Anb17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1656
•23 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
ANB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1656
File number(s): MLG 261 of 2017 Judgment of: JUDGE BLAKE Date of judgment: 23 July 2021 Catchwords: MIGRATION – Immigration Assessment Authority (IAA) - Safe Haven Enterprise visa (SHEV) (XE-790) - section 473DD of the Migration Act 1958 (Cth) - whether IAA failed to consider explanation provided for introducing new Country Information – Country Information referred to in footnote of cover letter attached to statutory declaration – Authority accepting statutory declaration as new information - Authority not accepting explanation given in respect of new Country Information – Authority erred in failing to consider explanation as to why Country Information was not provided earlier – ground of review upheld. Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 473DD Cases cited: AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
SZSSC v Minister for Immigration and Border Protection [2014] FCA 863
Number of paragraphs: 60 Date of hearing: 26 May 2021 Place: Melbourne Counsel for the Applicant: Ms Grinberg Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Mr Knowles Solicitor for the First Respondent: Mills Oakley ORDERS
MLG 261 of 2017 BETWEEN: ANB17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
23 JULY 2021
THE COURT ORDERS THAT:
1.The decision of the Immigration Assessment Authority made on 31 January 2017 in matter number IAA16/00827 be set aside.
2.The matter be remitted to the Immigration Assessment Authority for determination according to law.
3.The first respondent pay the Applicant'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 visa (SHEV) (XE-790) (‘visa’).
For the reasons that follow, I have decided to allow the application for review.
BACKGROUND
The Applicant is a Sri Lankan Tamil national. The Applicant arrived in Australia with his son on 26 August 2012 as an unauthorised maritime arrival. He applied for the visa in November 2015.
On 9 February 2016, the Applicant attended an interview with the delegate. The Applicant’s son, who had also made an application for a protection visa, attended the same interview.
On 31 August 2016, a delegate of the Minister ('delegate') refused to grant the Applicant the visa.
On 13 September 2016, the decision of the delegate not to grant the visa was referred to the Authority.
On 3 October 2016 the Applicant’s legal representative wrote to the Authority. This correspondence consisted of, among other things, written submissions and a statutory declaration of the Applicant dated 3 October 2016. In those documents, the Applicant took issue with various findings of the delegate and raised new claims concerning his attendance at various events in Australia, including one organised by Amnesty International and others organised by the Australian Tamil Congress.
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 of the decision of the Authority and an affidavit in support on 9 February 2017. Orders were subsequently made for the conduct of the proceedings.
The matter was listed before me for final hearing on 26 May 2021. The Applicant relied on his Amended Application of 10 May 2021, his affidavit filed at the commencement of the proceedings, the affidavit of his solicitor Mr Hanson affirmed 11 May 2021, an affidavit of Walid Babakarkhil affirmed 5 May 2021 and his written outline of submissions. The Minister filed an outline of submissions. The background materials were contained in a Court Book filed by the Minister.
This matter was heard before me together with proceeding MLG 260 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 to each other. Further, Grounds 2 and 3 in the Amended Application before me are substantially similar to Grounds 2 and 3 of the Amended Application in MLG 260 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; this notwithstanding the fact that there is an additional subparagraph to Ground 3 in the Amended Application in MLG 260 of 2017.
THE APPLICANT’S CLAIMS
The Applicant’s claims to protection were summarised by the Authority in 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 detention, mistreatment and imprisonment on the grounds of being suspected of assisting the LTTE in 1997; his son's evidence to the International Truth and Justice Project (ITJP) about his son's 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 type. Those principles were conveniently set out in paragraphs [29]-[31] of the Minister’s written submissions and are reproduced below (citations omitted):
29.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.
30.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.
31.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
Ground 1
The first ground of review in the Application is:
The Immigration Assessment Authority (IAA) erred by failing to correctly perform the statutory task in accordance with section 473DD of the Migration Act 1958 (Cth) (Act):
Particulars
(a)The applicant submitted new information to the IAA, consisting of two pieces of country information related to interrogation and torture of returnees to Sri Lanka due to their activities or contacts overseas, including situations where returnees were shown photographs of the events that they had attended abroad.
