Atl17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 14
•7 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 2
ATL17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 14
File number(s): MLG 349 of 2017 Judgment of: JUDGE EGAN Date of judgment: 7 September 2021 Catchwords: MIGRATION – Application for Safe Haven Enterprise Visa – the finding of the Authority that the applicant did not have a well-founded fear of persecution was open on the evidence before it – findings of Authority constituted a recognition of the distinction between a person being a member of a social group, and a person being a member of a “particular” social group – no error on the part of the Authority established – application dismissed. Legislation: Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa), 36(2A), 473CB, 473DD Cases cited: Applicant A v Minister for Immigration and Ethnic Affairs & Anor (1996-1997) 190 CLR 225.
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293.
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
Division: Division 2 General Federal Law Number of paragraphs: 41 Date of last submission/s: 24 August 2021 Date of hearing: 24 August 2021 Solicitor for the Applicant: Mr R. Selliah of RTS Lawyers Counsel for the First Respondent: Ms L. Mills Solicitor for the First Respondent: Australian Government Solicitors Second Respondent: Submitting appearance save as to costs ORDERS
MLG 349 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ATL17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
7 SEPTEMBER 2021
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The Amended Application for Review filed on 12 August 2021 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7, 853.00.
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 EGAN:
Introduction
The applicant is a citizen of Sri Lanka who arrived at Christmas Island as an unauthorised maritime arrival on 10 September 2012.
On 28 January 2016, the applicant applied for a Safe Haven Enterprise Visa (‘SHEV’).
On 2 September 2016, a delegate of the Minister refused to grant the visa to the applicant on the basis that the applicant was not a person to whom Australia owed protection visa obligations pursuant to the provisions of s. 36(2)(a) or s. 36(2)(aa) of the Migration Act 1958 (Cth) (‘the Act’).
On 7 September 2016, the decision of the delegate was referred to the Immigration Assessment Authority (‘the Authority’) for review.
On 9 February 2017, the Authority affirmed the decision of the delegate.
On 22 February 2017, the applicant filed an Originating Application for Review of the Authority’s decision with this Court.
The Reasons of the Authority
At [3] of its reasons, the Authority noted that it had had regard to the material provided to it by the Secretary pursuant to the provisions of s. 473CB of the Act.
At [4] of its reasons, the Authority noted receipt of a news article submitted to the Authority by the applicant’s representative on 10 October 2016. Such article reported that Sri Lankan nationals returning after having sought asylum in foreign countries remained in danger of being subjected to torture by police due to the operation of the Prevention of Terrorism Act in Sri Lanka. The Authority considered that the news article constituted new information pursuant to the provisions of s. 473DD(b)(i) of the Act, and that exceptional circumstances justified the consideration of such new information pursuant to the provisions of s. 473DD(b)(ii) of the Act.
At [5] of its reasons, the Authority recorded that it had had regard to submissions made to it by the applicant’s representative on 18 October 2016.
At [6] of its reasons, the Authority set out the applicant’s claims for protection as follows:
•The applicant is a middle-aged Tamil from the [district omitted], Eastern Province, Sri Lanka. During the war between the Liberation Tigers of Tamil Eelam (LTTE) and the Sri Lankan military he and his family were routinely harassed by the Sri Lankan Army (SLA), displaced from their home because of the fighting, and forced to provide support for the LTTE.
•The applicant and his family were subjected to LTTE monetary demands and threats every year since 1987.
•In 1988 they also endured round-ups and threats from the Indian Peace Keeping Forces (IPKF). The applicant and other young men were forced to sit under the sun and then run for two or three hours, were beaten with sticks and kicked if they fell. The applicant needed medical treatment after this and still suffers the after-effects of this mistreatment.
•In or around 1989-1990 one of the applicant’s brothers was detained and mistreated by the IPKF. As a result he obtained protection in Norway and continues to live in Norway.
•From November 1988 to July 1989 the applicant lived in [name of place omitted] in the Northern Province for study purposes. When he returned the LTTE demanded the family pay 5 lakhs. The applicant was taken and held by the LTTE to pressure the family to pay them money. Because of the fighting the applicant managed to escape and fled with his parents, two sisters and grandmother to [name of place omitted], 32kms from their home village. This part of [name of place omitted] was under the control of the SLA. The applicant’s parents took him to Colombo for safety and he lived there until December 1989.
•The applicant then returned to the family home in the [name of place omitted] until June 1990 when he and the family were displaced by the fighting. Two of the family’s homes were burnt down in this fighting. From November 1990 to November 1992 the applicant lived in Colombo for safety reasons. He lived in Singapore from December 1992 to June 1993 and then returned to the family home in the [name of place omitted] until 1997. He lived in Tamil Nadu, India from 1997 to February 1998 and then returned to Colombo where he lived from February to March 1998. From mid-March 1998 to 2007 he lived in the family home in the [name of place omitted]. He lived at a displaced persons camp in [name of place omitted] in March 2007. After that he lived back at the family home until mid- August 2012.
•When the applicant lived in Colombo he suffered a lot of harassment and abuse from the Sri Lankan authorities when he had to travel through checkpoints because his ID card showed that he was from [name of place omitted]. He was detained overnight by the SLA on one occasion in 1998 when he was traveling to obtain medication for his father.
•The applicant’s father died in 1998 and the applicant was the sole provider for his mother and two sisters as one brother was in India and the other in Norway. The applicant worked in construction. He believes his father died prematurely because of the fighting, problems, losses and threats he suffered from during the war.
•In 1999 the LTTE confiscated parts of the applicant’s family land in [name of place omitted] as a means of extorting money from the applicant and his family. The applicant’s family were able to retain their land after the money was paid. There were also times when the LTTE detained the applicant until the family paid the money they demanded.
•In 2001 the applicant became President of the [name omitted] which was responsible for administering large tracts of land and allowed the applicant to obtain government irrigation project contracts. He managed 350 acres of rice fields on common village farm land because he was the President of [name omitted]. He maintained his construction work as well. The LTTE was recruiting male members in the area and also large sections of the land administered by the Agricultural Association were taken over by the LTTE.
