BCT18 v Minister for Home Affairs
[2020] FCCA 1542
•11 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BCT18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 1542 |
| Catchwords: MIGRATION – Safe Haven Enterprise Visa – whether decision of Immigration Assessment Authority unreasonable, irrational or illogical – whether failure to consider integer of applicants’ claims – no error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H(1) & 36(2)(a) |
| Cases cited: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 |
| First Applicant: | BCT18 |
| Second Applicant: | BCU18 |
| Third Applicant: | BCW18 |
| Fourth Applicant: | BCX18 |
| Fifth Applicant: | BCY18 |
| Sixth Applicant: | BCZ18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 85 of 2018 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 3 June 2019 |
| Date of Last Submission: | 3 June 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 11 June 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr S McDonald |
| Solicitors for the Applicants: | Camatta Lempens |
| Counsel for the Respondents: | Mr D O'Leary |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The Application is dismissed.
The applicants are to pay the costs of the first respondent as agreed or taxed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 85 of 2018
| BCT18 |
First Applicant
| BCU18 |
Second Applicant
| BCW18 |
Third Applicant
| BCX18 |
Fourth Applicant
| BCY18 |
Fifth Applicant
| BCZ18 |
Sixth Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) dated 20 February 2018. That decision affirmed an earlier decision of a delegate of the first respondent which refused applications for Safe Haven Enterprise (Subclass 790) visas for each of the six applicants (‘the visas’).
This matter proceeded before me on the basis of the Amended Application filed on 8 June 2016. Ground one of that application was not pursued. Grounds two and three are as follows:
“Unreasonableness/ irrationality
2.The decision of the Immigration Assessment Authority was affected by jurisdictional error in that:
a.the applicant claimed to fear persecution if returned to Sri Lanka on bases that included that he had been a former combatant for the LTTE, who had not undergone “rehabilitation” and that he was capable of being identified as a former combatant by reason of his visible scars;
b.the Immigration Assessment Authority accepted that the applicant was a former combatant for the LTTE and that he had visible scarring;
c.the Immigration Assessment Authority did not make a finding as to whether the applicant’s former membership of the LTTE was known to or would come to attention of Sri Lankan authorities, were he returned to Sri Lanka;
d.the Immigration Assessment Authority accepted and purported to act on a DFAT Country Information Report;
e.the Immigration Assessment Authority appears to have accepted information in the DFAT Country Information report to the effect that “those people who may remain of security interest to the Sri Lankan Government” included “low profile members i.e. former combatants …) who have not undergone rehabilitation”;
f.the Immigration Assessment Authority accepted that the first applicant “may be regarded as a lower profile former member” of the LTTE;
g.the Immigration Assessment Authority concluded that “this risk is low” but did not identify what “risk” it was referring to;
h.the Immigration Assessment Authority's reasons for concluding that “this risk” was “low” were unreasonable, irrational and lacking intelligible justification, in that:
i. it relied upon the fact that the applicant had only had a single interaction with the Sri Lankan authorities which it accepted had occurred in 2006 since he had ceased to be involved with the LTTE, but the applicant had been living in India for almost the entire time since ceasing to be involved with the LTTE and had left Sri Lanka following the interaction in 2006, so the lack of any further interaction with Sri Lankan authorities since then was incapable of being probative of whether the authorities would have any interest in the applicant;
ii. it relied upon the fact that “21 years have passed since his involvement with the LTTE”, but there was no basis in the material before the Immigration Assessment Authority to think that the length of time since the first applicants LTIE combat service was relevant to any risk arising from his being identified as an LTTE combatant, and the DFAT report (which the Immigration Assessment Authority accepted) indicated that all former LTTE combatants who had not undergone rehabilitation would be detained;
iii. It relied upon the general effect of a DFAT report that “the harassment and monitoring of Tamils in Sri Lanka has decreased significantly under the current Government,” but the very same DFAT report indicated (at [3.42]) that “any other low-profile LTTE members [ie, 'former combatants, those employed in administrative or other roles and those who may have provided a high level of non-military support to the LTTE during the conflict') who came to the attention of Sri Lankan authorities would be detained and may be sent to the remaining rehabilitation centre”;
h.this reasoning informed the Immigration Assessment Authority's conclusions that:
i. it did not accept that the Sri Lankan Government had an interest in the applicant;
ii. the applicants would not face a real chance of harm arising from the first applicant's former membership of the LTTE.
