AXS17 v Minister for Immigration
[2018] FCCA 3063
•2 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXS17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3063 |
| Catchwords: MIGRATION – Application for judicial review of decision of the Immigration Assessment Authority – application for protection visa – unauthorised marine arrival – claim of persecution on the basis of ethnicity, political opinions or member of a particular social group – fast track decision – consideration of new evidence – exceptional circumstances – legal unreasonableness – active consideration – consideration of all integers of claim for protection – grounds of review successful – application returned to IAA for re-determination. |
| Legislation: Migration Act 1958 (Cth), pt.7AA. ss:5(1); 5H; 5J; 36(2)(a); 36(2)(aa); 65; 473BA; 473CA;473CB; 473CC; 473DA; 473DB; 473DC; 473DD; 473DD(a); 473DD(b); 473DD(b)(ii); 473DE. Migration Regulations 1994, Sch.2 |
| Cases cited: BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958 |
| Applicant: | AXS17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 77 of 2017 |
| Judgment of: | Judge Brown |
| Hearing date: | 20 June 2018 |
| Date of Last Submission: | 20 June 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 2 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Wells |
| Solicitors for the Applicant: | Sarah Mitchell |
| Counsel for the First Respondent: | Mr O'Leary |
| Solicitors for the First Respondent: | Sparke Helmore |
| Solicitors for the Second Respondent: | Submitting appearance |
ORDERS
The decision of the Immigration Assessment Authority dated 16 February 2017 be set aside.
The matter be remitted to the Immigration Assessment Authority for redetermination according to law.
The first respondent pay the applicant’s costs of the proceeding, to be taxed, if not agreed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 77 of 2017
| AXS17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, in these proceedings, seeks judicial review of a decision of the Immigration Assessment Authority,[1] made on 16 February 2017, not to grant him a protection visa pursuant to the provisions of the Migration Act 1958.[2]
[1] Hereinafter referred to as “the IAA”
[2] Hereinafter referred to as “the Act”
This decision confirmed an earlier decision of a delegate of the Minister for Immigration & Border Protection[3] to the same effect, which was then subject to the Review Process inaugurated in Part 7AA of the Act. This process of review is conducted by the IAA.
[3] As the Minister for Home Affairs was previously known
The issues raised in this application centre on how the IAA approached material, which had not been produced to the Ministerial Delegate but was subsequently provided to the IAA. Provisions in Part 7AA restrict the IAA’s jurisdiction to consider new information relevant to protection claims, unless there are exceptional circumstances and other conditions are met.
In broad terms, this court must determine whether he decision of the IAA is vitiated on the basis of one of two considerations or both of them, which can be summarised as follows:
·Was it legally unreasonable for the IAA not to consider new information proffered to it by the applicant, following the initial ministerial decision and by so doing it failed to exercise the jurisdiction conferred upon it; or
·Did the IAA fail to consider an essential element of the applicant’s claim for asylum, which he had articulated in his application to it, once again vitiating the jurisdiction conferred upon it.
Background
The applicant is a citizen of Sri Lanka, who arrived at Australian territory, by boat, in October 2012. As such, he is classified, under the relevant provisions of the Act, as an unauthorised marine arrival. One of the effects of this classification is to prevent him from being automatically able to seek any form of visa, under the Act, to remain in Australia, unless the Minister provides his authorisation to make such an application. This is universally referred to as lifting the bar.
Once the legislative bar to the making of a visa application has been lifted by ministerial authority, the provisions of the Act, as amended by the Migration & Maritime Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 apply.
In general terms, the amendment provide for a review process in respect of unauthorised maritime arrivals to Australia, in respect of whom the Minister has lifted the bar. The process is automatic and is intended to be conducted largely on the basis of the papers.
As a consequence of the Asylum Legacy legislation, section 5 of the Act was amended to include a definition of a fast track applicant. Such a person is one:
(i) who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii) to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii) who has made a valid application for a protection visa in accordance with the determination; or
Section 5(1) also defines what is meant by the term fast track decision. In general terms, it is a decision to refuse to grant a protection visa to a fast track applicant. It is common ground between the parties that the applicant in these proceedings is a fast track applicant, given the circumstances surrounding his arrival in Australia.
The applicant is a Tamil by ethnicity and Hindu by religion. Prior to his departure, from Sri Lanka, he lived in the Ampara District, in the Eastern Province, of Sri Lanka, which was controlled by the LTTE, during the Sri Lankan civil war. The following is a summary of his claims to be entitled to the protection of Australia on the basis he is a refugee.
During the civil war, the applicant and his family were displaced. When they returned to their land, they discovered a cache of weapons and money, the existence which they disclosed to officers in the Sri Lankan Army. A neighbour of the applicant informed the Army that the applicant’s uncle was a senior LTTE cadre.
As a consequence of this information and the disclosure of the weapons cache, the applicant was subject to harassment by the Army, which included being taken to a nearby Army camp, where he was severely beaten and tortured on many occasions.
During the last phase of the war, in 2009, the applicant worked as a bus conductor, which led to him being required to provide transport for injured individuals, who were being placed in internally displaced person camps. Approximately three weeks before the end of the war, in 2009, the applicant assisted some children to escape from his bus. When the applicant’s involvement in this escape was discovered, he was assaulted and denied work.
In 2011, the applicant was questioned by CID officers about his involvement in the escape. This lead to him being harassed, at his work as a bus conductor and ultimately the termination of his employment.
Thereafter, the applicant returned to his family’s land, where he worked as a farmer. This led him to become involved in the Thamaraikulam Rural Development Society “the RDS”. As a consequence of this involvement, he was approached by a member of the Tamil National Alliance “the TNA”, who asked him to assist in his candidacy for provincial council elections. As a consequence, the applicant distributed flyers, posted posters and attended and organised meetings for the candidate concerned, in the Ampara District.
As a consequence of this involvement, the applicant came to the notice of members of the opposing Tamil Makkal Viduthalai Pulikal “the TMVP” who coerced him to work for them, which he resisted, notwithstanding being threatened by members of the TMVP.
During his protection visa interview, the applicant claimed that he had been subject to an attempted abduction by TMPV members on his way home from a meeting with the candidate whom he was supporting. The applicant reported this to police. This claim was supported by letter from a justice of the peace verifying that a complaint had been made in respect of the incident.
