BNY17 v Minister for Immigration and Anor and BRU17 v Minister for Immigration and Anor and BRW17 and Ors v Minister for Immigration and Anor

[2020] FCCA 1486

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNY17 v MINISTER FOR IMMIGRATION & ANOR and BRU17 v MINISTER FOR IMMIGRATION & ANOR and BRW17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 1486

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decisions – refusal of protection visas – adult applicants claiming a fear of harm in Sri Lanka – child applicants claiming membership of the family group – whether the Authority based its decision in respect of the adult applicants on non existent facts and whether the Authority properly considered the likely fate of the child applicants on return to Sri Lanka considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 473CB

Cases cited:

CQG15 v Minister for Immigration (2016) 253 FCR 496

DNQ18 v Minister for Immigration [2020] FCAFC 72

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

NABE v Minister for Immigration (No 2) (2004) 144 FCR 1

NAHI v Minister for Immigration [2004] FCAFC 10

Re Minister for Immigration; Ex parte Applicant S134/2002 (2003) 211 CLR 441

Applicant: BNY17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1088 of 2017

Applicant: BRU17

First Respondent:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent:	IMMIGRATION ASSESSMENT AUTHORITY
File Number:	SYG 1202 of 2017

First Applicant:	BRW17
Second Applicant:	BRX17
Third Applicant:	BRY17
First Respondent:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent:	IMMIGRATION ASSESSMENT AUTHORITY
File Number:	SYG 1203 of 2017

Judgment of: Judge Driver

Hearing date: 5 June 2020

Delivered at: Sydney

Delivered on: 25 June 2020

REPRESENTATION

Counsel for the Applicants: Mr G Foster

Solicitors for the Applicants: Sentil Solicitor

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

BNY17 – SYG1088/2017

1. The application as amended on 26 May 2020 is dismissed.

BRU17 – SYG1202/2017

1. The application as amended on 26 May 2020 is dismissed.

BRW17 & ORS – SYG1203/2017

1. The application as amended on 26 May 2020 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1088 of 2017

BNY17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

SYG 1202 of 2017

BRU17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

SYG 1203 of 2017

BRW17

First Applicant

BRX17

Second Applicant

BRY17

Third Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicants seek judicial review of three separate decisions made by the Immigration Assessment Authority (Authority) made by the same Reviewer on 27 March 2017.  Applicant BNY17 is the applicant father, BRU17 is his wife (applicant mother) and BRW17, BRX17 and BRY17 are their children. 

2. The following statement of background facts is derived from the submissions of the parties.

BNY17

1. The applicant father claimed to fear harm from Sri Lankan authorities on various bases, including:

LTTE[1] involvement

[1] Liberation Tigers of Tamil Eelam

1. The applicant father claimed to have been forcibly ordered from approximately 2006 to transport goods for the LTTE.In May 2007, he claims to have been arrested and taken to a Navy Camp (Naval Camp) where he was interrogated by the Criminal Investigation Department (CID), who accused him of supporting the LTTE.  The applicant father claims he was tortured, and pressured to sign a statement in Sinhalese which he refused to do, until he was released after seven days, on condition that he report to the camp monthly.  The applicant father claimed he was required to carry goods for the LTTE twice more until in early 2008 he was told that he no longer had to assist because of his fear and anxiety about the Naval Camp incident.  During his protection visa interview, the applicant father also claimed that he had ongoing problems with the CID who kept coming to his house and questioning him, and later his parents, as to his whereabouts.

2. In 2010, the applicant father supported the Tamil National Alliance (TNA) in an election scheduled in his home district.  He was appointed "Team Leader" and would organise meetings, supervise the distribution of campaign material, and would speak at public meetings to encourage support for the party.  The applicant father also claims that he campaigned for a TNA candidate in the 2012 Provincial Council elections, and was assaulted and threatened by four men who visited his house after the election.  He claimed these men came to his home and demanded payment of 10 Lakh Rupees (approximately $8,800).  The applicant father fled the country out of fear.

Tamil fisherman

1. The applicant father commenced his own fishing business in 1999, and claimed that the Sri Lankan Army (SLA) would take his best catch and often prevented him from fishing.  He claimed that, in 1999, the SLA stopped his boat, cut his nets, whipped him, pushed him overboard, seized his identity card, and extensively interrogated him when he later sought to retrieve it.

2. In late 2004, the applicant father claimed that he was arrested, restrained and detained by the Sri Lankan Navy (Navy) who seized his fish supply before taking him to Court where he was charged with "crossing the International Maritime border".  The applicant father claims he was released on bail and ordered to stay at the Naval Camp for five days before being released on condition that he reported to the Court monthly.  He claims to have done so seven times until he was acquitted.

