AVG18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 327
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AVG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 327
File number: MLG 3880 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 1 May 2023 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority applied wrong test in not exercising its discretion in s 473DC of Migration Act 1958 to invite applicant to an interview (Cth) – whether Authority engaged in irrational reasoning – whether Authority asked itself the wrong question – jurisdictional error established – writs issued Legislation: Migration Act 1958 (Cth) ss 5AAA, 46A, 65, 473CA, 473DB, 473DC, 473DD, 476, 477 Cases cited: EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of hearing: 27 January 2023 Place: Perth Counsel for the Applicant: Dr A McBeth Solicitor for the Applicant: Estrin Saul Lawyers Counsel for the First Respondent: Mr G Johnson Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 3880 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AVG18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESMENT AUTHORITY
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
1 MAY 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision made by the second respondent on 23 November 2018.
2.A writ of mandamus issue directed to the second respondent requiring it to reconsider according to law the review referred to it pursuant to s 473CA of the Migration Act 1958 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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 LADHAMS:
INTRODUCTION
The applicant seeks judicial review of a decision made by the Immigration Assessment Authority (Authority) on 23 November 2018 to affirm a decision made by a delegate of the Minister not to grant the applicant a protection visa. The application is brought to the Court pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
This application was heard together with an application referred to as AVH18 v Minister for Immigration, Citizenship and Multicultural Affairs, which has been allocated the file number MLG 3878 of 2018 (AVH18). The applicants in AVH18 are the wife and child of the applicant in the present matter and all three applicants were included in the same application for a protection visa. The Authority issued a separate decision in relation to the applicants in AVH18. Given that the applicant to this proceeding and the applicants in AVH18 are members of the same family unit, the parties agree that if I find jurisdictional error in either of the Authority decisions, both decisions of the Authority should be quashed and remitted for reconsideration according to law. While I accept this position advanced by the parties is accurate, I have found that both decisions are independently affected by jurisdictional error. Therefore, neither application turns on the applicants in this application and AVH18 being members of the same family unit.
The applicant advanced three grounds in the present application. I have found that ground 2 establishes jurisdictional error because the Authority made a finding that the applicant’s brother was not a high-profile member of the Liberation Tigers of Tamil Eelam (LTTE) based on irrational reasoning. It follows that a writ of certiorari will issue to quash the Authority’s decision and a writ of mandamus will issue to require the Authority to reconsider the matter according to law.
BACKGROUND
The applicant is a citizen of Sri Lanka who entered Australia by sea in October 2012. He is an unauthorised maritime arrival.
The applicant, along with his wife and child, applied for a protection visa on 24 January 2017, after the Minister had lifted the bar under s 46A of the Migration Act. The applicant attended an interview with an officer of the Department to discuss his claims for protection on 5 May 2017.
A delegate of the Minister refused to grant the applicant a protection visa on 8 June 2017 and the matter was then referred to the Authority for review in accordance with s 473CA of the Migration Act.
On 6 February 2018 the Authority purported to affirm the delegate’s decision. That decision related to the claims for protection of the applicant and his wife and child. The applicant, along with his wife and child, successfully sought judicial review of that decision, with writs of certiorari and mandamus issued on 11 October 2018.
On 23 November 2018 the Authority affirmed the delegate’s decision not to grant the applicant a protection visa. Those parts of the Authority’s decision that are relevant to the grounds of application are discussed below in the consideration of the grounds.
JUDICIAL REVIEW APPLICATION
The applicant commenced proceedings in this Court by way of an application filed on 20 December 2018. This is within 35 days of the Authority decision as required by s 477(1) of the Migration Act.
By amended application filed on 20 December 2022,[1] the applicant advances the following three grounds:
[1] The amended application was electronically lodged after 4:30pm on 19 December 2022 and is therefore deemed to have been filed on 20 December 2022, pursuant to r 2.05(4) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
1.The Immigration Assessment Authority (‘IAA’) applied the wrong test in the exercise of its discretion under s 473DC of the Migration Act 1958 (‘the Act’).
Particulars
The IAA erred in conflating the test of “exceptional circumstances” from s 473DD of the Act with the test of “may be relevant” from s 473DC of the Act.
