can hold someone in prison for two years. My – from what I gather or learn from the attorneys, that the attorneys are first – you know, after immigration they are detained by the – questioned by the CID and then detained and then usually their questioning ends in violence. Then they’re released in the courts and the court will ask, “Why did you leave?” And the CID asks then you have to tell the truth and I have to say that this [B] was involved with my – my – my kidnapping and then in my ransom. Then even though I – and the fact that I went to the International Justice and Truth Commission and report it even if I don’t say they will – it’s – they will beat me and they can make me say everything and they will then – they will be unhappy that I went against the authorities, so I’m scared of the authorities
Further, the following exchange is recorded on page 35 of the Transcript:
[INTERVIEWER]: Are there any other reasons that you fear returning to Sri Lanka?
THE INTERPRETER: The main reasons are that because I went and gave witness at the – the – the Commission and then I went to the police and that, you know, the people who abducted me are still there. They are – you know, I fear – I fear them and I – I fear that I may be tortured again and – and there’s several reasons. Well, you know, the government has changed there is no news to say that the abductions has completely stopped and there is no atrocities committed to people and no more violence. It’s still going on against the Tamil people.
Against the background set out above, the Authority stated at paragraph [28] of its reasons as follows:
The applicant has not claimed that the Sri Lankan authorities have ever questioned, arrested or detained him for any reason, including his father’s imprisonment in 1997, or made any enquiries about him or his father after they left Sri Lanka for Australia. In the absence of any evidence to the contrary, I accept that the applicant has never been questioned, arrested or detained by the Sri Lankan authorities and that there have been no enquiries by the Sri Lankan authorities about the applicant or his father since they left Sri Lanka in August 2012. Similarly, in the absence of any evidence to the contrary, I accept that the Karuna Group has not attempted to contact the applicant’s family in Sri Lanka, other than those incidents reported by his neighbours to his mother in the period shortly after they fled Sri Lanka, after they left Sri Lanka in August 2012.
The Applicant contends that the Authority at paragraph [28] mischaracterised the Applicant's claim. The Applicant submits that the Authority fell into error in stating that 'the applicant has not claimed that the Sri Lankan authorities had ever questioned, arrested or detained him for any reason' when one has regard to the claims he made at the interview with the delegate set out above. The Applicant submits that as a result of this mischaracterisation, the Authority failed to consider the risks the Applicant faced were he to be questioned by CID officers on return to Sri Lanka. Indeed, the Applicant submits that when the Authority turns to deal with the treatment of the Applicant on return to Sri Lanka in paragraph [58]-[73] of its reasons, the Authority does not refer to the Applicant having reported the kidnapping to police or identifying the CID officer to the ITJP inquiry. The clear inference, it is submitted that is to be drawn from the above, is that the Authority has failed to properly characterise and consider the Applicant's claims to fear harm from the CID officers when questioned on return to Sri Lanka.
The first matter to consider in respect of the submissions above is whether the Authority has incorrectly stated or otherwise mischaracterised the Applicant's claims.
When the entirety of the reasons of the Authority are considered in context, I am satisfied that the Authority has not mischaracterised the Applicant's claims and did not overlook the fact that a CID officer was involved in the kidnapping of the Applicant. I have come to this view for the following reasons.
First, at various places throughout its reasons, the Authority acknowledges the involvement of the CID officer in the abduction of the Applicant. At paragraph [24], the Authority accepted that the Applicant had been kidnapped, was kept in a single room, tied to a chair for most of his captivity and that his captors were 'S' and 'B'. It is apparent from what follows in paragraph [25] of the reasons of the Tribunal that 'B' was the relevant CID officer. These findings by the Authority about the involvement of the CID officer in the kidnapping of the Applicant are made 2- 3 paragraphs prior to the statements contained in paragraph [28] of the reasons. Further, at paragraph [43] of the reasons, when assessing the profile of the Applicant, the Authority records that 'although B, a CID officer, was one of his captors in his April 2012 kidnapping, I am satisfied that the kidnapping was for the purpose of obtaining a ransom'.