3. On 23 December 2005, naval officers opened fire in the applicant father’s home town and he sought refuge in the local Catholic Church.  On 17 June 2006, the applicant father heard a large explosion and saw Sri Lankan naval officers attacking fishermen. The Navy set multiple boats alight, including the applicant father's. He claims he was taken to the Naval Camp, beaten and interrogated about the explosion and ordered to confess.  The applicant father claims he was released with the assistance of the Grama Sevaka (village head).  The following day, the applicant father claims that naval officers stormed his village and shot randomly at people, including at a church in which thousands of people were hiding, forcing him to hide in a temple for days.

4. In late 2009, Sri Lanka introduced a formal fishing pass system which required the applicant father to collect a pass from the Navy each morning.  He claimed Tamil fishermen were restricted to fishing in shallow waters.

Tamil male from Northern Sri Lanka

1. The applicant father was born in Sri Lanka as a Tamil of Hindu faith and since his birth has lived in a town in Northern Sri Lanka.  In 1990, the applicant father's father was one of a number of Tamils who were rounded up in Colombo in the wake of a bomb blast, interrogated and beaten but released after a month.  The applicant father claimed that attacks on Tamil civilians continue, and that he will be persecuted as a Tamil man from a former LTTE-controlled area.

Failed asylum seeker/involuntary returnee

1. The applicant father claims that Tamils who have fled Sri Lanka and made failed asylum attempts attract suspicion as they are assumed to have "done something wrong".  The applicant father claimed he will be considered suspicious as his "vulnerability and fear of authorities" will render him unable to answer the authorities' questions, and he will thus be required to report to local authorities on his return, where he will be intimidated and extorted.  The applicant father also indicated that Sri Lanka would know of his claims as his personal information may have been released on the Minister’s Department’s website in 2014.

Relationship with wife

1. The Authority considered whether the applicant father might face a real chance of harm because of his relationship to his wife, a Tamil woman also from northern Sri Lanka.  The applicant father feared harm due to his relationship with his father-in-law who had twice been detained and twice fled the country, and the applicant's wife's aunt was "forcibly taken" by the LTTE in 2006, and a number of her uncles had either been detained or had disappeared.  The applicant wife, who was threatened and harmed by the CID, also worked with the local Fishing Cooperative, as well as a temple and Women's Rural Development Society.

Authority decision[2]

[2] Court Book (CB) 417-439

1. On the following bases, the Authority did not consider the applicant father was owed protection obligations, as it was not satisfied he was a refugee, nor did he satisfy the complementary protection criterion.

LTTE involvement

1. The Authority accepted at [18] the applicant father was forcibly ordered to carry goods for the LTTE in 2006, and did so approximately 15 times. The Authority also accepted at [19] the applicant father's claims regarding the May 2007 Naval Camp incident and his cessation of support due to the resultant anxiety at [20]. The Authority considered at [21] a letter of support purporting to be from an attorney in the applicant father’s home town, which stated that the applicant was arrested by the Navy in 2007, was produced in the Magistrates Court and released on bail, and is now subject to a charge. However, the Authority placed “little weight” on this letter, observing at [21] that the applicant father had not claimed to have been produced to a Court as part of this incident.

2. The Authority accepted at [23] that the applicant father was periodically required to report to the Naval Camp until he left Sri Lanka.  However, the Authority did not consider the applicant father faced a real chance of harm, on the basis that Sri Lankan authorities would not have any further interest in him due to his LTTE support, as he was not further detained by authorities, even in periods where country information suggested many other Tamils were.

TNA involvement

1. The Authority accepted at [25] the applicant father's claims as to his involvement in the 2010 elections, but found that he did not face a real chance of harm as a result of this conduct on the basis of his own evidence that he was not assaulted or threatened during the campaign and has not claimed to fear harm on this basis if returned to Sri Lanka.

