Aum18 v Minister for Home Affairs

[2018] FCCA 3328

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUM18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3328

Catchwords:
MIGRATION – Immigration Assessment Authority – application for a Safe Have Enterprise visa – whether the Authority acted unreasonably in failing to consider whether it should exercise the discretion in s 473DC – whether the Authority failed to consider the applicant’s claims and evidence – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 473DB, 473DC, 473DD, 476

Applicant: AUM18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 99 of 2018

Judgment of: Judge Street

Hearing date: 15 November 2018

Date of Last Submission: 15 November 2018

Delivered at: Sydney

Delivered on: 19 December 2018

REPRESENTATION

Counsel for the Applicant: Mr D Godwin

Solicitors for the Applicant: Hodges Legal

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Grant leave to the applicant to rely upon the amended application dated 15 November 2018 initialled and dated today by the Court and the Court dispenses with the need for the filing of an electronic copy of the same.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5,600.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 99 of 2018

AUM18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) made under Part 7AA on 31 January 2018 affirming a decision of the delegate not to grant the applicant a Safe Haven Enterprise Visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant is a Tamil Hindu from the Northern Province.  The applicant alleged that his uncles and aunt fought with the Liberation Tigers of Tamil Eelam (“LTTE”) and that he was displaced and in an IDP camp at the end of the war. The applicant was questioned a number of times and slapped by the CID while at the camps and he was asked about his uncles and any involvement with the LTTE.  The applicant alleged that his father bribed one of the officers in the camp to enable the applicant, his brother and sister to escape the camp in May 2009 and that they joined their parents at a particular location in 2010.

3. The applicant alleged that he was questioned at checkpoints in 2010 about his uncles. The applicant alleged that when he was on his way to cricket in December 2010 he was abducted in a van and taken to an abandoned warehouse where he was questioned about his involvement and his family’s LTTE involvement. The applicant alleged he was kicked, punched and hit and afterwards spent two to three days in bed.

4. The applicant alleged that his maternal grandfather became involved in politics and ran for election for the Illankai Tamil Arasu Kachchi (“ITAK”) in March 2011. The applicant alleged he assisted his grandfather and that his grandfather received threats and that the applicant and his father were told to stop or they would face death.  The applicant alleged that he was taken by unknown men on two occasions who came to his school and told him to stop, and that on another occasion two men approached him while he was playing cricket and threatened to abduct him. The applicant alleged two weeks before the election they came to his family home and threatened the applicant and his father. On 17 March 2011, ITAK lost the election but the applicant alleged he continued his involvement with the youth wing of the ITAK, assisting with social and sporting events. 

5. The applicant alleged in 2012 he was approached by two or three men on his way to school and they told him to stop supporting the Tamil National Alliance (“TNA”) of which the ITAK became a part. The applicant alleged the second time they told him if he did not stop they would take him. The applicant alleged that in May or June 2012 while riding his bike to cricket, he was stopped by a man and forced to an abandoned house where there were several men. The applicant alleged he was given a final warning about his background and connection with the LTTE and that he was accused of helping the LTTE, as well as being abused physically. 

6. The applicant alleged a few days’ later, civilian-clothed men came to the family home and questioned the applicant’s father.  The applicant alleged his brother was stopped a few days later on his way to a tutor and was asked questions about his family. The applicant alleged his father was afraid for the family and that he sent the applicant into hiding at his grandmother’s place and that while hiding at a particular place, the Terrorism Investigation Division came to the family home and questioned the father and asked about the applicant and his brother. 

7. The applicant alleged that his father then told him to flee the country.  The applicant flew to Chile where he stayed with an uncle for a week.  The applicant then returned to Sri Lanka and allegedly hid in the family home and then he went back to the place where he had been hiding and then to Galle where he took a boat on 2 September 2012.  The applicant alleged his father told him that the Terrorism Investigation Division had come to the house again to ask about where he was and it was alleged the Terrorism Investigation Division were monitoring calls and movements.

8. In August 2015 the applicant joined the Tamil Eelam Cricket Club to further his cricketing skills. In November 2015 he competed in a national competition of a last man stands tournament. The applicant said the trip and the team generally had attracted significant attention in the Sri Lankan community and alleged his name and image has appeared in news and images of the team on a Facebook page. The applicant fears serious and significant harm, that he will be detained and questioned at the airport because he left without a valid passport, because of his family history of LTTE involvement and Tamil national politics and the attention he was receiving from the authorities prior to his departure. 

