ARG18 v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 320
•11 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ARG18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 320
File number: MLG 378 of 2018 Judgment of: JUDGE BLAKE Date of judgment: 11 March 2025 Catchwords: MIGRATION – Judicial review – applicant alleges failure by the Immigration Assessment Authority to consider relevant considerations – applicant alleges reasoning of the Authority is unreasonable – no error identified – Application dismissed. Legislation: Migration Act 1958 (Cth) s 473DB(1)
Immigrants and Emigrants Act 1949 (Sri Lanka)
Cases cited: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1
Plaintiff M1 2021 v Minister for Home Affairs (2022) 275 CLR 582
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of hearing: 10 February 2025 Place: Melbourne Counsel for the Applicant: Mr Krohn Solicitor for the Applicant: Vrachnas and Co Lawyers Solicitor for the Respondents: Mr Plitsch of the Australian Government Solicitor ORDERS
MLG 378 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARG18
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
11 MARCH 2025
THE COURT ORDERS THAT:
1.The Application filed 15 February 2018, as amended 26 November 2024, be dismissed.
2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
This is an application to review a decision made by the Immigration Assessment Authority (‘Authority’) on 25 January 2018. 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’)(Court Book (‘CB’) 220).
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 as an unauthorised maritime arrival. He applied for the visa on 21 October 2016 (CB 117).
On 10 April 2017, a delegate of the Minister (‘delegate’) refused to grant the Applicant the visa.
On 13 April 2017, the decision of the delegate was referred to the Authority (CB 168).
On 25 January 2018, the Authority affirmed the decision not to grant the Applicant the visa (CB 220).
The Applicant filed his Application for review in this Court on 15 February 2018. The Application for review was supported by an affidavit of the Applicant affirmed on 14 February 2018.
At the Hearing before me, the Applicant relied on his Amended Application filed 26 November 2024 (‘Application’) and a written outline of submissions filed 25 November 2024. The Minister relied on a written outline of submissions filed on 3 December 2024. The Minister filed a Court Book. The Minister also filed an affidavit of Michelle Stone on 3 December 2024, attached to which is a copy of the Department of Foreign Affairs and Trade Country Information Report, Sri Lanka, dated 24 January 2017 (‘DFAT Report’) which both parties referred to, and to which I have had regard.
THE DECISION OF THE AUTHORITY
In its decision, the Authority:
(a)set out the information before it and whether it should consider new information at paragraphs [2]-[10] of its reasons (‘Reasons’);
(b)summarised the Applicant’s claims for protection at [11] of the Reasons;
(c)found the Applicant to be a generally credible witness and accepted his claimed experiences in Sri Lanka at [15] of the Reasons. The Authority also accepted the Applicant’s work, educational, residential and general family history as set out in his application for the visa at [16] of the Reasons;
(d)accepted at [19] that his father felt compelled, like many others, to provide assistance to the LTTE and that his father was questioned by the authorities in 1994 about the assistance he provided (at [19]-[20]of the Reasons); however rejected the suggestion that he and his family fled to Vanni in 1996 to avoid the interest of the authorities;
(e)accepted at [21] that the Applicant was forced to undergo training by the LTTE;
(f)found at [25] that after questioning in 1994, the Applicant’s father was not of any ongoing interest or suspicion to the authorities on the basis of the material support provided to the LTTE;
(g)stated at [33] that the Applicant is not at risk of harm if returned to Sri Lanka;
(h)stated at [34] that it did not accept the Applicant’s residence in India heightened the risk that he will be identified as a person of interest and mistreated on return to Sri Lanka;
(i)at [35]-[41] considered whether the Applicant faced risk as a returning asylum seeker. In this respect, the Authority noted that the Applicant left Sri Lanka travelling on a valid passport; did not accept the Applicant’s claim that because he had been out of the country since 2007 the authorities will be suspicious of him, and ultimately concluded there was not a real chance of the Applicant being seriously harmed by the Sri Lankan authorities now or in the reasonably foreseeable future; and
(j)assessed whether the Applicant satisfied the criteria for complementary protection at [44]-[48] of the Reasons, and concluded that there was not substantial grounds for believing that as a necessary and foreseeable consequence of the return from Australia to Sri Lanka, there is a real risk that the Applicant will suffer significant harm.