2.The finding that the Applicant’s brother was not a high profile member of the LTTE was based on irrational reasoning.
Particulars
(a)The IAA’s finding that the Applicant’s brother was not a high profile member of the LTTE was based entirely on the omission of the brother’s name from a single item of country information that did not purport to be an exhaustive list of high profile LTTE members.
(b)The evidence on which the IAA relied for its finding was not rationally capable of supporting that finding.
3.The finding that the Applicant was not of interest to the authorities when he departed Sri Lanka was based on irrational reasoning, or alternatively, the IAA asked itself the wrong question.
Particulars
(a)The IAA’s finding cannot be reconciled with its earlier finding accepting that the Applicant had been detained, interrogated, and beaten on four occasions and that those events were the reason he fled Sri Lanka.
(b)In the alternative, the IAA failed to ask itself the correct question of whether the harm that it accepted occurred constituted serious harm and whether there was a more than remote or fanciful chance it would be repeated if the applicant returned to Sri Lanka.
The evidence before the Court comprises the court book and an affidavit of Reuben Saul Jahnke affirmed on 19 December 2022, which annexes country information relevant to ground 2.
CONSIDERATION
Ground 1
Ground 1 alleges that the Authority applied the wrong test in choosing not to exercise the discretion in s 473DC of the Migration Act to interview the applicant. It is in the same terms as ground 1 of the application in AVH18, and the parties advanced substantially the same submissions in relation to this ground in the present application and the corresponding ground in AVH18. Although the relevant reasons of the Authority are not as detailed in this matter as they were in the corresponding paragraph in AVH18, the reasoning of the Authority in each matter shares similar features. The reasons I gave in relation to the corresponding ground in AVH18 substantially apply here, and I repeat those reasons to the extent that they are relevant to the present application.
Section 473DC of the Migration Act provides:
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents of information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
At [12] of its reasons, the Authority said:
I have noted the request in the submission for the IAA to provide the applicant with an interview if the IAA makes findings that any of the applicant’s evidence lacks credibility. Section 473DC of the Act provides that while the IAA may get any information not before the Minister and which it considers relevant, it does not have a duty to get, request, or accept new information. Subject to the requirements of the Act, the IAA must review a decision by considering the review material without interviewing the referred applicant. In this matter I do not consider there are exceptional circumstances to justify interviewing the applicant.
In his written submissions, the applicant submitted that the final sentence of [12] demonstrates error on the part of the Authority because it is not necessary that there be exceptional circumstances for the Authority to exercise the discretion in s 473DC of the Migration Act to get new information, as distinct from the separate requirement in s 473DD that there be exceptional circumstances to justify the Authority considering new information. The applicant submitted that the test for the purposes of s 473DC is merely that the Authority considers that the information ‘may be relevant’, and by considering whether there were exceptional circumstances, the Authority conflated the different tests in ss 473DC and 473DD of the Migration Act.
In written submissions, the Minister submitted that ground 1 does not establish any jurisdictional error because:
(a)There is no ‘test’ for the Authority to apply in its consideration of whether or not to exercise its discretion in s 473DC to get new information, and the features set out in s 473DC(1) are not criteria to be assessed or a test to be applied in the exercise of the discretion but rather are definitional features of what constitutes ‘new information’. The exercise or non-exercise of the power in s 473DC is confined only by the terms of the section read in its statutory context and subject to the implied condition of legal reasonableness.
(b)It was open to the Authority to take into account the absence of exceptional circumstances as a factor relevant to its non-exercise of the power in s 473DC. There is no reference to s 473DD in the Authority’s reasons at [12] and the Court should not infer that the Authority had mistakenly applied one set of criteria when addressing another.
In oral submissions, both parties addressed the relevant principles identified by Thawley J in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 (EMJ17), a case which was referred to in the Minister’s written submissions. I accept that the relevant principles of law that apply to this ground are those explained by Thawley J in EMJ17 at [60], namely:
(1)Section 473DC(1) gives the Authority a discretion to get “new information” which it considers “may be relevant” and which was not before the Minister when the s 65 decision was made.
(2)In considering whether the documents “may be relevant”, the Authority is necessarily engaged in an exercise which is speculative to some degree.