2. In relation to the 2012 claims, the Authority observed at [27] that the delegate noted to the applicant father that the Provincial Council elections were not held in northern Sri Lanka until September 2013, and the applicant father's candidate was a TNA candidate in a local government election in 2011. In response, the applicant father acknowledged that he "cannot remember when it was" and then indicated that it "could have been in September 2011" before confirming it "was actually an election to elect the Mayor". Although the Authority accepted the post-hearing submission that the applicant father was confused and anxious due to his poor psychological well-being as a survivor of torture, the Authority considered at [28] that the applicant father's evidence in this regard was “uncertain and vague”, unlike the “very detailed statement of claims” with “relatively consistent detail” which he otherwise provided. As a result, the Authority had "significant concerns" as to the credibility of this aspect of his claims. However, the Authority considered at [29] that even if the applicant father's claims were accepted, he would not face a real chance of harm if returned to Sri Lanka as, on the basis of country information, the political situation for Tamils had improved since the applicant father departed Sri Lanka, and there was no evidence suggesting TNA supporters or campaigners were targeted by any group. The Authority was also not satisfied at [29] that the alleged perpetrators would have maintained an interest in the applicant father after so many years, nor that these events were related to his detention as an alleged LTTE supporter, at [30].

Tamil fisherman

1. The Authority accepted at [33]-[34] the applicant father's claims regarding the commencement of his fishing business and the 1999 incident with the Navy.  However, as the applicant father claimed that he "did not have any ongoing issues in regards to this incident”, the Authority was not satisfied at [34] that he faced a risk of harm on this basis as a result.

2. The Authority accepted that the applicant father was arrested and charged for crossing the international maritime border, and required to report to court monthly until he was acquitted.  At interview, the applicant father claimed he was prevented from fishing for a week until he negotiated with the Navy and promised not to venture to the area any more.[3]  As the applicant father was found not guilty and is no longer required to report to court, the Authority considered at [35] that the applicant did not face a real chance of harm on this basis if returned to Sri Lanka.

   [3] CB 425 at [35]

3. The Authority accepted at [36]-[37] the applicant father's account of the church attack and, on the basis of country information, the 2006 attack on the fishermen.  However, the Authority did not consider at [38] that the applicant father was taken by the Navy, beaten and interrogated in the aftermath of this incident as he claimed at interview that "the Navy came and had a meeting with the fishermen to discuss what happened but he was not physically harmed".  In any event, the Authority considered that these incidents “occurred within the context of the war” and “were attributable to the prevailing conditions”.In light of this, and the reduced harassment of Tamils under the current Sri Lankan Government, the Authority considered at [39] that the chances of the applicant father suffering similar harm if returned to Sri Lanka were “remote”.

4. The Authority accepted the applicant father's claims regarding the introduction of the fishing pass system.  Although the Authority accepted the policy may be applied in a discriminatory manner against Tamils, the Authority considered at [40] that the applicant father had not indicated that the restrictions affected his ability to support his livelihood as a fisherman beyond imposing "checkpoints".  As the applicant father stated that he stopped fishing due to "knee and neck pain" and he receives money from renting his boat, the Authority considered at [40] the restrictions did not threaten the applicant father's ability to subsist, or otherwise constitute significant economic hardship.

Tamil male from the North

1. The Authority accepted that the applicant father's father was detained and beaten because he was a Tamil from the applicant father’s home town.  However, given the passage of time since the event and the lack of any claim that the applicant father suffered harm from this arrest, the Authority was not satisfied at [41] that the applicant father faces a real chance of harm as a result of this event if returned to Sri Lanka.

2. The Authority noted at [42]-[43] the applicant father's submission that he is a Tamil man from a former LTTE-controlled area, and attacks on Tamils have continued following the end of the war.  However, the Authority considered at [43] that the evidence before it did not establish that his home town was an LTTE-controlled area.  In any event, the Authority considered at [43] on the basis of country information that it was not satisfied that Tamils from former LTTE-controlled areas face a real chance of harm if returned to Sri Lanka.  Although the Authority accepted that those perceived as LTTE supporters may be exposed to harm, the Authority was not satisfied at [43] that the applicant father would be, given it found that he was no longer of interest to the Sri Lankan authorities as a suspected LTTE supporter after his release from detention in 2007.

3. Following an analysis of conflicting country information, the Authority considered at [46] on the basis of the most recent information before it that “monitoring and harassment of Tamils has decreased significantly under the Sirisena Government”.  Although the Authority accepted that the applicant father “was subject to reporting” when he departed Sri Lanka, the Authority observed at [46] he was able to leave the country legally on his own passport, and therefore will not face a real risk of harassment or surveillance on his return as he does not have a profile arousing the authorities' suspicions.  The Authority was also not satisfied at [47] that Tamil males from the North are imputed to be LTTE sympathisers, or are targeted for this reason alone.

Failed asylum seeker/involuntary returnee

1. The Authority noted at [51] the applicant father's claims that he was at risk of being seriously harmed for having fled Sri Lanka illegally and claiming asylum in Australia.  However, the Authority acknowledged at [52] that the applicant father claimed during interview that he departed Sri Lanka legally using his passport and an Indian visa.  Although the Authority acknowledged that he claims to have "paid a lot of money for the visa, and more than the average", it was satisfied that the applicant father departed legally and on a genuine passport, and therefore it was not satisfied at [52] that he will be charged with illegal departure on his return.