In spite of these threats, the applicant continued to assist the TNA. In these circumstances, the applicant claims that members of the TMPV attended at his parent’s home and an aunt’s home looking for him. This led to him illegally leaving Sri Lanka in September 2012.
The applicant fears that he will be harmed, if he returns to his home area of Sri Lanka, by either individuals associated with the TVMP or the Sri Lankan Authorities, particularly the Army and the CID. The applicant claims that since he left Sri Lanka, armed Tamil paramilitaries have come to his family home searching for him.
These various claims were detailed by the applicant in a statutory declaration dated 10 January 2016.[4] The Ministerial Delegate considered this information in October 2016. The applicant was also interviewed by the Ministerial Delegate.
[4] See the Casebook at pages 55 – 59
The Ministerial Delegate accepted that the applicant was a Sri Lankan Tamil who departed Sri Lanka illegally. The delegate also accepted that he had a relative who had been involved with the LTTE. However, the Ministerial Delegate did not accept the following aspects of the applicant’s claims that:
· he had found money and firearms buried on his family farm;
· he had been beaten and severely tortured on many occasions;
· had previously worked as a bus conductor;
· had been involved in the escape of children associated with the LTTE from a bus on which he was working as a conductor;
· had been the president of the Rural development society in his village;
· had been coerced by supporters of the TMVP;
· had a political profile in Sri Lanka; and
· would also be considered to have a political profile, if he were to return to Sri Lanka.[5]
[5] See the Casebook at page 236
As a consequence of these findings, the Ministerial Delegate was not satisfied that the applicant was a refugee to whom Australia owed an obligation of protection. As a consequence, the Ministerial Delegate declined to grant the applicant a safe haven enterprise visa.
New Information before the IAA
As indicated above, the Ministerial Delegate refused the applicant’s SHEV application on 12 October 2016. The day prior to this decision, the delegate contacted the applicant’s then representative to enquire whether the applicant felt that he had had an adequate opportunity to address all relevant issues raised in the earlier interview process.
No issue was raised. In this context, the delegate determined to refuse the application, which automatically invoked the IAA review. Thereafter, on 13 November 2016, the applicant’s advisor provided new information to the IAA, which related to the applicant’s activities in Australia as a member of the Tamil Diaspora.[6] This information can be summarised as follows:
[6] See Casebook at page 261
· The applicant had been an active participant in activities organised by members of the Tamil Diaspora in South Australia, who sympathised with the LTTE. He had spoken at events, particularly a Heroes’ Day celebration, which was likely to have been monitored by the Sri Lankan Intelligence Service;
· Given his prominent role in this event, if returned to Sri Lanka, the applicant would be readily identified on his arrival as an LTTE sympathiser, which would in turn lead to him being harassed, interrogated, tortured and detained;
· It was further submitted, on behalf of the applicant, that he did not realise that his activities, in Australia, were potentially important to his case. As a consequence, he had not disclosed his activities in the SHEV interview conducted in May 2016;
· On 6 August 2016, unknown individuals came to the applicant’s home in Sri Lanka and threatened his father. The applicant’s father believed this was because of the applicant’s prior involvement with the TNA;
· In this context, the applicant provided a letter, dated 10 April 2016, from the TNA candidate, whom the applicant claimed to have assisted, supporting the applicant’s claim that his life had been under threat forcing him to go into hiding. This had included the claim that his father had also been subject to threat in August 2016;[7]
· The applicant also provided a letter, dated 10 August 2016, to the Human Rights Commissioner of Sri Lanka, complaining of these events on behalf of his father;
· The applicant also provided documents in the form of his membership application for the Illanki Tamil Arasu Kadchi Youth League and the TNA;
· The applicant provided photographs and flyers of his late uncle’s involvement with the LTTE. It was submitted that this information had not been submitted earlier because the applicant’s family were too afraid to send it because of possible repercussions from the Sri Lankan authorities;
· The applicant provided a letter from the President of the RDS, dated 10 November 2016, which detailed the applicant’s involvement with the RDS in the period 2011 to 2012;
· The applicant submitted that, if returned to Sri Lanka, as an illegal departee, he would have difficulty posting bail, which would place him at risk of harm. It was submitted that this was not an issue which had been considered by the Ministerial Delegate and thus the applicant had been denied procedural fairness;
· The applicant also provided country information, from 2016, some of which predated the delegate’s decision, regarding human rights abuses of Tamils in Sri Lanka.
[7] See Casebook at page 273
The legal framework applicable
Pursuant to section 65 of the Act, the Minister, and any person delegated by him, is required to grant any visa arising under the Act, if satisfied that the conditions attaching to such visa have been satisfied by the applicant concerned.
Section 35A creates a category of visas, under the Act, known as protection visas. This category includes a class of temporary visas, known as safe haven enterprise visas (SHEV) or temporary protection visas (TPA).
The applicant applied for a SHEV on 19 January 2016.[8] Following the rejection of this application by the Ministerial Delegate, fast track applicants are required to undergo a further review process, to be conducted by the IAA, on the review material provided to it, by the Secretary of the Department, pursuant to sections 473CA & 473CB of the Act.
[8] See Casebook at page 16
The criteria required to be satisfied, in respect of a SHEV, are set out in Schedule 2 to the Migration Regulations 1994 particularly subclass 785 and 790. In general terms, the applicant for such a visa is required to satisfy the primary criterion contained in section 36(2)(a) or (aa) of the Act.
Section 36(2)(a) requires an applicant to satisfy the Minister that he or she is a refugee and therefore owed protective obligations by Australia. The expression refugee is defined in section 5H and provides a person is a refugee if that person:
“in the case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-found fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country;”
The expression well-founded fear of persecution is defined by section 5J and requires the applicant concerned:
·to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·there is a real chance the applicant would be persecuted for one of these reasons, if returned from Australia; and
·the persecution in question would involve the applicant suffering serious harm.
Pursuant to section 36(2)(aa), a person is entitled to a protection visa, if there are substantial grounds for believing that if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm.