(b)In determining whether or not to consider this new information, the IAA failed to consider the explanation provided by the applicant as to why the information was not and could not have been provided to the Minister.
As can be seen from the above, under this ground of review, the Applicant contends that the Authority failed to correctly perform the task required of it under section 473DD of the Migration Act 1958 (Cth) (‘Act’). Section 473DD of the Act is concerned with the circumstances in which the Authority may consider the provision of new information by an applicant. Section 473DD relevantly provides as follows:
473DD For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
The proper construction of section 473DD of the Act has recently been considered by the High Court of Australia in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37. At paragraph [11] of the decision, Kiefel CJ, Gageler, Keane and Gordon JJ stated that:
[11]Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met. [footnotes omitted]
As noted earlier, on 3 October 2016 the Applicant’s representatives wrote to the Authority by email (Court Book 317). Attached to the email was, among other things, a written submission from the Applicant, a cover letter attaching the Applicant’s Statutory Declaration of 3 October 2016 and other documents.
In the Statutory Declaration dated 3 October 2016, the Applicant outlined new information which he sought to have the Authority take into account. That new information, set out at paragraphs [3]-[5] of the Statutory Declaration concerns the Applicant’s attendance at events in Australia organised by Amnesty International and the Australian Tamil Congress. At paragraph [7] of the Statutory Declaration, the Applicant explained that he:
…did not mention this information to the Department previously because when I prepared my statement relating to my protection claims with the lawyer, I was not asked about any events after my arrival in Australia and I did not realise the importance of this. During my protection visa interview with the Department I was only asked whether I participated in any activities for the LTTE in Australia’.
The Statutory Declaration of 3 October 2016 was accompanied by a cover letter (Court Book 324). The cover letter is entitled ‘Cover letter attaching new information’. In paragraph 3 of the cover letter, the Applicant’s representative stated ‘Please find attached a statutory declaration from the applicant dated 3 October 2016 providing new information to the IAA which has not been previously considered by the Department’. In paragraph 4 of the cover letter, the Applicant’s representative submitted that there were exceptional circumstances to justify ‘considering this new information’. Then, at paragraph 5 of the cover letter, the Applicant’s representative stated as follows:
The credibility of the information in the applicant's statutory declaration is supported by reports that the Sri Lankan authorities have interrogated and tortured returnees to Sri Lanka due to their activities or contacts overseas, including situations where returnees were shown photographs of the events that they had attended abroad.
The Authority in its decision dealt with whether or not to admit the new information at paragraphs [4] – [6] of its reasons as follows:
4.On 3 October 2016 the IAA received a submission and further information from the applicant's (current) representative. To the extent the submission discusses evidence, including country information, which was before the delegate and responds to the delegate's decision based on that material, I consider this does not constitute new information and I have had regard to it.
5.Part of the further information consists of country information in the form of reports from a number of organisations that were not before the delegate and is new information. The applicant did not provide any explanation as to why the new information was not and could not have been provided to the delegate, or why it may be regarded as credible personal information that was not known, and had it been known it may have affected the consideration of the applicant's claims. All the new reports the applicant now seeks to rely on pre-date the delegate's decision. At the SHEV interview the delegate explained to the applicant the limits on the IAA's ability to consider new information. The delegate informed the applicant at the end of the interview that if he provided further information prior to a decision being made it will be considered. The applicant's (former) representative provided a post SHEV interview written submissions including references to further country information prior to the decision being made. I am not satisfied that there are exceptional circumstances to justify considering this new information.
6.The applicant provided a statutory declaration dated 3 October 2016 containing details of his attendance at diaspora events in Brisbane in 2013. The applicant submitted that information In the statutory declaration is credible personal information that was not known, and had it been known it may have affected the consideration of the applicant's claims and that although he did not previously supply the information as he was not asked about his activities in Australia by his former representative and the delegate at the SHEV interview if he was involved in LTTE activities in Australia. Given that he was asked specifically about LTTE activities in Australia rather than a more broad question about diaspora activities in Australia, I am satisfied that there are exceptional circumstances that justify considering the statutory declaration and that it is credible personal information for the purposes of s.473DD(b)(ii).