Failure to consider an integer of the applicants’ claim
3.The decision of the Immigration Assessment Authority was affected by jurisdictional error in that:
a.the applicant repeats the matters identified in subparagraphs (a) to (g) of ground 1 above.
b.the applicants' submission to the Immigration Assessment Authority specifically:
i. argued that on return the first applicant would be questioned and if he were searched the authorities would note his scars and regard him as a former LTTE combatant, and that “the fact that (the first applicant] faces a real risk of being identified as an LTTE member means he faces a real chance of being inte1rngated and tortured”;
ii. reiterated that the first applicant’s involvement with the LTTE was significant and that he had “scars and injuries that will lead to his identification as an LTTE member” and may be suspected of having further links with the international Tamil diaspora while overseas;
iii. complained that the delegate had “not acknowledged or explored the fact that the [first] applicant has never undergone rehabilitation”; and
iv. quoted from another IAA decision, emphasising the IAA’s conclusion in that case that “the Sri Lankan government forces continue to detain suspected LTTE sympathisers and supports, and DFAT has indicated the potential for ongoing detention of even low-profile LTTE members of sympathisers who have not previously undertaken rehabilitation”.
c.the applicant's claim that he had not under one rehabilitation was an important integer of his claim that, as a former LTTE combatant, would face a real chance of harm if returned to Sri Lanka, and placed him in the very class of persons whom the DFAT Country Information Report (which the Immigration Assessment Authority accepted ) identified as persons who “would be detained and may be sent to rehabilitation centres”;
d.the Immigration Assessment Authority made no finding as to whether the applicant had or had not undergone “rehabilitation”;
e.it is to be inferred that the Immigration Assessment Authority did not consider the fact that the first applicant had not undergone rehabilitation as a factor affecting the risk or chance of harm to the applicant;
f.the IAA failed to assess whether detention generally and/or in a rehabilitation centre would amount to persecution by reason of imputed political belief or membership of a particular social group, or would qualify the applicant for complementary protection;
g.in so doing, the Immigration Assessment Authority failed to have regard to an integer of the applicants’ claim, and this amounted to:
i. denial of procedural fairness; and
ii. failure to have regard to a mandatory consideration; and
iii. failure to conduct the review required by Part 7AA of the Migration Act.”
Background
Both the applicants and the first respondent provided a detailed summary of the background to these proceedings and the decision of the delegate and the Authority. For the sake of convenience, I have adapted the summaries provided by both parties below.
The applicants are citizens of Sri Lanka and are of Tamil ethnicity. They arrived in this country as ‘unauthorised maritime arrivals’ on either the first or second of April 2013. On 2 May 2016, the first applicant applied for the visa. The remaining applicants were included as secondary applicants on the first applicant’s application on the basis that they were members of the same family unit as him.
In his visa application, the first applicant claimed, amongst other things, to have a well-founded fear of persecution by reason of the risk of being detained and tortured and or killed by Sri Lankan authorities were he to return to that country. The basis of his claim to hold these fears was the following:
a)He had helped the Liberation Tigers of Tamil Elam (‘LTTE’);
b)His brother had been a member of the LTTE and had been killed in a shell attack in 1995;
c)The first applicant had severe visible scarring as a result of having been wounded in a shell attack in 1995;
d)He had been questioned by Sri Lankan authorities in 2006 in relation to his scars and was suspected of being associated with the LTTE; and
e)He had left Sri Lanka illegally and was of Tamil ethnicity.