2. In any event, the Authority considered at [53] and [58] that the applicant father would be identified as a failed asylum seeker on his return to Sri Lanka, and subject to investigative processes including identity, criminal record and travel authorisation checks. On the basis of country information, the Authority considered at [55] that these procedures do not involve mistreatment, and are applied to all returnees, regardless of their ethnicity or religion. Accordingly, the Authority found that this did not amount to serious harm at [58]. Additionally, given its finding that the applicant father would not be of adverse interest to Sri Lankan authorities, the Authority was not satisfied at [58] that the applicant faced a real chance of harm during this process.

3. The Authority considered at [59] the applicant father's submission that he will attract adverse interest due to his inability to answer the authorities’ questions and found it to be "speculative" and "not supported by the country information".  The Authority also considered at [60] that, if the applicant father was required to report to police upon his return, this would not constitute "serious harm".  The Authority also considered at [61] that country information did not suggest that the applicant father otherwise faces a real chance of intimidation, extortion or harm on his return.

Data breach

1. Given the paucity of information before it, the Authority was not satisfied at [63] that the applicant father's protection claims (as distinct from his personal information) were released online.  Additionally, on the information before it, the Authority was not satisfied at [64] that Sri Lankan authorities had accessed the applicant father's personal information. Accordingly, the Authority was not satisfied that the applicant father faced a real chance of harm as a result of the data breach.

Relationship with wife

1. On the basis of the applicant mother’s circumstances and the country information before it, the Authority was not satisfied at [48] that the applicant father faced a real chance of harm as a result of his marriage to a Tamil woman from northern Sri Lanka.  Although it accepted that the applicant father had been subject to discriminatory treatment, the Authority was not satisfied at [49] that this threatened his capacity to subsist, and considered that it largely occurred as a result of the prevailing security and political situation at the time.

1. The Authority was not satisfied at [66] that the applicant father's father-in-law was of adverse interest to Sri Lankan authorities in 2012, and therefore did not consider the applicant father would be imputed with a pro-LTTE political opinion, or would face a real chance of harm because his father-in-law had previously been detained.  Similarly, the Authority found at [66] that no such risk of harm arose from the forcible taking of the applicant mother’s aunt, nor the disappearance of her uncle, as there was no evidence suggesting the applicant father had been threatened, harmed, or otherwise imputed with a political opinion, due to his association with the applicant mother’s family.  The Authority also found at [67]-[68] that the applicant mother was not of further interest to authorities following her resignation from her work with the Fishing Cooperative in 2011, and there was no claim that the applicant father was threatened, harmed or otherwise imputed with a political opinion as a result.  In this context, the Authority was not satisfied at [69] that the applicant father's relationship with his wife gave rise to a well-founded fear of persecution.

BRU17

1. The applicant mother’s claims to fear harm are contained in a statement dated 2 February 2016 attached to her SHEV application.[4]  She claimed to fear harm from the Sri Lankan authorities on the basis of her Tamil ethnicity, as a woman, and for having fled Sri Lanka illegally and having claimed asylum in Australia.  She made a number of factual claims as follows:

   a)she was born in 1986 in India, and lived there from birth until 1987, and between 1990 and 1992.  She otherwise lived in Sri Lanka.  In her statement, she referred to general events that occurred in Sri Lanka during the civil war;

   b)when she was younger, her father was detained by the SLA and tortured.  He fled to Malaysia and subsequently India, returning only briefly in 2012 at which time he was required to report to the authorities, and he was detained and tortured, until he fled again.  Her mother was detained for 14 days for failing to produce her father;

   c)she described an incident in 2002 when the SLA harassed guests at a family event.  She also identified a number of incidents in 2006, including a rampage by the Navy in her town in which people were attacked, the death of her grandfather and aunt when their home was shelled, and the disappearance of her uncle and another aunt (in separate incidents);

   d)between 2009 and 2011, she was the treasurer of a fishing cooperative.  In 2010 and 2011, officers of the CID visited her and demanded information because they suspected that members of the cooperative were LTTE members and supporters.  She was threatened when she refused to provide the information and on one occasion, she was followed by the officers in a van, grabbed, threatened with sexual assault, and pushed to the ground.  She subsequently quit that job and hid, facing no further threats;

   e)between 2010 and 2012, she was the secretary at a local temple. In or around 2011, she joined the Women’s Rural Development Society, who used to host visits to the area by the TNA;

   f)she had many relatives who were members of the fishing community.  Her brother moved to Dubai in July 2013.  Prior to his departure and after the civil war, he had been harassed by the CID as a young male Tamil.