•In 2001 the applicant and his mother returned from a trip to Colombo to find their home had been broken into and their possessions stolen or destroyed. Neighbours said the Special Task Forces (STF) did this. The applicant and his mother complained to the International Committee of the Red Cross (ICRC) in [name omitted] and were advised to go to the STF camp to reclaim their belongings. They found their belongings at the camp but were told they had to go to the Head Office 10km away to reclaim them. At the Head Office they were questioned and threatened and told that one day the applicant would go missing if they pursued their complaint.
•Many farmers left the area and went to the SLA controlled area to protect their children from being forcibly recruited by the LTTE. The LTTE area leader, [name omitted], questioned the applicant as he was President of the [name omitted] and wanted the names of farmers who had left for the SLA controlled areas. The applicant refused and was taken into custody at the LTTE camp and held for a day for non-cooperation. He was released as the LTTE obtained the names by other means. He was warned that he would suffer if he continued to be uncooperative with the LTTE.
•Every year to 2005 the applicant paid money to the LTTE to safeguard himself and his family from further harassment. They lived in fear that the LTTE would take their farm machinery and in fear of the SLA and military helicopters and their interrogations. There was some relief between 2006 and 2008 as there was a peace agreement between the LTTE and the Sri Lankan government.
•After the end of the war in May 2009 the SLA maintained a strong military presence throughout the area and empowered paramilitary groups such as the Tamil Makkal Viduthalai Pulikal (TMVP).
•In or around June 2009 a wealthy man, [name omitted], began construction of a fuel station next to some land owned by the applicant’s family in part of the [name of place omitted]. [Name omitted], who lived in Switzerland, was a close friend of [name omitted] a former LTTE area commander who in 2010 elections became the Chief Minister of the Eastern Province of Sri Lanka. [Name omitted] workers poured sand onto the applicant’s land. The applicant told them the land belonged to him and they had to stop. They stopped when he told them he would file a complaint with the authorities.
•In or around late 2009 [name omitted] came to the applicant’s home and explained that he wanted to build the fuel station on the land adjacent to the land owned by the applicant. However the applicant showed [name omitted the Title Deed indicating that the land in question was owned by the applicant. [Name omitted] departed and returned to Switzerland.
•In or around late 2010 [name omitted] invited the applicant, as President [name omitted], to a meeting in relation to land in [name of place omitted] which contained an irrigation pond. [Name omitted] was also at the meeting along with [name omitted], a cousin of [name omitted]. [Name omitted] showed the applicant plans to build a large petrol station on the land with the irrigation pond. This land was administered by the [name omitted]. [Name omitted] asked the applicant, as President of the [name omitted], to provide a letter permitting the construction of the petrol station on the land. The applicant indicated that he did not have authority to provide the letter. [Name omitted] mentioned that the applicant had previously blocked construction of the petrol station on land owned by him and his family. [Name omitted] indicated that the applicant should not interfere with the construction of the petrol station. The applicant returned home.
•A couple of weeks after the meeting the applicant discovered [name omitted] men illegally filling the irrigation pond with sand. The pond was an important community recreational park and members of the community protested. Subsequently higher levels of government acted to stop the construction as it was illegal. The applicant refrained from involvement for fear of angering [name omitted] and [name omitted] as both were powerful men.
•In early 2011 police came to the applicant’s home and told him he should not interfere with the construction of a petrol station on his property. Shortly thereafter men again started filling sand on the applicant’s land. They took approximately 25% of his land. The applicant approached a lawyer for advice. The lawyer contacted [name omitted] associates and around April 2011 the construction of the petrol pump on the applicant’s land stopped again.
•In August 2011 the applicant and his lawyer attended a meeting with [name omitted] and [name omitted]. The lawyer produced the applicant’s title deed to the land and told the two men they were not entitled to build on his property. [Name omitted] offered to buy the land from the applicant. The applicant refused to sell as it belonged to his deceased father and had sentimental value. The monsoon season started and the construction stopped.
•In or around March 2012 the construction recommenced on the applicant’s property. Men from the TMVP came to the applicant’s house stating they were endorsing the construction of the petrol pump and the applicant would be harmed if he continued to resist.
•In or around April 2012 a man named [name omitted] from the special intelligence division of the SLA went to the applicant’s home and told the applicant to go to his office in [name of place omitted] as the applicant was being investigated. The man referred to the LTTE taking control of vast tracts of land when the applicant was President of the [name omitted] and reports that the applicant provided funding to the LTTE. The applicant feared [name omitted] and his associates were behind this investigation. Over the next few months the authorities, including a senior police officer, and the TMVP harassed the applicant about his support and funding of the LTTE. Men from the TMVP and the SLA came to the applicant’s home and threatened him. They told him he had to give the land for the petrol station or they would inform the government that he had supported the LTTE and have him put in jail. At the SHEV interview the applicant clarified that the TMVP came four times over a period of about three months. He stated that his mother was very afraid for his safety and suggested he leave Sri Lanka.
•After the applicant left Sri Lanka he learnt that the petrol station had been completed on his land. [Name omitted] continues to live in Switzerland and is a fund-raiser for the TMVP. The applicant still fears the TMVP and [name omitted] and [name omitted]. [Name omitted] cousin manages the petrol station. The applicant fears they will harm him because if he returns to Sri Lanka they will think he will do something against them because of what they have done and therefore they will do something to him to prevent this. There will be no protection for him.
•The applicant’s family were friends with [name omitted], a member of the Tamil National Alliance (TNA). At the SHEV interview the applicant clarified that he was not involved in politics and does not want to be involved in politics however he is from a prominent family and people in the village listen to their opinion. During the lead-up to the September Provincial Council Elections [name omitted] often came to the applicant’s home and had lunch with them and discussed politics. The applicant is therefore perceived as being a TNA supporter. The TMVP escalated their threats of harm because they viewed the applicant as a supporter of the TNA. Former LTTE members are now in the TMVP. The applicant knows some of them through local connections in the village. They operate together with the SLA and have the power of the government behind them. The government may have changed but in practice nothing has changed in his home area.