9. The applicant claimed that it is likely he will be viewed as someone with LTTE connections and subject to torture and significant harm during questioning. The applicant’s claims are based on race, actual political opinion and in support of the TNA and the Tamil’s right to self-determination, imputed political opinion as a supporter of the LTTE and Tamil right to self-determination and by reason of being a failed Tamil asylum seeker who illegally fled Sri Lanka and sought asylum. 

10. The applicant claimed to fear he will be punished for seeking asylum abroad and that they will know his involvement with the Tamil community in Perth, in particular the cricket club. 

11. On 17 November 2018, the delegate found the applicant failed to meet the criteria for the grant of a Safe Haven Enterprise Visa.  The delegate in the course of the delegate’s reasons, accepted that the applicant was a member of the Tamil Eelam Cricket Club in Australia and accepted that the authorities may be aware of his activities with the Tamil Eelam Cricket Club in Australia. The delegate in that regard accepted the applicant may have some concerns regarding returning to Sri Lanka as a result of his activities with the Tamil Eelam Cricket Club in Australia. 

12. The delegate accepted that there had been some media coverage linking the Tamil Eelam Cricket Club with Tamil separatism. However, the delegate found that the agent’s submission contains information from the Tamil Eelam Cricket Club itself which indicates the cricket club has no political agenda and the term “Tamil Eelam” is aimed more at a geographical location where people come from than an association with the LTTE. The delegate accepted that the Sri Lankan authorities may be aware of the applicant’s cricket activities in Australia.  The delegate did not place weight on a letter dated 5 September 2017 broadly stated by the founder and project coordinator of the Tamil Eelam Cricket Club which the delegate noted formed part of the migration agent’s submissions indicating family members in Sri Lanka of the Tamil Eelam Cricket Club have experienced harassment from the Sri Lankan authorities. The delegate observed that there is no country information to support the unsubstantiated claim. 

13. The delegate assumed that the applicant may be questioned about his cricket activities by the Sri Lankan authorities on his return but found the applicant would not be detained for this reason or receive any harm.  The delegate found the fact the applicant played in a cricket team with other Tamils whilst in Australia would be of no specific interest to the Sri Lankan authorities, particularly taking into account that the delegate found the applicant was not a person of interest to the Sri Lankan authorities. 

14. The delegate did not accept on the evidence before the delegate, that the applicant’s activities with the Tamil diaspora in Australia elevated his particular profile as a failed Tamil asylum seeker returning from Australia. The delegate found there was no real chance the applicant will incur serious harm in Sri Lanka as a result of his perceived political opinion associated with his activities with the Tamil Eelam Cricket Club. 

The Authority

1. On 23 November 2017, the Authority wrote to the applicant explaining that the application for the visa had been referred to the Authority for review. The letter provided an attached fact sheet and practice direction giving the applicant an opportunity to put on new information and submissions.

2. The applicant did put on submissions dated 14 December 2017 which were expressly referred to in the Authority’s reasons.  Those submissions included the proposition that the applicant is a member of the Tamil Eelam Cricket Club in Australia and that there has been some media coverage linking the Tamil Eelam Cricket Club with Tamil separatism. 

3. The submissions referred to the delegate having accepted the following: 

   (f) the [A]pplicant is a member of the Tamil Eelam Cricket Club in Australia;

   (g) there has been some media coverage linking the Tamil Eelam Cricket Club with Tamil separatism; 

   (h) the Sri Lankan authorities may be aware of [the Applicant’s] activities with the Tamil Eelam Cricket Club in Australia; 

   (i) the applicant may be routinely questioned about his cricket activities by the Sri Lankan authorities upon his return to Sri Lanka; 

   (j) the [A]pplicant may have some concerns regarding returning to Sri Lanka as result of his activities with the Tamil Eelam Cricket Club in Australia;  and

   (k) there have been reports of mistreatment.. [of returnees] with an actual or imputed LTTE association or criticism of the Sri Lankan Government. 

4. The submissions advanced that the Authority should accept as credible all of the matters summarised above and that if the Authority did not accept those aspects of the delegate’s findings as true, then this must be put to the applicant for comment or response. The submissions advanced that it would be unreasonable not to consider giving the applicant an effective opportunity to address the issue. 