The first applicant provided a statutory declaration with accompanying photographs on 2 June 2017. In that document he claimed to have been a member of the LTTE and that he had fought in combat for them between 1991 and 1997. This was obviously an expansion of his earlier claims. In particular he claimed:
a)He joined the LTTE in 1989;
b)He was the leader of a LTTE military brigade in charge of 15 combatants from 1992. In that role he fought against the Sri Lankan army;
c)He identified some of his former colleagues by reference to the photographs;
d)He was injured in combat in 1994. In 1995 he escorted 30 Sinhalese politicians and a number of reporters to a meeting with the head of the LTTE political wing to sign an agreement between the Sri Lankan army and LTTE;
e)He left Sri Lanka in 1998 for safety reasons;
f)After a ceasefire between the LTTE and the Sri Lankan government in 2003, he returned to Sri Lanka where his service to the LTTE was recognised by the gift of a block of land on which he built a house in 2005;
g)In August or September 2006 he was questioned by Sri Lankan authorities and he left Sri Lanka again. That questioning included questions about his scarring. He returned to India where he resided as a refugee until 2013 at which time he came to Australia;
h)Since arriving in this country he has come to learn that a number of his former LTTE associates have been detained by the Sri Lankan army and tortured. Further, he had reason to believe that some of them were working as informers in order to identify persons with the LTTE links; and
i)His explanation for not having made the above claims at an earlier time was that he feared being arrested in Australia because the LTTE is regarded as a terrorist organisation in this country.
The first applicant provided a further statutory declaration on 6 September 2017. He made further claims in that document:
a)he had recently been told that Sri Lankan army officers had visited his mother’s house looking for him;
b)two of his colleagues in the LTTE were now informers and working with the Sri Lankan army;
c)one of his former colleagues who was now an informer had been tortured and his daughters sexually abused by Sri Lankan army officers; and
d)he had been warned by another former colleague who fled Sri Lanka in 2016 not to return to that country.
Findings of the Delegate
A delegate of the Minister rejected the first applicant’s claims for a visa on 21 September 2017. The delegate accepted a number of the first applicant’s claims, in particular that he had scars and that being a Tamil with scars could be a reason for persecution. Nonetheless, the delegate found that there was no recent country information to suggest that this was still the case. The delegate expressed concerns about the veracity of his claimed escape in 2006.
Findings by the Authority
The Authority did not accept the first applicant had escaped Sri Lanka in 2006. It found that he had exaggerated his account in order to strengthen his claims. It rejected his claim to have been hiding in India. It found that he had been questioned and then permitted to leave Sri Lanka. The Authority accepted that he travelled to India with his family in 2006 and remained there until 2013 when they travelled by boat to Australia. The Authority accepted that the first applicant had been a member of the LTTE and that he had held a combat role with them. It further accepted that he had been injured in combat and had sustained scarring as a result. The Authority rejected the claim that two of his former colleagues had become informers. It also rejected that the Sri Lankan army had visited his mother’s home in 2017. The Authority found aspects of the first applicant’s claims with respect to his departure from Sri Lanka in 2006 not to be credible. It did not accept that he was a high profile former member of the LTTE or that he had held a senior rank. It also rejected the claim that he would be forced to become an informer if he were to return to Sri Lanka. Having considered country information, the Authority relied on a Department of Foreign Affairs and Trade (‘DFAT’) Report which indicated that there was no recent evidence of the authorities in Sri Lanka using scarring to identify former LTTE combatants. The Authority also relied on country information which stated that mere former membership of LTTE would not of itself give rise to a need for protection unless the individual concerned was perceived to have had a significant role in post-conflict Tamil separatism.
The Authority further relied on country information indicating that former members of the LTTE may face consequences but that the persons who remained of security interest were either of high profile or low-profile members who had not been rehabilitated. The Authority gave weight to the fact that 21 years had passed since he was actively involved with the LTTE and during that time his only interaction with the authorities because of his former membership was in 2006. It was on this basis that it concluded that he could be regarded as having a low risk profile.