•For the above reasons in or around mid-August 2012 the applicant decided to flee Sri Lanka and arranged with a people smuggler to travel by boat to Australia. Since arriving in Australia the petrol station has been completed on part of the applicant’s family land and the authorities continue to search for the applicant.
•The applicant’s mother and younger sister left the village in August 2015 and live in Chennai, India, with the applicant’s elder brother and family. They obtained Indian visas on medical treatment grounds. The applicant’s other brother continues to live in Norway. The applicant’s family have all left Sri Lanka with the exception of one of his sisters who is married and lives with her family in Colombo. The farm lands owned by the applicant’s family have been leased out to farmers. They pay money into his mother’s account and any problems are managed by the applicant’s sister who lives in Colombo.
•The applicant fears he will be beaten, tortured, abused, and / or killed by the SLA, CID, Police, and harmed / mistreated by the TMVP if he returns to Sri Lanka. This will happen because he is Tamil; because of his imputed political opinion as pro-LTTE and a TNA supporter; because of his membership of a particular social group “failed asylum seekers” and “failed asylum seekers imputed with links to the LTTE” and “wealthy Tamil land owners” and “Tamils who act contrary to the interests of powerful politicians”.
•The applicant fears he will be subjected to serious harm and significant harm for the above reasons.”
(names of places, persons and associations omitted)
At [10] – [14] of its reasons, the Authority accepted the applicant’s claims regarding the forced payment of monies by the applicant to the Liberation Tigers of Tamil Eelam (‘the LTTE’) and subsequent harassment by the Sri Lankan Army (’the SLA’) and the Special Task Force (‘the STF’). The Authority found the applicant to be a credible witness whose claims had been consistent throughout the processing of his visa application.
At [15] of its reasons, the Authority said as follows:
“[15]In assessing the chance of the applicant facing harm in the future as a result of these events I note that they occurred during the war in Sri Lanka which ended in May 2009 when the Sri Lankan military effectively decimated the LTTE as a fighting force. I note that the IPKF are no longer present in Sri Lanka and have not been in Sri Lanka for many years. I also note that more than 15 years have passed since the applicant’s home was broken into by the STF and the threat was made to harm the applicant and that the applicant has not been harmed by the STF in the time since the threat was made.”
At [16] its reasons, the Authority found that despite the credibility of the applicant’s claims of harassment during the war, such claims related to historical persecution of Tamils which was no longer prevalent under the new Government in Sri Lanka. At [17] of its reasons, the Authority recorded that it did not accept that such claims gave rise to a real chance of serious harm as follows:
“[17]I accept that the applicant’s past experiences would instil fear, however after assessing all the evidence I find that, given the time that has passed, and the significant change in circumstances in Sri Lanka, in particular the departure of the IPKF, the end of the war and demise of the LTTE, the applicant does not face a real chance of serious harm in the future in Sri Lanka from the LTTE, the IPKF, the SLA and the STF.”
At [18] – [22] of its reasons, the Authority considered the applicant’s claimed fear of harm due to his Tamil ethnicity. On the basis of the LTTE’s defeat in 2009, and its subsequent loss of control of the North and East of Sri Lanka, as well as the change of Government in Sri Lanka, the Authority found that the chance of the applicant suffering serious harm because of his Tamil ethnicity alone was remote, and that his expressed fears of persecution were consequently not well-founded.
At [23] – [33] of its reasons, the Authority considered the applicant’s claims regarding his imputed LTTE involvement which the applicant claimed was the subject of a visit from an SLA officer in April 2012. The Authority accepted that, for a period of time, the applicant’s home district was under the control of the LTTE, and that as a result, the applicant and his family had paid money to the LTTE. The Authority also accepted that, as a result of the applicant being a President of a local organisation, the applicant had been forced to hand over control of land to the LTTE during the war. Despite those findings, the Authority, at [25] – [26] of its reasons, found as follows:
“[25]Whilst I accept that the applicant was threatened with harm by the STF in 2001 and he and his family suffered mistreatment at this and other times at the hands of the Sri Lankan authorities, I note that the applicant was not at any time detained or arrested or held under the Prevention of Terrorism Act on suspicion of involvement with the LTTE.
[26]On the evidence I find that the applicant is not and has not been perceived by the Sri Lankan authorities to be an LTTE member or supporter at any time.”
At [34] – [38] of its reasons, the Authority discussed the applicant’s claims relating to the building of a petrol station on part of his family land, and his further claims that if he returned to Sri Lanka, various groups would harm him in order to prevent him from reclaiming his land. At [41] of its reasons, the Authority found as follows:
“[34]I note the applicant’s claim that as a result of the building of the petrol station on land owned by his family he fears that men from the SLA and TMVP will inform the government that he supported the LTTE and have him put in jail or will harm him in other ways.
[35]I accept the applicant’s claims with regard to the building of the petrol station on part of his family land. I accept that he was forced to relinquish part of the family land for the building of the petrol station in the manner that he has outlined in his claims and elaborated on in his SHEV interview. I accept that he was threatened by men from the TMVP and the SLA and told that because his family provided money to the LTTE and the LTTE used land owned by the applicant’s family and land the applicant administered in his role as President of the [name omitted] they would have him jailed for supporting and providing assistance to the LTTE. I accept that after the applicant left Sri Lanka he learnt that the petrol station had been completed on his land and that [name omitted] continues to live in Switzerland and is a fund-raiser for the TMVP and [name omitted], a cousin of [name omitted], manages the petrol station.
[36]The applicant claims that if he returns to Sri Lanka, [names omitted] and the TMVP will harm him in order to prevent him from reclaiming his land. He claims that because he has the title deed, if the matter goes to court he will win. They know this, and for this reason they will harm him in order to prevent that from occurring. They threatened to have him jailed because of his history of providing the LTTE with money and land, both family owned land and land owned by the [name omitted].