5. The submissions referred to the applicant becoming an active member of the Tamil Eelam Cricket Club described also as the Tamil Eelam National Cricket Club in August 2015 and referred to the applicant having toured with the team to the national Last Man Stands Tournament in Queensland and having been consistently selected for the team’s starting eleven. 

6. The submissions referred to the delegate accepting that there had been some media coverage linking the Tamil Eelam Cricket Club with Tamil separatism and that the delegate made a finding that the cricket club in fact has no political agenda and the term Tamil Eelam is aimed more at a geographical location where people come from than an association with the LTTE.  The submission asserted that this highlights the limited appreciation of the Sri Lankan political history. The submission contended the proposition that the club had no political agenda and that the term “Tamil Eelam” is more of a geographical location is plainly wrong. The submissions advanced that Tamil Eelam is a proposed independent state for Tamil Eelam separatists in Sri Lanka and the Tamil diaspora aspire to create in the northern and eastern parts of the island of Sri Lanka. The submissions asserted that the establishment of the proposed state of Tamil Eelam was a core objective of the LTTE. 

7. The submissions contended that the proposition that the Tamil Eelam Cricket Club would not be perceived as working for or supporting Tamil separatism is naive in the extreme. The submission advanced that the perception of the Tamil Eelam Cricket Club by the Sri Lankan Government needs to be viewed with an understanding of the role of sport as a tool for self-determination and international recognition. The submissions expressly requested the opportunity for the applicant to be heard by the Authority in respect of his claims for protection. 

8. The applicant specifically requested the Authority to utilise its discretion under s 473DC of the Act to invite the applicant to attend an interview to address his claims for protection and adverse information that arises throughout the review process. 

9. The Authority identified the background to the visa application and had regard to the material referred under s 473CB of the Act. The Authority expressly referred to the submissions at the commencement of its reasons and identified the same as being lengthy and including post-interview submissions and Facebook evidence and articles. The Authority expressly said that this material had been considered.

10. The Authority also referred to the submission that the applicant would be perceived as being a member of the diaspora working for Tamil separatism and to destabilise the unitary Sri Lankan state as he was an active member of the Tamil Eelam Cricket Club since August 2015. The Authority referred to the submission that the perception of the cricket club needs to be viewed with an understanding of the role sport plays as a tool for self-determination and international recognition, as occurs with the West Papua Warrior Rugby Team and the Tibet National football team. The Authority noted it was submitted that the cricket team is perceived by Sri Lankan authorities to be closely linked to Transnational Government Tamil Eelam (“TGTE”) and Tamil separatist movement.

11. The Authority noted it was submitted that the applicant would be held in police custody upon return and might be subject to torture and even a short period in detention and that even a short period of detention will subject the applicant to a real risk of significant harm. The Authority noted it was submitted that the cricket team links readers to the Wikipedia page of the TGTE being one of the eight remaining organisations still proscribed under the Prevention of Terrorism Act 1978 (“PTA”). The Authority noted the submission that this demonstrates the symbolic importance of the cricket club by aligning itself with the separatist movement. 

12. The Authority summarised the applicant’s claims. The Authority did not accept it was credible that the applicant and his siblings escaped a resettlement camp and lived with his grandmother and went to school there because they would have easily been found by the authorities.

13. The Authority found it was not credible the applicant and his siblings could have avoided the authorities in the aftermath of the war if they had escaped the camp, as the country information indicates there was a heavy military presence in the area, many checkpoints, and many thousands of suspected LTTE were rounded up and sent to rehabilitation centres. The Authority found it is not credible that the applicant and his siblings escaped and were able to return to live with their parents in January 2010 as the Authority found it highly likely the authorities would have found them. The Authority found it was not credible that the applicant could have continued to attend school and live at home if he had escaped and was wanted by the authorities. The Authority found the applicant did not mention his escape in the arrival interview and did not accept the applicant or his siblings escaped an IDP camp or that his father bribed an officer. 

14. The Authority found the applicant had exaggerated his extended family’s involvement with the LTTE as he only initially mentioned two uncles who were involved with the LTTE whereas his statement claimed there were three uncles and one aunt on his mother’s side and three uncles on his father’s side. The Authority did not accept the applicant’s explanation he provided only short answers at the interview. The Authority considered that if the applicant had had six uncles and one aunt who were LTTE that would have been mentioned rather than only two uncles. The Authority accepted that the applicant may have two relatives who were LTTE. 

