BKL21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 237
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BKL21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 237
File number: PEG 110 of 2021 Judgment of: JUDGE LADHAMS Date of judgment: 6 April 2022 Catchwords: MIGRATION – judicial review of decision of Immigration Assessment Authority – whether Authority denied the applicant procedural fairness – whether the Authority was biased and ignored relevant material – whether the Authority identified the wrong issue – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 5AA, 5H, 36, 46A, 473CA, 473CB, 473DC, 473DD, 476, 477 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
AYY17 Minister for Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 72 Date of hearing: 1 April 2022 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Mr Greg Johnson Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 110 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BKL21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
6 APRIL 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
By application on 27 May 2021 the applicant seeks judicial review of a decision made by the Immigration Assessment Authority (Authority). On 6 May 2021 the Authority affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa. The application before the Court is filed pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
For reasons explained below, I have found that there is no jurisdictional error in the Authority decision and I dismissed the application for judicial review.
BACKGROUND
The applicant is a citizen of Sri Lanka. He entered Australia at Christmas Island in August 2012 without a visa. He is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 9 September 2015 the Minister’s Department sent to the applicant an invitation to apply for a protection visa. The letter advised the applicant that the Minister had exercised the power in s 46A(2) of the Migration Act to lift the bar in s 46A(1) which had, until that time, prevented the applicant from applying for a protection visa.
On 18 November 2015 the applicant lodged a valid application for a Safe Haven Enterprise Visa, which is a type of protection visa. The applicant’s claims for protection were set out in a statement that accompanied his protection visa application. The applicant claimed to fear harm from the Sri Lankan authorities because of his Tamil ethnicity and his real or imputed links to the Liberation Tigers of Tamil Eelam (LTTE).
On 15 March 2016 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection.
On 26 July 2016 a delegate of the Minister made a decision not to grant the applicant a protection visa. The matter was then referred to the Authority pursuant to s 473CA of the Migration Act.
On 26 October 2016 the Authority affirmed the decision of the delegate not to grant the applicant a protection visa.
The applicant sought judicial review of the Authority’s decision of 26 October 2016 in the Federal Circuit Court of Australia (FCC). On 26 November 2018 a Judge of the FCC dismissed the application. The applicant then appealed to the Federal Court of Australia (FCA). On 4 July 2019 Mortimer J set aside the orders of the FCC, quashed the Authority decision and remitted the matter to the Authority to determine the review according to law. The FCA found that the Authority decision of 26 October 2016 was affected by jurisdictional error because the Authority failed to engage with an aspect of the applicant’s claims involving his fear of arbitrary arrest and detention under the Prevention of Terrorism Act 1979 (Sri Lanka) (PTA).
On 19 August 2019 the Authority, differently constituted, affirmed the decision not to grant the applicant a protection visa.
The applicant sought judicial review of the Authority’s decision of 19 August 2019 in the FCC. On 2 February 2021 Judge Driver made orders that set aside the Authority decision and remitted the matter to the Authority to determine the review according to law. The FCC found that the Authority decision of 19 August 2019 was affected by jurisdictional error because the Authority acted unreasonably in failing to exercise its power under s 473DC of the Migration Act to obtain new information from the applicant regarding country information it relied on to find that the PTA was suspended, in circumstances where the applicant had submitted that the PTA was ‘yet operative’. The FCC also found that Authority should have exercised its discretion in s 473DC to obtain information about the grant of a protection visa to the applicant’s brother.
Following the remittal, on 15 April 2021 the Authority invited the applicant to comment on:
(a)information it obtained from the Department of Home Affairs about the basis on which the applicant’s brother was granted a protection visa in 2010, and the change in guidelines published by the United Nations High Commissioner for Refugees (UNHCR) since that time;
(b)information in six country information reports which it obtained and which were not before the delegate; and
(c)information that the applicant provided in an interview with an officer of the Department on 10 January 2013 that one of his brothers was a member of the LTTE, with the Authority noting that the applicant did not repeat this claim in his protection visa application or in his protection visa interview.
On 4 May 2021 the applicant, through his representative, provided to the Authority a submission with further country information and two refugee decisions of the Administrative Appeals Tribunal (Tribunal) attached.
