Aou18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2019] FCCA 3118

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOU18 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR

[2019] FCCA 3118

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether Immigration Assessment Authority’s decision affected by jurisdictional error – whether Immigration Assessment Authority considered all claims made by the applicant – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 31, 36, 65, 473BA, 473BC, 473CA, 473CC,

473DA, 473DB, 473DC, 473DD, 474, 476

Migration Regulations 1994 (Cth), reg.2.01.

Treaties:

Convention relating to the Status of Refugees, opened for signature 28 July

1951, 189 UNTS 137 (entered into force 22 April 1954), Art 1A.

Protocol Relating to the Status of Refugees, opened for signature 31 January

1967 (entered into force 4 October 1967).

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Htun v Minister for Immigration (2001) 233 FCR 136

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs [2003] FCAFC 184

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

FCAFC 10

VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006]

FCAFC 29

Applicant:

AOU18

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

SYG 316 of 2018

Judgment of:

Judge Emmett

Hearing date:

22 October 2019

Date of Last Submission:

22 October 2019

Delivered at:

Sydney

Delivered on:

31 October 2019

REPRESENTATION

Counsel for the Applicant:

Mr Leonard Karp

Solicitors for the Applicant:

Parish Patience Bitel Pty Ltd

Solicitor for the Respondents:

Mr Max Gao
(Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 316 of 2018

AOU18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 11 January 2018 (“the IAA”), affirming a decision of a delegate of the first respondent (“the Delegate”) made on 14 June 2017 refusing the applicant a Safe Haven Enterprise (Class XE) (Subclass 790) visa (“SHEV”).
The applicant is a citizen of Sri Lanka and of Christian faith and Tamil ethnicity, who fears harm from the Sri Lankan authorities in Sri Lanka.

Background

The applicant arrived in Australia on 1 May 2013 as an unauthorised maritime arrival.
On 22 September 2016, the applicant lodged an application for a SHEV with the Department of Immigration and Border Protection (“the Department”).
On 14 June 2017, the Delegate refused the applicant’s application for a SHEV.
On 19 June 2017, the Delegate’s decision refusing the applicant a SHEV was referred to the IAA.
On 11 January 2018, the IAA handed down its decision affirming the decision of the Delegate not to grant a SHEV.
On 8 February 2018, the applicant filed an application in this Court seeking judicial review of the IAA’s decision.

Legislative framework

Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a SHEV (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Part 7AA of the Act provides for a limited form of review of certain decisions (“fast track decisions”). Under Part 7AA, s.473BA of the Act provides as follows:
“Simplified outline of this Part
This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.
Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.
Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.”
Under s.473BC of the Act, the Minister may determine that a specified fast track decision, or a specified class of fast track decisions, may be reviewed.
Pursuant to s.473CA of the Act, the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
Section 473CB of the Act sets out the material that must be provided to the IAA by the Department when a decision is referred for review:
“Material to be provided to Immigration Assessment Authority
(1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision before the decision was made;
(c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(d) the following details:
(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;
(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;
(v) if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.
(2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”
Pursuant to s.473CC(1) of the Act, the IAA must review a fast track reviewable decision referred to it under s.473CA of the Act. Section 473CC(2) provides that the IAA may either affirm the decision under review, or remit the decision for reconsideration.
The requirements of the natural justice rule are exhaustively set out in Subdivision A, Division 3 of Part 7AA of the Act (s.473DA). That section provides as follows:
“Exhaustive statement of natural justice hearing rule
(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”
Section 473DB(1) of the Act provides that the IAA must review a decision referred to it under s.473CA of the Act on the papers; that is, by considering the review material provided to it under s.473CB without accepting or requesting new information; and without interviewing the referred applicant.
Sections 473DC and 473DD of the Act set out the circumstances in which the IAA may consider new information in the conduct of a review of a fast track reviewable decision. Section 473DC provides:
“Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information ( new information ) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.”
Section 473DD of the Act provides as follows:
“Considering new information in exceptional circumstances
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 applicant’s claims for protection