15. The Authority did not accept that the applicant had seven relatives who were LTTE or who were bodyguards or a personal secretary to particular officers or persons. The Authority did not accept the father was in regular contact with the LTTE leader or that the applicant as a child met the LTTE leader on three occasions. The Authority considered the applicant had embellished his claims to enhance his protection claims. Further, the Authority found that the applicant’s father was not sent to a rehabilitation centre at the end of the war reinforced the conclusion that the father did not have any LTTE connections with the leader. 

16. The Authority found that it was not credible the authorities would have an interest in the applicant as he was a school child during the war and when it finished. The Authority referred to the fact that the family were not sent to a rehabilitation centre. The Authority accepted that the family may have been questioned but found that the fact neither the applicant, nor his siblings, nor parents were sent to rehabilitation centre was strong evidence that they were not of adverse interest to the authorities. The Authority considered that there has been many years since the end of the war and did not accept the applicant was or is of interest to the authorities because of his uncles’ LTTE past. 

17. The Authority referred to the applicant’s lengthy written statement of claims. The Authority found the applicant’s account was vague and lacked details in relation to abductions and that he could not recall when he was last detained other than a short time before he left. The Authority found the applicant provided almost no details of his claimed detentions other than he was beaten and asked about LTTE connections. The Authority found it of note that the applicant did not mention that he was threatened due to his TNA campaign. 

18. The Authority identified inconsistencies in relation to the written claims with the protection interview account and further inconsistency with the arrival interview. The Authority noted that the TNA campaigning had not been mentioned in the protection interview. The Authority found it was difficult to believe that he would not mention these if that had occurred. The Authority noted the applicant provided vague and little detail about his political involvement and that he claimed he was not a high profile person. 

19. The Authority did not accept the applicant campaigned for the TNA or that he or his family were threatened or ran for the TNA. The Authority did not accept the applicant has or will campaign for a Tamil separatist separate state, involved in Tamil separatism activities or is anti-government.  The Authority noted that the applicant travelled to India on his own passport in July 2012 for a week and then returned to Sri Lanka on 28 July 2012. The Authority noted that there was no mention of any bribe in the applicant’s detailed statement and found it difficult to believe the applicant would not have addressed this if it had occurred. 

1. The Authority also noted that the applicant returned to his home and did not depart Sri Lanka until September 2012. The Authority found the applicant’s return to Sri Lanka and return to his home for two months was not consistent with his claims that he feared harm and that the TID and authorities were looking for the applicant. The Authority found it was not credible that the applicant could return to Sri Lanka and stay at home for two months and avoid detection. The Authority did not accept the applicant or his father bribed officials at the airport. The Authority did not accept the applicant fled to India to avoid harm. The Authority did not accept the applicant was wanted by the authorities or that anyone was looking for him. The Authority found that the applicant was not recounting true events due to the lack of details and failure to mention key event claims and inconsistencies.

2. The Authority found the applicant was not a credible witness. The Authority did not accept that the applicant had escaped from IDP camp. The Authority did not accept that after the applicant left the camp he was abducted or detained or threatened or questioned about the LTTE or his uncles by the authorities. The Authority did not accept that the applicant or his family campaigned for the TNA or that the applicant or his family including his father, brother and grandfather were threatened by TMVP or others. The Authority did not accept that the authorities or anyone else is looking for the applicant or will any interest in him for these reasons. 

3. The Authority referred to the Tamil Eelam Cricket Club. The Authority expressly referred to having considered the Facebook pages, articles, and letter from the founder of the Perth Tamil Eelam Cricket Club. The Authority accepted that the applicant is a member of the Tamil Eelam Cricket Club in Perth and that he appears in photos and videos on the public Facebook page. The Authority did not accept that this raises the applicant’s profile or means that he is anti-government or perceived as being anti-government or part of any Tamil separatist movement.  The Authority in that regard identified that it was evident from the information provided that it is a sports club and that the applicant joined to play cricket.

4. The Authority referred further to the articles and that the club provides a positive meeting ground for people to come together as Tamils without political baggage. The Authority referred to the founder hoping to normalise the term “Tamil Eelam” and remove the connotations to the Tamil Tigers and that it is a non-politicised environment. The Authority noted that the founder hopes that the club will come to be associated with the geographical location rather than the politicised concept which arose during the war. 