THE APPLICATION
There are two Grounds of Review in the Application.
Ground 1
The first Ground of Review in the Application is:
1.The Second Respondent (“the Authority”) fell into jurisdictional error in that it did not consider relevant considerations.
Particulars
(a)The Authority did not consider with the engagement required by law whether individually or in conjunction the following factors may cause the applicant to have a real chance of suffering relevant harm:
i.the employment of an agent to pay money for the documents needed for the Applicant and his family to leave Sri Lanka; (CB 104, [8]
ii.the Applicant and his family having left Sri Lanka while the war was still being fought;
iii.one of his older sisters and his brother are living outside Sri Lanka in France;
iv.the Applicant and his family having spent a long time in India; (CB 164, n. 40)
v.the Applicant and his family having spent a long time outside Sri Lanka.
(b)The Authority considered aspects of the 2017 DFAT report of 24 January 2017, but did not consider with the engagement required by law the limitations of the 2017 DFAT report, and specifically that DFAT did not monitor returnees and found it difficult to assess the incidence of torture. (2017 DFAT report, 4.12 -4.22).
Principles
The Authority is engaged in review on the merits. It is required by section 473DB(1) of the Migration Act 1958 (Cth) (‘Act’) to consider the material before it. The Authority must consider all claims and integers of claims. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 144 FCR 1 at [68], a Full Court (Black CJ, French and Selway JJ) stated:
Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, “a substantial clearly articulated argument relying upon established facts” in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal.
In Plaintiff M1 2021 v Minister for Home Affairs (2022) 275 CLR 582, the High Court of Australia (Kiefel CJ, Keane, Gordon and Steward JJ) stated at [25]-[27]:
It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised” . That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.
None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument ; misunderstood the applicable law ; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.
Ground 1, particular (a)(i)
In his statutory declaration dated 18 October 2016 supporting his visa application, the Applicant stated as follows:
My family and I, with the exception of my elder sister, then travelled to Colombo. We then flew from Colombo to Chennai, India. I travelled using a passport and a visa which I got whilst in Colombo. My family had paid some people to ensure that we would get the documents as quickly as possible.
In its reasons, the Authority considered whether the Applicant faced a real chance of being seriously harmed by the Sri Lankan authorities now or in the reasonably foreseeable future as a result of his being returned to Sri Lanka as a failed asylum seeker. In assessing that issue, the Authority placed weight on the fact that the Applicant’s evidence was that he left Sri Lanka ‘legally, travelling on a valid Sri Lankan passport’ (at [35] of the Reasons, but see also [39]-[40] of the Reasons).
The Applicant accepts that in his application for the visa, he said he left Sri Lanka legally. He submits now, however, his departure from Sri Lanka may be perceived by the Sri Lankan authorities as being illegal. It is submitted that while he did not claim to have paid a bribe to obtain his passport or travel documents, the fact that he had paid money to get the documents would count on his return because of the perception by the Sri Lankan authorities that he may have left the country illegally. It is submitted that had the Authority considered the possibility of the Applicant having been perceived as having left the country illegally, it would then have had to engage with other information, including an assessment of whether the Applicant would be charged under the Immigrants and Emigrants Act 1949 of Sri Lanka.
In my view, the claim or question now raised by the Applicant in the preceding paragraph never arose for consideration. It was not a claim that was expressly made by the Applicant, as he acknowledges. It was not a claim that could be said to arise implicitly or otherwise emerge from the material. The suggestion that the claim arose from the materials contradicts the clear evidence given by the Applicant. The claim he made was that he obtained a passport and visa while in Colombo and he paid someone to get the documents as quickly as possible. He provided a copy of his passport with his visa application and provided details in the visa application form (CB 80). He stated that he travelled legally. There is no room to infer that any other claim arose other than that the Applicant had left Sri Lanka legally on his passport. The claim the Applicant now identifies as not having been considered did not emerge clearly from the materials. There was no failure to consider such a claim.