The applicant’s claims for protection are accurately summarised in counsel for the applicant’s written submissions as follows:
“(a) The applicant’s family were regarded as an LTTE family in the area where they were living.
(b) In about 2007 the applicant’s older sister joined the LTTE and became quite involved. She later disappeared and was presumed to have been killed.
(c) The applicant’s older brother was taken forcibly by the LTTE around the beginning of 2009 but did not want to fight and returned home after four months.
(d) The applicant’s father supported the LTTE and helped them by delivering food and transporting injured LTTE people.
(e) The applicant’s father and another sister were killed by a bomb blast in May 2009. The attack was reported by Channel 4 in the UK, a video of the attack appeared on YouTube, in which his father and sister are mentioned by name, and the applicant thinks that his aunt in Norway has publicised the deaths online. There was pressure on the Sri Lankan government resulting from the deaths of civilians, and his family has been told by Sri Lankan authorities to say that his father and sister were killed in an LTTE attack. The applicant fears harm by the authorities in order to enforce his compliance or his silence.
(f) After the conflict the applicant’s family home went from being surrounded by the LTTE to being surrounded by Sri Lankan Army camps. His family was harassed because of its association with the LTTE. His brother was interrogated by the CID and told not to leave his house or the applicant would be shot. Despite this the applicant’s brother felt that he had no option but to try to leave Sri Lanka.
(g) During this period the applicant and his family received constant threats from the Sri Lankan authorities in the army camps surrounding their home. Every time there was an incident the army would come to harass them. The situation became so bad that he felt that he had no choice but to leave Sri Lanka. Both his brothers have since left.
(h) The applicant’s mother continues to be harassed and threatened that if her children returned to Sri Lanka they would be kidnapped from the airport and shot. The applicant has also spoken to his mother since he has been in Australia and had been told that his brother had been tortured by the CID by having his fingernails plucked at and having pins poked through his nails. The man next to him had been shot and he was told that he would be next.
(i) In addition to the applicant’s fears relating to the deaths of his father and sister, he fears being interrogated and tortured to reveal information about the LTTE.”