5. The Authority found that it was evident from articles and the founder, that the club was formed to provide positive and healthy activity and to allow Tamil asylum seekers to socialise with other people who speak the language, share the culture, and get physical exercise. The Authority noted that the team had also helped to remove loneliness of Tamils and give relief from depression and promote a relationship between the Tamil community and the Australian people.

6. The Authority expressly referred to having considered the Facebook page and comments referring to the need for a separate Tamil state that were not made by the applicant or the founder.  The Authority found it as being a public Facebook page where anyone can comment or like. The Authority, however, found that it is clear that the club is a cricket club and is not involved in politics, and that the club does not wish to be, which the Authority found is confirmed by the founder in the published articles and the Facebook page. The Authority found this is further evidenced by the founder’s letter, in which the founder states they have purposely removed posts from the site from people who associate the name with the LTTE and Tamil separatism generally. The Authority found that it is evident that any LTTE Facebook comments or photos, if not removed, are from the public, not the applicant or the cricket club’s founder, and would have been seen in that context.

7. It was in these circumstances that the Authority did not accept that the cricket club is anti-government or associated with Tamil separatism or politics. The Authority found the evidence is clear that the cricket club is not so associated.  The Authority did not accept that the club promotes or is interested in obtaining a separate Tamil homeland. The Authority found that the evidence from the founder of the Facebook page and the applicant is that it is a sporting cricket club which assists Tamils to socialise and play cricket with others. The Authority did not accept that the applicant or by his association with the cricket club is anti-government or at least associated with or interested in Tamil separatism.

8. The Authority did not accept that any association with the cricket club means the applicant is or will be perceived to have anti-government or Tamil separatist activities or motivations or involvement.  It was in these circumstances that the Authority rejected the applicant’s submissions that the cricket club is perceived by Sri Lankan authorities to be linked to the TGTE or any Tamil separatist movement. The Authority found that the club is solely involved in cricket and competing in the Last Man Standing competition. 

9. The Authority referred to the founder’s letter, indicating that the founder was concerned to learn that families of some of their players in the images or videos have experienced harassment from authorities. The Authority noted there was no detail about this or how the founder came to know of this, and as a result, the Authority placed little weight on this assertion. The Authority further found that it had not accepted that anyone has been looking for the applicant or that his family has been harassed.  The Authority did not accept the applicant’s involvement with the cricket club raises his profile or that he or his family faced or faces harassment or harm in that regard.

10. The Authority did not accept the applicant faces a real chance of persecution because of his age, Tamil race or ethnicity, religion, political opinion or membership of a particular social group as a young single Hindu male from the Northern Province who lived in the LTTE controlled area, whose family provided food and shelter to the LTTE during the war, had two uncles in the LTTE, has extended family who live overseas, has an extended residence in Australia, who played, joined and played cricket for the Tamil Eelam Cricket Club and whose image appears on their Facebook, is part of the Tamil diaspora in Australia, and who will be returning on a temporary travel document or who sought asylum. 

11. The Authority was not satisfied there is a real chance the applicant would be harmed by the in Sri Lankan authorities because he applied for asylum in Australia. The Authority was not satisfied the applicant faces a real chance of harm from the CID, TID, the authorities, paramilitary or other groups or anyone due to being a failed young Tamil asylum seeker now or in the reasonably foreseeable future if he returns to Sri Lanka. 

12. The Authority referred to the applicant’s illegal departure and found the provisions of the Immigrants and Emigrants Act 1949 (Sri Lanka) are not discriminatory and are not implemented in a discriminatory manner, and found that the Sri Lanka departure laws are of general application.

13. The Authority did not accept the applicant’s membership of the cricket club raises his profile or means he faces an increased level of questioning or adverse interest. The Authority was not satisfied the questioning, arrest and the poor conditions in remand and the application of a penalty for illegal departure amount to systemic or discriminatory conduct as required by s 5J of the Act. The Authority, having considered the applicant’s claims cumulatively, was satisfied the applicant does not face a real chance of serious harm given his legal departure, now or in the reasonably foreseeable future if he returns to Sri Lanka. 

14. The Authority, having considered the applicant’s claims individually and cumulatively, as well as considering the personal circumstances of the applicant, was not satisfied the applicant has a well-founded fear of persecution from the CID, Sri Lankan authorities, army, or anyone for reason or combination of reasons in s 5J(1)(a) of the Act now or in the reasonably foreseeable future, if he returns to Sri Lanka. 