Ground 1, particular (a)(ii), (iv) and (v)
The Applicant alleges, via the particulars identified above, that the Authority did not consider with the engagement required by law, that his family left Sri Lanka when the war was still being fought, that he and his family spent a long time in India, and that he and his family spent a long time outside Sri Lanka. In the Applicant’s submission, this gives rise to the following questions or claims not considered by the Authority:
(a)whether the Applicant was a person needing special investigation because he had, inter alia, left before the end of the war and never been available for investigation and treatment as a suspected LTTE supporter who grew up in Vanni;
(b)whether he may have had some connection with the LTTE given his father was a fisherman, had a boat, had given support to the LTTE, and had been operating in waters between India and Sri Lanka; and
(c)whether he would face adverse attention on return given the long period of time he had spent outside Sri Lanka.
To assess these matters, it is necessary to return to the reasons of the Authority. The Authority:
(a)noted at [11] of its Reasons, the Applicant’s claims that:
His father was a prawn merchant and had been relatively successful in his business. Because of this success, the Liberation Tigers of Tamil Eelam (LTTE) requested some financial support from him. They were also expecting that he would provide them with food and transport, utilizing one of his fishing boats.
His father provided some food support to the LTTE. This information was communicated to the Sinhalese forces. His father was then taken in for questioning but was released after a short time. They fled to Vanni. Whilst he was in Vanni, and about 10 years old, he completed training with the LTTE while he was at school.
Fighting in the Vanni escalated and the family had to flee from there also.
In about 2007, his family thought that they could return home because there seemed to be a decrease in the level of violence. When they returned home, they saw that their house had been partly destroyed by the fighting. They started to try and repair it, but then the fighting started up once again.
His family and he, with the exception of his elder sister, then travelled to Colombo. They then flew from Colombo to Chennai, India. He travelled using a passport and a visa which he got whilst in Colombo. They lived in a refugee camp in Tamil Nadu, until he left India for Australia in 2012.
He had a very close friend who was shot and killed by Sinhalese forces in about 2008 or 2009 whilst he was in India.
Tamils, particularly those suspected of supporting the LTTE, are still being targeted by Sinhalese forces.
If he returns to Sri Lanka he would immediately be taken in for questioning. The authorities would be suspicious of him because he has been out of the country since 2007 and he does not currently have a passport with him. He fears that they may take him to a prison in Colombo if he does not give them the answers that they are looking for about former LTTE members and supporters.
If he is released after questioning he fears that he may be targeted by Sinhalese forces. He fears violence, or of being taken away in a white van for questioning. He thinks that he is likely to be targeted because he is a young Tamil man who grew up in Vanni during the civil war, his father was suspected of supporting the LTTE and he underwent some training at school with LTTE members.
(b)noted at [12] of the Reasons that the Applicant ‘thinks that he is likely to be targeted because he is a young Tamil man who grew up in Vanni during the Civil War, his father was suspected of supporting the LTTE and he underwent some training at school with LTTE members’;
(c)accepted the Applicant’s father was compelled like many others to provide some assistance to the LTTE in the form for financial support, food and transport using his boat at [19], and accepted the Applicant’s father was subsequently questioned about the support he had provided at [20] of the Reasons;
(d)accepted that the Applicant had been made to undergo a short period of self defence training by the LTTE at [21] of the Reasons;
(e)determined that after questioning in 1994, the Applicant’s father was not of any ongoing interest or suspicion to the authorities on the basis of the material support he provided to the LTTE at [25] of the Reasons;
(f)stated at [26] that ‘there is no information before me that a person who performed low-level work for the LTTE 24 years ago is at risk of harm now or that their relatives are at risk of harm, or that people who lived in the Vanni and were subjected to forced LTTE self-defence training are at risk of harm return. The applicant does not claim that he has ever experienced interest from the authorities for either reason and I am satisfied that the applicant does not have a profile with the Sri Lankan authorities because of these activities many years ago. I am satisfied he is not at risk of harm from the Sri Lankan authorities on the basis of his or his father’s actual or imputed connection to, or support for, the LTTE’;
(g)considered the Applicant’s claims that he will be targeted on return because he is a young Tamil man who grew up in Vanni in the Civil War at [27]-[34] and concluded that the Applicant did not face a real chance of serious harm at [34];
(h)was aware the Applicant spent time in India: see the Reasons at [11], [16], [22], [23], [24], [27], [34];
(i)stated at [34] that it had been ‘approximately 11 years since the applicant left Sri Lanka and he has not returned in that time’. Notwithstanding that, taking into account the substantial changes in the country since that time, the Authority was not satisfied there is a real chance of serious harm to the Applicant if he returned Sri Lanka. The Tribunal also at [34] did not accept that the Applicant’s residence in India heightens the risk that he will be identified as a person of interest and mistreated on return;
(j)considered Country Information in the form of the DFAT Report concerning the treatment by Sri Lankan authorities of returnees to Sri Lanka at [36], [37];
(k)made an express finding at [37] of the Reasons that it did not accept ‘the applicant’s claim that because he has been out of the country since 2007, the authorities will be suspicious of him’, and further stated that there ‘is no indication in the country information that the mere fact of having claimed asylum or having spent time abroad will lead to adverse interest on return or a real chance of harm’; and
(l)considered at [37] of the Reasons, a submission from the Applicant’s representative that on return, the Applicant would be suspected to have LTTE connections because of his father, and rejected that submission.