Subsection (2A) defines significant harm. It includes being subject to torture; being subjected to cruel or inhumane treatment; and degrading punishment and treatment. This is known as the complementary protection criterion.
Accordingly, the issue to be determined by the Ministerial Delegate and subsequently by the IAA, in conducting its review function prescribed under Part 7AA, was whether there was a real chance the applicant would be subject to persecution, if returned to Sri Lanka because of his Tamil ethnicity; any political opinions attributed to him; or because he was a member of a particular social group, namely failed asylum seekers.
The Minister is required to refer decisions, relating to fast track applicants, to the IAA, for a limited form of review [section 473BA] as soon as reasonably practicable [section 473CA] after a decision is made. In the current matter, the decision was referred to the IAA on 23 August 2016 and a decision made by the IAA on 3 December 2016, which affirmed the delegate’s decision.
Section 473CB sets out the material, which the Secretary of the Department[9] must provide to the IAA. It includes the reasons of the delegate; any material provided by the applicant concerned to the original decision-maker; and any other material considered to be relevant.
[9] Hereinafter referred to as “the Secretary”
Section 473CC provides as follows:
(1) The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.
(2) The Immigration Assessment Authority may:
(a) affirm the reviewable decision; or
(b)remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.
The procedure of the IAA and how it is to conduct its fast track review function is delineated in section 473DA, particularly what application the rules of natural justice have to matters, including any requirement to refer documents to an applicant for comment. The section reads as follows:
“Exhaustive statement of natural justice hearing rule
(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”
Section 473DB indicates that a fast track review is to be conducted only in respect of the material referred to the IAA by the Secretary without accepting or requesting any new information or interviewing the applicant concerned. In the jargon of administrative review, the review arising under Part 7AA is to be “on the papers” alone.
In this context, the IAA’s authority to access additional review material, to that provided to it by the Secretary, is limited and delineated exhaustively in Subdivision C of Part 7AA. Section 473DC grants the IAA a discretion to obtain new information not previously before the Minister at time of decision if it might be relevant.
However, the IAA is under no obligation or duty to obtain such information regardless of whether it is requested to do so by the applicant whose case has been referred to it or any other person [see section 473DC(2)].
In addition the exercise of the discretion is subject to the satisfaction of two cumulative but overlapping consideration,[10] provided by section 473DD, namely:
·The IAA is satisfied that there are exceptional circumstances sufficient to justify it considering such material; and
·The applicant concerned satisfies the IAA the new information:
·either could not have been provided to the Minister at time of decision; or
·is credible personal information not previously known and had it been known, may have affected the consideration of the claims made.
[10] See BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958 at [9] per White J
If the IAA is satisfied that such exceptional circumstances arise, it is required, pursuant to section 473DE, to give the information so obtained to any referred applicant whose fast track review is being considered by it.
As a consequence of the Full Court decision in BMB16 v Minister for Immigration & Border Protection[11] it is clear that the function of the IAA is to evaluate, for itself, the review material provided under section 473CB together with any new information it obtains and then to either affirm the delegate’s decision or remit the decision for reconsideration, in accordance with such directions or recommendations as are permitted under the Regulations. Accordingly, it is open to the IAA to reach a different conclusion to the delegate in respect of matters arising in the review in question.
[11] BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 179
It is also clear from what was said by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection[12] that the various powers conferred upon the IAA, including that contained in section 473DD, must be exercised within the bounds of legal reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li.[13]
[12] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [21]
[13] Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
If the IAA fails to exercise any power conferred upon it reasonably it can render invalid its jurisdiction to conduct a review of any ministerial decision referred to it pursuant to section 473CC. Essentially legal reasonableness or an absence of legal unreasonableness is an essential element in the lawfulness of decision-making, including by the IAA.
Following on from Li, in Minister for Immigration & Border Protection v Singh, the Full Court identified two distinct areas in which a tribunal may fail to discharge the jurisdiction conferred upon it by acting in a manner which is legally unreasonable.
Firstly, such a tribunal discharges its reasoning functions in a way which is unreasonable in the sense that it is illogical or otherwise lacking in intelligibility. This refers to the process of reasoning, utilised by the relevant decision-maker concerned, in reaching a decision. It is focussed on process, including the application of any relevant statutory criteria to such a decision.
Secondly, the outcome of the proceedings is coloured by some species of caprice or arbitrariness, which renders the decision legally unreasonable, although the applicable jurisdictional questions have been addressed by the decision-maker in question. This second area is outcome focussed.[14]
[14] Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44]
Essentially, in conducting its supervisory jurisdiction over a delegated decision-maker, the court is required to look at the outcome of the exercise of the power delegated to ascertain whether it is one characterised by an extreme level of arbitrariness, which renders the decision no decision at all as it is outside the range of possible outcomes which are defensible in respect both the facts and the law.
It is also clear, from relevant Federal Court authority, that the level of illogicality or unreasonableness necessary to found jurisdictional error must be “extreme” not merely a situation where the minds of potential decision makers (and indeed a court on judicial review) might differ as to the outcome of the issue in question.[15] There must be no doubt that the decision sought to be vitiated is, on its face, axiomatically unreasonable.
The IAA’s decision
[15] See Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
(a) New Information
The IAA summarised the new information sought to be relied upon by the applicant, including the assertion that he was politically naïve and so did not realise that activities associated with the Tamil Diaspora might potentially be subject to surveillance by the Sri Lankan security apparatuses and further, as a layperson, he was unaware that these matters were relevant to his claim for asylum. This evidence was supported by photographs of the applicant taken whilst speaking at a Heroes’ Day event.
In this context, the IAA noted that the applicant had been legally represented throughout the process and had therefore been previously given an ample opportunity to raise these claims. It was further noted that the applicant had not asserted that his advisers had not explained to him what was entailed in the asylum seeking process.
A significant criticism, made by counsel for the applicant, is that the IAA merely summarised the evidence in respect of this issue and did not grapple with it in any active intellectual way. On the other hand, counsel for the Minister submits that a fair reading of this aspect of the reasons does indicate the application of the prerequisite level of analysis required.