It can be seen from the paragraphs above that the Authority dealt separately with different types of information which the Applicant submitted to it. In paragraph [4] of its reasons, the Authority dealt with and had regard to information which was not ‘new information’. In paragraph [5] of its reasons, the Authority dealt with ‘country information in the form of reports from a number of organisations’ and stated that the Applicant ‘did not provide any explanation as to why the new information was and could not have been provided to the delegate’. The Authority elected not to consider that information. Finally, in paragraph [6] of its reasons, the Authority considered the Applicant’s Statutory Declaration of 3 October 2016 and was satisfied that the Statutory Declaration should be considered pursuant, inter alia, to the requirements of section 473DD(b)(ii).
The issue between the parties under this ground of review is whether the Authority was correct to state that no explanation had been provided to support the inclusion of the Country Information. If the Authority was not correct, the issue becomes whether any explanation given by the Applicant was overlooked when it came to considering whether to admit the Country Information as new information.
The Minister contends that the Authority did not fall into error when it found that the Applicant had not provided any explanation as to why the Country Information could not have been provided to the Delegate. The Minister submitted that the Applicant did not provide any explanation to the Authority as to why the Country Information was not, or could not, have been provided to the Delegate. The Minister submitted that when the cover letter is read properly especially paragraph 3 of the cover letter, the new information that the Applicant sought to have admitted was the information contained in the Statutory Declaration of 3 October 2016 relating to his attendance at various events or protests in Australia and nothing else. The Minister accepted that the Applicant explained at paragraph [7] of the Statutory Declaration why he had not provided this information earlier. The Minister contended, however, that no explanation was provided as to why the Country Information had not been provided earlier. It was therefore submitted, inter-alia, that the Authority did not fall into error when it concluded that no explanation had been provided. Given that fact, and given the Country Information was not credible personal information, the Authority could not admit the Country Information under section 473DD. No error was therefore committed by the Authority.
I have considered the Statutory Declaration, cover letter and the Minister’s submissions closely. In my view, the Minister’s contentions take an unduly narrow view of the submissions advanced by the Applicant’s representatives in the cover letter and Statutory Declaration of 3 October 2016. The Minister seeks to draw a clear distinction between the content of the Statutory Declaration which principally concerns the Applicant’s attendance at various events in Australia, and the Country Information that the Applicant sought to have considered. The distinction, however, is not as clear as the Minister submits.
The Authority accepted that the content of the Statutory Declaration was new information that it ought to consider. The Authority was satisfied that the content of the Statutory Declaration constituted credible personal information. The Authority also, in paragraph [6] of its reasons, accepted the Applicant’s explanation as to why he did not previously supply that information.
The Country Information that the Applicant sought to have admitted related directly to, and was sought to be admitted in support of, the Applicant’s claims set out in the Statutory Declaration. So much is clear when one has regard to paragraph 5 of the cover letter. That paragraph, in my view, inextricably links the Country Information to the Applicant’s claims set out in the Statutory Declaration. Once that is understood, it can be seen that the explanation provided by the Applicant in paragraph [7] of the Statutory Declaration applies equally to his submission that the Country Information be admitted as ‘new information’. The Authority accepted the explanation of the Applicant in relation to the Statutory Declaration. The Authority acted inconsistently in not considering, or not accepting, the explanation given in respect of the submission that the Country Information ought to be considered new information.
The Authority therefore fell into error when it found at paragraph [5] of its reasons that the Applicant ‘did not provide any explanation as to why the new information was not and could not have been provided to the delegate’. An explanation was provided. The Authority failed to take that into account. It needed to properly take that explanation into account, and then assess whether it should admit the new information pursuant to section 473DD of the Act.
The consequence of failing to take into account the explanation provided by the Applicant produced the result that the Country Information was not admitted. As a result of this, when the Authority came to reviewing the activities of the Applicant in Australia, it considered and referred to a ‘DFAT Country Information Report Sri Lanka’ dated 18 December 2015. Having considered this report and other matters, the Authority concluded the Applicant will not face a real chance of harm from Sri Lankan authorities due to his activities in Australia. In my view, given the nature of the information contained in the Country Information that the Applicant sought to have admitted, and the information in the DFAT Report, it is possible that a different outcome may have been reached. The error of the Authority is therefore a material one.