The Authority gave consideration to country information about the forced rehabilitation of former LTTE members. It gave weight to a DFAT Report which indicated that as of 2017 less than 50 people were believed to be undergoing rehabilitation and that only 204 former LTTE members were in custody. It is concluded that there was nothing to suggest that those numbers had increased since November 2015 and that country information supported a finding to the effect that the Sri Lankan government had narrowed its focus to concentrate on former LTTE members who had been involved in post-war separatism activities and activism. It noted that the first applicant did not claim to have been involved in such activities. The Authority concluded that the first applicant had not been truthful about the Sri Lankan authorities having a post-war interest in him and noted that the vast majority of LTTE members had already been released from custody.
It was on this basis that the Authority concluded it was not satisfied that the first applicant, and by extension the second to sixth applicants, faced a real chance of harm on the basis of the first applicant’s former membership of the LTTE; the fact of their illegal departure; the scarring of the first applicant or his questioning by the authorities in 2006; or a combination of those matters. As it had concluded that none of the applicants met the requirements in the definition of a refugee in s 5H(1) of the Migration Act 1958 (Cth) (‘the Act’), it found that they could not satisfy s 36(2)(a) of the Act. It also concluded that none of the applicants satisfied the complimentary protection criteria. As a result, it affirmed the decision of the delegate.
Submissions
Applicants
It was submitted that the reasons for which the Authority concluded that the risk to the first applicant was low and which led to the conclusion that he would not be of any interest to the authorities in Sri Lanka now were unreasonable, irrational or illogical. That submission was supported by a detailed analysis of the reasoning of the Authority. Counsel for the applicants emphasised that the Authority had accepted that persons who may remain of security interest to the Sri Lankan government included low-profile members who have not undergone rehabilitation.[1] It then qualified that finding in the following manner:
“However, given that more than 21 years have passed since his involvement with the LTTE, and that he has only had a single interaction with the authorities in the time since (in 2006) I conclude that this risk is low. DFAT reports that the harassment and monitoring of Tamils in the Sri Lanka has decreased significantly under the current Government.”[2]
[1] Court Book (‘CB’), 392 [55].
[2] Ibid, [56].
Counsel submitted that the above passage is somewhat vague with respect to the risk to which the Authority was referring but that presumably in the context of the reasons read as a whole, it must have been the risk of facing consequences from his previous membership, being of security interest, or of being detained or forced to undergo rehabilitation. That interpretation was supported by the fact that the Authority did not consider whether detention or forced rehabilitation would amount to persecution or serious harm. Further, the Authority did not make a finding that the first applicant’s former membership of LTTE would not be known or come to the attention of the Sri Lankan authorities. To the contrary, the reasoning of the Authority appears to assume that the first applicant’s status as a former combatant either was or would become known to the relevant authorities. The conclusion as to low risk was ultimately underpinned by a reliance on the fact that the first applicant had only one interaction with the relevant authorities in the 21 years since his involvement with the LTTE.
It was submitted that the illogicality of the Authority’s reasoning could be demonstrated by the following passage in which it went on to say:
“Despite the Sri Lankan authorities interest in former real or imputed LTTE members I observe that only a small number continue to be held by the Government, with less than 50 still reported to be undergoing rehabilitation. As at November 2015, only 204 former LTTE members continued to remain in Government custody. There is no indication that these numbers have increased in the period since November 2015, and country information indicates a narrowing Sri Lankan government emphasis in former LTTE members, with the focus now on persons who have been involved in post-war separatism activities and activism. These numbers reflect the changing focus of government as earlier reported. I note the applicant has not been involved in Tamil advocacy or the Tamil separatist movement since the end of the war in 2009.”[3]
[3] Ibid [57].