As this is a central aspect of the case before the court, it is necessary for the relevant passage of the decision, relating to the applicant’s submission on the evidence in question, to be included in these reasons:
“The submission raises new information claiming that the applicant has participated in several Tamil diaspora activities in Australia and provides examples of these activities and attached photographs purportedly to be of the applicant speaking at a Hero’s day celebration function in South Australia in 2015. It claims that the Sri Lankan intelligence community closely monitors events of this nature and the applicant will be identified at the airport as someone who is of interest to the Sri Lankan authorities and taken away for interrogation and will be subjected to harassment, interrogation, torture and detention, which will subsequently lead to a life of constant monitoring and harassment, if not death. It further claims the applicant did not realise that his Tamil diaspora activities in Australia were important to his case and, as a result, he failed to mention this at his departmental interview. It claims, as a lay person and someone without any knowledge of the process of applying for refugee status, it is plausible that he had no idea of the significance of this active role in Tamil Diaspora activities abroad.”[16]
[16] See Case Book at page 296 [5]
Notwithstanding these circumstances, the IAA was not satisfied that these aspects of his claim could not have been raised before the Delegate or that there were any exceptional circumstances, which dictated that they should be considered by the IAA. It adopted the same approach in respect of the photographs provided of the applicant at the Australian based Tamil events.
The IAA also declined to consider the material relevant to the applicant’s father having been subject to intimidation, on 6 August 2016, which had resulted in a complaint, in letter form, being made the Sri Lankan Human Rights Commissioner on 10 August 2016.
Both these claims and the assertion that they supported the applicant’s claim that he was at risk of suffering harm, if returned to Sri Lanka, post-dated the application for protection and his interview with the Delegate held on 11 May 2016. In addition, the letter from the TNA candidate, whom the applicant asserted he had supported, leading to his unwanted attention from the TMVP, was also dated post interview.
However, the IAA noted that the Delegate did not make his actual decision until 12 October 2016 and prior to it contacted the applicant and asked him if he felt he had been given an ample opportunity to put everything which he wished to put in support of his application. In these circumstances, the IAA considered that this information could have been provided to the Delegate and there were no exceptional circumstances arising to justify the consideration of the material.
As indicated above, an important aspect of the applicant’s claim was that his involvement with the RDS led to his involvement in politics, which in turn created his political profile in Sri Lanka. In this context, he asserts that the letter from the President of the Thamaraukulam RDS dated 10 November 2016 assumes potential importance.
Clearly, the letter itself could not have been provided to the Delegate, given the date on which the relevant decision was made. In this context, the IAA noted that there had been no explanation proffered as to why the information contained in the letter, which was personal to the applicant, had not been obtained earlier. On this basis the IAA concluded there were no exceptional circumstance to warrant its consideration of the documents.
The IAA did consider the information relating to the difficulties which the applicant asserted he would face during any application for bail, on his return to Sri Lanka on the basis that it was a legal argument rather than new information per se as it made reference to existing country information.
In his post ministerial decision submission, the applicant also sought to rely on country information, germane to Sri Lanka, from a number of different sources dated between February 2015 and June 2016. Again the IAA considered that this information could have been provided to the Delegate and therefore it was not satisfied there were exceptional circumstances to justify its consideration. It took a different view in respect of a report emanating from the Sri Lankan Human Rights Commission, dated 1 November 2016, which raised issues relating to the use of torture.
(b) Claims for protection – particularly involvement with the TNA
The IAA accepted the applicant’s background was Tamil Hindu. It also accepted he had found weapons and money in 2006 and it was plausible that he was related to a senior LTTE cadre. In these circumstances, it was accepted that the applicant had previously been subject to harassment. However, it was not accepted that these problems had continued up to the recent past.
The IAA further did not accept the gravamen of the applicant’s claim that he was at risk of harm due to his activities as a bus conductor, particularly his involvement of the escape of LTTE children from his bus in 2009. Given the grounds of the review, these matters are not specifically relevant to these proceedings.
The IAA accepted that the applicant had a leadership role, with the TNA, from 2012, due to his involvement with the RDS. As such, it was considered plausible that he could have been approached to assist a TNA candidate in local elections.
In this context, country information indicated that the TMVP were operating in the applicant’s district during this time and had been found to be responsible for human rights violation. It was therefore accepted that the applicant had been subject to threats, emanating from the TMVP due to his associations with the TNA, included an attempted abduction in August 2012.
However, the IAA further concluded that contemporary country information, which had been before the Delegate, indicated that the political climate in Sri Lanka had changed since 2012, particularly with a member of the TNA becoming parliamentary opposition leader in 2015.
As a consequence Tamils, in Sri Lanka, including members of the TNA, had had access to a substantial level of political influence and were no longer subject to persecution. In these circumstances, the TNA made the following finding:
“Even if the applicant were to continue to support, and work for, the TNA on return to Sri Lanka, I am not satisfied he will face a real chance of harm from any group.”[17]
[17] Ibid at page 304 [35]
It is the applicant’s submission that this finding is too generic in nature and is unduly informed by country information, without any specific analysis of the evidence provided by the applicant regarding the persecution to which he was personally subjected because of his affiliations with the TNA. As such, it is submitted that it is indicative of jurisdictional error.
Other aspects of the applicant’s claim for asylum, relating to his claim that Tamil paramilitary groups had coming looking for him in October of 2015; his Tamil ethnicity and its potential consequences on returning to areas of Sri Lankan previously controlled by the LTTE; and his status as a returned asylum seeker, were rejected by the IAA, largely on the basis of country information.
These issues are not strictly germane to the grounds of review advanced by the applicant in the current proceedings, which centre on how the IAA dealt with the new information; and its findings in respect of his claims in respect of membership of the TNA.