(3)Section 473DD prevents the Authority from considering any new information unless satisfied that there are “exceptional circumstances” in accordance with the terms of the provision. The Authority can only consider new information if it has first got it.
(4)The discretion to get new information under s 473DC(1) does not expressly turn on whether there are “exceptional circumstances” within the meaning of s 473DD(a). The requirement for there to be “exceptional circumstances” only arises when the Authority addresses whether it is prevented by s 473DD from considering the “new information” it has got.
(5)The nature and content of the “new information” would ordinarily, or at the least may, be relevant to whether there are “exceptional circumstances” under s 473DD(a) justifying considering the “new information” – see, or example: Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [59].
(6)The discretion to get new information under s 473DC(1) is only confined by the terms of the section read in its statutory context, in particular the context of Part 7AA as a whole. That context includes that there is no duty to get information in any circumstance: s 473DC(2).
(7)The discretion in s 473DC(1) is to be exercised having regard to the particular circumstances of the case. It may well be permissible, having regard to s 473DC(2) and the statutory scheme more generally, to decline to exercise the discretion to get information because the circumstances were not perceived to be sufficiently unusual or exceptional, so long as it was understood that the section did not necessarily require that there be “exceptional circumstances” within the meaning of s 473DD before the discretion to get new information was exercised.
The final two points made in the extract above are of particular relevance in this matter. There may be jurisdictional error if the Authority’s reasons are properly understood as disclosing that the Authority proceeded on the basis that exceptional circumstances were required before it could exercise the discretion in s 473DC to interview the applicant. However, provided that the Authority understood that exceptional circumstances were not required, it may have been open to the Authority to have regard to the lack of exceptional circumstances in deciding not to exercise the discretion in s 473DC, although Thawley J did not ultimately determine this issue: see EMJ17 at [63].
The issue for the Court to resolve in determining this ground is therefore a question of fact as to whether or not the Authority proceeded on the misunderstanding that it could only exercise the discretion in s 473DC of the Migration Act to invite the applicant to attend an interview if it was satisfied that there were exceptional circumstances.
In oral submissions, Counsel for the applicant submitted that the relevant reasoning of the Authority in the present matter is indistinguishable from the reasoning of the Authority which Thawley J found was affected by jurisdictional error in EMJ17. That reasoning is extracted at [59] of the judgment in EMJ17 and reads (emphasis added):
The submission contends that information regarding the applicant made in an application for protection whilst in Nauru may be relevant when assessing his claims for protection in Australia at the present time. The IAA is required to assess whether the applicant meets the criterion for a protection visa under s.36(2)(a) of the Act and the definition of a refugee under s.5H(1) of the Act. I am not satisfied that there are exceptional circumstances to justify the IAA getting new information regarding the applicant’s application for protection in Nauru.
Justice Thawley found, based on this reasoning, that the Authority decision considered in EMJ17 was affected by jurisdictional error because the Authority thought the discretion in s 473DC(1) of the Migration Act was confined by a requirement that there exist, at the time of considering whether to exercise the discretion to get new information, exceptional circumstances within the meaning of s 473DD(a) which would justify the Authority later considering the new information: EMJ17 at [63].
I acknowledge that the language used in the final sentence of [12] of the Authority’s reasons in the present matter, namely that the Authority did ‘not consider there are exceptional circumstances to justify interviewing the applicant’, is not materially different from the impugned sentence in EMJ17.
However it is important to read that sentence in its proper context within the Authority’s reasons. When I have regard to the whole of [12], I accept the submission advanced by Counsel for the Minister that I should not infer from the use of the term ‘exceptional circumstances’ in the present case that the Authority imported the requirement in s 473DD(a) to its consideration of whether it should exercise the discretion in s 473DC(1) to invite the applicant to attend an interview. My reasons for reaching this view are largely consistent with the oral submissions advanced by Counsel for the Minister.