15. The Authority found the Applicant does not meet the requirements of the definition of refugee in s 5H(1) of the Act and found the applicant did not meet the criteria in s 36(2)(a) of the Act. 

16. The Authority turned to the issue of complementary protection and referred to having found that the applicant does not have a real chance of harm on the basis of his Tamil race or ethnicity, religion, political opinion or membership of a particular social group, a young single Hindu, male from the Northern Provence, who lived in an LTTE controlled area, whose family provided food and shelter to the LTTE during the war, had two uncles in the LTTE, has extended family who live overseas and he has extended residence in Australia who played, joined and played cricket for Tamil Eelam Cricket Club and whose image appears on Facebook, is part of the Tamil diaspora in Australia who will return on a temporary travel document with an extended residence in Australia or who sought asylum and will return as a failed asylum seeker on a temporary travel document.

17. The Authority found there were not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka there is a real risk the applicant would suffer significant harm. The Authority found the Applicant did not meet the criteria in s 36(2)(aa) of the Act and affirmed the decision under review. 

The grounds

1. The grounds in amended application are as follows:

   1. The Authority’s decision was affected by legal unreasonableness.

   Particulars

   a. the Authority acted unreasonably in failing to consider whether it should exercise the discretion in s 473DC to obtain further material, being information from the founder of the Sri Lankan cricket club about how he knew the families of players who had appeared on the website were being harassed by the authorities in Sri Lanka.

   b. The Authority did not rc.eet the evidence of the founder of the Tamil Elam Cricket Club that families of players had experienced harassment in Sri Lanka as being a fabrication or implausible. Rathe the evidence was given “little weight”. Even if it had “little weight” that evidence of the way the Authorities viewed association with the Club was not contradicted by any other evidence. It was illogical therefore to find that there was no real risk or chance of harm.

   2. “The Authority failed to consider the applicant’s claims and evidence that the Tamil Elam Cricket Club had been linked to Tamil Separatism in media coverage”

   Particulars

   Paragraph 33 and Annexures “X” and “Y” to the applicant’s adviser’s submissions dated 11 September 2017”

Ground 1

1. In support of ground 1, Mr Godwin of counsel took the Court to the letter from the founder of the Tamil Eelam Cricket Club at page 153 of the Court book and in particular, drew the Court’s attention to the second last paragraph and the concern expressed by the founder in relation to families of some players experiencing harassment from the Sri Lankan authorities because of their membership of the cricket club.

2. Mr Godwin also emphasised the reference in the last sentence of the letter from the founder to the proposition that:

   “if there are questions about the applicant’s involvement with our cricket club or the club in general, please feel free to contact me”.

   The founder’s telephone and email details were provided. 

3. Mr Godwin also drew the Court’s attention to the covering submission to the delegate dated 11 September 2017 at page 125 of the Court Book, which identified the applicant providing, relevantly, further information in relation to his involvement with the Tamil diaspora community through his membership of the Tamil Eelam Cricket Club.

4. Mr Godwin took the Court to that part of the submission to the delegate commencing in paragraph 23 at page 130 of the Court Book that:

   “the applicant fears he would face a real chance of serious harm and a real risk of significant harm for reasons of his membership of the Tamil Eelam Cricket Club and the Tamil diaspora community in Australia”. 

5. Attention was also drawn to paragraph 27 at page 131 of the Court Book that:

   “participation in the Tamil Eelam Cricket Club should be considered a diaspora that is extremely likely to be perceived as promoting and propagating the Tamil Eelam separatist agenda and will be consequently be perceived as a threat to the integrity of the Sri Lankan state”.

6. It was submitted that:

   “the national Tamil Eelam Cricket Club is a sporting club founded on a political principle purporting to be a national team for a people without a nation state.”

7. The submission referred to the applicant having been actively involved in the cricket club since its inception and referred to the letter from the founder to which reference has been made above. The submissions also referred to the Tamil Eelam Cricket Club having a very active Facebook page and referred to public comments that had been made.

8. The submissions also referred to various posts, and in paragraph 33 of the submissions at page 134 of the Court Book, there is a reference to the Tamil Eelam Cricket Club having received attention, both online and in the printed press in Sri Lanka and internationally. The submissions then set out 11 subparagraphs which relevantly include, in paragraph (a) an article published in India on 20 July 2016 and paragraph (b), an article published in Sri Lanka on 20 July 2016. The submissions included in paragraph 34 at page 135 of the Court Book that the information was publicly available and clearly connects the applicant to political movements which are campaigning for a separate Tamil State.