The grounds for review
In his amended application, filed on 25 July 2017, the applicant relies on the following grounds of review:
“1. The decision of the Immigration Assessment Authority (IAA) was affected by jurisdictional error in that the IAA failed to properly construe and apply s 473DD Migration Act 1958 (Cth) (MA) requiring the IAA to decide whether it was satisfied that there were exceptional circumstances for considering new information and, in relation to any new information, whether that information could have been previously provided or whether there was new credible personal information which was not previously known:
Particulars
1.1. The IAA did not specifically refer to s 473DD at all in its reasons and it did not consider whether the new material submitted by the Applicant was credible new information that may have affected consideration of the Applicant's claim for the purposes of s 473DD(b)(ii);
1.2 The IAA only considered whether the new material fell within s 473DD(b)(i) as material that was not and could not have been provided to the Minster before the Minister made the decision;
1.3 The IAA failed to make any findings as to whether the new information was “credible personal information” for the purpose of s 473DD(b)(ii);
1.4 The IA failed to give independent consideration to whether there were “exceptional circumstances” that justified consideration of the new material and erroneously concluded that because the new material did not fall within s 473DD(b)(i), therefore there were no exceptional circumstances for the purposes of s 473DD(a) and
1.5 In so concluding, the IAA conflated s 473DD(a) and s 473DD(b)(ii), thereby failing to properly exercise its jurisdiction;
Failure to consider Applicant's Claim
2. The decision of the IAA was affected by jurisdictional error in that it failed to consider the Applicant's claim to face a real chance of harm from the Tamil Makkal Viduthalai Pulikal (TMVP) due to his involvement with the Tamil National Alliance (TNA):
Particulars
2.1 The IAA failed to engage with or consider the Applicant's claim to face a real chance of harm from the TMPV as a result of his support for the TNA;
2.2 The IAA identified in its reasons [43], only general information in relation to the political climate in Sri Lanka improving for women and minorities , including Tamils, noting that in 2015 a TNA member was named opposition leader and finding that there was nothing to suggest that TNA supporters and members were systematically persecuted by any group;
2.3 The IAA failed to give consideration to the specific complaint of the Applicant about threats made against him by the TMVP, including an attempted abduction in 2012;
2.4 The IAA made general and generic findings about the risk of persecution arising from JNA membership or support when it should have made specific findings about the Applicant's claim to fear persecution on the foregoing basis which could not be subsumed into findings of greater generality;
2.5 The IAA's finding that it was implausible that armed Tamil Parliamentary groups would seek out the Applicant in 2015 in respect of his involvement in the election in 2012 led the IAA to be satisfied that the Applicant was no longer of any interest to any such group;
2.6 The IAA’s state of satisfaction on the foregoing basis is contradicted by evidence contained in the new material relating to threats made to the Applicant’s father on 6 August 2016 arising from the Applicant's involvement in in the TNA, which was not considered by the 1AA.
2.7 Had the IAA properly performed its task under s 473DD MA and had regard to that new material it could not have reached that state of satisfaction, demonstrating jurisdictional error.”
Ground One
It is the contention of the applicant that the IAA has misconstrued the provisions contained in section 473DD of the Act and, in so doing, failed to follow the statutory directions provided to it in respect of the receipt of new information.
As a consequence, it is asserted that the IAA did not exercise the jurisdiction conferred upon it, rendering its subsequent decision a nullity. In substance, it is asserted that the reasons of the IAA, in respect of its rejection of the new information, on which the applicant wished to rely, do not disclose any intelligible or rational basis for such rejection.
In the alternative, it is submitted that the IAA did not follow the statutory pathway delineated in section 473DD of the Act in respect of the processes to be followed for the consideration of whether such new information should be considered by it, particularly whether exceptional circumstances existed.
In this context, it is asserted that the IAA adopted an unduly narrow definition of what amount to exceptional circumstances and has conflated the two separate considerations contained in subclauses (i) & (ii) of subsection (b).
The starting point for this submission is the reasoning of White J in BVZ16 v Minister for Immigration & Border Protection. [18] In the case His Honour noted that section 473DD imposed significant limitations on how the IAA could make use of new information in its review functions.
[18] BVZ16 v Minister for Immigration & Border Protection (2017) 254 FCR 221
The section contains a prohibition on the IAA considering new information unless two conditions are satisfied. White J described these two considerations in the following terms:
“The first is that the IAA be satisfied that there are “exceptional circumstances to justify” considering the new information. The second (which contains alternatives) is that the IAA be satisfied that the new information was not, and could not have been, provided to the Minister before the Minister made the decision, or that it be previously unknown “credible personal information” which, had it been known, may have affected consideration of the appellant’s claim.”
White J considered that the requirements of subparagraphs (a) & (b) of section 473DD are cumulative in their application but may be overlapping. Thus it is incumbent on the IAA, when presented with new information, to both engage upon a factual inquiry as to whether the information in question could have been presented to the ministerial delegate but also evaluate the significance of the new information, particularly within the context of the claim for protection being advanced. Specifically His Honour said as follows:
“The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.”
Essentially, any rejection of new information, merely on the basis that it is found that there is an absence of exceptional circumstance surrounding the explanation as to why the new evidence has not been provided earlier, is not necessarily decisive of the issue of whether exceptional circumstances overall exist in the matter – this being a central aspect of the IAA’s jurisdiction.
Such a narrow interpretation of the expression exceptional circumstances also renders the considerations relating to the nature of the new information, delineated in section 473DD(b)(ii) – namely that it is credible personal information – potentially otiose.
Essentially, it is submitted by the applicant that it was incumbent on the IAA to consider and evaluate any new information, in the light of the application for protection being advanced by him, rather than for it to engage only in a consideration of the veracity of the explanation proffered by him for its late tender. He submits, through his counsel Ms Wells that the reasons of the IAA indicate that this is what it has done.
On the other hand, Mr O’Leary submits that, although the IAA’s reasons may lack precision, any reading of them as a whole discloses that it has performed the necessary evaluation of the new information concerned under section 473DD(a) including the required consideration under subparagraph (b).
The High Court considered the operation of section 473DD in Plaintiff M174 v Minister for Immigration & Border Protection.[19] The majority (Gageler, Keane & Nettle JJ) held as follows:
·The precondition set out in section 473DD(a) must always be met before the IAA can consider any new information regardless of its source. As such the IAA must always be satisfied that exceptional circumstances exist justifying its consideration.
·The expression exceptional circumstances is not capable of exhaustive definition. The circumstances concerned may not necessarily be unique or unprecedented or even very rare. It is sufficient that it is an occurrence that is not regularly or routinely encountered.
·Cumulatively with its satisfaction that exceptional circumstances exist, the IAA must be satisfied in respect of one or other of the further preconditions set out in section 473DD(b).