First, and most significantly, the Authority at [12] of its reasons expressly and accurately referred to the power in s 473DC to get new information, including the non-compellable nature of the power. This was absent from the relevant Authority reasoning in EMJ17. Of course, the correct identification of a statutory power does not necessarily lead to the conclusion that there is no error in the application of that power or discretion. However, in circumstances where the Authority correctly identified its discretion in s 473DC, and did not in any way refer to s 473DD of the Migration Act at [12] of its reasons, I would not find that the Authority imported the exceptional circumstances test in s 473DD(a) to its consideration of whether it should exercise its discretion in s 473DC to get new information by interviewing the applicant, unless the reasoning as a whole disclosed that the Authority had misunderstood its power in that way.
Second, the Authority referred to the general position that, subject to the requirements of the Migration Act, the Authority must conduct the review by considering the review material without interviewing the referred applicant. This is consistent with s 473DB(1)(b) of the Migration Act. The significance of this is an acknowledgement on the part of the Authority that although it has the power or discretion to get new information, there is no expectation in the Migration Act that the power would ordinarily be exercised in every case. As Counsel for the Minister submitted, it is ‘within the scope and purpose of that power [in s 473DC] for the [A]uthority to make reference to the absence of there being nothing out of the ordinary, nothing exceptional that would justify interviewing the applicant because it would only be, in the ordinary course, an exceptional or out of the ordinary case for that non-compellable power to be exercised’.
Taking into account the way in which the Authority identified the statutory power in s 473DC and the usual position that a review would ordinarily be conducted without interviewing a referred applicant, I accept the Minister’s submission that by referring to ‘exceptional circumstances’ at [12], the Authority should not be understood to be confusing itself by applying the test in s 473DD. Rather, the Authority, in the exercise of its discretion, took into account that there was nothing exceptional in the matter that would persuade it, in the exercise of its discretion, to invite the applicant to attend an interview to give new information.
Nothing in the applicant’s ground or submissions amounts to an assertion that the Authority was prohibited from considering, in the exercise of its discretion to get new information conferred by s 473DC(1), whether there were exceptional circumstances, provided that the Authority did not import the exceptional circumstances test in s 473DD(a) of the Migration Act to its consideration of whether it should exercise its discretion in s 473DC(1) to get new information. This is consistent with the view that appears to have been preferred by Thawley J in EMJ17 at [63].
Further, I accept the Minister’s submission that the requirement that the Authority consider that new information ‘may be relevant’ goes to the definition of ‘new information’. If the Authority forms the view that there is information that may be relevant to the review and which was not before the Minister at the time of the s 65 decision, that information will meet the definition of ‘new information’. The discretion in s 473DC(1) to get information that meets the definition of ‘new information’ is largely unfettered, save for the implication that it must be exercised reasonably. There does not appear to be anything in the language used in s 473DC(1), or its context within Part 7AA of the Migration Act, or in the Migration Act as a whole, that would lead to a conclusion that the Authority is prohibited from considering whether or not the matter before it is exceptional or unusual in deciding whether or not to exercise its discretion in s 473DC(1) of the Migration Act to get new information.
For the above reasons, I find that the Authority did not apply the wrong test in deciding not to exercise its discretion in s 473DC of the Migration Act to invite the applicant to attend an interview. Ground 1 is not established.
Ground 2
By ground 2 the applicant asserts that the Authority engaged in irrational reasoning in finding that the applicant’s brother was not a high profile member of the LTTE.
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS), Crennan and Bell JJ explained when a decision may be illogical or irrational. Their Honours said at [135]:
… 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…
The ground in the present application is based on [33] of the Authority’s reasons, where Authority said (footnotes omitted):
On the basis that the applicant has provided consistent evidence since his entry interview that his second oldest brother was a member of the LTTE, I am prepared to accept his brother was an LTTE cadre. His brother joined the LTTE voluntarily in about 1998 and the applicant said that his role was to protect [a] leader of the LTTE, [name redacted]. The applicant could provide very little details with the exception of the name of his regiment, [name redacted], which is the name of one of [the relevant leader’s] bodyguard units. He did not know his rank. Country information records the names of high profile members of the bodyguard regiments and the applicant’s brother’s name is not among these. I am therefore not satisfied that the applicant’s brother was a high profile member of the LTTE. I accept he only visited the family about once or twice a year and he disappeared in February 2009 and his family has not heard from him or about him since.