On 6 May 2021 the Authority, differently constituted, affirmed the decision not to grant the applicant a protection visa.
AUTHORITY DECISION
Information before the Authority
The Authority had regard to the material referred by the Secretary under s 473CB of the Migration Act and a submission sent by the applicant by email to the Authority on 14 August 2019.
The Authority also had regard to the following new information in which it was satisfied that the requirements of s 473DD of the Migration Act were met:
(a)various country information reports from the Office of the United Nations High Commissioner for Human Rights, UK Home Office, INFORM Human Rights Documentation Centre and the Department of Foreign Affairs and Trade (DFAT);
(b)information relating to the grant of a protection visa to the applicant’s brother 1;
(c)a response dated 3 May 2021 to the invitation to comment; and
(d)country information reports from the US Department of State and Immigration Refugee Board of Canada provided by the applicant’s representative on 3 May 2021.
The Authority did not have regard to the two decisions of the Tribunal in relation to different unidentified applicants provided by the applicant’s representative in response to the invitation to comment, as the Authority found that this new information did not meet the requirements of s 473DD.
Consideration of claims for protection
The Authority accepted many of the applicant’s claims about past interaction with the LTTE and past harm that he and his family members had experienced in Sri Lanka, including that:
(a)the applicant provided practical support to the LTTE including building bunkers;
(b)the applicant lived in a volatile security environment where Tamils were taken by the military and detained for questioning, and were suspected by the Sri Lankan Army (SLA) of being LTTE supporters;
(c)the applicant’s brother-in-law was injured in a landmine attack and lost his leg as a result;
(d)the applicant’s brother 2 was detained and questioned by the Sri Lankan authorities;
(e)the applicant’s brother 3 was taken in 1995 and detained for two years and was mistreated while detained, although the Authority noted a difficulty in accepting this submission, but gave the applicant the benefit of the doubt;
(f)the applicant’s brother 3 was attacked in 2014, although the Authority was not satisfied that this attack pointed to an ongoing adverse interest in brother 3 or any suggestion that brother 3 was a security concern;
(g)the applicant was detained, beaten and questioned many times, but the Authority considered that this was indicative of the general harassment and security checking of the Tamil civilian population at the time and did not indicate that the applicant was of interest to the authorities, particularly noting that the applicant was released after initial security checks and was able to travel to Saudi Arabia in 2004;
(h)the applicant has scars from his encounters with the authorities; and
(i)the applicant was detained in Colombo by the Criminal Investigation Department for three days in 2008 while identity checks were conducted.
The Authority did not accept that one of the applicant’s brothers was a member of the LTTE, noting that although this claim was raised in his entry interview, it was not repeated in his statement of claims or at the protection visa interview, which casts doubt on the accuracy of the information.
The Authority did not accept that the applicant was a security concern to the authorities at the time that he departed Sri Lanka in 2012. The Authority accepted that the applicant departed Sri Lanka illegally.
The Authority accepted that the applicant may have a subjective fear of experiencing harm if he returned to Sri Lanka. However, the Authority found based on country information that the security situation in Sri Lanka had improved since the applicant’s departure in 2012 despite the continued presence of the SLA in the north and the PTA still being in effect. The Authority found that the Sri Lankan authorities have moved away from the systematic program after the civil war of targeting Tamils and the identification, detention and rehabilitation of LTTE members.
The Authority accepted that the applicant may be concerned that the provisions of the PTA remain in force. However, the Authority noted that country information did not support a finding that the PTA was still being used widely or systematically against the Tamil population and was not satisfied that there was a real chance the applicant would be arrested and detained under the PTA.
The Authority found that the applicant would not face any harm because of his illegal departure from Sri Lanka or as a returning failed asylum seeker. The Authority further found that the anticipated treatment the applicant would face upon return to Sri Lanka for breaching the Immigrants and Emigrants Act 1949 (Sri Lanka) would not amount to serious harm and, in any event, the law was one of general application which would not be applied in a discriminatory manner.