·In order to satisfy 473DD(b)(ii) the information concerned needs:
oto be credible about an identified individual;
othe information was not previously known to either the Minister or the applicant; and
ohad it been known, by either the Minister or the applicant, it may have affected the delegate’s consideration of the case in question.
[19] Plaintiff M174 v Minister for Immigration & Border Protection (2018) 353 ALR 600 at 609 [29] – [31]
In her submissions, Ms Wells, counsel for the applicant, argues that the IAA did not engage in any evaluative exercise in respect of the new information provided by the applicant regarding his involvement in Tamil Diaspora events in Adelaide in 2015.
Rather, the IAA rejected the information on the basis of its finding that there was no explanation as to why the evidence had not been provided earlier. Specifically reliance is placed on the following verbatim passage of the decision:
“I note the applicant was legally represented in his primary application for protection and he has not claimed that his former legal representative did not explain the process of applying for protection or the opportunity to raise any further claims during the protection visa interview. I am not satisfied that this claim, and the evidence provided in support of it, could not have been raised before the delegate. For these reasons I am not satisfied there are exceptional circumstances for considering this information.”[20]
[20] See Case Book at page 296 [5]
Essentially, it is submitted that the IAA has not considered whether any exceptional circumstances pertain to this information itself but has rejected it on the basis of a purported lack of exceptionality regarding the reason it was not led before the delegate. On this basis, it is asserted that there has been a constructive failure to exercise jurisdiction.
Thereafter it is submitted by Ms Wells that not only has the IAA failed to evaluate the Tamil Diaspora evidence, it has also not considered properly the matters arising in subclause (b)(ii), which may have been illuminative of whether exceptional circumstances existed in the cumulative sense envisaged by both White J in BVZ16 and the High Court in M174.
It being submitted that the information in question was clearly personal to the applicant as distinct from country information generic to Sri Lanka. Essentially, the fact that the applicant had cause to believe his activities in Australia might cause him to come to adverse notice if returned to Sri Lanka might be relevant to the question of whether exceptional circumstances existed justifying the admission of evidence. It being asserted that the IAA’s reasons do not disclose any consideration of section 473DD(b)(ii) whatsoever, thus disclosing jurisdictional error.
Criticisms of the same type are made in respect of the new evidence relating to the threats alleged to have been made against the applicant’s father in Sri Lanka in August of 2016, which resulted in a complaint being made to the Sri Lankan Human Rights Authorities. These matters post-dated the applicant’s interview with the delegate.
Again it is submitted that there has been no process of evaluation of this evidence within the context of whether it is exceptional in nature. Rather, it is asserted that the evidence has been rejected on the basis that, after the delegate’s interview with him and before the making of the relevant decision, the applicant was contacted and asked if he wished to add any information but elected not to raise the information in question.
In these circumstances, emphasis is placed on the following passage of the IAA’s decision:
“Given the above, I am not satisfied that the above new information could not have been provided to the delegate and therefore I am not satisfied there are exceptional circumstances for considering this information.”[21]
It being asserted that the evidence has been rejected on the basis that it was not provided when it potentially could have been rather than following any evaluation of it, including by reference to the criterion contained in subparagraph (ii) namely whether it was credible personal information, germane to either the applicant or his father, which may have been instrumental in any decision making process.
[21] Ibid at page 297 [6]
Similar submissions are made in respect of the letter from the TRDS, dated 29 October 2016, relating to the applicant’s involvement with it between May 2011 and May 2012. It being asserted that the IAA’s decision does not indicate any evaluation of the import of these materials in the context of any assessment of exceptional circumstances within the purview of section 4733DD(a).
Rather it is submitted the material has been rejected on the basis of subclause (b)(i), which is apparent from this passage of the reasons:
“The applicant has also not indicated why the RDS could not have provided this letter prior to 10 November 2016. Given this, I am not satisfied that the applicant could not have contacted the RDS and requested this letter to provide to the delegate earlier. For this reason I am not satisfied that there are exceptional circumstances to justify considering this document.”[22]
[22] Ibid at page 297 [9]
The final category of new information, rejected from consideration by the IAA, which is said to found jurisdictional error, is not personal information germane to the applicant or his family. Rather, it consists of reports dated between February of 2015 and November 2016 from the Immigration and Refugee Board of Canada; and the Human Rights Commission of Sri Lanka.
The former pre-dating decision and being rejected on the absence of explanation for its recent tender. The latter being rejected on the basis that other country information was available and the date of the report itself was uncertain. An up-dating DFAT report was accepted.
Given the nature of this material, section 473DD(b)(ii) can have no application. However, it is again submitted that there has been no attempt by the IAA to engage with this material in an effort to evaluate whether it is or is not exceptional in nature other than to reject it because of its apparent availability prior to decision and its alleged duplication by other country information.
In response, it is the submission of Mr O’Leary, counsel for the first respondent, that the court must read the decision of the IAA, particularly in respect of its determination of the section 473DD issue, as a whole document and in so doing not subject the IAA’s reasoning to any degree of unnatural hyper-criticism or over-analysis, as this may have the unintended consequence of transforming a process of judicial review into one of involving a re-hearing on the merits.
In this context, he cites the comments of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang.[23]In the case, the High Court indicated that a court conducting judicial review “should not be concerned with unhappy phrasing” or “looseness in the language” in the decision being subject to review.
[23] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Mr O’Leary submits that a balanced reading of the entirety of the IAA’s decision indicates that it has indeed carried out the necessary evaluative task of assessing each component of the new information concerned pursuant to the provisions of section 473DD to determine whether sufficiently exceptional circumstances existed to justify its receipt and further whether one or other of the criteria stipulated in subclause (b) has been satisfied.
In conducting this task, Mr O’Leary submits that it is not necessary for the IAA to perform its potentially overlapping duties, arising under the section, in any particular sequence in order to discharge its jurisdictional obligations. Rather it is submitted that the findings made by the IAA, in respect of a wide variety of new material, have been made coterminously with other findings, which indicate a due regard for the personal circumstances of the applicant at the time of the review.
In this context, Mr O’Leary points to the fact that the IAA did accept that exceptional circumstances justified the admission of a variety of personal information, germane to the applicant, which was not available to the delegate. This included the following:
·The material related to the involvement of the applicant’s uncle with the LTTE, which was not provided earlier because of concern that it might lead to the targeting of the applicant’s family in Sri Lanka.