It can be seen from the above, among other things, that the Authority was acutely aware of when the Applicant left Sri Lanka, that he had spent a long time in India, and that he had spent a long time living outside of Sri Lanka. It considered and weighed these matters. It can be seen that notwithstanding the Authority accepting the Applicant’s claims about his father providing support to the LTTE, and him personally being involved in training by the LTTE, the Authority was ultimately not satisfied that the Applicant was at risk of harm.
As to the claim now advanced by the Applicant that he was a person who may attract special investigation because he had left before the war and never been available for investigation or treatment at a later time, the Applicant relies on paragraphs 3.32, 3.34 – 3.37 and 3.43 of the DFAT Report, and asserts a failure by the Authority to consider this claim. In respect of these submissions, two matters arise. First, the claim as put was not a claim that was ever expressly advanced by the Applicant. The claim is not contained in the Applicant’s statutory declaration of 18 October 2016. It is not a claim that is recorded by the Authority. Nor can any such claim be said to arise from the material.
Second, in respect of the Applicant’s reliance on the DFAT Report:
(a)paragraph 3.34 of the DFAT Report makes clear that the rehabilitation process discussed at paragraphs 3.34- 3.37 of the DFAT Report is a rehabilitation process for ‘former LTTE’. The Applicant was not found to be a former LTTE;
(b)the Authority did not accept the Applicant faced a real chance of serious harm on return to Sri Lanka on the basis of his age, gender, ethnicity, imputed political opinion, his father’s work for the LTTE in 1994 and questioning by authorities, his own self-defence training, or the fact that he is from areas formerly under the control of the LTTE (at [34]); and
(c)nothing in the DFAT Report suggests that a person who left Sri Lanka during the war (without more) is at risk of increased suspicion.
In my view, the reasons of the Authority make clear that the Authority was aware that the Applicant and his family had spent a long time outside Sri Lanka (including in India), and was aware the Applicant had left Sri Lanka when the war was being fought. It dealt with these matters in the course of assessing whether the Applicant faced a real chance of serious harm. The Authority properly considered all claims, including claims pertaining to the fact that his father had assisted the LTTE, that the Applicant had attended training with the LTTE, and found that these matters considered together with the Applicant’s absence from Sri Lanka would not cause the authorities to be suspicious of him because of the time he spent outside Sri Lanka.
Ground 1(a) particular (iii)
The Applicant contends that the Authority failed to consider the risk to him on return to Sri Lanka that arose because one of his older sisters and a brother were living outside Sri Lanka in France. The Applicant had indicated in his visa application (CB 79) that his sister and brother lived in France. The Applicant submits that a question that squarely arose for consideration was whether having relatives in the Tamil diaspora may increase the risk of him being treated with suspicion on return.
In support of the submission above, the Applicant relied on paragraphs 3.32 and 3.42 – 3.45 of the DFAT Report. In paragraph 3.32 of the DFAT Report, DFAT notes that a person’s real or perceived links with the LTTE may give rise to a need for international refugee protection. DFAT identifies such persons as being former LTTE supporters who may never have undergone training but were involved in sheltering or transporting LTTE personnel or goods, as well as persons with family links or who are dependent on or are otherwise closely related to persons with the above profiles.
Then at paragraphs 3.42- 3.46, it is stated that:
3.42 DFAT assesses that, although the great majority of these low−profile ('low−risk') former members have already been released following their rehabilitation, any other low−profile LTTE members who came to the attention of Sri Lankan authorities would be detained and may be sent to the remaining rehabilitation centre. Following their release from rehabilitation centres, low−profile former LTTE members may be monitored but generally are not prosecuted.