Based on the above findings, the Authority was not satisfied that the applicant would be of any interest to the Sri Lankan authorities. Accordingly, the Authority was not satisfied that there was a real chance the applicant would face serious harm if he returned to Sri Lanka, now or in the reasonably foreseeable future. The Authority concluded that the applicant did not meet the definition of a refugee in s 5H(1) of the Migration Act and therefore did not meet the requirements of s 36(2)(a).
The Authority also found that the applicant did not meet the complementary protection criteria in s 36(2)(aa) of the Migration Act as there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there was a real risk that he would face significant harm. This complementary protection finding was largely based on the findings relied on in relation to the Authority’s assessment under the refugee criteria in s 36(2)(a).
PROCEEDING BEFORE THIS COURT
The applicant commenced proceedings in this Court by way of an application filed on
26 May 2021. The application was filed within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The application raises the following three grounds, reproduced without alteration:
1. Jurisdictional error.
2.Bias based on conscious or unconscious prejudice by ignoring relevant materials.
3. Identifying a wrong issue on a wrong question.
The applicant has also filed two affidavits affirmed on 26 May 2021 and 31 October 2021 respectively. Each of these affidavits contains an annexure providing information as to why the applicant considers the Authority decision to be affected by error.
In an annexure to the affidavit affirmed on 26 May 2021 the applicant said:
1.I am the applicant for a review of the decision made by the Immigration Assessment Authority in my case on the 6th of May 2021.
2.In making this decision the I.A.A. did not take into consideration all the relevant facts pertaining to my case that I had a well-founded fear to return to Sri Lanka.
3.This fear of persecution was well founded and therefore I had a legal claim to be considered a refugee under the Migration Act of Australia.
4.The I.A.A. made an error in regard to the situation of Sri Lankan Tamils perceived to have had links with the LTTE: I fall into this category.
5.The I.A.A. failed to examine the provisions of the Prevention of Terrorism Act in Sri Lanka and the regulations framed under the Public Security Act which were primarily aimed against the Sri Lankan Tamils who stood for the right of self-determination and the establishment of a separate state due to attempts at genocide on them by the majority Singhalese government.
6.I.A.A. failed to study the decisions of the UNHCR as to the alleged human rights abuses committed by the arm forces of Sri Lanka to the Tamils living in the North and East of the country, which is their traditional homelands.
7.The I.A.A. failed to examine the torture that I had undergone which had made me flee and seek refuge.
8.The I.A.A. had also failed to examine the facts relating to the human rights abuses that members of my family faced when arrested by the Sri Lankan armed forces.
In an annexure to the affidavit affirmed on 31 October 2021 the applicant relevantly said:
…
5.I am a refugee in terms of refugee Convention 1 A (2), fled Sri Lanka and cannot go back because I have a well-founded fear of been persecuted due to my race, social group and political opinion.
6.I meet the requirements of section 91 R of the Australian Migration Act as a person who fears persecution if deported to Sri Lanka.
7.The Prevention of Terrorism Act and Regulations under the Public Security Act of Sri Lanka allows the armed forces of Sri Lanka to arrest and prosecute me.
8.The UNHCR is presently inquiring into human rights abuses committed by the Government of Sri Lanka against Tamils like me.
9.The Respondent has not looked into these facts adequately and therefore committed jurisdictional error by failing to exercise proper Jurisdiction.
The matter came before me for hearing on 1 April 2022. The applicant was self-represented with the assistance of an interpreter in the Tamil and English languages. The Minister was represented by Mr Greg Johnson of counsel.
SUMMARY OF SUBMISSIONS
Applicant’s submissions
On the day of the hearing, the applicant handed to the Court a short written submission. In this submission the applicant said:
1.The Federal Court ordered that the Second Respondent should determine my case according to law.
2. My submission is that this was not done.
3.The fact that my other members of my family like me been arrested and tortured by the Sri Lankan army.
4.I had been detained, beaten and questioned many times by the Sri Lankan army during the civil war and after the LTTE was beaten and no longer active.
5.While in Jaffna I had been detained and toured by the Sri Lankan army and accused of assisting the LTTE.
6. I had to leave Sri Lanka as I feared for my life and safety.
7.References are made to pages 71, 72,73,74, 75, 76, 77 and 78 of the Court Book in this regard.