Counsel submitted that the country information referred to appears to have been the DFAT Report. It was submitted that the numbers of former LTTE members undergoing ‘rehabilitation’ or in detention did not sensibly support a conclusion that the risk to a person falling within the very categories of persons of whom the same Report said were of interest to Sri Lankan authorities were unlikely to be of interest to those authorities. The country information on which the Authority relied clearly indicated that un-rehabilitated former combatants were of security interest. It was utterly inconsistent with that Report, properly understood, for the authority to find that the risk was low in the case of the first applicant when he was within the narrow class of persons identified in the Report as being of security interest and who would be detained. It was submitted that the number of persons undergoing rehabilitation or in detention was not logically probative of the risk faced by this particular applicant because of his membership of that class of persons who remained of security interest. The Report on which the Authority relied made plain that the DFAT considered that persons with the first applicant’s profile “would be detained” and may undergo rehabilitation. The low numbers mentioned in the Report were simply a reflection of a factor identified in the Report, namely that the majority of low-profile former members of LTTE had already been rehabilitated and released. It did not support a rational finding that un-rehabilitated former LTTE were not of interest to the authorities. Such a finding was inconsistent with the Report on which the Authority relied. It was also inconsistent with a fact which the Authority accepted, namely that when he did briefly return to Sri Lanka in 2005-2006, he did come to the attention of the Sri Lankan authorities. The first applicant’s lack of involvement since 2006 was simply a manifestation of the fact that he was not living in Sri Lanka. The DFAT Report provided no basis to find that the passage of time would result in an un-rehabilitated person no longer being of interest to the Sri Lankan authorities. It was submitted that that error was material because it informed the Authority’s ultimate conclusion that it did not accept that the Sri Lankan government had an interest in the first applicant and that none of the applicants would face a real chance of harm arising from the first applicant’s former membership of the LTTE.
With respect to ground two, counsel submitted that the first applicant’s submission to the Authority had specifically raised the claim that the fact that the first applicant had not undergone rehabilitation was of itself a distinct risk factor.[4] The Authority did not refer at all to that claim and focused its consideration on his status as being a former member of the LTTE. As a result, the Authority failed to consider an important integer of the first applicant’s claims because as an un-rehabilitated person he was squarely within the very class of persons identified in the country information, which was accepted by the Authority, who would be detained and may be sent to a rehabilitation centre. The Authority had made no finding about whether the first applicant was or was not an un-rehabilitated person. It was submitted that a fair reading of the decision left open the inference that the Authority did not consider that matter as a risk factor or appreciate that it was a distinct and separate integer of his claims. The result was that the Authority failed to assess whether detention or forced rehabilitation would amount to persecution by reason of an imputed political belief or membership of a particular social group or whether this would qualify him for complementary protection. Counsel submitted that the requirement to consider the component integers of claims extended to matters expressly advanced by the first applicant in evidence or submissions, as well as matters which squarely arose on the material before the Authority.[5] The status of the first applicant as an un-rehabilitated person was squarely raised on the materials before the Authority. Accordingly, it could be seen that the Authority did not proceed with a “consciousness and consideration”[6] of that matter and as a result did not consider the first applicant’s claim in the relevant sense.
[4] Ibid, 366, 367.
[5] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 [57]–[63].
[6] SZSZW v Minister for Immigration and Border Protection [2015] FCA 562 [15]–[17].
First Respondent
Counsel for the first respondent emphasised that the conclusion of the Authority with respect to the first applicant’s risk had to be read in light of the findings as a whole with respect to his profile, which in turn, had to be considered in light of the overall assessment it made of his circumstances.[7] Three important matters raised in the country information underpinned the conclusion of the Authority. Firstly, that there was no recent evidence that the Sri Lankan authorities were using scarring to identify a person is a former member of the LTTE.[8] Secondly, that being a Tamil was not of itself enough to warrant concern unless the person was perceived to have had a significant role in relation to post-conflict Tamil separatism, which the first applicant had not.[9] Thirdly, that the Sri Lankan government had narrowed its emphasis as to the category of people who are targeted for rehabilitation, namely, those involved in post-conflict Tamil separatism, which the first applicant had not been.[10]
[7] CB, 391-392 [51]–[60].
[8] Ibid, 391 [53].