The Delegate’s decision

On 14 June 2017, the applicant attended an interview with the Delegate.
The Delegate outlined the applicant’s claims including those provided at interview.
The Delegate accepted the following claims made by the applicant:
i)The applicant is a young male Tamil from a formerly LTTE-controlled area in the north of Sri Lanka.
ii)The applicant will return to Sri Lanka as a failed asylum seeker.
The Delegate did not accept the following claims made by the applicant:
i)The applicant’s father is of interest to the Sri Lankan authorities for doing low-level work for the LTTE while residing in an LTTE-controlled area.
ii)The applicant’s sister was forcibly recruited by the LTTE in 2007, or was ever a member of the LTTE.
iii)The applicant’s brother was forcibly recruited by the LTTE in 2009, or is of interest to the authorities for former LTTE membership.
iv)The applicant’s family has any significant LTTE connections that are of ongoing interest to the Sri Lankan authorities, or that he will be imputed with a pro-LTTE political opinion as a result.
v)The applicant will be targeted by the authorities as a witness to war crimes and/or the killing of civilians in Mullivaikal in May 2009.
vi)The applicant fears harm from paramilitary groups in Sri Lanka.
vii)The applicant will be imputed with having supported the LTTE from abroad because his family has LTTE connections.
viii)The applicant will be imputed with having supported the LTTE from abroad because he has been out of Sri Lanka for a significant amount of time.
The Delegate had regard to country information in finding that the chance of being imputed with an LTTE connection for reasons of the applicant's Tamil ethnicity was remote.
The Delegate noted that the applicant was not politically active in Sri Lanka and that he did not have a political profile of any kind.
The Delegate found that being Tamil in Sri Lanka in itself is not a reason for the applicant to be imputed with an LTTE connection, and therefore, the Delegate was satisfied the applicant did not hold a well-founded fear of persecution for that reason.
The Delegate found that the applicant did not have a well-founded fear of persecution for being a Tamil from the north of the country or for being from an area previously controlled by the LTTE.
The Delegate noted country information which indicated that Tamils from the north and east of the country may face a degree of discrimination or harassment, and do not have the same opportunities as Sinhalese Sri Lankans. Subsequently, the Delegate accepted that the applicant may be at risk of discrimination in Sri Lanka and that many young Tamils may feel alienated to a degree and feel distrustful of the Sri Lankan authorities since the end of the war.
However, the Delegate found that the level of discrimination described (if it were to occur to the applicant) would not amount to serious harm.
The Delegate found that the applicant was not a person of interest to the Sri Lankan authorities for any reason when he left the country. The Delegate noted there was no information to suggest that Tamils who have lived or stayed abroad are facing serious harm at Colombo airport or in their home areas on their return to Sri Lanka simply due to the time spent out of Sri Lanka or for being a failed asylum seeker.
Therefore, the Delegate found that the applicant did not hold a well-founded fear of persecution on account of being a failed Tamil asylum seeker.
The Delegate was not satisfied that the applicant was a refugee as defined by s.5H(1) of the Act and that the applicant was not a person in respect of whom Australia had protection obligations as outlined in s.36(2)(a) of the Act.
The Delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Sri Lanka, there was a real risk the applicant would suffer significant harm as outlined in s.36(2)(aa) of the Act.
Therefore, the Delegate found the applicant was not a person in respect of whom Australia had protection obligations as outlined in s.36(2)(aa) of the Act.
On 14 June 2016, the Delegate refused the applicant’s application for a SHEV on the basis that the applicant was not a person to whom Australia has protection obligations under the Convention and did not meet the alternative complementary protection criterion.

The IAA’s decision

The IAA’s decision is accurately summarised in counsel for the applicant’s written submissions, as follows:
“The IAA decision
4. After dealing with submissions made to it and “new information” that was submitted (CB 185-187 [7]-[14]), the IAA outlined the applicant’s claims (AB 187-188) and made findings as follows;
(a) The IAA accepted that the applicant’s father and two of his sisters were killed near Mullaivaikkal and that after the war ended the surviving family members were screened and were permitted to return home after spending time in two IDP camps (CB 188 [16]).
(b) It also accepted that the applicant’s older brother was detained on several occasions and tortured and that the applicant himself was detained and questioned (CB 189 [16]).
(c) Current country information is to the effect that the focus of the Sri Lankan government is not so much on identifying past links to the LTTE, but on those who may pose a current threat to the unity of the country, and that simply being a Tamil from a former LTTE area does not raise a need for international protection (CB 189 [17]-[18]; 192-194 [29]).
(d) It accepted that the applicant’s older sister was an LTTE combatant and that she died (with her father and sister) near Mullaivaikkal in 2009. It also accepted that his brother was forcibly conscripted but was able to escape and rejoin his family, and that his late father had assisted the LTTE (CB 190 [21]-[23]).
(e) Notwithstanding these findings it was not satisfied that the applicant was ever of particular adverse interest to the authorities. It considered it most likely that the authorities were aware of his brother’s LTTE involvement, but the evidence does not suggest that having two siblings in the LTTE resulted in, “an unusual level of adverse attention prior to his departure… ”. The IAA found that the, “… family was subject to routine monitoring and investigation after they returned to their home, but in my view the level of attention described by the applicant is equally consistent both with the authorities being aware of the family members’ limited involvement with the LTTE during the war and with routine monitoring of the Tamil population and young males in particular, which was in place at that time.” (CB 191 [24])
(f) The Tribunal found that the applicant had exaggerated the level of adverse interest in him and the level of danger that he faced prior to his departure (CB 190-191 [24]).
(g) The claim that he faced danger because of his potentially publicising the circumstances of the deaths of his father and sister were rejected (CB 191-192 [26]-[27]).
5. Nor did the IAA find that the applicant would face harm on the basis of his being a returned asylum seeker, or solely on the basis of his ethnicity. It rejected a statement by the UNHCR Special Rapporteur that any person suspected of association with the LTTE, however slight, remains at risk (CB 193-194 [29]-[30]). It concluded its assessment of the applicants claims pursuant to s. 36(2)(a) of the Migration Act, as follows;
“I simply do not accept that a person with family links to low level LTTE cades which I am satisfied were known to the authorities prior to his departure, would be charged under the PTA. Nor do I accept that there is a real chance that this connection would cause the applicant to be detained and tortured or otherwise subjected to serious harm on return to Sri Lanka in circumstances outside the operation of the PTA or other legislation. (CB 194-195 [30]).
6. The case for complementary protection was also rejected.”