For these reasons, I uphold Ground 1 of the Grounds of Review.
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 [sic] 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 [sic] 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 [sic] had left, and the remaining family did not have money to extort.
(d)The IAA failed to consider these submissions.
It can be seen this ground of review references the ‘father’ as another person. This application concerns the ‘father’. I have treated the reference to the ‘father’ in this ground as being a reference to the applicant in MLG 260 of 2017.
The Authority accepted a number of the Applicant’s claims in relation to the Karuna Group. A number of key findings made by the Authority are set out in paragraphs [23]-[24] of its reasons, which are as follows:
23.I accept that on the morning of 14 April 2012 his son was kidnapped after visiting a temple in Colombo by the Karuna Group; that one of the kidnappers called and demanded a 25 lakh ransom for his son's release; that one of his kidnappers was a Sinhalese speaking member of the security forces; that he raised 15 lakhs and in a subsequent call the kidnappers agreed to release his son if he paid them 15 lakhs now and the balance of 10 lakhs within two to three months; that he went to Island lodge in Colombo and paid 15 lakhs in exchange for his son's release; that he and his son immediately returned home to Batticaloa, stopping at Batticaloa hospital to get his son a check-up and treatment including bandages and dressing a wound on is son's waist; that his son took some weeks to fully recover from his kidnapping; that his son told him a few days after his release that he reported his kidnapping to the police; and that his son told him after they arrived in Australia that he gave evidence to the ITJP about him abduction.
24.I accept that about a month after his son was released some men from the Karuna Group came to the family's home and threatened him about the balance of the ransom money; that Karuna Group men harassed and threatened him about the money both over the phone and in person; that he told the Karuna Group men that he needed more time to pay; that because he was afraid of the Karuna Group he and his son fled Sri Lanka on 7 August 2012; that after he and his son left Sri Lanka his wife and remaining children 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 wife 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 [43] 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 [45]-[47] 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.
45.The Karuna Group released his son in late April 2012 after he paid 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 son remained in Sri Lanka, the Karuna Group made some threatening calls and visits to remind him that they wanted the balance of 10 lakhs paid, but, unlike the incident in 2005, made no effort to take the payment in goods. 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. Even though the applicant's shop had closed, 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 and his family in the period immediately after receiving the original payment of 15 lakhs and soon lost interest in the matter.
46.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 son 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 kidnapped son 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 because of his or his family's perceived wealth, if he returned to Sri Lanka, now or in the reasonably foreseeable future.
47.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 the claims made by the Applicant’s son during his interview with the delegate, in response to the delegate’s concerns. The claim advanced is set out in the Transcript of the delegate’s interview with the Applicant on 9 February 2016 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. These submissions are included in the Court Book at page 269. At page 270 of the Court Book, the Applicant submitted, among other things:
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, at page 274 of the Court Book, the Applicant submitted:
…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. While I have considered the Applicant’s submissions closely, 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 [43] 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 the paragraphs [45]-[46] 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 Karuna Group had not made any attempt to take goods or property from the empty family home;
(b)noted 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)was not satisfied there was a real chance that the Applicant or his family will face new attempts from the Karuna group because of his or his family’s perceived wealth, if he returned to Sri Lanka now or in the foreseeable future;
(d)concluded that the Karuna group had made only 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;
(e)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;
(f)observed that ‘more than four years have passed without any further incidents of follow-up’;
(g)concluded that as a result of the above, it could not be satisfied that Karuna Group would have any adverse interest in the Applicant because of the unpaid ransom;
(h)finally, observed that Country Information assessed that there had been a considerable reduction in kidnapping the 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 it was 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 is as follows:
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 considered whether the ‘brief period’ of detention would amount to serious harm to the applicant having regard to the poor prison conditions. 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, at some length, 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 [56] of the reasons;
(b)the Authority considered the Constitution of Sri Lanka, legislation, Country Information and advice from DFAT in respect of the treatment of returnees to Sri Lanka by various Sri Lankan authorities: at [57]-[63] 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 [63] 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 [64] 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 [65];
(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 [66];
(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 [68];
(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 [69];
(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 [71];
(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 [79];
(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 [80].