In addressing this ground, I have opted not to reproduce the name of the leader that the applicant’s brother was said to have been assigned to protect, or the name of the regiment, in order to reduce the likelihood of anyone being able to identify the applicant or his brother from that information when read with the other information in this judgment. The country information that Authority relied on is annexed to Mr Jahnke’s affidavit, but I have not disclosed the name of the report as to do so may reveal the details which I have redacted from the extract of [33] of the Authority’s reasons. I will simply refer to it as the country information.
In my view, this ground turns on the interpretation of [33] of the Authority’s reasons, and the different positions adopted by the parties reflect their differing interpretations of [33].
The applicant submitted that it was irrational or illogical, in the sense described in SZMDS, for the Authority to find that that his brother was not a high-profile member of the LTTE based solely on the applicant’s brother not being named in the country information about bodyguard units, in circumstances where:
(a)the country information relied on by the Authority contained two paragraphs on bodyguard units, the first on the regiment to which the applicant’s brother belonged, and the second on other bodyguard units;
(b)the paragraph addressing the applicant’s brother’s regiment describes the history of its formation and names just one person, who is described as the long-time head of the unit;
(c)the second paragraph referred to other bodyguard units, which were not claimed to be associated with the applicant’s brother, and named their commanders;
(d)the single paragraph dealing with the applicant’s brother’s regiment did not purport to provide an exhaustive list of all members of the regiment who could be considered ‘high profile’.
In oral submissions, Counsel for the applicant maintained his submission that the Authority’s sole reason for rejecting the applicant’s claim that his brother was a high-ranking member of the LTTE was because his name did not appear in the country information. However, Counsel for the applicant submitted that if I am against him on that point and find that there are multiple reasons for the Authority rejecting the applicant’s claim, including the lack of information provided by the applicant, that cannot be severed from the reliance on the supposed list of high-profile members of bodyguard regiments having some sort of probative force. Alternatively, the absence of the brother’s name in the country information is still, at a minimum, a substantial reason for the Authority’s finding and it is still irrational.
The Minister submitted that the critical plank of the Authority’s reasons was the third and fourth sentences of [33], namely, that the applicant could provide very little detail other than the name of his brother’s regiment and he did not know his brother’s rank. In other words, the Authority was not satisfied of the claim because the applicant could not provide sufficient details about the claim. The Minister further submitted that, in any event, the Authority did not find in absolute terms that the fact the brother’s name did not appear in the country information as having been a high-profile member of a bodyguard unit meant that he was not a high profile LTTE member. Rather, the absence of his name appearing in the country information was one of the reasons the Authority gave for not being satisfied of the claim in circumstances where there was no other verifying information to support the claim advanced and the applicant himself was unable to provide satisfactory detail about the claim.
Counsel for the Minister submitted at the hearing that the Authority is not required to identify country information that contradicts or negates a claim before the Authority can form a conclusion that it is not satisfied about a claim. In evaluating the nature of the applicant’s brother’s connection with the LTTE in order to assess whether the applicant’s association with his brother gives rise to a risk of relevant harm, the Authority made two observations at [33]. The first observation was that the applicant could provide very few details other than the name of the regiment that his brother served in and he did not know his brother’s rank, and the second observation was that the country information records high-profile members in the bodyguard regiment and the applicant’s brother’s name is not among these. The reference to the Authority therefore not being satisfied that the applicant’s brother was a high-ranking member of the LTTE can only sensibly be read as a reference to all of what precedes it at [33] and not simply the reference to the country information report.
In considering this ground, I accept the applicant’s submission that the country information does not purport to list every high-profile LTTE member in the applicant’s brother’s regiment. Rather, the country information relevantly names one person who was described as a long-time head of the unit. The report does name leaders of another bodyguard unit, but does not purport to provide an exhaustive list of high-profile members associated with that unit and, in any event, the applicant did not claim that his brother had any association with that other unit.
I also accept the submission advanced by the Minister to the effect that the Authority may reject a claim advanced by an applicant, without information that contradicts or negates the claim, if the applicant has not provided sufficient detail for the Authority to be satisfied that the claim is established. This is consistent with s 5AAA(2) of the Migration Act, which provides that it is a responsibility of an applicant for a protection visa to specify all particulars of his or her claim to be a person who is owed protection and to provide sufficient evidence to establish the claim.