The proceeding before this Court

The applicant was represented before this Court by Mr Karp, of counsel.
The applicant relied on an Amended Application filed on 1 October 2019, pursuant to leave granted on 26 September 2019. The grounds of the Amended Application are as follows:
1. The Authority failed to consider all of the claims made by the Applicant.
Particulars
(a) The Applicant claimed that his family had been questioned about his whereabouts after he had left Sri Lanka and that his mother had been told that he would be kidnapped from the airport and shot if he returned.
(b) The Applicant claimed that after the end of the Civil War his brother, whom the Tribunal accepted had been recruited into the LTTE, had been interrogated and tortured by the CID to make him divulge information about the LTTE.

Ground 1(a)

Ground 1(a) asserts that the IAA failed to consider a claim made by the applicant that his family had been questioned about his whereabouts after he had left Sri Lanka and his mother had been told that he would be kidnapped from the airport and shot if he returned.
Counsel for the applicant referred the Court to Htun v Minister for Immigration (2001) 233 FCR 136 (“Htun”) at [7] where Merkel J stated as follows:
“7. While it may be convenient for the Tribunal to deal separately with each element of the claim, that does not relieve it of the task of addressing, cumulatively, all of the essential elements of the claim raised by the material or evidence. In that regard, the Tribunal, in conducting its review of the decision of the delegate under s 414 of the Migration Act 1958 (Cth), is under a duty to address or deal with the case (ie the claim) actually raised by the material or evidence: see Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 and Minister for Immigration and Multicultural Affairs v Sarrazola (2001) 107 FCR 184 at 196, Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294.”
Counsel for the applicant referred further to Htun at [32] where Allsop J stated:
“The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.”
Counsel for the applicant also submitted that in considering claims made by an applicant, the decision maker must engage in an active intellectual process.
Both those propositions expounded by counsel for the applicant are without exception and the solicitor for the first respondent did not suggest otherwise.
Counsel for the applicant referred the Court to the applicant’s written claims in support of his SHEV application. Under the heading “Since Coming to Australia” the applicant stated as follows:
“17. Because of my family’s links to the LTTE, they continue to be questioned by the Sri Lankan authorities after my arrival in Australia. The Sri Lankan authorities have visited my parents, asking them where their children are and came to my family’s house at night and shot the dog.
18. The authorities have questioned my parents multiple times about me and my brothers’ whereabouts. They also looked through my parents’ mail and inspected my mother’s phone. On one occasion, the authorities told my mother that if her children returned to Sri Lanka, they will kidnap us from the airport and shoot us.
19. After I came to Australia, I also spoke to my mother and she told me more about my brother's interrogation. She said that they plucked at his fingernails and poked pins through his fingernails. This makes sense because I noticed his nails were discoloured when he came back from the interrogation. They also pointed a gun at his head, shot the person next to him, then they told him that he would be next if he did not divulge information about the LTTE.”
The IAA accepted that the applicant’s family continued to be visited, monitored and questioned by the army. However, the IAA found that country information before it indicated that this type of conduct by the authorities after the end of the civil war was routine for the Tamil population in areas under the control of the LTTE. The IAA accepted that arbitrary arrests, detention, intimidation and physical mistreatment was often involved, according to country information.
In that context, the IAA accepted that the applicant’s older brother was detained on several occasions and tortured. The IAA referred to country information that it found indicated that since the applicant’s departure from Sri Lanka, the level of monitoring of Tamil’s in the north has decreased as has the military presence. In particular, the IAA found that the focus of the security authorities is now not so much on identifying anyone with past links to the LTTE, but focused on those who may pose a current threat to the government through involvement with Tamil separatist activities inside Sri Lanka. The IAA accepted that high level former LTTE members and members of their families may still be of interest to the authorities, as may former combatants who were involved in crimes or acts of violence.
The IAA noted that since 2012, United Nations High Commissioner for Refugees (“UNHCR”) Eligibility Guidelines in relation to asylum seekers from Sri Lanka stated that being a Tamil and former resident of areas previously under LTTE control no longer gives rise to a need for international protection. Those Guidelines identified several categories who may be in need of protection depending on individual circumstances. Those categories included former combatants, people involved in the LTTE’s administration, people who provided material assistance to the LTTE and close family members.