[37]In assessing the chance of the applicant being jailed and/or otherwise harmed for this reason I have considered the following. As noted previously, the applicant’s travel to and from Sri Lanka and obtaining Sri Lankan passports without any difficulty indicates that he is not perceived by the Sri Lankan authorities as a person who supported the LTTE. Originating from an area that was previously under LTTE control meant that, along with every other person living in these areas, he and his family were compelled to provide support for the LTTE through paying money, paying taxes, and assisting in whatever manner they were required to assist. Originating from an area that was previously under LTTE control does not in itself result in a need for international refugee protection on the grounds of imputed political opinion as an LTTE supporter. After assessing all the evidence I am satisfied that the applicant does not face a real chance of being perceived to be an LTTE supporter by the Sri Lankan authorities, even having regard to any threatened intervention by the TMVP, the SLA and other associated parties.
[38]Also, as noted by the delegate, the applicant was not harmed by [names omitted], the authorities or the TMVP in the past when the land dispute was occurring. Rather, he was threatened with harm if he continued to prevent the building of the petrol station on his family land. The petrol station has been constructed, despite the applicant’s objections. [Name omitted] and the others have achieved what they wanted to achieve. The applicant has not claimed that it is his intention to contest, nor did he express an interest in contesting the matter in court if he returns to Sri Lanka. [Name omitted] was arrested by the CID in Batticaloa in October 2015 on charges of killing former TNA parliamentarian Joseph Pararajasingham on December 25, 2005 in Batticaloa.”
(names of places, persons and associations omitted) (footnotes omitted)
As to the applicant’s claims that he feared future harm as a member of the particular social group of “wealthy Tamil landowners”, and “Tamils who acted contrary to the interests of powerful politicians”, the Authority, appreciating the distinction between a person being a member of a social group as opposed to a person being a member of a “particular” social group, at [46] – [48] of its reasons, found as follows:
“[46]I accept that “wealthy Tamil landowners” may be a particular social group; however I do not accept that “Tamils who acted contrary to the interests of powerful politicians” are a particular social group. In making this finding I note that the latter do not share a common characteristic which is innate or immutable, fundamental to their identity or conscience, or which distinguishes them from society. The purported group is defined by its actions. “Tamils who acted contrary to the interests of powerful politicians” are not a particular social group.
[47]The applicant clarified at the SHEV interview that his claims in this regard relate to his specific circumstances of fearing harm because of his refusal to give his family land for the purpose of the building of the petrol station. I am satisfied the applicant’s fears in this regard have been addressed in the previous pages in this decision.
[48]For completeness, the applicant has not claimed that in the past he has been targeted because he and his family own farmland and are regarded as wealthy Tamil landowners, other than by the LTTE during the war. I have found that the applicant no longer faces harm from the LTTE as they are no longer a viable force. Rather the claim was based on a dispute arising from ownership of a particular parcel of land.
[49]I am satisfied after assessing all the evidence that the applicant does not face a real chance of harm because he is a member of the particular social group “wealthy Tamil landowners”.”
Grounds of Review
The Grounds of Review in the Amended Application for Review filed on 12 August 2021 were as follows:
“Grounds of application
1…
2The IAA fell into jurisdictional error by misconstruing misunderstanding and misapplying the test contained in section SL of the Act when determining the Convention ground of Particular Social Group ('PSG').
The IAA's finding is legally unreasonable because its reasoning process is illogical and irrational.
Particulars:
(a) The IAA made a finding and conclusion at paragraph 46 stating that they do not accept that "Tamils who acted contrary to the interests of powerful politicians" are a particular social group. In making this finding they note that the latter do not share a common characteristic which is innate or immutable, fundamental to their identity or conscience, or which distinguishes them from society. The purported group is defined by its actions. While the IAA merely stated the law at paragraph 46, the IAA misunderstood the term "by its actions" under legislation and case law. The IAA erred in construing s SL and in considering matters relevant in determining whether the circumstances of the Applicant's claim constitute PSG, both to satisfy the elements of s SL and the additional conditions of the term "by its actions", which is not contained within the Act.
3The IAA committed jurisdictional error by failing to consider or making a finding on a claim or an integer of claim that arose either expressly or clearly on the information and evidence before it:
Particulars:
(a) At paragraph 46 the IAA accepted the claim of "Tamils who acted contrary to the interests of powerful politicians" but concluded that that the group is not a PSG. However, the IAA failed to consider and make findings for the claim for complementary protection (paragraphs 61 to 65) whether the applicant will suffer "significant harm" (ss 36(2)(aa) & 36(2A). The IAA failed to correctly construe and apply, or otherwise correctly answer, the question posed by section 36 (2)(aa) when considering the Applicant's claim for complementary protection.
(b) The IAA failed to consider (and make finding) the applicant's claims cumulatively, despite its statement that it did so at CB 205 [59].
(c) The IAA failed to consider the applicant's fears of future harm as a member of the PSG of "wealthy Tamil landowners" because it misunderstood and mischaracterised the claim. The conclusion is legally unreasonable as the reasoning process is illogical and irrational.”
Ground 2 of the Amended Application for Review was a claim that the Authority misconstrued, misunderstood or misapplied the test in s. 5L of the Act as to what constituted a member of a particular social group (‘PSG’). It was claimed that the Authority had adopted an overly narrow view as to what constituted a PSG. Section 5L of the Act relevantly provided as follows:
“5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person's family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i) the characteristic is an innate or immutable characteristic;
(ii) the characteristic is so fundamental to a member's identity or conscience, the member should not be forced to renounce it;
(iii) the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.”