Former LTTE members living outside Sri Lanka
3.43 There are at least one million Sri Lankan Tamils living outside Sri Lanka, including in Canada, Europe, Australia, Malaysia, and the Indian State of Tamil Nadu. Members of the Sri Lankan Tamil diaspora may be citizens of those countries, dual−nationals or have arrangements to stay legally in their country of residence. Many members of the Tamil diaspora return to Sri Lanka to visit family members, for holidays and for business. Remittances from the Tamil diaspora continue to be an important source of income for family and community members in Sri Lanka.
3.44 Some members of the Tamil diaspora played a central role during the conflict, as a source of funding, weapons and other material support for the LTTE and as political advocates for a separate Tamil state in Sri Lanka. Many countries designated the LTTE as a terrorist organisation after September 2001, which made it more difficult for these organisations to raise funds from Tamil diaspora communities.
3.45 Some Tamil diaspora groups continue to hold public demonstrations in their countries of residence to support a separate Tamil state in Sri Lanka. High−profile leaders of pro−LTTE diaspora groups may come to the attention of Sri Lankan authorities as a result of their participation in such demonstrations.
3.46 The Sirisena government has publicly encouraged all Sri Lankans living overseas to return or invest in the Sri Lankan economy. In general, DFAT assesses that Sri Lankan authorities may monitor any member of the Tamil diaspora returning to Sri Lanka, depending on their risk profile.
It can be seen that in paragraphs 3.32 to 3.46 of the DFAT Report, DFAT considers and assesses a range of information. What can be taken from the DFAT Report is at least the following. First, the DFAT Report does not suggest that all members of the Tamil diaspora are treated with suspicion. The DFAT report, fairly read, notes that many members of the Tamil diaspora return to Sri Lanka to visit family, that they are an important source of income for family members, and that the Sri Lankan government encourages Sri Lankans living overseas to return or invest in the Sri Lankan economy. Second, high-profile leaders of pro-LTTE diaspora groups may come to the attention of the Sri Lankan authorities. Third, the risk that might arise to any member of the Tamil diaspora depends in turn on that person’s risk profile.
In the Reasons, the Authority considers matters that the Applicant asserts may elevate his risk profile, including his training with the LTTE, and his father’s provision of material support to the LTTE. It makes an express finding that these matters do not place the Applicant at risk. The Applicant made no claims that his siblings had a profile such that the risk to him on return might be elevated, nor could any such claim arise from the material. There was no failure by the Authority to consider the issue now raised and identified by the Applicant.
Conclusion re Ground 1(a)
The Authority did not fail to consider with the engagement required by law, for the reasons set out above, any of the matters identified in sub particulars (i) – (v) of Ground 1(a).
Ground 1(b)
The Authority referred closely to, and placed weight on the contents of the DFAT Report. So much may be seen from paragraphs [30]-[37] of the Reasons. There is also little doubt that the Authority had regard to, and placed weight on the content of the DFAT Report when assessing the risk of torture occurring. For example:
(a)at paragraph [30] of the Reasons, in considering a submission made by the Applicant’s representative about state-organised abductions, torture and sexual violence, the Authority states ‘I accept that there continue to be reports of torture and other human rights violations perpetrated by the Sri Lankan security forces…Similarly DFAT’s report notes that a number of reputable organisations including the ITJP and the UN’s Office of the High Commissioner for Human Rights have published allegations of torture perpetrated by the Sri Lankan military and intelligence forces…DFAT does not however suggest that such instances no longer occur but that they have significantly decreased and assesses that the risk of torture from military and intelligence forces has decreased since the end of the conflict’; and
(b)at paragraph [37] of the Reasons, the Authority states ‘DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low. There have been reports that returnees to Sri Lanka with links to the LTTE were at risk of being arrested either on arrival or shortly afterwards and thereafter detained and tortured’. The Authority also, in the same paragraph, states ‘I also place weight on the most recent information from DFAT that overall, the risk of torture or mistreatment for the majority of returnees is low and continues to reduce’.