I then turn to the interpretation of the Authority’s reasons at [33]. In my view, on a proper interpretation of the reasons at [33], the Authority, after accepting that the applicant’s brother was an LTTE cadre, provided two reasons for finding that the applicant’s brother was not a high-ranking member of the LTTE. The first of these was the lack of detail provided by the applicant, in particular that the applicant could provide little detail other than the name of his brother’s regiment, and that he did not know his brother’s rank. The second reason given by the Authority was that country information records the names of high-profile members of the bodyguard regiments and the applicant’s brother’s name was not recorded amongst these names in the country information. The word ‘therefore’ in the sentence ‘I am therefore not satisfied that the applicant’s brother was a high profile member of the LTTE’ grammatically connects to the second reason given, that the applicant’s brother’s name was not recorded in the country information, but also logically and sensibly refers to the first reason given, namely the absence of detail and evidence.
It is necessary to consider in greater detail what the Authority meant by the second reason, when it said ‘Country information records the names of high profile members of the bodyguard regiments and the applicant’s brother’s name is not among these’, in the context of the paragraph as a whole. In my view, the Authority intended to convey that if the applicant’s brother was a high-ranking member of the LTTE, it would expect his name to be recorded in the country information and the fact that the applicant’s brother’s name was not recorded in the country information is probative evidence that the applicant’s brother was not a high-profile member of the LTTE. This view is based on the structure of the paragraph as a whole and is supported by the use of the word ‘therefore’ in the sentence that immediately follows the reference to country information. The word ‘therefore’ would be misplaced if the Authority did not consider the immediately preceding sentence to refer to probative evidence.
Understood in this way, I accept the applicant’s submission that the reasoning of the Authority is irrational because the country information does not purport to provide a comprehensive list of all high-ranking members, and instead only names one long-time leader of the applicant’s brother’s regiment. It is not rational to exclude the possibility that the applicant’s brother was a high-ranking member of the LTTE simply because he was not named in that country information which in no way purported to provide a comprehensive list of all of the high-ranking members.
While the absence of the applicant’s brother’s name in the country information was not the sole reason for the Authority rejecting the applicant’s claim that his brother was a high-profile member, I accept that it was a substantive reason and that the irrationality in the Authority’s reasoning vitiates its conclusion that the applicant’s brother was not a high-profile member and amounts to jurisdictional error. It would have been open to the Authority to rely on the lack of detail provided by the applicant to reject his claim, without any reference to the absence of the brother’s name in the country information. However, the Authority has clearly relied on the absence of the brother’s name in the country information in reaching its conclusion and there is no way the Court can know whether or not it would have reached the same conclusion if it had not relied on the country information in the way that it did.
I have considered the possibility that the Authority’s reason in relation to the applicant’s brother not being named as a high-profile member at [33] may simply have been the Authority’s way of demonstrating that it took a comprehensive approach to its fact-finding function, rather than a separate reason based on any assumption that the absence of the applicant’s brother name in the country information was probative evidence that his brother was not a high-profile member. Such a construction would need to be premised on the following steps and understanding:
(a)The Authority, not being satisfied of the applicant’s claim that his brother was a high-profile member of the LTTE because of the lack of detail provided by the applicant, had regard to the country information to see if the country information could provide the detail that the applicant’s evidence lacked.
(b)The Authority proceeded on an understanding that, had the applicant’s brother’s name been listed, the country information could have supplied the detail lacking in the applicant’s evidence and could have allowed the Authority to accept the applicant’s claim, but the absence of the applicant’s brother’s name was not probative evidence that he was not a high-profile member of the LTTE.
(c)The Authority’s sole reason for rejecting the applicant’s claim that his brother was a high profile member was that there was insufficient detail and evidence to accept the claim. The reference to the absence of the brother’s name in the country information shows only that the independent steps taken by the Authority to verify the applicant’s claims did not supply the detail that was lacking from the applicant’s evidence.