The applicant’s claim that he was a member of a particular social group – namely Tamils who acted contrary to the interests of powerful politicians – was without merit. In Applicant A v Minister for Immigration and Ethnic Affairs & Anor (1996-1997) 190 CLR 225 at 242 – 243, Dawson J said as follows:
“However, one important limitation which is, I think, obvious is that the characteristic or element which unites the group cannot be a common fear of persecution. There is more than a hint of circularity in the view that a number of persons may be held to fear persecution by reason of membership of a particular social group where what is said to unite those persons into a particular social group is their common fear of persecution. A group thus defined does not have anything in common save fear of persecution, and allowing such a group to constitute a particular social group for the purposes of the Convention "completely reverses the statutory definition of Convention refugee in issue (wherein persecution must be driven by one of the enumerated grounds and not vice versa)" (60). That approach would ignore what Burchett J in Ram v Minister for Immigration (61) called the "common thread" which links the expressions "persecuted", "for reasons of", and "membership of a particular social group", namely:
''a motivation which is implicit in the very idea of persecution, is expressed in the phrase 'for reasons of', and fastens upon the victim's membership of a particular social group. He is persecuted because he belongs to that group.''
Moreover, if a shared fear of persecution were sufficient to constitute a particular social group, it would render at least three of the other four Convention reasons - race, religion and nationality - superfluous. It is one thing to say that the five Convention reasons can overlap; it is quite another to construe one of them in a manner which renders three of the others unnecessary and the fourth – political opinion - almost so. To construe the tern "particular social group" in that way would make it an almost all-encompassing safety net (62), allowing a persecutory law or practice of general application to constitute those whose actions bring themselves within its terms members of a particular social group. Such a construction would be contrary to the context in which the words "particular social group" appear.
The requirement that the feared persecution be by reason of ''membership'' of a particular social group was taken by Black CJ (with whom French J agreed) in Morato v Minister for Immigration (63) to require that the persecution be on account of "what a person is - a member of a particular social group - rather than upon what a person has done or does". But as Black CJ himself recognised (64), that statement should not be taken too far. The distinction between what a person is and what a person does may sometimes be an unreal one. For example, the pursuit of an occupation may equally be regarded as what one is and what one does. At other times, the distinction may be appreciable but not illuminating. For example, the acts of conceiving and bearing a child may be what people do, but the result of those acts - that the persons involved are parents - is quite central to what they are (65).
However, I think that Black CJ's remarks were directed more to the situation of a generally applicable law or practice which persecutes persons who merely engage in certain behaviour or place themselves in a particular situation (66). For example, a law or practice which persecuted persons who committed a contempt of court or broke traffic laws would not be one that persecuted persons by reason of their membership of a particular social group. Where a persecutory law or practice applies to all members of society it cannot create a particular social group consisting of all those who bring themselves within its terms. Viewed in that way, Black CJ's distinction between what a person is and what a person does is merely another way of expressing the proposition which I have already stated.”
In Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at [12] – [42] inclusive, the plurality (Gleeson CJ, Gaudron, Gummow and Hayne JJ) dealt with what constituted discrimination in respect of a particular social group, saying as follows:
“A particular social group
[12] In Applicant A v Minister for Immigration and Ethnic Affairs[4], Dawson J correctly pointed out, by reference to what was said in Ram v Minister for Immigration and Ethnic Affairs[5], that, in the Convention, there is a "'common thread' which links the expressions 'persecuted', 'for reasons of', and 'membership of a particular social group'". Even so, it is convenient to deal with the question whether "black children" can constitute "a particular social group" as a discrete question. Moreover, it is convenient to deal with that question before considering the nature of the connection which must exist between "persecuted" and the grounds specified in the Convention definition of "refugee" if a person is to come within that definition.
[13] It was held in Applicant A that the "common thread" which links "persecuted", "for reasons of" and "membership of a particular social group" in the Convention definition of "refugee" dictates that "a shared fear of persecution [is not] sufficient to constitute a particular social group". To treat it as sufficient would be to ignore the several parts of the definition for, as McHugh J pointed out, "Allowing persecutory conduct of itself to define a particular social group would, in substance, permit the 'particular social group' ground to take on the character of a safety-net. It would impermissibly weaken, if it did not destroy, the cumulative requirements of 'fear of persecution', 'for reasons of' and 'membership of a particular social group' in the definition of 'refugee'. It would also effectively make the other four grounds of persecution superfluous." Based on that consideration, it was held in Applicant A that persons who opposed China's "one-child policy" and feared enforced sterilisation did not, on that account, constitute "a particular social group" for the purposes of the Convention.
[14]China's "one-child policy", which was the basis upon which refugee status was claimed in Applicant A, is, it seems, a policy of general application in China. There was, thus, some discussion in that case of laws and practices of general application. In particular, Dawson J observed that "[w]here a persecutory law or practice applies to all members of society it cannot create a particular social group consisting of all those who bring themselves within its terms." His Honour gave as an example "a law or practice which persecuted persons who committed a contempt of court or broke traffic laws".
[15] In the observation to which reference has just been made, Dawson J was elaborating the proposition, with which he agreed, that one should not take too far the statement that, to qualify as persecution for reasons of membership of a particular social group, the conduct must be engaged in on account of "what a person is", and that conduct by reason of "what a person does" would not be sufficient. As an example of a case where the proposition held good and was not taken too far, his Honour then gave the above example of a generally applicable law or practice "which persecutes persons who merely engage in certain behaviour or place themselves in a particular situation". Such persons would not be persecuted by reason of their membership of a particular social group.
[16]In the present matter, the majority in the Full Court held that "the principles explained in Applicant A preclude the identification of a relevant social group for Convention purposes, by recourse to the very laws and policies, being laws and policies directed to the whole population, which create the category of persons concerned." Thus, in their Honours' view, "black children" could not be identified as a particular social group. R D Nicholson J saw the issue as whether the laws which were likely to result in the appellant's adverse treatment in China were "such that [he] could not [be] a member of a particular social group of 'black children'". Seemingly, in reaching those conclusions, their Honours were influenced by their understanding of what followed from the observation made by Dawson J in Applicant A with respect to laws and practices of general application.