The IAA then noted that the Delegate had not accepted that the applicant’s sister, N, was forcibly recruited into the LTTE in 2007 or that she died with the LTTE in May 2009. The IAA noted that the applicant said N was an LTTE combatant, having been forcibly recruited. However, the IAA found discrepancies in the applicant’s various accounts of N’s last months. Ultimately, the IAA accepted that N died with the applicant’s father and younger sister and that the applicant’s younger sister was an LTTE combatant who died in May 2009.
The IAA also accepted that the applicant’s older brother was forcibly recruited into the LTTE at the end of the war but was able to escape, although was not able to locate members of his family or avoid recapture.
Nevertheless, having accepted the applicant’s family links with the LTTE, the IAA was not satisfied that the applicant was ever of particular adverse interest to the authorities at the end of the war and until his departure from Sri Lanka. The IAA also found that the applicant’s evidence did not suggest that if the applicant’s surviving siblings’ links to the LTTE were discovered that those surviving siblings were of any particular interest to the authorities.
The IAA found that the authorities were aware of the applicant’s brother’s involvement with the LTTE before the applicant’s departure but that, despite having two siblings that were LTTE combatants, the applicant did not attract an unusual level of adverse attention prior to his departure. The IAA noted that the applicant was able to obtain a passport without difficulty, and, was able to depart Sri Lanka legally using that passport which the IAA found indicated that the applicant was not of particular adverse interest to the authorities, nor was he on any watch or stop list.
The IAA accepted that the applicant’s family was subject to routine monitoring and investigation after they returned to their home.
The IAA found that the applicant had exaggerated the level of adverse interest in him and the level of danger he faced prior to his departure. Moreover, the IAA found that the applicant did not leave Sri Lanka as soon as he had the means to do so and that his decision to leave was not made because of urgent fears for his safety in response to his short detention in 2013.
The IAA referred to the 2012 UNHCR Guidelines and noted that certain witnesses of war crimes and human rights abuses may be in need of international protection. However, the IAA found that such protection was only needed by people who gave evidence to the Lessons Learned Reconciliation Commission who would be at risk of such harm.
The IAA found the applicant himself was not a witness to the deaths of his father and sisters and found that the applicant was not at real risk of harm from Sri Lankan authorities because he would be suspected of having revealed the information of the deaths of his father and sisters in the course of his asylum application, or, for the fear he would do so in the future.
The IAA found that screening at the airport at Sri Lanka was to identify and prosecute high level LTTE members who may have committed offences. In the case of lower profile former LTTE members, the IAA found that they would be sent for rehabilitation. The IAA also found that authorities may seek to obtain information from people connected with the LTTE about other LTTE members and supporters. The IAA referred to information that indicated that it is only those viewed as a real threat to a unitary state or likely to be involved in reviving the LTTE who may be at risk.
The IAA found that there is not a real chance any indirect, remote or tenuous connection with the LTTE going back over many years would now result in an individual falling under suspicion and facing serious harm, including when they have come to the attention of authorities as a failed asylum seeker.
In relation to the applicant in particular, the IAA did not accept that he faces a real chance of harm because of his particular links to the LTTE. The IAA relied on the applicant’s evidence which it found indicated that the authorities did not suspect that the applicant himself was involved with the LTTE.
The IAA noted that the applicant was only 15 when the war ended and that the applicant had said that this was why he had not been interrogated in the camps following the end of the war.
The IAA found that the applicant’s two siblings had been ordinary fighters with the LTTE who were forcibly recruited and, in the case of the applicant’s brother, served for a very short time.
In the circumstances, the IAA found that the authorities would have no interest in interrogating the applicant on his return in relation to his family’s involvement in the war. The IAA was satisfied that the applicant would not be suspected of having any other links of involvement with the LTTE. Further, given that the applicant was approximately 19 years of age when he left Sri Lanka (having been 15 when the war ended), the IAA did not accept that the applicant would be suspected of having fought with the LTTE or having had any significant personal involvement with the LTTE. Further, having regard to the applicant’s age during the war, the IAA found that the applicant would be unlikely to be in possession of any useful information about the LTTE or its members that he had not already provided.
The IAA concluded that the authorities would not view the applicant as a real threat to the unitary state or be a person likely to be active in seeking to revive the LTTE on the basis of his family relationship to former low level LTTE combatants, on the basis of any activity in which he had participated, including or because he had spent a period of time in Australia.
The IAA found that if in fact the applicant’s brother was under surveillance when he left Sri Lanka, the applicant may be asked about his brother’s whereabouts. However, the IAA did not accept that his brother’s profile or the authorities’ interest in him was such that the applicant would be detained in order to find out more about his brother’s whereabouts, even if the applicant were to tell them that he did not know.
