BBK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 318
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BBK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 318
File number(s): MLG 502 of 2017 Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 6 May 2022 Catchwords: MIGRATION – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise (Class XE) (subclass 790) visa – whether the Authority failed to consider relevant material or a relevant consideration, or an integer of the claim, or a material question of fact – whether the Authority misapplied the correct legal test in assessing the ‘real chance’ and ‘real risk’ for the purposes of sections 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) – whether the Authority’s decision was legally unreasonable – no jurisdictional error established – application dismissed with costs. Legislation: Immigration and Emigrants Act 1949
Migration Act 1958 (Cth), ss 5H, 5J, 36, 473CB
Cases cited: AEX15 v Minister for Immigration and Border Protection [2017] FCA 821
Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of last submission/s: 7 September 2021 Date of hearing: 7 September 2021 Counsel for the Applicant: Mr Krohn Solicitors for the Applicant: Ambi Associates Solicitors for the Respondent: Ms Roberts of Mills Oakley Lawyers
Table of Corrections 30 May 2022 In paragraph 70 the word ‘not’ has been inserted between the words ‘there was’ and ‘a ‘a real chance’ or ‘real risk’ of harm’. 30 May 2022 In paragraph 70 the word ‘a’ prior to ‘a real chance’ has been deleted. ORDERS
MLG 502 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BBK17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
6 MAY 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
2.The applicant’s amended initiating application filed on 11 August 2021 be dismissed.
3.The applicant pay the first respondent’s costs fixed in the sum of $5,300.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MERCURI:
INTRODUCTION
This is an application for judicial review of a decision of the Immigration Assessment Authority (‘Authority’) made on 17 February 2017. By its decision, the Authority affirmed the decision of a delegate of the Minister for Immigration and Border Protection (‘Minister’) to refuse the applicant’s application for a Safe Haven Enterprise (subclass 790) visa (‘SHEV’).
BACKGROUND
The applicant is a national of Sri Lanka of Tamil ethnicity and Hindu religion. The applicant arrived in Australia by boat on 17 August 2012.[1]
[1] Court book at page 139.
Application for SHEV on 30 October 2015
On 30 October 2015, the applicant applied for a SHEV with the assistance of a migration agent.[2]
[2] Court book at pages 19 to 57.
At pages 65 to 70 of the court book is a statement made by the applicant, dated 28 September 2015, accompanying his SHEV application. In his statement, the applicant outlines his reasons for leaving Sri Lanka and his fears if he were forced to return.
In summary, the applicant claims that he left Sri Lanka for the following reasons:
(a)during the ceasefire between 2002 to 2008, the applicant delivered food two to three times a week for a year to the Liberation Tigers of Tamil Eelam (‘LTTE’) base in Trincomalee. He also received self-defence and first-aid training from the LTTE, like many people in his area.
(b)in 2006, there were riots in which the Sinhalese burnt Tamil businesses, including the shop at which the applicant worked. The applicant fled for his safety and went into hiding for approximately two weeks, during which time his uncle reported him missing to the police. The applicant provided a translated copy of this police report in support of his application.[3]
(c)also in 2006, whilst the applicant visited his family in Hatton, his hometown, the police found some ammunition in a tea plantation, approximately 9km away from his family’s house. The applicant was attended upon by two members of the Criminal Investigation Department (‘CID’), arrested along with four or five other people, and taken to the police station, where he was detained from approximately 10:00am to 6:00pm. He was questioned about the ammunition, as well as why he had come from the Eastern Province to the Central Province. The applicant claims that he was ‘slapped and beaten’. The applicant was released after his uncle spoke with the police.
(d)in April 2008, whilst the applicant was visiting Hatton, he was again stopped by police and taken to the police station. The police claimed that they wanted to speak with him because he had come from Trincomalee recently and they suspected that he might have hidden some weapons in his three-wheeler. Whilst questioning him, the police showed him two hand grenades and stated that they could fabricate a case against him. The applicant was arrested and detained at the police station for two days, during which he was again beaten and questioned about the hidden weapons. The applicant was again released after his uncle made phone calls to the police.