[17] It was by reference to laws of general application that it was argued in this Court that the majority in the Full Court was correct in holding that, for the purposes of the Convention, the appellant could not be identified as a member of a particular social group. According to the argument, the laws or policies which are likely to result in the appellant's adverse treatment in China are laws of general application and, having regard to what was said by Dawson J in Applicant A, cannot create a social group for the purposes of the Convention.
[18] There are difficulties with the argument that, because of the nature of the laws which will impact on the appellant if returned to China, he is not a member of a social group for the purposes of the Convention. In particular and notwithstanding that China's "one-child policy" may be reflected in laws of general application which limit the number of children that a couple may have, that does not mean that the laws or practices applied to children born in contravention of that policy are laws or practices of general application. Such children are, even within the sense of the distinction drawn by Dawson J in Applicant A, persecuted for what they are (the circumstances of their parentage, birth and status) and not by reason of anything they themselves have done by engaging in certain behaviour or placing themselves in a particular situation. The sins of their parents, if they be such, are being visited upon the children.
[19]Laws or policies which target or apply only to a particular section of the population are not properly described as laws or policies of general application. Certainly, laws which target or impact adversely upon a particular class or group – for example, "black children", as distinct from children generally – cannot properly be described in that way. Further and notwithstanding what was said by Dawson J in Applicant A, the fact that laws are of general application is more directly relevant to the question of persecution than to the question whether a person is a member of a particular social group.
[20] In Applicant A, McHugh J pointed out that "[w]hether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct [but] ... on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group." In that context, his Honour also pointed out that "enforcement of a generally applicable criminal law does not ordinarily constitute persecution." That is because enforcement of a law of that kind does not ordinarily constitute discrimination.
[21] To say that, ordinarily, a law of general application is not discriminatory is not to deny that general laws, which are apparently non-discriminatory, may impact differently on different people and, thus, operate discriminatorily. Nor is it to overlook the possibility that selective enforcement of a law of general application may result in discrimination. As a general rule, however, a law of general application is not discriminatory. And Applicant A held that, merely because some people disagree with a law of that kind and fear the consequences of their failure to abide by that law, they do not, on that account, constitute a social group for the purposes of the Convention.
[22] The question whether "black children" can constitute a social group for the purposes of the Convention arises in a context quite different from that involved in Applicant A. That case was concerned with persons who feared the imposition of sanctions upon them in the event that they contravened China's "one-child policy". In this case, the question is whether children, who did not contravene that policy but were born in contravention of it, can constitute a group of that kind. To put the matter in that way indicates that the group constituted by children born in those circumstances is defined other than by reference to the discriminatory treatment or persecution that they fear. And so much was recognised by the Tribunal in its finding that a "child is a 'black child' irrespective of what persecution may or may not befall him or her."
[23] The circumstance that "black children" receive adverse treatment in China is descriptive of their situation and, as McHugh J pointed out in Applicant A, that may facilitate their recognition as a social group for the purposes of the Convention but it does not define them. Accordingly there was no error in the Tribunal's finding that, for the purposes of the Convention, the appellant is a member of a particular social group. The Full Court erred in holding otherwise.
Persecution and the reasons for persecution
[24] As already indicated, there is a common thread linking the expressions "persecuted", "for reasons of" and "membership of a particular social group" in the Convention definition of "refugee". In a sense, that is to oversimplify the position. The thread links "persecuted", "for reasons of" and the several grounds specified in the definition, namely, "race, religion, nationality, membership of a particular social group or political opinion"
[25] As was pointed out in Applicant A, not every form of discriminatory or persecutory behaviour is covered by the Convention definition of "refugee". It covers only conduct undertaken for reasons specified in the Convention. And the question whether it is undertaken for a Convention reason cannot be entirely isolated from the question whether that conduct amounts to persecution. Moreover, the question whether particular discriminatory conduct is or is not persecution for one or other of the Convention reasons may necessitate different analysis depending on the particular reason assigned for that conduct.
[26] The need for different analysis depending on the reason assigned for the discriminatory conduct in question may be illustrated, in the first instance, by reference to race, religion and nationality. If persons of a particular race, religion or nationality are treated differently from other members of society, that, of itself, may justify the conclusion that they are treated differently by reason of their race, religion or nationality. That is because, ordinarily, race, religion and nationality do not provide a reason for treating people differently.
[27] The position is somewhat more complex when persecution is said to be for reasons of membership of a particular social group or political opinion. There may be groups – for example, terrorist groups – which warrant different treatment to protect society. So, too, it may be necessary for the protection of society to treat persons who hold certain political views – for example, those who advocate violence or terrorism – differently from other members of society.
[28]As McHugh J pointed out in Applicant A, the question whether the different treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is "appropriate and adapted to achieving some legitimate object of the country [concerned]". Moreover, it is "[o]nly in exceptional cases ... that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving [some] legitimate government object and not amount to persecution."
[29] Whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involve such a significant departure from the standards of the civilized world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective.
[30]The fact that "black children" are treated differently in China in consequence of the "one-child policy", which is a policy of general application, is relevant to the question whether that treatment amounts to persecution. But if the conduct in question does amount to persecution, that consideration cannot then result in the conclusion that that persecution is not for the reason that they are "black children".
[31]As earlier noted, the Tribunal found that, if returned to China, the appellant is likely to face discrimination amounting to persecution. In reaching that decision, it proceeded on the basis that, in China, "black children" are treated differently from other children. Moreover, it found that it was likely that the appellant would be "denied access to food, education and ... health care beyond a very basic level." And as already noted, it also found that, having regard to his parents' financial situation, "when the benefits of subsidized education are withdrawn, [the appellant] will ... be unable to have an education". Given those findings, it was clearly open to the Tribunal to find, as it did, that the treatment the appellant was likely to receive if returned to China amounted to persecution. And significantly for present purposes, that finding has not been challenged.