Nevertheless, the IAA accepted that because of the circumstances in which the applicant will most likely return to Sri Lanka, he would undergo some routine investigation at the airport, may be questioned about his travel to Australia and may be identified as an asylum seeker. The IAA was satisfied that the applicant has no identity concerns or criminal or security records that would raise the suspicions of the authorities during this routine processing.
As stated above, the IAA was satisfied that the applicant was not him himself of specific interest to the authorities due to actual or suspected LTTE involvement or that there was a real chance that this would result in serious harm to the applicant upon return.
Ultimately, the IAA found as follows:
“The country information indicates that, in the current climate in Sri Lanka, none of the applicant's personal characteristics or his history, as set out above, including his former place of residence in a LTTE controlled area; his family connections with former combatants and his father's assistance to the LTTE; because he would be viewed as a potential witness to war crimes or human rights violations relating to the deaths of his father and sisters; because he has spent time outside Sri Lanka in the diaspora; or because he has sought asylum, would result in the applicant being subjected to any investigation beyond the routine inquiries at the airport, and I am not satisfied that there is a real chance that it would result in his being detained and subjected to serious harm.”
At the heart of the first respondent’s submissions is a submission that the applicant’s written claim that his mother had been told after he arrived in Australia that he would be kidnapped from the airport and shot if he returned, was subsumed in findings of greater generality of the IAA’s comprehensive findings in relation to the risk factors of the applicant in Sri Lanka. In particular, having found that the applicant was of no interest before leaving Sri Lanka, the IAA did not have to deal with what more might happen after the applicant had come to Australia. In support, the first respondent’s solicitor, Mr Gao, referred to the IAA’s finding that the applicant would not be subjected to any investigation beyond the routine enquiries at the airport and was not satisfied that there is a real chance that any such enquires would result in his being detained or subjected to serious harm.
In support, Mr Gao referred the Court to Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 (“WAEE”) where the full Court of the Federal Court (French, Sackville and Healy JJ) stated at 604 that:
“It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by the applicant in its written reasons…
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 reason. 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 that has been rejected.”
In relation to Ground 1(a), true it is that the applicant stated in his written claims that on one occasion the authorities told his mother that if her children returned to Sri Lanka they would be kidnapped from the airport and shot. However, that claim was premised on the applicant’s family’s links to the LTTE.
The IAA dealt comprehensively with the applicant’s claim of a risk of harm because of his family’s links to the LTTE and ultimately rejected that the applicant was at risk for that reason. The IAA accepted the existence of those connections and considered any risk to the applicant.
However, based on country information before it, the IAA was satisfied that the applicant would not be harmed in Sri Lanka. The IAA found that the Sri Lankan authorities would have no interest in interrogating the applicant on his return in relation to his family’s involvement with the LTTE during the war. The IAA referred specifically to the reasons for that finding being the applicant’s age at the time war ended and its finding that the applicant would not be suspected of having any other link or involvement with the LTTE. The IAA found that, given his age, the applicant would not be regarded as likely to be in possession of any useful information about the LTTE or its members that had not already been provided by the applicant.
The IAA also had regard to the current and relevant country information above and the fact that the applicant was able to obtain a passport and depart Sri Lanka legally, leading the IAA to find that the applicant was not of any adverse interest to the authorities.
I accept the first respondent’s submission that the IAA was not required to make a specific finding on the purported threats received by the applicant’s mother because the factual basis upon which this contention rests had been rejected by the IAA.
The IAA’s findings were open to it on the evidence and material before it, and for the reasons it gave. The IAA’s findings were probative of the issues before the IAA and not tainted by any failure to afford procedural fairness. Nor were the IAA’s findings without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).
In the circumstances, none of the IAA’s findings is legally unreasonable. Nor is it a jurisdictional error for the IAA to have failed to have made a specific finding about the applicant’s assertion in his written claims that authorities told his mother that if her children returned to Sri Lanka they would be kidnapped and shot. The IAA’s rejection of that claim is subsumed in the IAA’s finding of greater generality that the applicant was not of interest to the authorities in Sri Lanka nor was he at risk of serious or significant harm if returned to Sri Lanka (see WAEE).