(e)the applicant continued to face persecution from the authorities and was part of ‘round-ups’ at least two to three times per month, as part of which he was often questioned about whether he had connections with the LTTE. The applicant states that only Tamil people were subject to the ‘round-ups’ and accused of being LTTE sympathisers.
[3] Court book at pages 63 to 64.
In this statement, the applicant claims that he fears harm if he were to return to Sri Lanka for the following reasons:
(a)with respect of his arrest in 2008, although he was released from detention, his case is still pending;
(b)the government will know that he left Sri Lanka illegally and will claim that it can be imputed from this that he has connections with the LTTE;
(c)there is a history of discrimination against Tamil people. If he returns to Sri Lanka, he ‘cannot hide the fact that [he is] a Tamil man’ and will suffer discrimination, which will put him in grave danger;
(d)there remains a heavy military presence in the post-conflict areas of Sri Lanka and widespread human rights abuses, despite the change in government; and
(e)he does not feel safe to complain and seek safety from government authorities as the staff are Sinhalese.
On 22 June 2016, the applicant was invited to, and attended, an interview in connection with his SHEV application.[4]
[4] Court book at page 110 to 113, 142.
On 28 July 2016, the applicant, through his migration agent, submitted a detailed post-interview submission.[5] In this submission, the applicant highlights the continuing abuse of human rights in Sri Lanka, particularly with respect to the Tamil population, with reference to various sources of country information.
[5] Court book at pages 116 to 134.
Decision of the delegate on 22 December 2016
On 22 December 2016, the delegate refused to grant the applicant a SHEV.[6]
[6] Court book at pages 139 to 155.
The delegate found that the applicant was generally credible and did not try to embellish or exaggerate his claims.[7] Amongst the applicant’s claims, the delegate accepted that he had been arrested on two occasions whilst in Hatton, however, did not accept that the authorities had any substantive reason to suspect the applicant other than it being unusual for him to be living and working away from his hometown in an area controlled by the LTTE.
[7] Court book at page 142.
In coming to the conclusion that the applicant did not attract Australia’s protection obligations under section 36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’), the delegate made the following findings:
(a)the applicant’s chance of being imputed with an LTTE connection on the basis of his ethnicity was remote;[8]
(b)the applicant was not personally of interest to the Sri Lankan authorities at the time that he left the country;[9]
(c)while the applicant may be at risk of discrimination in Sri Lanka due to his ethnicity, that level of discrimination would not amount to serious harm;[10]
(d)there was not a real chance that the applicant will be persecuted or face serious harm as a result of being a failed asylum seeker.[11]
[8] Court book at page 145.
[9] Court book at page 146.
[10] Court book at page 146.
[11] Court book at pages 146 to 147.
Adopting similar reasoning, the delegate also did not accept that the applicant attracted Australia’s complementary protection obligations under section 36(2)(aa) of the Act.[12]
[12] Court book at page 150.
Decision of the Authority on 17 February 2017
The application was referred to the Authority in the usual way on 6 January 2017.[13]
[13] Court book at page 157.
On 17 February 2017, the Authority affirmed the delegate’s decision to refuse the applicant’s application for a SHEV. In reaching its decision, the Authority had regard to information obtained from the most recent Department of Foreign Affairs and Trade (‘DFAT’) report published on 24 January 2017, namely, information on the treatment of Sri Lankans of Tamil ethnicity and citizens who have departed Sri Lanka illegally and sought asylum abroad. This information was not before the delegate, who had relied on the previously published DFAT report.
At paragraph [4] of its decision record, the Authority sets out the applicant’s claims for protection. At paragraph [9], the Authority accepts the applicant’s credibility, noting, in particular, the applicant’s consistent account of his claims for protection, as supported by independent country information, since his arrival in Australia.[14]
[14] IAA decision record at paragraph [9].
Refugee status
At paragraphs [5] to [28] of its decision record, the Authority assesses the applicant’s claims against the refugee definition in section 5H(1) of the Migration Act 1958 (Cth) (‘the Act’), focussing particularly on whether the applicant can be found to have a ‘well-founded fear or persecution’ as defined in section 5J of the Act.