[32] Once it is accepted that "black children" are a social group for the purposes of the Convention, that they are treated differently from other children and that, in the case of the appellant, the different treatment he is likely to receive amounts to persecution, there is little scope for concluding that that treatment is for a reason other than his being a "black child". As a matter of common sense, that conclusion could only be reached if the appellant had some additional attribute or characteristic and the treatment he was likely to receive was referable solely to that other characteristic or attribute. However, it has not been suggested that that is the position. Moreover, that is not the basis upon which either the Tribunal or the majority in the Full Court dealt with the matter.
[33]As already indicated, the Tribunal based its conclusion that the adverse treatment the appellant is likely to receive in China is for a reason other than his being a "black child" on its view that the Chinese authorities were not motivated by "enmity" or "malignity". Where discriminatory conduct is motivated by "enmity" or "malignity" towards people of a particular race, religion, nationality, political opinion or people of a particular social group, that will usually facilitate its identification as persecution for a Convention reason. But that does not mean that, in the absence of "enmity" or "malignity", that conduct does not amount to persecution for a Convention reason. It is enough that the reason for the persecution is found in one or more of the five attributes listed in the Convention.
[34]In the present case, French J dealt as follows with this point:
"The majority judgment in Applicant A supports the proposition that the apprehended persecution which attracts Convention protection must be motivated by the possession of the relevant Convention attributes on the part of the person or group persecuted. But although the words 'enmity' and 'malignity' appear in the dictionary definitions of persecution and in some of the passages in the judgments, they do not mandate a narrow or constricting view of what may constitute the relevant connection between persecution and membership of the group. Motivation connecting persecution to the relevant attribute is sufficient. Persecution may be carried out coolly, efficiently and with no element of personal animus directed at its objects. There are too many historical examples of the inhuman indifference of which governments are sometimes capable in the pursuit of persecutory policies to so narrow the concept. The attribution of subjectively flavoured states such as 'enmity' and 'malignity' to governments and institutions risks a fictitious personification of the abstract and the impersonal.”
[35]Persecution can proceed from reasons other than "enmity" and "malignity". Indeed, from the perspective of those responsible for discriminatory treatment, it may result from the highest of motives, including an intention to benefit those who are its victims. And the same is true of conduct that amounts to persecution for a Convention reason. Accordingly, French J was correct to hold, as did the Full Court, that the Tribunal erred in finding that, because the different treatment which the appellant was likely to receive was not motivated by "enmity" or "malignity", that treatment was for a reason other than his being a "black child".
[36]Nor can it be said, as the Tribunal suggested, that the appellant faces a real risk of persecution in China, not because he is a "black child", but because of his parents' financial situation. To say that the consequences that are likely to befall him in China will result from his parents' financial situation is simply to say that neither he nor his parents have the means to mitigate the consequences of his adverse treatment. It may be that, if they had, the treatment in question could be viewed as appropriate and adapted to the implementation of China's "one-child policy" and not as persecution. However, that question is entirely hypothetical and need not be pursued in this case.
[37]Further, it is not correct to say, as was held by the majority in the Full Court, that the adverse treatment that is likely to befall the appellant is not because he is a "black child" but because of his parents' conduct in contravening China's "onechild policy". To say that his parents contravened China's "one-child policy" is simply another way of saying that he is a "black child".
Conclusion and orders
[38]The Full Court erred in holding that "black children" could not constitute a social group for the purposes of the Convention and, also, in holding that the adverse treatment which the appellant was likely to experience in China was not by reason of his being a "black child" but because his parents had contravened China's "one-child policy". It follows that the appeal must be allowed.
[39]It was submitted on behalf of the Minister that, even if the appeal is allowed, the order of French J remitting the matter to the Tribunal to be dealt with on the basis that the appellant is entitled to refugee status should not stand. In that regard, counsel for the Minister relied on what was said in Minister for Immigration and Ethnic Affairs v Guo. Before turning to that case, it is convenient to note that by s 481(1)(b) of the Act, the Federal Court has power, when reviewing a decision of the Tribunal, to make "an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit".
[40]In Guo, the Federal Court declared that the applicants for judicial review "[were] refugees and [were] entitled to the appropriate entry visas". It was held that that course was not open for it was for the Minister to determine whether the persons concerned were refugees, by reference to his satisfaction that they had that status, and their right "to the issue of visas, which the Full Court purported to declare with present effect, would only arise upon satisfaction of statutory conditions including the determination by the Minister".
[41]The statutory regime which presently governs entitlement to the issue of a protection visa is somewhat different from that which applied when Guo was determined. As the Act now stands, s 36(2) provides:
"A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."
That sub-section directs an objective enquiry. However, s 65(1) provides that, if the Minister is satisfied that the criteria prescribed by the Act and regulations for a particular class of visa are satisfied, that the grant of a visa is not prevented by the Act or other Commonwealth law, and that the application fee has been paid, the Minister "is to grant the visa" and, if not so satisfied, "is to refuse to grant the visa". Thus, although the Minister's satisfaction (or, in the case of the Tribunal, its satisfaction) is still required, s 65(1) imposes an obligation to grant a visa, as distinct from conferring a power involving the exercise of a discretion. The satisfaction that is required is a component of the condition precedent to the discharge of that obligation.
[42]In the present case, the Tribunal concluded that but for the lack of "enmity" or "malignity" on the part of Chinese authorities, the treatment that the appellant was likely to receive in China was persecution for the reason that he was a member of the social group known as "black children". As already indicated, the lack of "enmity" or "malignity" cannot alter the fact that the persecution the appellant is likely to receive in China is for the reason that he is a "black child". Nor can any of the other matters which have been raised in opposition to that conclusion. Accordingly, French J was correct to hold that the Tribunal erred in failing to reach it or, in terms of s 65 of the Act, in failing to be satisfied that the appellant fell within the Convention definition of "refugee". That being so, s 481(1)(b) authorised the remitter of the matter to the Tribunal with a direction that it be dealt with on the basis that the appellant is entitled to refugee status.”
(footnotes omitted)
As noted earlier by reference to [46] of its reasons, the Authority identified the distinction between people who may be members of a particular social group, and those people in such group who have the characteristics as set out in s. 5L(c) of the Act.