It can be seen from the above that the Tribunal gave detailed consideration to the claims by the Applicant that he would be mistreated by the Sri Lankan authorities on his return.
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. Those submissions commence at Court Book 269, however the submission in question is to be found at Court Book 277 and is 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 [41] 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 [41] of the reasons is as follows:
Having regard to the UNHCR guidelines and the other information before me, I do not consider the applicant faces a real chance 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 he was arrested, questioned and mistreated first by the CDB and then the police in late 1997 and early 1998 on suspicion of LTTE connections, he was released each time due to a court order and his lawyer's representations, respectively. Thirdly, his harassment by the Sri Lankan authorities on occasions at checkpoints was in order to obtain small sums of money when he was carrying jewellery and did not result in his further arrest or detention. Fourthly, he was not arrested, detained or questioned by the Sri Lankan authorities at any time after 1998 and, on his own evidence, he had no other problems with the Sri Lankan authorities other than the previously discussed issue of checkpoint bribes. Fifthly, no one in the applicant's family was ever arrested, detained or questioned by the Sri Lankan authorities in relation to any suspected LTTE connections or for any other reason. Sixthly, although the applicant and his family were displaced in IDP camps 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. Seventhly, although a Sinhalese speaking member of the security forces was one of his son's kidnappers, I am satisfied that the kidnapping was for the purpose of obtaining a ransom, as there is no evidence before me that his son was questioned about LTTE connections during his captivity. Eighthly, the Sri Lankan authorities have not approached the applicant's family about his or his son's whereabouts or otherwise enquired after the applicant or his son 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 son, if he had remained in Sri Lanka or that he, or his son, 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 Tamil male from the east, and/or as his son's father, to be remote.
The next aspect of the reasons of the Authority is what is set out at paragraph [50]-[51] of the reasons. In those paragraphs, the Authority finds that the Applicant has not claimed that he, his son or any of his family have received adverse attention from the Karuna Group, the Sri Lankan authorities or anyone else because his son 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 his son gave evidence to the ITPJ inquiry.
Consideration of the Applicant and his particular circumstances by the Authority next occurs at paragraph [54] of the Authority’s reasons. The Authority commences that paragraph by noting that ‘The applicant was arrested almost 20 years ago, twice, in 1997 and 1998 on suspicion of LTTE connections but ultimately released by the Sri Lankan authorities and never again arrested, questioned or detained about any suspected LTTE involvement in Sri Lanka’. The Authority goes on to record that the Applicant was not involved in politics in Sri Lanka and that he went to four events in Australia, but that the Authority is not satisfied that in attending those events in Australia, the Sri Lankan authorities would view the applicant as a ‘high profile leader of a pro-LTTE diaspora group’. The Authority concludes by stating that ‘Nor am I satisfied that it could be viewed as increasing his risk profile which, as discussed above, is that of a person who was not of adverse interest to the Sri Lankan authorities’. These matters are all matters going to the Applicant’s profile.
Further findings are made by the Authority in relation to the Applicant’s circumstances and his profile at paragraph [63] of the reasons. This paragraph commences with the Tribunal accepting that the Applicant ‘will be considered a failed asylum seeker on his return’. The Tribunal 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 arrests on suspicion of ME connections in 1997 and 1998, his harassment at checkpoints, his and his family's former residence in a ME controlled area, and the involvement of a Sinhalese speaking member of the security forces in his son's 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, my findings that his activities in Australia have not raised his profile with the authorities 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 (set out above) 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 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.
CONCLUSION
Ground 1 of the Grounds of review has been upheld. Grounds 2 and 3 of the Grounds of Review are dismissed.
I will remit the matter to the Authority for rehearing.
The Applicant has succeeded in this claim. I will order that the Minister pay his costs of $7,467 in accordance with the scale.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 23 July 2021
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