Real or imputed pro-LTTE political opinion
At paragraphs [10] to [19], the Authority considered whether the applicant had a well-founded fear of persecution due to any real or imputed pro-LTTE political opinion.
On the basis of an assessment of the country information, the Authority accepted that:
(a)there were frequent cordon and search operations from 2008 to 2012 in Trincomalee;
(b)the authorities would have regarded young Tamil males, such as the applicant, with suspicion given their potential to have LTTE involvement;
(c)the authorities regularly came to the applicant’s uncle’s shop to examine the employees’ papers;
(d)from 2008, the applicant was often caught up in cordon and search operations where he and others were questioned about their origins and LTTE links; and
(e)on these occasions, the applicant and other detainees were interrogated and released without further incident.
However, the Authority found that the country information indicated the trend of monitoring and harassment of Tamils in day-to-day life had ‘significantly eased’, and that Tamil ethnicity did not, of itself, give rise to a well-founded fear of persecution in Sri Lanka. On this basis, the Authority was not satisfied that the applicant was at risk of harm, either currently or in the reasonably foreseeable future, as a result of any real or perceived link to the LTTE.
The Authority further accepted, on the basis of the country information, that:
(a)authorities may have monitored some civilians who had contact with the LTTE;
(b)the applicant considers himself to be an LTTE supporter;
(c)the applicant was detained and questioned by the police in Hatton in 2006 and 2008;
(d)Trincomalee was an area of high LTTE activity, as a result of which the Hatton authorities may have regarded the applicant with suspicion; and
(e)the applicant’s details may be on record following the 2006 and 2008 incidents, which the applicant genuinely fears will be used by the Sri Lankan army or navy officials in Trincomalee to cause problems for him.
However, the Authority found that apart from the 2006 and 2008 Hatton incidents, the applicant had not been accused of being involved with, or assisting the LTTE,[15] had no history of being politically active and had not demonstrated any intention of being politically active, including by publicly supporting Tamil independence.[16] Further, the Authority was not satisfied that the applicant has pending charges, outstanding warrants or outstanding court orders against his name.[17]
[15] IAA decision record at paragraph [14].
[16] IAA decision record at paragraph [15].
[17] IAA decision record at paragraph [18].
On this basis, the Authority found that the applicant did not face a real chance of harm on account of his previous interactions with the Sri Lankan authorities.
Illegal departure from Sri Lanka
At paragraphs [20] to [27], the Authority considered whether the applicant had a well-founded fear of persecution due to his illegal departure from Sri Lanka.
Whilst the Authority accepted that the applicant departed Sri Lanka illegally in July 2012 and sought asylum in Australia,[18] it was not satisfied that the applicant was at a risk of harm due to his time spent in Australia, nor that he would be subject to differential treatment upon his return.[19]
[18] IAA decision record at paragraph [20].
[19] IAA decision record at paragraph [21].
The Authority considered that the applicant may face harm insofar as he could face penalties under the Immigration and Emigrants Act 1949 (‘I&E Act’), for having departed Sri Lanka illegally. However, it concluded that the payment of a fine, or being held in detention for a period of up to 24 hours at the airport or nearby prison, does not rise to the level of serious harm.[20]
[20] IAA decision record at paragraphs [22] to [24].
The Authority further found that the I&E Act was not discriminatory on its face or in application such that the treatment that the applicant would face persecution within the meaning of section 5J(4) of the Act as a result of the application of the I&E Act.[21]
[21] IAA decision record at paragraph [25].
Complementary protection
At paragraphs [29] to [37] of its decision record, the Authority assesses the applicant’s claim for complementary protection, with particular reference to whether the applicant faces a ‘real risk of significant harm’ as defined in section 36(2A) of the Act.
In light of the independent country information and its previous factual findings, the Authority did not accept that there was a real risk of significant harm on the basis of the applicant’s claims, either individually or cumulatively.[22]
[22] IAA decision record at paragraph [36].
GROUNDS OF REVIEW
In accordance with orders made by consent on 18 August 2021, the applicant filed an amended application for judicial review on 11 August 2021 in which the following grounds were raised:
1.The Authority erred in law and fell into jurisdictional error in that it failed to consider relevant material or a relevant consideration, or an integer of the claim, or a material question of fact.