The Authority was alive to the requirements of s. 5L(c) of the Act, specifically using the words of such section in [46] of its reasons. Further, at [48] of its reasons, the Authority noted that the applicant had not claimed that in the past he had been targeted because he and his family owned farm land and were regarded as wealthy Tamil land owners, save in respect of the LTTE during the war.
The applicant did not meet the high bar required to be met for the claim that the Authority was legally unreasonable because its reasoning was illogical and irrational. The Authority carefully dealt with the applicant’s claims that he would suffer harm from particular individuals, or the TMVP organisation, and dismissed such claims. The Authority had due regard to country information in its assessment of whether there was a real chance that the applicant would suffer serious harm if he was returned to Sri Lanka, finding that he would not. The applicant cavils with the decision of the Authority and effectively seeks an impermissible merits review.
The Authority had regard to all relevant material before it during the course of its review. It cannot be said that the Authority, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] – [27], where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
There is no merit to Ground 2 of the Amended Application.
As to Ground 3 of the Amended Application, it was claimed that the Authority had committed jurisdictional error by failing to consider, or make a finding about, the claim that “Tamils who acted contrary to the interests of powerful politicians” were members of a PSG. It was asserted that the Authority had failed to consider and make findings about the applicant’s claims for complimentary protection; that the Authority had failed to consider and make findings about the applicant’s claims when considered cumulatively; and that the Authority had failed to consider the applicant’s fears of future harm as a member of the PSG of “wealthy Tamil landowners”. There is no merit to such Ground.
After having set out what constituted “significant harm” under s. 36(2A) of the Act at [62] of its reasons, the Authority specifically dealt with the applicant’s claims for complimentary protection at [63] – [66] of its reasons where it said as follows:
“[63]I have considered the applicant’s claims that he fears being harmed in Sri Lanka because of his past experiences with the LTTE, the SLA and the IPKF; his Tamil ethnicity; his imputed political opinion as a supporter of the LTTE and the TNA; his claims arising from the building of the petrol station on his family land; his fears of the TMVP; and because he would be returning as a Tamil failed asylum seeker who departed Sri Lanka illegally. As outlined in the preceding pages I have found that the applicant does not face a real chance of serious harm in Sri Lanka in relation to his claims.
[64]I note that the “real risk” test in the complementary protection provisions imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear”. As I have found that the applicant does not face a real chance of serious harm in relation to his claims I find also that he does not face a real risk. I accept that Tamils face a level of discrimination in Sri Lanka; however I am satisfied that the particular circumstances of the applicant are such that any discrimination he may face is not significant harm. I am satisfied that the applicant does not face a real risk of being arbitrarily deprived of his life; of the death penalty; of being subjected to torture or cruel or inhuman treatment or punishment; or degrading treatment or punishment. I find that the procedures the applicant will go through on return to Sri Lanka, as outlined in the above paragraphs, will not involve significant harm to the applicant. The fine, and the brief period of detention on remand he will face because of his illegal departure, does not amount to significant harm.
[65]I find that the applicant does not face a real risk of significant harm now and in the reasonably foreseeable future in Sri Lanka.
Complementary protection: conclusion
[66]There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. The applicant does not meet s.36(2)(aa).”
(footnotes omitted)
Sections 36(2)(a), s. 36(2)(aa) and s. 36(2A) respectively provided as follows:
“36 Protection visas—criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non‑citizen in Australia (other than a non‑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; or
…
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.”
The Authority did consider whether the complimentary protection criteria applied or not, and found against the applicant after it had done so. It did so not only in the context of the applicant having stated that he did not have any interest in further enforcing his rights in relation to the land dispute in Court should he return to Sri Lanka, as recorded at [38] of the reasons of the Authority, but also in the light of the Authority’s other findings that there was not a real chance that the applicant would suffer serious harm if so returned.
The Authority was careful to make appropriate findings in relation to the criteria which had not been met under s. 36(2)(aa) of the Act before finding that the applicant would not face a real risk of significant harm then, or in the reasonably foreseeable future, if he was returned to Sri Lanka, as a necessary and foreseeable consequence of such return. Again, the applicant effectively sought an impermissible merits review because of his disagreement with the decision of the Authority.
Secondly, the Authority considered the applicant’s claims cumulatively based upon all of the evidence before it. The Authority specifically said that it had considered all of the applicant’s claims cumulatively at [59] of its reasons. The Authority was entitled to find, after weighing up all of the evidence before it, that the applicant was not owed protection obligations, or complimentary protection, under the Act. This was another claim seeking an impermissible merits review of the decision of the Authority.
Thirdly, as to the claim that the Authority failed to consider the applicant’s fears of future harm by reason of his being a member of the PSG of wealthy Tamil landowners, and that therefore the Authority’s decision was legally unreasonable because of an illogical and irrational reasoning process, the Court finds that there is no merit to such claim.
The Authority dealt with the claim that the applicant was relevantly a member of a PSG and duly found against the applicant. The Authority otherwise assessed whether the applicant faced a real chance of suffering serious harm either because of the land dispute, or because of an alleged imputed political association, but dismissed such claims. The Authority was satisfied that the applicant did not have the profile of an anti-government activist, or of a Tamil separatist. The Authority found that the applicant’s expressed fears were not well-founded.
At [59] of its reasons, the Authority found that there was not a real chance that the applicant would face serious harm “now or in the reasonable foreseeable future in Sri Lanka”. At [65] of its reasons, the Authority found that the applicant did not face a real risk of significant harm “now or in the reasonably foreseeable future in Sri Lanka”. It must be inferred that the Authority turned its mind to that very question in respect of each claimed basis for protection. The Authority did not err in the way in which it conducted its review of the applicant’s claims. It was thorough and logical in the way in which it considered the evidence before it, and in the way in which it made its findings.
There is no merit to Ground 3 of the Amended Application for Review.
Further, it cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Authority be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to establish jurisdictional error on the part of the Authority.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding forty-one-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 7 September 2021
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