The Applicant submits that the Authority did not engage with the limitations of the DFAT Report. Those limitations are said to include the following:
(a)at paragraph 4.12 of the DFAT Report, DFAT notes that a number of reputable organisations have over the last couple of years published allegations of torture perpetrated by the Sri Lankan military and intelligence forces. The reports are then listed at paragraph 4.13 of the DFAT Report;
(b)at paragraph 4.15 of the DFAT Report, DFAT states it is aware of reported instances of torture carried out by the police and that the UN Special Rapporteur on torture visited Sri Lanka in April and May 2016 and reported that torture might be carried out by the police in relation to regular criminal investigations;
(c)at paragraph 4.16 of the DFAT Report, DFAT records that the Human Rights Commission of Sri Lanka submitted a report that claimed torture was of a routine nature practised all over the country;
(d)at paragraph 4.18 of the DFAT Report, DFAT states that it ‘assesses that torture in Sri Lanka, perpetrated by the military, intelligence or police forces, is not presently systemic or state-sponsored. DFAT further says that the risk of torture from military and intelligence forces has decreased since the end of the civil conflict;
(e)at paragraph 4.20 of the DFAT Report, DFAT states ‘Because few reports of torture are proved or disproved it is difficult to determine the prevalence of torture but DFAT assess that irrespective… Sri Lankans face a low risk of mistreatment that can amount to torture, in most cases perpetrated by the police. The incidence of torture has reduced in recent years and therefore the allegations of torture pertain to a relatively small number of cases compared to the total population of Sri Lanka’; and
(f)at paragraph 4.21 of the DFAT Report, DFAT states it is aware of the small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka but ‘cannot verify these reports given that many allegations are made anonymously, often to third parties and sometimes long after the torture is alleged to have occurred’.
The Applicant submits, inter alia, that the apparent difficulties in verifying whether torture occurs or occurred, as well as the general nature of the information recounted above, ought to have properly informed the weight the Authority placed on the DFAT Report, including the conclusion that the risk of torture was low. The Applicant submits that the failure by the Authority to effectively engage with the limitations of the DFAT Report means an inference should be drawn that DFAT did not in fact consider those aspects of the DFAT Report.
At the outset, it is important to note the following. First, the Authority plainly had regard to the DFAT Report. No inference can be drawn that the Authority did not have regard to it. Second, the Authority is not required to refer to every aspect of the Report. It was entitled to read the Report and accept the conclusions within the Report. The Authority was also entitled to place such weight on the Report as it saw fit. Thirdly and significantly, the Authority expressly referred in the Reasons to aspects of the DFAT Report that noted the incidence of torture, and some of that information suggested torture was continuing. See for example, paragraph [30] where the Authority notes, inter alia, that reputable organisations have published allegations of torture, and where the Authority accepts reports of torture and other human rights violations since the election of the Sirisena government. See also paragraph [37], where the Authority references the DFAT Report and notes that there have been reports of returnees to Sri Lanka with links to the LTTE being detained and tortured.
For the above reasons, I decline to draw the inference that the Authority did not consider all aspects of the DFAT Report, or did not properly weigh the report. The Authority plainly considered all aspects of the DFAT Report and weighed these matters. What weight it gave to aspects of the evidence was a matter for it.
For all of the above reasons, Ground 1 of the Grounds of Review must be dismissed.
Ground 2
The second Ground of Review in the Application is:
2. The Authority fell into jurisdictional error in that it lacked a logically probative
basis for its findings or was otherwise legally unreasonable.
Particulars
(a)Further or in the alternative to Particular (a) to Ground 1, the Authority did not have a logically probative basis to exclude a real chance that the Applicant may suffer relevant harm because he has been out of the country since 2007, and the Sri Lankan authorities will be suspicious of him. (CB 230, [37], n. 36)
(b)Further or in the alternative to Particular (a) to Ground 1, the Authority did not have a logically probative basis to exclude a real chance that the Applicant may suffer relevant harm while under even short investigation on return, given the long standing abuses of human rights in Sri Lanka, including abuse of persons in detention or under investigation by the authorities. (CB 230-231,[39], [46])
Although not apparent from the Ground of Review as framed, under this Ground of Review, the Applicant first takes issue with the findings by the Authority at [22] and [23] of the Reasons. Those paragraphs are set out below:
22.His evidence was that after these experiences neither he nor any other member of his family experienced any problems from the authorities on the basis of actual or imputed connections to the LTTE. He said that the reason they decided to leave Jaffna in 2006 was that after the ceasefire ended, the authorities began to arrest anyone who supported the LTTE, this was frequently done in a secretive way, and his parents decided they couldn’t live there any longer so arranged to travel to India where they have lived from 2007 and where his parents continue to reside.