Particulars
a.The Authority did not consider (a) the Applicant’s claims to have been beaten when detained or interrogated.
b.The Authority did not consider information about torture in detention, including information put before the First Respondent’s (“the Minister’s”) department in submissions on behalf of the Applicant, other information before the Minister’s delegate and information in the report dated 24 January 2017 by the Australian Department of Foreign Affairs and Trade (“DFAT”), paras 4.16 and 4.19.
c.Further or in the alternative to particular (b) to this Ground, the Authority did not consider the question whether the Applicant may face torture in detention on his return to Sri Lanka.
2.The Authority erred in law and fell into jurisdictional error in that it erred in interpreting or applying the law.
a.The Authority’s conclusions that the Applicant was not a person owed protection under sections 36(2)(a) and 36(2)(aa) show that it erred in interpreting or applying the terms “real chance” in section [sic] of the Migration Act 1958 (“the Act”), “well-founded fear of persecution” within section [sic] of the Act, and “real risk” of significant harm within the meaning of section 36(2)(aa) the conclusions of the IAA despite:
(i)the evidence of incidents of torture in Sri Lanka;
(ii)the evidence of an entrenched culture of torture in Sri Lanka;
(iii)the evidence that DFAT cannot verify information and that DFAT does not monitor after people return to Sri Lanka.
3.The Authority erred in law and fell into jurisdictional error in that it was unreasonable.
a.Further or in the alternative to Particular (a) of Ground 2 of this application, the Authority was unreasonable in not finding that the Applicant had a well-founded fear of persecution or a real risk of significant harm such as to be owed protection under section 36(2)(a) or 36(2)(aa) of the Act, given:
(i) the evidence of incidents of torture in Sri Lanka;
(ii)the evidence of an entrenched culture of torture in Sri Lanka;
(iii)the evidence that DFAT cannot verify information and that DFAT does not monitor after people return to Sri Lanka.
Ground 1
By Ground 1, the applicant claims that the Authority failed to consider all relevant claims made by the applicant or which clearly and squarely arise from the material before the Authority.
It is common ground that a failure to consider a material question of fact squarely arising from the material before the Authority would give rise to a jurisdictional error. As noted by the court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58]:
There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated … It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it … the use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
It is also not in dispute that in considering such claims, the Authority is required to have an active intellectual engagement with the issues raised.
At the heart of ground 1 is the claim by the applicant that the absence of reference to a particular claim, or a finding in relation to a particular claim, from the Authority’s written reasons may be evidence that the Authority did not consider that material and thereby evidence jurisdictional error.[23]
[23] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [82] –[84] per McHugh, Gummow and Hayne JJ.
Applying these principles, it is submitted that the Authority did not consider the applicant’s claims to have been ‘beaten’ whilst he was detained and questioned in 2006 and 2008. It is further submitted for the applicant that whether the applicant was in fact beaten as claimed was relevant and important to the Authority’s ultimate consideration of whether the applicant faced a real risk of harm or a real chance of harm if he were to return.
It is submitted for the applicant that this failure was a failure to consider an integer of the applicant’s claims and that it amounted to jurisdictional error as it may have affected the ultimate decision made by the Authority.
It is properly conceded for the Minister that the applicant made reference in his claim documentation to having been beaten on two occasions when he was detained and questioned in 2006 and 2008. It is also conceded that the Authority accepted that the applicant had been detained on both occasions, but the Authority did not expressly make findings about whether the applicant had been beaten on these occasions.
It is submitted for the Minister that notwithstanding the express finding about whether the applicant was beaten during these two periods of detention in 2006 and 2008, it is clear from a fair reading of the Authority’s decision that it implicitly accepted the applicant’s claims in this regard. Having regard to the principles in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45], it is clear from a fair reading of the Authority’s reasons as a whole that the Authority accepted the applicant’s claims. There is much force to this submission.