8.The present situation in Sri Lanka is the United Nations Panel states as many as 40,000 Sri Lankan Tamil civilians had been killed and that the estimated 20,000 Sri Lankan Tamils who disappeared were dead as stated by President Gotabaya Rajapaksa.
9.Laws like the Prevention of Terrorism Act and regulations framed under Public Security Act allow the armed forces to arrest persons, not produce them before the courts before the law, and dispose of dead bodies without a coroner’s inquiry into cause of death.
I have therefore a well-founded fear to return to Sri Lanka.
The applicant attached to the submission some country information published between September 2021 and March 2022. This country information was not before the Authority. I upheld an objection made by the Minister to the admissibility of this country information. As the country information was not before the Authority, and could not have been before the Authority given that it was not published at the time of the Authority decision, it is not relevant to the issue before the Court, namely, whether there is jurisdictional error in the Authority decision.
In his oral submissions to the Court, the applicant submitted that he came to Australia because the army was arresting Tamils in Sri Lanka. The army is still present in Sri Lanka and the PTA is still in place. If he goes back he will have the same problems again.
Minister’s submissions
The Minister filed an outline of written submissions on 18 March 2022. The Minister submitted that the applicant’s grounds of application fail to establish any jurisdictional error, are not directed towards the Authority’s decision, unexplained and cannot be accepted.
In relation to the applicant’s assertion of bias, the Minister submitted that there is no indication in the Authority’s reasons that it had, or might be apprehended to have had, a mind closed to persuasion.
The Minister submitted that the Authority demonstrated engagement with the applicant’s claims and made clear reference to the materials and country information before it in reaching the conclusions that it did. The Minister also submitted that it is unclear on what basis the Authority could be said to have ignored relevant materials, and that the Authority addressed the materials before it in detail.
The Minister submitted that there is no basis to the applicant’s contention that the Authority identified the wrong issue. The Authority adhered to its statutory task of conducting a review under Part 7AA of the Migration Act, properly directed towards the questions of risk of harm arising under s 36(2).
The Minister further submitted that the Authority has avoided any error by reference to its consideration of the risks associated with the PTA. The Minister submitted that the Authority on this occasion addressed the PTA transparently, accepting that it was still in force but that its operation was limited and not directed indiscriminately towards Tamils.
In his oral submissions, Mr Johnson submitted that none of the applicant’s arguments in the annexures to his affidavits and his submission can be accepted. Mr Johnson took the Court through the Authority decision at length to identify those paragraphs in which the Authority considered the matters that the applicant claimed had not been considered. Mr Johnson acknowledged the Authority’s findings about the past harm suffered by the applicant. He submitted that the task of the Authority was not just to consider what has happened in the past, but to also look at what might happen in the future. In so doing it was important to consider the country information reports and the Authority did this at length. Mr Johnson referred to particular paragraphs where country information had been considered and submitted that those paragraphs answer the applicant’s complaint that the Authority did not take into account the facts before it. Mr Johnson submitted that the Authority’s findings were based on a careful analysis of what would happen in the reasonably foreseeable future.
CONSIDERATION
Need to establish jurisdictional error
In order to be entitled to relief by this Court, the applicant must establish that the Authority decision is affected by jurisdictional error. The Authority will have made a jurisdictional error if it ‘exceeded the limits of the decision-making authority conferred by the statute in making the decision’: MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 at [29].
The High Court identified a number of examples of jurisdictional error in Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 (Craig). In that case the High Court said at [14] that if the decision-maker:
…falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
The examples of jurisdictional error set out in Craig are not exhaustive: See Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [81] (SZMTA). There might be jurisdictional error in an Authority decision if the Authority fails to conduct the review in accordance with the provisions in Division 3 of Part 7AA of the Migration Act, or if the Authority fails to exercise its discretionary powers in those provisions reasonably: see, for example, Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21]; and ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 at [3]. There might also be jurisdictional error if the Authority decision is affected by actual or apprehended bias: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 (Jia Legeng) at [112]; CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 (CNY17) at [104].
To amount to a jurisdictional error, any error by the Authority must be material, in the sense that the error could realistically have deprived the applicant of the opportunity of a successful outcome: SZMTA at [45].