Ground 1(b)

In relation to Ground 1(b), being a contention that the IAA failed to consider the applicant’s claim that his brother was tortured by the Sri Lankan authorities, a fair reading of the IAA’s reasons for decision does not support such a contention.
The IAA made a specific finding that it accepted that the applicant’s older brother was “detained on several occasions and tortured.” However, even in light of that finding, the IAA found that the applicant was not at risk of serious or significant harm in Sri Lanka notwithstanding those connections. The IAA’s findings were largely based on the country information before it which it identified with specificity.
It is well settled that the country information to which the IAA has regard and the weight it gives that information is a matter for the IAA (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
There is no suggestion or contention on the part of the applicant that the country information relied upon was in any way inaccurate, irrelevant or out of date.
Accordingly, Ground 1(a) and Ground 1(b) are not made out.

Conclusion

A fair reading of the IAA’s decision record makes clear that the IAA understood the claims being made by the applicant; and, had regard to all material provided in support. The IAA identified independent country information to which it had regard.
The IAA then made findings based on the evidence and material before it. Those findings of fact were open to the IAA on the evidence and material before it and for the reasons it gave. A fair reading of the IAA’s decision record makes clear that the IAA reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the IAA complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

The IAA’s decision is not affected by jurisdictional error and is therefore a privative clause decision.
The proceeding before this Court should be dismissed with costs.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Deputy Associate:

Date: 31 October 2019