It is clear from a fair reading of the Authority’s reasons that it accepted all of the applicant’s claims. For example,:
·at paragraph [4], the Authority notes that the ‘applicant’s claims are contained in the information referred to the IAA.’ The Authority then goes on to set out a summary of those claims;
·the Authority noted in that summary that the ‘applicant fears that he will be detained, interrogated tortured and/or killed by the Sri Lankan Authorities …’;
·at paragraph [9], the Authority then stated:
Overall I found the applicant’s evidence, while disjointed at times, to be generally free from embellishment. Overall I am satisfied the applicant has given a consistent account of his claims for protection since his arrival in Australia. Country information before the delegate also supports the applicant’s claims in relation to the security situation in Trincomalee between 2002 and 2012.
·moreover, at paragraphs [10] to [17] of its decision record, the Authority accepted all of the applicant’s claims without exception.
In those circumstances, the mere fact that there was no specific reference to the applicant having been beaten, as opposed to slapped, during his periods of detention in paragraph [4] of the Authority’s decision record, which was expressly stated to be a summary, does not, in my view, evidence that the Authority failed to consider an integer of or an aspect of a claim made by the applicant. On the contrary, the Authority, as stated, accepted the applicant’s claims but went on to say that in circumstances where it found that:
·the monitoring and harassment of Tamils in their day to day lives has significantly eased since the end of the war and the situation for Tamils has improved;[24]
·there has been an improved situation in Sri Lanka, particularly following the change of government in 2015;[25]
·the ‘Sri Lankan government’s May 2009 victory in the civil war decisively marked the end of the LTTE movement’;[26] and
·the applicant was able to remain living in Sri Lanka notwithstanding these two periods of detention in 2006 and 2008 until he left the country in 2012;
the Authority concluded that it was not satisfied that the applicant had a well-founded fear of persecution for any of the claimed reasons, including because of his detentions in 2006 or 2008. It was these factors that informed the Authority’s decision that ultimately, the applicant did not have a well-founded fear of persecution in the reasonably foreseeable future.
[24] IAA decision record at paragraph [12].
[25] IAA decision record at paragraph [13].
[26] IAA decision record at paragraph [15].
I also accept the submission made on behalf of the first respondent that even if, notwithstanding my conclusions reached above that it is implicit when one reads the Authority’s reasons as a whole that the Authority did in fact have regard to and consider the applicant’s claims to have been beaten whilst detained, the consideration of that claim could not, in my view, have realistically have resulted in a different decision by the Tribunal.
The issue before the Authority was whether the applicant, whose claims the Authority had accepted, was at real risk of harm in the future if he were to return to Sri Lanka, not whether he had suffered harm in the past. In this case, the factors which largely led the Authority to answer this question in the negative related to the changed circumstances in Sri Lanka and not to the applicant’s own personal circumstances.
At particular (b), the applicant claims that the Authority did not consider certain specified information in coming to its conclusions and consequently, this resulted in the Authority’s decision being affected by jurisdictional error. In essence, the applicant submits that although the Authority said at paragraph [2] of its reasons that it had regard to the material provided by the Secretary under section 473CB of the Act, it is apparent from a fair reading of the Authority’s reasons that it did not consider this material, in the sense of having an actual intellectual engagement with the detailed information before it, and in particular, ‘the entrenched culture of abuse of human rights, including torture, and about torture in detention’.
In support of this proposition, it is submitted for the applicant that there was a significant amount of information put before the Department which was relevant to the Authority’s consideration of the applicant’s claims, but only a very small amount of that information was expressly referred to in the Authority’s reasons. In these circumstances, it was submitted for the applicant that the court could infer from the absence of more detailed references to this material, that the Authority did not have regard to that other information.
The applicant concedes that the Authority is not required to refer to every piece of evidence and ultimately, subject to acting reasonably, it is up to the Authority to determine the weight it gives to such evidence. However, it is submitted that the lack of reference to such a large body of material that was put before the Authority is itself evidence of a failure to consider that information and indicative of the Authority not having an active intellectual engagement with the material before it. This is particularly so, it was submitted for the applicant, in circumstances where much of this material went to the relevant issue before the Authority, namely whether it could be satisfied ‘that there was a deep and stable change in Sri Lanka such that there was no ‘real chance’ … that a man who was accepted by the Authority as generally credible, and who had claimed that he had twice previously been beaten in detention, may suffer such harm again.’[27]
[27] Applicant’s outline of submissions filed on 13 August 2021 at paragraph [42].