·The material relating to the applicant’s membership of the youth wing of the TNA. It being accepted that it was possible the last two pages of the document had not been provided by the applicant’s previous lawyer.
It is Mr O’Leary’s submission that it is implicit from how the IAA approached these categories of new information that it was conscious of its responsibilities arising under section 473DD namely that it was required to evaluate the information concerned, as well as to determine whether one or other of the criteria arising in subclause (b) was satisfied.
Given its summary of the applicant’s claims regarding his involvement in Tamil diaspora activities in Australia, which might lead to him being targeted if returned to Sri Lanka and potentially subject to harassment, torture and detention, it is Mr O’Leary’s submission that it is not the case the IAA adopted an unduly narrow construction of what were exceptional circumstances but properly considered the overall moment of the proposed evidence and whether it was sufficient to pass through the gateway provided by section 4733DD.
As such, it performed the necessary evaluative task as described by the High Court in M174 and provided the required degree of elaboration as to why the evidence was not accepted.[24] In these circumstances, it is contended that the decision was one which was open to the IAA to make and one which cannot be characterised as being legally unreasonable.
[24] See Plaintiff M174 v Minister for Immigration & Border Protection (supra) at 617 [65] & [75]
It is not the function of the court, on judicial review, to substitute its own findings as to whether exceptional circumstances exist to justify the consideration of new material by the IAA in its review function, for that of the IAA. The fact that a reviewing court may have a different opinion, to that of the IAA, as the qualitative nature of the new evidence in question – whether it is or is not exceptional in nature – is not sufficient in itself to found jurisdictional error.[25]
[25] In this context see Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 per Wigney J
The factual circumstances of the new evidence in question in BVZ16 on the one hand and M174 on the other was significantly different. In the former, the evidence related to a very serious incident of torture, of a Tamil applicant in Sri Lanka, prior to his departure from that country, which he had not alluded to earlier because of personal embarrassment and a fear that, if disclosed, the Australian authorities would identify the applicant concerned as a sympathiser with the LTTE and immediately deport him. In the latter, the evidence related to the attendance at church, in Australia, of a person who claimed to be at risk of suffering persecution, if returned to Iran, because of his conversion to Christianity.
However, in each case, after summarising the nature of the evidence in question, the relevant IAA reviewer, placed significant emphasis on both the fact that there had been no previous mention of the matters in issue during the SHEV interview process at which each had been legally represented.
In the former case, White J emphasised statements of the IAA reviewer in which she indicated she did not accept explanations proffered for the late disclosure of the material in question, which led His Honour to conclude:
“The IAA member does seem to have reasoned that her rejection of the appellant’s explanation for not having disclosed the new information earlier was decisive of the requirement that the circumstances be exceptional. This seems to reflect an inappropriately narrow understanding of the reach of the term “exceptional circumstances”, as discussed earlier in these reasons.”
This followed from His Honour’s assessment that the member had only summarised the new evidence rather than engaged in any process of assessment of it before determining to reject it on the basis of section 473DD(b)(i), thus failing to constructively exercise the jurisdiction conferred by subclause (a).
In M174 the plurality of the High Court (Gageler, Keane & Nettle JJ) said as follows:
“The Authority's choice not to consider information concerning the plaintiff's church attendance in 2014 and 2015 contained in the letter from Reverend Brown dated 10 May 2016 and in one of the congregants' letters was based on its lack of satisfaction that there were exceptional circumstances to justify considering that new information with the result that the precondition in s 473DD(a) was not met. That lack of satisfaction involved an evaluative judgment which was elaborately explained by the Authority. The judgment made was again open to the Authority and eminently justified by the reasons it gave.”
Accordingly, in my view, in order to determine whether the IAA reviewer has correctly acquitted the jurisdiction, conferred by section 473DD, it is necessary for it to consider the new information concerned to determine whether it is exceptional in nature, in the sense that it out of the ordinary, unusual or uncommon in some way. In this context, the gravamen of the material is likely to be relevant.
Thereafter, it is necessary for the reasons in question to indicate that the reviewer has undertaken some form of evaluative judgment of the material, which encompasses some form of explanation of its significance or presumably lack thereof in any decision under review. A mere recitation of that material may not be sufficient to discharge the jurisdictional obligation. In addition, it is clear that both limbs of contained in section 473DD must be satisfied by an active level of engagement, by the independent reviewer, with the material sought to be relied upon.
In CQW17 v Minister for Immigration & Border Protection[26] the Full Court, in endorsing BVZ16, said as follows:
“Consideration of a representation or submission by a decision-maker requires an “active intellectual process directed at that representation or submission….The Authority’s restatement does not show any real consideration in the sense of an “active intellectual process” directed at the material.” (citations removed)
[26] CQW17 v Minister for Immigration & Border Protection [2017] FCADC 110
In my assessment, the material sought to be relied upon by the applicant in this case, relating to his personal involvement in Tamil diaspora activities and his allegation of threats having been made against his father, were potentially relevant to his claim for protection. As such, it was incumbent upon the IAA to determine whether there exceptional circumstances raised which justified the formal consideration of the material in question.
In this context, although I am well aware of the risks of over-zealous scrutiny, I am of the view that the reviewer did not engage in the required degree of intellectual analysis of this material but rather rejected it because of concerns relating to its late tender and, in so doing, did not properly evaluate it as required as required by the first limb of section 473DD.
In my view, what is apparent from the decision record is that the evidence in question has been summarised rather than subject to any degree of intellectual analysis. Thus, I am satisfied that there has been a failure of jurisdiction. Accordingly, ground one of the amended appeal is made out.
Ground Two
The applicant further contends that the IAA failed to consider a discrete aspect of his claim for protection, namely that he faced a real risk of come to harm, if returned to Sri Lanka, at the agency of the TMVP, because of his prior involvement with the TNA, during the 2012 elections and this risk would be ongoing on his return to Sri Lanka.