[9] Ibid, [54], [57].
[10] Ibid, 392 [57].
Further, the authority concluded that the first applicant was not a former LTTE leader, it noted that 21 years had passed since he was a member, it had been 11 years since he left Sri Lanka and also, that he had not been truthful about post-war interest in him by the Sri Lankan authorities, including exaggerating that part of his claims relating to his former comrades.[11] When combined, those factors resulted in the conclusion by the Authority that “having considered all of the evidence” it was not satisfied that he or his family would face a real chance of harm.[12] It could not be said that the reasoning of the Authority was rendered illogical or unreasonable simply by reason of the fact that the first applicant had been a member of the LTTE and had not been rehabilitated. The reasonableness and rationality of the Authority’s decision was supported by the matters referred to above.
[11] Ibid, [55]-[58].
[12] Ibid, [60].
As to ground three, it was submitted that the Authority was clearly aware of the significance of rehabilitation and that this was plainly apparent on the face of its reasons. A fair reading of the decision record shows that the Authority was aware of the first applicant’s status as an un-rehabilitated person. It clearly made its assessment of risk by reference to the fact that he was un- rehabilitated. That is why the Authority made reference to country information which dealt with present circumstances pertaining to rehabilitation. In light of the findings it made it was not necessary for the Authority to consider whether rehabilitation was of itself something which might amount to a real risk or chance of harm.
Consideration
With respect to ground two, I am not satisfied that it has been demonstrated that the decision of the Authority was unreasonable, irrational or illogical. To the contrary, I am satisfied that the decision was open to the Authority and within the scope of the decisional freedom conferred upon it by the legislation.[13] The Authority clearly identified those matters in the country information which it accepted and which formed the basis of its approach to the evidence. In doing so, it placed weight on those matters to which I have referred at paragraphs 8 to 10 above. It considered those matters in light of the circumstances of the first applicant as it found them to be. Any assessment by this Court of whether the decision was beyond power by reason of unreasonableness, illogicality or irrationality has to be made by reference to the decision and the particular factual circumstances of the case.[14] I am not persuaded that the decision of the Authority was inconsistent with the country information on which it relied in light of the factual findings it made. Whilst it is correct to observe, as the applicants do, that the Authority accepted that part of the country information which stated that former combatants who had not undergone rehabilitation may remain of security interest to the Sri Lankan government,[15] it is clear from the decision record of the Authority that it qualified that acceptance on the basis of factual findings it had made with respect to the particular circumstances of the first applicant. On a fair reading of the decision record as a whole, it was implicit in the reasoning of the Authority that it had concluded that the first applicant was unlikely to come to the attention of the Sri Lankan authorities. That was not inconsistent with the finding by the Authority that the first applicant may be regarded as a lower profile former member if he returned to Sri Lanka.[16] That finding was an assessment of the profile that might be attributed to the first applicant by the Sri Lankan authorities if he were to come to their attention and not a finding that he would come to their attention in the event that he were to return there. I reject the submission of the applicants that the decision record can fairly be read to infer that the Authority appears to have proceeded on the basis that the first applicant’s status as a former combatant either was, or would become known to the Sri Lankan authorities. The paragraph of the decision record which the applicants relied on to support that submission says the following:
“The applicant’s scarring arose from his membership of the LTTE and his role in combat. He has asserted that his scarring was used to impute membership of the LTTE when he was questioned in 2006. Credible country information indicates that visible scarring has been used for this purpose by the authorities in Sri Lanka in the immediate aftermath of the conflict. However, DFAT reporting indicates that there is no recent evidence for this activity. In any case, I note the applicant has asserted that the Sri Lankan Government is already aware of his previous membership of the LTTE.”[17]
[13] Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 [7], [11]-[12].
[14] Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 [84].
[15] CB, 392 [55].
[16] Ibid.
[17] Ibid, 391 [53].