9. The submissions addressed the term “Tamil Eelam” and its significance. The submissions contended that the founder’s statement should not be understood as implying that there is currently no politics involved with the use of these terms, but rather that the founder does not believe that the assertion that there is an Eelam should be political. 

10. The Court’s attention was also drawn to paragraphs 40 and 41 at page 138 of the Court Book and the proposition that the delegate should find the Tamil Eelam Cricket Club has or will come to the attention of Sri Lankan authorities and that the applicant’s association with the club will cause the applicant to be imputed with an association with the LTTE and post-conflict Tamil separatism. The submissions also summarised the applicant’s fears, including his involvement with the Tamil Eelam Cricket Club in paragraph 53 at page 141 of the Court Book in support of the submission that there should be found to be a real risk the applicant will be detained and subjected to questioning upon his arrival in Sri Lanka.

11. The conclusion of the submissions asked the delegate to find that the applicant faces a real risk of serious and significant harm including but not limited to torture, cruel, inhuman or degrading treatment or punishment and/or arbitrary deprivation of liberty if detained by the Sri Lankan authorities. 

12. Mr Godwin took the Court to paragraph 25 of the Authority’s reasons and the finding that the Authority placed little weight on the assertions made by the founder in the letter as to the experience of harassment of families of some players of the cricket club. Mr Godwin submitted that the Authority had the contact details to contact the founder, and that if the Authority was concerned about there being no detail about the families whose players had experienced harassment from the Authorities or how the founder came to know of this, that the Authority should have under s 473DC(3) of the Act, exercised its power to seek further information from the founder. 

13. Mr Godwin submitted that it was legally unreasonable for the Authority to fail to expressly consider or exercise its power under s 473DC of the Act in the circumstances of the present case. Mr Godwin submitted that it was both as a matter of process and a matter of outcome, legally unreasonable for the Authority not to exercise the power under s 473DC of the Act in the circumstances of the present case, where the contact details of the founder had been provided, and where it was submitted that this was critical information that was easily ascertainable.

14. Mr Godwin submitted that by making inquiry, the Authority would then have been in a further position to know whether or not to place greater weight on the information provided by the Authority, to the extent that the Authority was not able to provide first-hand knowledge. The letter from the founder of the Tamil Eelam Cricket Club had been provided to the delegate and as summarised above, the delegate also placed no weight on that part of the letter that formed part of the migration agent’s submission which indicates family members of the Tamil Eelam Cricket Club had experienced harassment from the Sri Lankan authorities. 

15. The question of legal unreasonableness must take into account the statutory regime under Part 7AA, including in particular, the provisions of s 473DB of the Act and that subject to the provisions in Part 7AA, the Authority is to conduct the review on the material provided to the Authority without accepting or requesting new information and without interviewing the referred applicant. There is also a power to make a decision on a fast-track reviewable decision at any time after the decision has been referred to the Authority. Further, s 473DC(2) of the Act provides that the Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or any other person, or in any other circumstances. Further, there is a difference between the getting of the new information as identified under s 473DC of the Act and the steps that the Authority must be satisfied of in relation to considering new information under s 473DD of the Act, which relevantly includes both limbs of s 473DD of the Act.

16. The Court also takes into account the provisions under Division 4 of Part 7AA in determining whether it was legally unreasonable for the Authority not to expressly consider or to exercise its power under s 473DC of the Act to seek further information from the founder of the Tamil Eelam Cricket Club. It is also relevant to take into account that the only request in the submissions made to the Authority were for the Authority to exercise the power in relation to the applicant.

17. It is also relevant in the circumstances of the present case that the Authority gave the applicant an opportunity to put on submissions and new information as identified by the letter and Practice Direction sent on 23 November 2017, and that the applicant did take advantage of that opportunity by providing the submissions referred to in the Authority’s reasons.

18. In light of the delegate having placed no weight on the same issue that the Authority placed no weight on, it is difficult to see why the Authority’s failure to expressly consider or to exercise its power under s 473DC of the Act in respect of the founder could be said to be legally unreasonable. Taking into account the fact that the delegate placed no weight on the same part of the founder’s letter, and that the applicant had an opportunity to put on further submissions and new information in respect of the founder’s letter and the reference upon which the delegate placed no weight, the absence of any express consideration of the exercise of the power under s 473DC of the Act cannot be said to lack an evident and intelligible justification. 