In this context, the IAA accepted that the applicant had been involved with the relevant RDS, which plausibly could have led to him being approached to assist with TNA election activities, which in turn could have had the consequence of leading him to come to the adverse attention of the TMVP, which it was accepted operated at relevant times. These considerations led the IAA to reach the following conclusion:
“I am willing to accept that the applicant was threatened by the TMVP/Iniya Bharathi due to his support, and work, for the TNA during the Provincial Council Elections in 2012 and that they attempted to abduct him in August 2012.”[27]
[27] See Case Book at page 303 [34]
Accordingly, it is the applicant’s submission that his fear of suffering persecution at the hands of the TMVP was a significant aspect of his case and one which had been clearly articulated before the IAA. In particularly, it is submitted that the IAA did not consider whether the TMPV continued to operate in the east of Sri Lanka and the degree of threat it posed to the applicant specifically. Rather, it is submitted the IAA only considered issues relating to the TMPV in a wide or generic sense.
In this context, it is asserted that this central aspect of the applicant’s claim for protection has not received a proper level of consideration but rather has been blithely dismissed, by the IAA, on the basis of generic country information, which has not involved the necessary intellectual engagement with the factual specific of the applicant’s case.
This criticism is based on the following passage from the IAA’s reasons:
“Other than this, the recent country information that was before the delegate does not indicate that TNA supporters or members are systematically persecuted by any group. The country information indicates that the political climate has since changed since 2012 and, in 2015, the head of the TNA was named leader of the opposition in the new parliament. In 2017, DFAT also claimed that Tamils have a substantial level of political influence and their inclusion in political dialogue has increased since Sirisena came to power in 2015. The United States Department of State also assessed that, in 2015, there were no undue restrictions on the ability of political parties and individual candidates to participate in the electoral process. There are no laws that prevent women or minorities from participating in political life on the same basis as men or majority citizens. I am not satisfied the applicant faces a real chance of harm on return to Sri Lanka from the TMVP or any other group because of his previous support for, and wok for, the TNA in 2012. Even if the applicant were to continue to support, and work for, the TNA on return to Sri Lanka, I am not satisfied he will face a real chance of harm from any group.”[28] (citations removed)
[28] Ibid at page 303 [35]
In this context, Ms Wells submits that the earlier rejected evidence of the applicant, regarding threats having been made to his father recently in Sri Lanka were germane to this aspect of the applicant’s case, which axiomatically did not receive the required level of analysis from the IAA leading to a failure, on its part, to exercise the jurisdiction conferred upon it.
On the other hand, it is Mr O’Leary’s submission, on behalf of the first respondent, that a fair reading of the IAA’s reasons indicate that all aspects of the applicant’s claim received appropriate consideration and the IAA was entitled to give the weight, which it did, to country information germane to Sri Lanka.
Section 473CC of the Act requires the IAA to review any decision referred to it. As such, it is an essential requirement of its review function that it consider all claims made by the applicant concerned, including each essential component or integer of such claims, otherwise it will not acquit the jurisdiction conferred upon it.[29]
[29] See Htun v Minister for Immigration & Multicultural Affairs (2001) 233 FCR 136
In the context of refugee cases, which invariably involve individuals disadvantaged by language difficulties, who may have concomitant problems in articulating what are their claims for protection, difficulties may arise as to what are the actual claims being advanced and what are the components of such claims.
In NABE v Minister for Immigration & Multicultural & Indigenous Affairs[30] the Full Court indicated that a reviewing body, including the IAA, is required to consider only claims which are either:
·The subject of substantial clearly articulated arguments relying on established facts; or
·Clearly emerge from the material.
[30] NABE v Minister for Immigration & Multicultural & Indigenous Affairs
Whether a claim clearly emerges:
·Is not a finding to be made lightly;
·Must be based on facts which are established on the material before the Tribunal concerned;
·It is not an issue which can be determined axiomatically by reference to clearly delineated concepts. However, greater latitude, in this regard, will be given to unrepresented persons;
·It is not an issue to be determined in vacuo. Rather consideration should be given to how an applicant has presented his/her claims over time.
In my assessment, the IAA did consider each aspect of the applicant’s claim for asylum clearly emerging from the material, including the degree of risk, arising for him, because of his prior engagement with the TMVP. The applicant’s claims were based on his prior experience of the TMVP.
In this context, it accepted that he had had a prior leadership role with the RDS, which had led to an involvement in the electoral processes of the TNA. This, in turn, it was accepted, had led the applicant having been threatened, in 2012, by members of the TMVP. The IAA also accepted that the TMVP had operated in Eastern Sri Lanka during the relevant period of 2012. Accordingly, the applicant’s evidence about his claims was accepted.
In my view, he did not clearly advance that this degree of risk remained in place for him up to this stage. In these circumstances, the IAA was not obliged to consider specifically what was the current level of threat, if any, posed to the applicant by the TMPV. This claim was not clearly articulated.
In any event, the IAA did consider the degree of risk, currently arising for the applicant, because of his Tamil ethnicity, on the basis of its assessment of country information currently available to it. It found that Tamils were no longer subject to systematic persecution because of any involvement with the TNA. What weight the IAA gives to country information is a matter for it, as part of its fact-finding function.[31]
[31] See NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]
In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs[32] the Full Court said as follows:
“The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
[32] Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at [47]
In my view, these comments are germane to the current matter. It was not, in any event, necessary for the IAA to consider any specific threat, which might or might not arise for the applicant because of his prior involvement with the TMPV, because of its more general finding, based on country information, that the political situation in Sri Lanka currently was more conducive to the involvement of Tamils in its civic functions.
After considering the evidence of the applicant in some eight paragraphs of its decision, the IAA concluded as follows:
“I am not satisfied the applicant faces a real chance of harm on return to Sri Lanka form the TMVP or any other group because of his previous support, and work for, the TNA, on return to Sri Lanka. I am not satisfied he will face a real chance of harm from any group.”
In these circumstances, I consider that the IAA did consider each aspect or integer of the claim for protection advanced by the applicant. In these circumstances ground two is not made out.
Conclusions
Given that the applicant has been successful in one of his grounds for review, it will be necessary to remit the matter back to the IAA for reconsideration. I will also order that the first respondent pay the applicant’s costs of the review as agreed or, failing agreement, as taxed.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and thirty seven (137) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 2 November 2018
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