Second, in paragraph [52] of the reasons, the Tribunal recorded that 'the applicant has not claimed that he or any of his family received any adverse attention from the Karuna Group, B, the Sri Lankan authorities or anyone else because he gave evidence to the ITPJ enquiry'.
Third and significantly, having regard to the matters that preceded it, the Authority found at paragraph [53] of its reasons as follows: 'Given this, together with the passage of time since he gave his evidence to the ITPJ, I am not satisfied there is be (sic) a real chance that the applicant would face harm, because he gave evidence to the ITJP enquiry, including his identifying B, if he returned to Sri Lanka, now or in the reasonably foreseeable future'.
In light of these matters, I consider that the Authority has not mischaracterised or otherwise restricted, overlooked or misunderstood the Applicant's claim of past harm as being limited to the Karuna Group. The Authority was clearly aware of the involvement of a CID officer in the abduction of the Applicant and said so at various points throughout the reasons. To the extent that paragraph [28] of the reasons of the Authority refers to the 'Sri Lankan authorities', in my view that should be regarded as a reference to the proper activities of those authorities, and not to a single officer who the Authority was satisfied (along with others) was pursuing a ransom. The inference to be drawn from this is that the Authority was clearly aware of the involvement of the CID officer in the kidnapping of the Applicant when it expressed the view it did at paragraph [28] the reasons.
The other and more significant aspect of this ground of review is the claim by the Applicant that the Authority failed to consider his claim to fear harm on return to Sri Lanka when questioned due to the reporting of his kidnapping to the police, and the evidence he gave to the ITJP. In support of this submission, the Applicant contends as follows. First, while the Authority refers to 'B's involvement in the kidnapping' at [65], the Authority does not refer to the Applicant having reported the kidnapping to the police and giving evidence against the CID officer to the ITJP. Second, the error identified is not remedied having regard to the Authority's findings in relation to the Applicant's evidence to the ITJP recorded paragraphs [50]-[53] of the reasons. It is submitted that nowhere in the reasons does the Authority address the risk raised by the Applicant, and potentially to be faced by him, when he is questioned by the CID authorities on his return.
I have considered closely the submissions by the Applicant. Ultimately, however, I am not persuaded by the Applicant’s submissions.
First, as I have noted above, the Authority was plainly aware of the involvement of the CID officer in the kidnapping. So much can be seen from the reasons of the Authority and in particular, the passages from those reasons that I have referred to above.
Second, the Authority noted and took into account the fact that the Applicant had not claimed that he or any of his family received any adverse attention from the Karuna Group, B, the Sri Lankan authorities or anyone else because he gave evidence to the ITJP enquiry (at [53]).
Third, the Authority at [43] of its reasons considered at length and made detailed findings about whether the Applicant was at risk of harm from the Sri Lankan authorities given his profile. I have set out paragraph [43] earlier.
Fourth, the Authority considered that 'given the passage of time since he gave his evidence to the ITJP' there is not a 'real chance that the applicant would face harm because he gave evidence to the ITJP enquiry, including his identifying B, if he returned to Sri Lanka, now or in the reasonably foreseeable future': at [53].
When these matters are considered, it was unnecessary for the Authority to separately consider whether the Applicant was at risk of harm on his return to Sri Lanka because of questioning he might face by the CID upon his return. As can be seen from the above, the risk attendant to that matter had already been considered by the Tribunal, which had concluded that the Applicant's reporting of his kidnapping to the police, and his evidence to the ITJP identifying the CID officer involved in the kidnapping, did not lead to the Applicant possessing an adverse profile that would bring him to the attention of the Sri Lankan authorities.
For all of the above reasons, this ground of review must be dismissed.
CONCLUSION
The Applicant has been wholly unsuccessful. The Minister seeks costs of $7,467. In the circumstances, is appropriate to order costs in favour of the Minister of $7,467.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 23 July 2021
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