In light of the findings made by the Authority, the final sentence of that paragraph cannot be read as a blanket acceptance of the first applicant’s assertion that the Sri Lankan government was already aware in any meaningful sense of his previous membership of the LTTE. It must be borne in mind that the Authority was endeavouring to assess whether there was risk to the first applicant at the time of its decision. Whilst the Authority accepted that the first applicant had ‘interaction’ with the Sri Lankan authorities in around November 2006 it made adverse credibility findings with respect to the level of post-war interest they had in him:
“I have previously found that the applicant as (sic) exaggerated the level of Sri Lankan government interest in him. His last interaction with Sri Lankan authorities is reported to have occurred around November 2006 and I have found that the applicant exaggerated his claims arising from this incident. I have not accepted that his claims about post war interest in him are truthful. I am not satisfied that the applicant would be of any interest now, over 11 years after he left Sri Lanka and 21 after he left the LTTE.”[18]
[18] Ibid, 392 [59].
I am not satisfied that the accepted fact that the first applicant had not been living in Sri Lanka since 2006 rendered illogical or unreasonable the Authority’s reliance on the length of his absence from Sri Lanka as one of the bases for concluding that he was not at risk at the time of the decision. That matter was capable of being probative in light of the conclusions reached by the Authority as to the effect of the country information. The reliance on country information has been the subject of some consideration by the Full Court. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs[19] the Court had this to say:
“The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”[20]
(emphasis added)
[19] [2004] FCAFC 10.
[20] NAHI [11].
It was a matter for the Authority to determine what country information to accept and the extent to which it accepted all or part of any country information as part of its fact finding function. In this matter, the Authority evaluated the country information and interpreted it as meaning that the Sri Lankan authorities had narrowed their focus to an interest on post war separatist activists and activities.[21] It gave an intelligible justification for why it reached that conclusion on the country information. The probative significance of the length of time since the first applicant had been to Sri Lanka is readily apparent when considered in light of that view of the country information. That is particularly so in light of its findings that the first applicant had not been a senior member of the LTTE and would not be targeted because of his scars.
[21] CB, 392 [57].
As to ground three, I reject the submission that the Authority ignored the question of the first applicant having been un-rehabilitated. In my view, a fair reading of the decision record as a whole does not suggest that the Authority confined it’s consideration of the claims to his status as a former member of the LTTE. I accept, as submitted by the applicants, that the fact of the first applicant not having been rehabilitated was an important component of his claims. I do not accept that the Authority failed to consider the implications of the first applicant not being rehabilitated. A significant plank in the argument of the applicants in this regard was the assertion that the Authority made no specific finding that the first applicant had not been rehabilitated. This in turn lead to a failure to consider if detention, and in particular detention aimed at his rehabilitation, would in the circumstances of the first applicant amount to a form of persecution or a risk of harm amenable to the complimentary protection obligations.
The difficulty with that submission was as identified by the first respondent. The Authority addressed the topic of rehabilitation in two separate passages in the course of assessing whether the first applicant had a well-founded fear of persecution.[22] It would not have been necessary for it to do so if it was operating under the misapprehension that the first applicant had already been rehabilitated. Further, the Authority addressed the asserted factual chronology of the first applicant’s claims in considerable detail. It made distinct findings as to those aspects it accepted and those it rejected. It cannot have been lost on it that the first applicant claimed that he had not been rehabilitated. Finally, and as submitted by the first respondent, it is clear from the reasons it gave, that the Authority was assessing the risks to the first applicant as they were presently and it focussed on the categories of persons who were at risk of rehabilitation at the time of making its’ findings. That matter also supports the conclusion that it was operating on the basis that the risks had to be assessed on the basis of the first applicant’s status as an un-rehabilitated former member of the LTTE. It was not necessary, due to the finding of greater generality, that the first applicant was not presently a member of a class of persons for whom rehabilitation was a risk, for it to make any finding about whether the process of rehabilitation could give rise to a real risk of harm.
[22] Ibid, [55], [57].
I am not satisfied that jurisdictional error has been established with respect to either of the grounds.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 11 June 2020
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