Ground 1
By ground 1 the applicant simply asserts ‘jurisdictional error’. This ground is not particularised and does not meaningfully identify any allegation of jurisdictional error in the Authority decision.
Grounds 2 and 3, in conjunction with the annexures to the applicant’s two affidavits, allege particular types of jurisdictional error. These grounds are considered below.
The applicant in his written submission to the Court referred to the Federal Court judgment which set aside an earlier decision by the Authority differently constituted and remitted the matter for reconsideration according to law. I am satisfied that the Authority has not repeated the jurisdictional errors made in the two earlier purported decisions in relation to the applicant.
The Authority in the present matter avoided the error identified in the first purported Authority decision by clearly grappling with the way in which the powers under the PTA were being exercised at the time of the decision and how they might be expected to be exercised in the foreseeable future, in assessing the applicant’s claim to fear harm from arbitrary arrest and detention in the future. The Authority acknowledged at [41] of its reasons that the PTA remains in place and the military maintains a significant security presence in the north, but considered that the security situation had improved since the applicant’s departure in 2012. At [45] the Authority said that the country information it considered indicated that the improvement in the security situation had resulted in a decrease in Tamils held in detention. The Authority then considered the level of risk that the applicant might face as a result of the PTA at [50]-[52], where it said (emphasis added; footnotes omitted):
50.Noting the circumstances and profiles of those who have come to attention in these reports I am not satisfied that they give rise to support a finding of a real chance the applicant would be harmed should he return to Sri Lanka or would be detained under the PTA or otherwise. …
51.The Report of the Office of the High Commissioner for Human Rights expressed concern at the continued use of the PTA “despite repeated calls over many years by United Nations human rights mechanisms to repeal it”. Although “effectively suspended” in 2016 the PTA was used “sporadically” from 2016 and was used widely along with the now-lapsed Emergency Regulations to detain persons allegedly involved in the 2019 Easter Sunday terrorist attacks. The Special Rapporteur and the US Department of State expressed concern at the “endemic” use of torture and force by the police, particularly to extract confessions. The PTA sits outside the regular criminal law and contains special provisions on detention and the admissibility of confessions and allows for arrests for unspecified “unlawful activities”, permits detention for up to 18 months without charge and provides that confessions are legally admissible. I accept that the applicant may be concerned that these provisions remain in force, particularly noting the overwhelming use of the PTA in the past has been directed at the Tamil population. But the indications are that recent application of the PTA has been largely directed at the Muslim population as a result of the 2019 attacks. Other recent applications have been two arrests for politically motivated assassination plots, and in relation to the murder of two police officers, and cases involving the seizure of explosives and drugs. DFAT is unable to verify how many individuals have been detained under the PTA since April 2019 but the country information does not support a finding the PTA is being used widely or systemically against the Tamil population. I am not satisfied that there is a real chance the applicant will be arrested under the PTA or arrested under other detention powers.
52. The recent report of the Office of the High Commissioner for Human Rights highlights concerns relating to the militarisation of the civilian government functions, reversal of constitutional safeguards and threats to reconciliation and accountability, and the report particularly noted the appointment to senior posts of former military personnel accused of war crimes. But despite these concerns, and the applicant’s concerns as to the continued use of the PTA, the human rights concerns highlighted in this report relate largely to the Muslim population following the 2019 Easter bombings, journalists and human rights activists.
The Authority gave careful consideration to the applicant’s claims that he might be arbitrarily detained under the PTA. It considered a range of recent country information in reaching these findings. I do not identify any error in the Authority’s approach.
I am also satisfied that the Authority avoided the jurisdictional errors made in the second purported decision. The Authority acknowledged at [41] of its reasons that the PTA remains in place, and assessed the applicant’s claims on the understanding that the PTA continues to be operative. The Authority exercised its discretion in s 473DC of the Migration Act to obtain a range of updated country information reports and to seek further information from the applicant about these reports. The Authority also obtained further information about the basis on which the applicant’s brother 1 was granted a protection visa. The Authority invited the applicant to comment on this information and also to comment on the change in the UNHCR guidelines since brother 1 was granted a protection visa, which indicated that being a Tamil, or a young Tamil male, or being from a former LTTE controlled area from the north by itself would not warrant a need for protection. By taking each of these steps, and carefully considering the new information it obtained and which met the requirements of s 473DD of the Migration Act, the Authority has avoided repeating the errors in the second purported decision.