1. I do not accept the proposition that the founder was in a position in which the founder was asserting first-hand knowledge. It is apparent on the face of the founder’s letter that the founder was referring to hearsay. In that context, given the provisions of s 473DD of the Act, the absence of express consideration of the exercise of the power under s 473DC of the Act cannot be said to be legally unreasonable either in outcome or in process.

2. I do not accept the proposition advanced by Mr Godwin that the fact of harassment of other families and members of the Tamil Eelam Cricket Club could be easily ascertained by contacting the founder or seeking further information from the founder. The applicant was on notice of that issue, given the delegate’s decision and the applicant was given an opportunity to put on new information and submissions. In these circumstances, I do not accept that there is any legally unreasonable failure to expressly consider exercising the power under s 473DC of the Act as alleged in ground 1(a). 

3. In relation to ground 1(b), Mr Godwin submitted that it was perverse that the Authority had accepted part of the founder’s letter and disregarded the part concerning the harassment of members of the Tamil Eelam Cricket Club. Mr Godwin submitted that this was illogical, and accordingly, it was legally unreasonable for the Authority to conclude that there was no real chance of the applicant facing harm by reason of his association with the Tamil Eelam Cricket Club. There is no inconsistency in the Authority accepting part of the letter and rejecting another part.  Further, the Authority gave a logical and rational reason for rejecting that part of the letter, given the absence of detail about this or how their founder came to know of this.

4. I do not accept that there is any inconsistency in the reasoning that the Authority has advanced. Further, given the reasons identified by the Authority for rejecting that part of the letter, insofar as it is given little weight, this cannot be said to lack an evident and intelligible justification.

5. I accept the first respondent’s submissions that the Authority identified that it placed little weight on this, being a reference to that information. It is apparent that there is a real and genuine engagement with the applicant’s submissions and taking into account the statutory regime, I do not accept that there was any legal unreasonableness in the Authority giving little weight to that part of the founder’s letter identified in paragraph 25 of the Authority’s reasons in respect of harassment of families of players of the cricket club by the Sri Lankan authorities. Given the want of detail or how knowledge was acquired the adverse finding was open to the Authority for the reasons given by the authority, as summarised above. No jurisdictional error as alleged in ground 1(b) is made out. 

Ground 2

1. In relation to ground 2, Mr Godwin took the Court to the articles referred to the submissions to the delegate in paragraph 33 at page 134 of the Court Book. Mr Godwin sought to place emphasis on the international nature of the articles and submitted that they advanced that the Tamil Eelam Cricket Club was the outcome of the oppression of a minority by a dominant race and was associated with a struggle to establish the Tamil’s own separate identity, consistent with the objections of the LTTE.

2. Mr Godwin submitted that the articles were of material significance and should have been the subject of express consideration by the Authority.  It was submitted that the Court should find that the Authority had failed to have regard to the international articles. The Authority’s reasons expressly identify having considered the articles provided with the submissions in paragraph 4 of the Authority’s decision. In addition the Authority twice refers to the articles, under the heading “Tamil Eelam Cricket Club”, in the opening sentence of paragraph 23 of its reasons as to having considered the Facebook pages, articles and the letter from the founder and in the middle of paragraph 23, referring to it being evident from articles and the founder that the Tamil Eelam’s Cricket Club was formed for a positive and healthy activity.

3. The Authority clearly recognised, engaged with and addressed the submission advanced as to the Tamil Eelam Cricket Club being associated with Tamil separatist, separatism or politics and being anti-government and made an adverse finding in that regard that was open to the Authority for the reasons given as summarised above.  I do not accept that the Authority was required to expressly refer to the articles identified in sub paragraph a and b of paragraph 33 at page 134 of the Court Book being respectively Annexures X and Y to those submissions.  There was no failure by the Authority to properly consider the applicant’s claims and evidence. On the face of the material before the Court, the Authority had an active and intellectual engagement with the applicant’s claims, evidence and submissions. No jurisdictional error as alleged in ground 2 is made out.

Conclusion

1. As the amended application fails to make out any jurisdictional error, accordingly, the amended application is dismissed. 

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 19 December 2018