This aspect of ground 1 is not made out. As noted by the applicant, there is no obligation on the Authority to refer to every piece of evidence. In any event, the Authority did refer in its reasons to some of the material contained in the applicant’s post-interview submission, which included concerns that the applicant was at risk of mistreatment and torture in detention and referred to a number of reports in support of this submission. The submissions also referred to various reports which suggested that torture was endemic in Sri Lanka and is widely practiced in police stations and detention centres.
The statement at paragraph [12] of the Authority’s reasons is particularly relevant in relation to this aspect of ground 1, where the Authority said:
Overall country information before the delegate overall indicates the situation for Tamils has improved, including positive political developments for Tamils on both the provincial and national level….’ (emphasis added)
It is implicit in this statement that there was some country information which contained contrary information, but overall, the country information supported the conclusion that there had been an improvement in the security situation. Ultimately, as stated by O’Callaghan J in AEX15 v Minister for Immigration and Border Protection [2017] FCA 821 at [30]:
The choice and the assessment of the accuracy and weight of country information, is a matter for the Tribunal.
Further, and in the alternative, particular (c) to ground 1 claims that the Authority did not consider the question as to whether the applicant might face torture in detention on his return to Sri Lanka.
This aspect of ground 1 is also not made out for the following reasons. It is clear from the discussion above that the Authority concluded that there was not a real chance that if the applicant returned to Sri Lanka he would be persecuted for a prescribed reason.[28] Torture whilst in detention would be a form of persecution for this purpose. Having found there was no real chance of persecution generally, the Authority implicitly found that there was no real chance of that sub-type of persecution.
[28] Migration Act 1958 (Cth) s 5J(1)(b).
This is a case in which the Authority largely accepted the applicant’s evidence and claims about what had happened to the applicant whilst he was living in Sri Lanka. In undertaking the forward looking assessment to determine whether the applicant had a well-founded fear of persecution if he were to return, and having regard to the applicant’s claims and the country information before it, the Authority concluded that the applicant did not face a real chance of such persecution. That was a finding that was reasonably open on the evidence before the Authority.
Moreover, the Authority also did consider the possible detention of the applicant on his return to Sri Lanka in the context of coming to the attention of the authorities and possibly being charged under the I&E Act. In this context, the Authority relevantly found that if charged, he might be detained at a nearby prison for a day or so. The Authority went on to find that on the basis of the applicant’s own personal circumstances and country information, if he pleaded guilty to departing the country illegally, he would be fined and released.
Importantly, the Authority said at paragraph [24] of the decision record:
… I am not satisfied that the payment of a fine, or being held in detention for a period of up to 24 hours at the airport, or possibly a nearby prison, cumulatively amounts to serious harm…. There is nothing to indicate that in the less likely event he pleads not guilty, he will detained (sic) any longer and I am not satisfied this would amount to serious harm.’
Relevantly at paragraph [26], the Authority goes on to find that it was of the view that the applicant was not currently of interest to the authorities because of any of his activities in Sri Lanka prior to leaving the country. The Authority went on to say,
… Taking this into account, and the improved country information, I am not satisfied there is a real chance that the applicant would face harm as a returning Tamil asylum seeker from Australia, who departed Sri Lanka illegally, now or in the reasonably foreseeable future.
The Authority went on to make similar observations in relation to its consideration of the complementary protection provisions. In particular, at paragraph [34] of its decision record, the Authority noted that ‘DFAT has reported that detainees are not subject to mistreatment during processing at the airport. … While the applicant may be required to spend approximately 24 hours in police custody at the airport, or possibly a nearby jail, … I am not satisfied that this would amount to … torture’.
It is implicit in this finding that the Authority did not consider that there was a real chance or a real risk of the applicant being tortured whilst in detention if he were to return to Sri Lanka. In coming to these findings, the Authority did not fail to consider material or relevant considerations or an integer of the applicant’s claims or any material question of fact.