I have otherwise generally reviewed the Authority decision in this matter and do not identify any jurisdictional error.
Ground 1 is not established.
Ground 2
Ground 2 asserts that that Authority was biased by ignoring relevant materials.
The main complaint raised by this ground, when read with the annexures to the applicant’s affidavits and his submission to the Court, appears to be that the Authority did not consider:
(a)the facts that gave rise to his fear of persecution, including the torture he previously faced and human rights abuses committed against his family members;
(b)the operation of the PTA and regulations framed under the ‘Public Security Act’; and
(c)information from the UNHCR in relation to alleged human rights abuses in Sri Lanka.
The Authority was required to consider all claims for protection expressly made by the applicant and their component integers, as well as any claims that clearly emerged on the material before the Authority: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [57]; AYY17 Minister for Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18].
The Authority carefully considered the applicant’s claims in relation to the harm that he and his family had faced in the past. The findings that the Authority made in this regard are summarised above at [18]-[20]. As can be seen from the summary, the Authority largely accepted the applicant’s claims in relation to past harm. It took the applicant’s past experiences into account in assessing whether the applicant would face a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future. Ultimately, the Authority’s conclusion that the applicant did not meet the criteria for a protection visa did not turn on its consideration of the past harm experienced by the applicant, but rather on the Authority’s assessment, based on recent country information, that the security situation in Sri Lanka had improved such that the applicant would not face a real chance of harm in the reasonably foreseeable future.
I have considered above, in relation to ground 1, the Authority’s assessment of the chance of harm that the applicant may face as a result of the operation of the PTA. The Authority’s reasons demonstrate that it engaged in an active intellectual assessment of the applicant’s claim, as it was required to do: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [45]. I accept the Minister’s submission that the Authority considered and addressed the risks associated with the PTA transparently, accepting that it was in force, and that its operation was limited and not directed indiscriminately towards Tamils such as the applicant.
The applicant in his materials provided to the Court also referred to the ‘Public Security Act’ and regulations made under that Act. I have been unable to identify any specific reference to this legislation in the Authority’s reasons. However, I have also reviewed the applicant’s claims and submissions provided to the Department and the Authority and I am unable to identify that the applicant raised any claim based on the ‘Public Security Act’ or regulations made under that Act. There was also no express claim by the applicant to fear harm based on the Public Security Ordinance 1947 (Sri Lanka), and the applicant did not refer to the Public Security Ordinance in his written submissions to the delegate or the Authority. There are a few references to the Public Security Ordinance in the country information before the Authority. I am satisfied that these references do not give rise to any implied claim that clearly emerged from the materials before the Authority. In these circumstances, there was no obligation on the Authority to consider the Public Security Ordinance, or any Public Security Act or regulations, and its failure to refer to the legislation does not amount to jurisdictional error.
It is unclear which publications by the UNHCR regarding human rights abuses in Sri Lanka the applicant says the Authority should have taken into account. The Authority has clearly referred to the UNHCR guidelines issued in 2012 at [44] of its reasons, but does not appear to have expressly referred in its reasons to any other UNHCR publications. The delegate referred to additional UNHCR publications, such as an earlier version of the UNHCR eligibility guidelines and a UNHCR Handbook. The fact that the Authority did not refer to these additional UNHCR documents in its reasons does not mean that it failed to consider them. It may simply be that the Authority did not consider these reports to be the most relevant to its decision, and in this regard I note that the most recent of the additional UNHCR documents that the delegate referred to was published in December 2011, almost 10 years prior to the Authority’s decision. In any event, the choice of and weight to be given to country information is a matter for the Authority as part of its fact-finding function: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11].
The Authority clearly considered country information addressing human rights violations in Sri Lanka. Based on its review of a number of country information reports, the Authority accepted at [47] that ‘there is credible reporting of the brutality of the government of past president Mahinda Rajapaksa in which human rights abuses were committed both during the civil war and in the immediate aftermath and that many agencies and the general Tamil community have expressed concern as to the return of the Rajapaksas to power’.