Such a construction is not dissimilar from the construction advanced by the Minister and it would not be irrational or illogical because it would not amount to the Authority treating the absence of the applicant’s brother’s name in the country information as probative evidence that he was not a high-profile member of the LTTE. However, I do not consider that this interpretation of the Authority’s reasoning at [33] accurately reflects the Authority’s intended meaning. As discussed above, the sentence that reads (emphasis added) ‘I am therefore not satisfied that the applicant’s brother was a high profile member of the LTTE’ immediately following its reference to the applicant’s brother not being named in the country information clearly suggests that the absence of the name in the country information was a substantive reason for rejecting the applicant’s claim, based on probative evidence. Had the Authority intended to convey a process of reasoning based on the premises and understandings in the preceding paragraph, it ought to have made this clear, for example, by clearly indicating that it was the solely the lack of detail provided by the applicant, in circumstances where the claim could not be independently verified, that led the Authority to reject the claim.
Ground 2 is established.
Ground 3
By ground 3 the applicant asserts that the Authority’s finding that he was not of interest to the authorities when he departed Sri Lanka was based on irrational reasoning, or alternatively, that the Authority asked itself the wrong question.
The applicant’s submissions draw particular attention to the Authority reasons at [36] and [39], which I have considered in the context of the surrounding reasons. The Authority said at [36] to [39]:
36.The applicant claimed that in 2011 after he returned to [place redacted] from [place redacted] he was interrogated on four occasions by the [Criminal Investigation Division] (CID) and [Sri Lankan Army] mainly about his brother’s involvement in the LTTE but also about his own and his family’s involvement. Each interrogation was conducted at the CID office (in the local school) near his home and workplace. He was kept two or three hours each time and then released. He was verbally and physically assaulted during these interrogations. Since his entry interview the applicant has consistently stated that he was harassed, interrogated about his brother’s involvement in LTTE and beaten. I accept that this occurred to him in 2011 and this led to his decision to leave Sri Lanka for Guinea.
37.I accept the applicant departed for Guinea in October 2011. I am satisfied he applied for a passport at the passport office himself and he was granted a passport without difficulty. I am satisfied he departed legally from the international airport at Colombo without any difficulties. This suggests that, notwithstanding his previous interrogations, he was not of adverse interest to the authorities himself at the time of his departure.
…
39.Based on the applicant’s evidence about the fact that he was released after 2 or 3 hours each time he was interrogated, he was able to obtain a valid passport and leave Sri Lanka without difficulty and was not interrogated, beaten or harmed after his return in March 2012 despite living and working in the same location, I am satisfied he was not of adverse interest to the authorities at the time of his departures in October 2011 or September 2012 either for reasons of his brother’s involvement with the LTTE or as a result of his own association with the LTTE prior to the end of the civil war in 2009.
The applicant submitted that it was difficult to reconcile the Authority’s conclusion at [39] that he was not of interest to the authorities with its acceptance that he had been harassed, interrogated and beaten by the authorities at [36]. The applicant submitted that the fact that he was not stopped at the airport by the authorities upon his departure from Sri Lanka does not preclude the chance that he would again be harmed by the very different authorities who harmed him repeatedly before he fled because of his brother’s connection to the LTTE. The applicant also submitted that the fact that the applicant was released after two or three hours each time he was interrogated cannot rationally justify a conclusion that he did not face a real chance of serious harm.
The applicant submitted that, alternatively, the Authority asked itself the wrong question. The Authority ought to have asked itself whether the incidents of harm that it had accepted had occurred constituted serious harm within the meaning of the Migration Act, and then ought to have asked itself whether there was a real chance that incidents of that sort would occur into the future, having regard to what the Authority accepted had occurred in the past, up to the point of the applicant’s departure.
The Minister submitted that, notwithstanding the Authority’s acceptance of the applicant’s claims to have suffered mistreatment at the hands of the authorities in 2011, it needed to and did ask itself whether the applicant would be at risk of harm if he returned to Sri Lanka. In conducting this assessment, the Authority considered whether the applicant was of adverse interest to the authorities when he departed Sri Lanka for Guinea in 2011 and found that he did not have a profile that would attract harm, as evidenced by the fact that he was always released after questioning. The Authority also noted that the applicant, despite the interrogations, had been able to legally acquire a Sri Lankan passport and leave the country without incident and that he had not faced any difficulty when he return to Sri Lanka in 2012. The Minister submitted that this process of reasoning does not give rise to any conflict as suggested by the applicant.