Ultimately, ground 1 invites the court, having regard to the country information relied upon by the applicant, to engage in impermissible merits review.
For each of these reasons, ground 1 is not made out.
Grounds 2 and 3
Grounds 2 and 3 are related and I will address them together.
By ground 2, the applicant claims that the Authority misapplied the correct legal test in assessing the ‘real chance’ and ‘real risk’ for the purposes of sections 36(2)(a) and 36(2)(aa) of the Act.
By ground 3, the applicant claims that the Authority’s conclusion that the applicant did not face a real chance or a real risk of harm was legally unreasonable.
In essence, both of these grounds rely on the argument that when regard is had to the country information before the Authority, and in particular, the evidence about incidents of torture in Sri Lanka, evidence of the entrenched culture of torture in Sri Lanka and evidence that DFAT itself cannot verify information and that DFAT does not monitor returnees to Sri Lanka, the conclusions reached by the Authority that the applicant did not face a real risk or a real chance of harm was either legally incorrect or legally unreasonable.
In relation to ground 2, the legal principles are not in dispute. In Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62 at [12], Mason CJ relevantly stated:
… a fear of persecution is ‘well-founded’ if there is a real chance that the refugee will be persecuted if he returns to his country of nationality. … ‘a real chance’ … clearly conveys the notion of a substantial, as distinct from a remote chance … (a) fear … is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring.’
It is therefore submitted for the applicant that a ‘real chance’ may exist even if it is ‘small’.
It is further submitted that when regard is had to the country information before the Authority, in particular, information which the applicant relies upon which positively identifies an entrenched culture of torture by Sri Lankan authorities, weighed against the limitations of the DFAT country information relied upon, including that:
·DFAT does not monitor persons involuntarily returned to Sri Lanka;
·DFAT itself is a government agency not an independent agency; and
·DFAT information addresses what occurs at the airport once a Sri Lankan person is deported, but does not consider what happens beyond the airport;
it was simply not open to the Authority to conclude that the applicant had no real chance of suffering persecution or no real risk of suffering significant harm.
It is submitted that in coming to the conclusion it did, the Authority ipso facto fell into jurisdictional error by applying the wrong test.
Similarly, by ground 3, it is submitted that for the same reasons, the conclusion reached by the Authority that the applicant did not face a real chance of persecution or a real risk of significant harm, was legally unreasonable, in that they were conclusions not reasonably open on the evidence. It is common ground that powers conferred on the Authority by the Act ‘are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li …’.[29]
[29] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16.
Neither of these grounds is made out. It is clear from a fair reading of the Authority’s decision that it understood the appropriate test that it had to apply in assessing the real risk or real chance, namely that it had to consider the risk of harm to the applicant into the reasonably foreseeable future.
The Authority set out the relevant statutory provisions that it was applying at paragraphs [6] and [30] of its decision record. It is also clear from the Authority’s reasoning that it understood the test that it had to apply in its consideration both in relation to considering whether the applicant met the requirements of sections 36(2)(a) and s36(2)(aa) of the Act.
The essence of the applicant’s complaint in grounds 2 and 3 arise from the Authority’s decision not to preference that information put forward by the applicant about the risks of potential torture on return over the remainder of the country information before the Authority.
Ultimately, the Authority’s findings, in particular at paragraphs [12] and [13], were reasonably open on the totality of the evidence before it. Similar conclusions apply to the Authority’s reasoning at paragraphs [31] and [32]. It is evident that the Authority, after weighing the competing country information, concluded that the situation in Sri Lanka had improved, particularly post-2015, such that there was not ‘a real chance’ or ‘real risk’ of harm to the applicant if he were to return to Sri Lanka.
The applicant has not established that the Authority, in coming to this conclusion, misunderstood or misapplied the legal test, or acted in a legally unreasonable manner.
For each of these reasons, grounds 2 and 3 are not made out.
CONCLUSION
Not having established any of the grounds of review, the applicant’s application ought to be dismissed with costs to be fixed.
I therefore make the orders set out at the commencement of these reasons.
I also note that the first respondent seeks an order amending its name. No objection was raised and I therefore make that order as sought.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 6 May 2022
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