The Authority considered the risk of future human rights violations with the Rajapaksas returning to power and said at [48]:
… I note the concern about the incoming Rajapaksa government in the light of the past but Gotabaya and Mahinda Rajapaksa are returning to government in a very different environment from that in place when they were implicated in human rights violations. It is important to note the context of the repressive actions of the former Rajapaksa government being at the end of the civil war and in the aftermath of the war. It was in this environment that the excesses of human rights abuse were committed and continued to be committed in the aftermath of the war in attempts to quash any resurgence of the LTTE.
The Authority then made a finding in relation to the risk to the applicant at [53]:
I am not satisfied that the information before me indicates that President Rajapaksa, or his political supporters or his Sri Lanka Podujana Peramuna party (SLPP), intend to introduce repressive policies that would impinge on the Tamil population in general or Tamils with a profile similar to that of the applicant…
I am satisfied that the Authority considered each of the applicant’s claims and their component integers, and did not ignore any relevant material. The Authority engaged in an active intellectual process when it considered the material before it.
To the extent that ground 2 alleges bias, it is not established. Any allegation of bias must be distinctly raised and clearly proved: Jia Legeng at [69]. The applicant has not in any way explained his allegation of bias, other than asserting that the Authority ignored relevant materials.
I accept the Minister’s submissions that there is no indication in the Authority’s reasons that shows it had, or might be apprehended to have had, a mind closed to persuasion. There is nothing before the Court to show that:
(a)the Authority had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake, a proper evaluation of the matter: Jia Legeng at [35]; or
(b)a fair-minded lay observer might reasonably apprehend that the Authority might not have brought an impartial mind to the review: CNY17 at [56]; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at [27].
Ground 2 is not established.
Ground 3
By ground 3 the applicant asserts that the Authority identified a wrong issue on a wrong question. This ground can be interpreted broadly as an assertion that the Authority identified the wrong issue or applied the wrong test.
I am satisfied that the Authority correctly identified the relevant law for determining whether the applicant met the criteria for a protection visa. The Authority correctly identified that it was required to consider whether the applicant met the refugee criteria in s 36(2)(a) of the Migration Act or the complementary protection criteria in s 36(2)(aa) of the Migration Act. The Authority accurately summarised the relevant law in relation to the refugee criteria at [37]-[38] of its reasons and it accurately summarised the relevant law in relation to the complementary protection criteria at [71]-[73] of its reasons. There is nothing in the Authority reasons to suggest that it has misapplied the relevant law in any way.
The applicant asserted in the annexures to his affidavits that the Authority erred in relation to its assessment of the situation facing Sri Lankan Tamils with links to the LTTE. The Authority accepted that the applicant had provided practical support to the LTTE in the past, including by building bunkers. The Authority relied on information from the UNHCR and DFAT in finding that the applicant did not face a real chance of serious harm or a real risk of significant harm on account of his past LTTE association. The Authority summarised the information from UNHCR and DFAT at [44], where it said:
The UNHCR guidelines which informed the RSA assessment [in relation to the applicant’s brother 1] were issued in 2009 and relate to the security situation in Sri Lanka at that time. Information from DFAT is that the UNHCR issued further guidelines in 2012 and these guidelines do not indicate that being a Tamil, or a young Tamil male, or being from a former LTTE controlled area or the north by itself would warrant protection. The 2012 guidelines outlined the following risk groups; senior LTTE members, fighters, people involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE, or fundraising.
It was open to the Authority to rely on this information, as well as the further information it took into account in concluding that the security situation for Tamils in Sri Lanka had improved. I discern no jurisdictional error in the approach of the Authority in making findings about the risk of harm to the applicant as a result of his past associations with the LTTE or his Tamil ethnicity more generally. The findings made by the Authority were reasonably open to it on the evidence before it.
Ground 3 is not established.
CONCLUSION
For the reasons above, I have found that there is no jurisdictional error in the Authority’s decision. It follows that the application for judicial review must be dismissed.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 6 April 2022
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