23.However, in the written statement submitted with his SHEV application he said his parent’s decision to move the family away from Jaffna in 2007 was because of the resumption of fighting after the ceasefire ended. Given his father experienced no interest from the authorities in the years from 1994 to 2007 and country information that fighting intensified in 2007 as the government began its push to regain the north I consider this a more likely explanation for his parent’s decision to relocate their family to India. Accordingly, I reject the suggestion that his family decided to leave because his father was facing problems from the authorities. I also consider it inconsistent with his other evidence about the lack of any interest in his father from the authorities.
In respect of the above, the Applicant takes issue with the finding of the Authority that the more likely explanation for the family’s move to India was because the fighting had resumed, not because his father was facing problems with the Sri Lankan authorities. He submits that the two explanations he offered for the move, which the Authority noted, are not inconsistent. He says the Authority’s assessment of this matter affected the way it went about its task in assessing the harm he may suffer on his return.
I am unable to accept that the reasoning of the Authority referred to above is not logical or is unreasonable. It was open to the Authority to consider two different explanations that had been given for the family’s move to Jaffna. It was open to the Authority to note the inconsistency and then prefer one account over the other on the basis of other evidence before it (that his father had not been troubled by the Sri Lankan authorities in the years 1997 – 2004, and also Country Information). I therefore do not accept that there was any error in the way the Authority dealt with this issue which then ‘affected’ the way it subsequently went about its task.
Returning to the central matters raised under this Ground of Review, the Applicant submits that the Authority acted unreasonably when it excluded the small but real chance that he would fall under suspicion from the Sri Lankan authorities on his return and thus be subject to mistreatment during even a small investigation. The matters the Applicant says would cause the Sri Lankan authorities to be suspicious of him are all of the matters identified and set out as particulars to Ground 1(a) of the Grounds of the Review. As to the risk of his mistreatment, the Applicant refers to what he says is the ‘continuing culture of torture and impunity’ identified in the DFAT Report. In that respect, the Applicant refers in particular to paragraphs 4.13 and 4.15 of the DFAT Report (that I have referred to above), and long-standing abuses of persons in detention or under investigation by the Sri Lankan authorities.
To the extent this Ground of Review relies on the matters particularised under Ground 1(a), I have regard to and rely on my earlier findings, including that:
(a)no claim was ever advanced by the Applicant that he paid a bribe for his departure documents or that he otherwise left Sri Lanka illegally. The Authority properly considered this claim and its reasoning was not illogical, unreasonable or irrational;
(b)the Authority was well aware of the matters the Applicant says were not considered by it. These included that his family had left Sri Lanka while the war was being fought, that the family had spent a long time in India and outside Sri Lanka, and that he had family outside of Sri Lanka. It nevertheless concluded that the Applicant did not face a real chance of serious harm. It’s reasoning was not illogical, unreasonable or irrational; and
(c)no claim was ever advanced by the Applicant that his family members had a profile that would result in a risk to him because he had family as part of the Tamil diaspora.
The finding by the Authority that the Applicant did not face a real chance of serious harm was neither illogical nor unreasonable given the matters above.
To the extent this Ground of Review relies on the manner in which the Authority treated the DFAT Report and the assessments of torture within that Report, I refer to my earlier findings. The Authority carefully weighed and then set out aspects of the DFAT Report, including direct references to evidence from sources that suggested torture was occurring. It was open to the Authority to place weight upon aspects of the DFAT Report, including the conclusions within the DFAT Report that the risk of torture was low. There is nothing illogical or unreasonable about the findings of the Authority.
For the above reasons, Ground 2 of the Grounds of Review must be dismissed.
CONCLUSION
The Applicant has not succeeded in his Application. Accordingly, the Court will order that the Application is dismissed.
The Applicant has been entirely unsuccessful. The Minister seeks costs of $8,371.30. In circumstances where the Applicant has been entirely unsuccessful, I will award costs to the Minister of $8,371.30.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 11 March 2025
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