The Minister accepted as a general proposition that any harm the applicant suffered in the past might be indicative of a risk of such harm being repeated, and that if so, the Authority would need to consider whether such past harm might constitute a form of harm protected under the Migration Act. However, in this case the Authority found that the past mistreatment from 2011 would not recur, because the Authority held at [41] that the applicant had no family affiliation or association with any high-profile LTTE cadres, and no adverse political profile himself. The Authority also found at [44] that it was satisfied the applicant’s brother was no longer of interest to the authorities because of his role in the LTTE and there was no real chance that the applicant or his family members would suffer harm due to their family affiliation with a former member of the LTTE. Given these findings, and that the applicant did not advance any claim to be at risk of harm from the authorities other than in connection with his brother’s, his family’s and his own involvement in the LTTE, the Authority did not additionally need to ask itself whether the applicant might be interrogated as he had been in 2011, and whether this would amount to serious or significant harm.
The applicant has not established jurisdictional error by this ground.
First, I do not consider that the Authority’s findings at [36] and [39] are irreconcilable. It is true that the Authority accepted that the applicant had been interrogated on four occasions in 2011 during which he was verbally and physically assaulted, and then released after two to three hours, and that this led to the applicant’s decision to leave Sri Lanka. However, contrary to the applicants’ written submissions at [47] and [54], the Authority did not find that this continued ‘right up to the point of departure in 2011’. This can be seen from [37] of the Authority’s reasons, which I have extracted above, and which was not referred to in the applicant’s submissions. It is clear from this that even though the Authority accepted that the applicant had been interrogated on four occasions in 2011, the Authority considered that by the time he had obtained a passport and left Sri Lanka without difficulty in October 2011, he was no longer of interest to the authorities.
The Authority’s finding at [39] also takes into account its finding at [38] that the applicant, on his own evidence, was not detained interrogated or harmed in the period between March and September 2012 when he had returned to Sri Lanka, lived in his family home and worked in his family business. It is apparent from the Authority’s reasons from [36] to [39] when read as a whole that the Authority accepted that the applicant had once been of interest to the authorities and had been interrogated on four occasions in 2011, but that interest had ceased prior to the applicant first leaving Sri Lanka in around October 2011.
Further, the additional findings referred to in the Minister’s submissions are critical to the resolution of this ground. The Authority:
(a)took into account that since the applicant left Sri Lanka, his father has made enquiries about his missing brother with the authorities and this has not resulted in any harm to members of his family who remained in Sri Lanka: [40], [43];
(b)found that the applicant had no family affiliation or association with any high profile LTTE cadres and no adverse political profile himself: [41]; and
(c)found that the applicant’s brother was no longer of interest to the authorities for reason of his role in the LTTE and that there was no real chance the applicant or any of his family members will suffer harm due to their family affiliation with the former member of the LTTE: [44].
The applicant has not challenged these findings. It is clear from these findings that the Authority was satisfied that the reason for the harm suffered by the applicant in 2011, namely, the authorities’ interest in his brother, was no longer a concern of the authorities in Sri Lanka and would not cause the authorities to have any interest in the applicant upon his return to Sri Lanka.
These findings are also relevant to the alternative submission advanced by the applicant in this ground, namely that the Authority asked itself the wrong question. The question for the Authority was whether the applicant faced a real chance of persecution amounting to serious harm, or a real risk of significant harm, if he returned to Sri Lanka. While past harm can be an indication of the possible future harm a person may face, it is appropriate for the Authority to take into account any changes in circumstances that affect its assessment of the risk of harm. The Authority’s findings, referred to above, effectively amount to the Authority being satisfied that there was not a real chance that the mistreatment and harm the applicant faced in the past would be repeated because the applicant and his brother no longer have a profile that is of interest to the authorities. It was on this basis that the Authority found that the applicant did not meet the criteria for a protection visa. The Authority has not asked itself the wrong question in this matter.
Ground 3 is not established.
CONCLUSION
I have found that ground 2 is made out and the applicants have established that the Authority decision is affected by jurisdictional error. It follows that a writ of certiorari will issue to quash the Authority decision and a writ of mandamus will issue to require the Authority to conduct the review according to law.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 1 May 2023
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