   [4] CB 131-138

The Authority’s key findings

1. The Authority had regard to the material referred to it under s.473CB of the Migration Act 1958 (Cth) (Migration Act) at [3]. The Authority noted that it had received a submission from the applicant mother and that insofar as the submission referred to aspects of the applicant mother’s original claims and issues raised during the delegate’s interview, and advanced legal arguments, the Authority did not consider it to be new information at [5]-[6]. However, the Authority considered the country information referred to in the submission to be new information. Noting that the country information pre-dated the delegate’s decision, and that the applicants’ then-legal representative had provided country information to the delegate, the Authority was not satisfied at [7] that there were exceptional circumstances to justify considering the country information.

2. The Authority had regard at [8] to the Department of Foreign Affairs and Trade (DFAT) report on Sri Lanka published on 24 January 2017 as it was satisfied that there were exceptional circumstances to justify its consideration, namely, that it was published after the delegate’s decision.

3. The Authority accepted at [16]-[17] the applicant mother’s claims regarding her father other than the claim regarding his treatment during his brief return to Sri Lanka in 2012.  In this respect, the Authority noted at [19] that the applicant mother’s evidence in the delegate interview was that her father was required to report to the authorities, but that he was not tortured, as previously claimed.  The Authority accepted at [19] that the applicant mother’s father was required to report to the authorities on his return to Sri Lanka, but found that this was consistent with country information that returned refugees were required to do so.  The Authority was not satisfied that the reporting was on the basis of any purported connection with the LTTE, or that the CID continued to suspect the applicant mother’s father of links to the LTTE.  The Authority was not satisfied at [20] that the applicant mother’s father was of any further adverse interest to the authorities after his return in 2012.  On this basis, the Authority did not accept at [20] that the applicant mother’s mother was detained for 14 days.

4. The Authority accepted at [27]-[28] that the applicant mother was involved in work with the fishing cooperative, the temple, and the women’s group.  Whilst the Authority accepted that the applicant mother was threatened by the CID when she was working at the fishing cooperative, noting that this occurred six years ago and that she received no further threats following her resignation from the fishing cooperative, the Authority was not satisfied at [27] that she would face a real chance of harm on this basis. In respect of the applicant mother’s work with the temple and the women’s group, in the absence of any claims that the applicant mother suffered any harm or threats in connection with this work, the Authority was not satisfied at [28] that she had faced harm in the past, or would face a real chance of harm in the future, on this basis.  In this respect, the Authority referred to country information which did not indicate that TNA supporters were systematically targeted in Sri Lanka.

5. The Authority was not satisfied at [22]-[25] that the applicant mother would be imputed with a pro-LTTE opinion on the basis of her relationship with family members, including her father, brother, aunt or uncle.  In this respect, the Authority noted that the applicant mother did not claim to have suffered any harm as a result of the disappearance of her aunt or uncle, or her brother’s departure to Dubai.  Nor was it satisfied at [39] that the applicant mother would be imputed with a pro-LTTE opinion on the basis of her past experiences or her previous roles within the fishing cooperative, the temple or the women’s group.

6. In respect of the applicant mother’s claim to fear harm on the basis of her Tamil ethnicity, the Authority referred at [38]-[39] to country information that indicated that there had been improvements in the security and political situation in Sri Lanka since 2015, and in particular for Tamils.  The Authority noted at [39] that monitoring and harassment of Tamils in day-to-day life had decreased significantly, and that neither the applicant mother nor the applicant father had a profile with the authorities such that they would face a real chance of harassment or surveillance on return to Sri Lanka.  The Authority accepted at [36] that the incidents in 2002 and 2006 (referred to above) had occurred, and probably occurred at least in part due to the applicant mother’s Tamil ethnicity, but found that they occurred in the context of the civil war and security situation at that time.  The Authority also accepted at [41] that Tamils continued to face a level of discrimination in Sri Lanka, but did not consider that this amounted to serious harm.  The Authority was not satisfied at [40] that the applicant mother faced a real chance of harm in Sri Lanka on the basis of her Tamil ethnicity.

7. In respect of the applicant mother’s claim to fear harm on the basis of her gender, the Authority accepted at [43] that country information indicated that women throughout Sri Lanka faced a high risk of societal discrimination and violence.  However, the Authority was not satisfied at [44]-[45] that the applicant mother faced a real chance of serious harm on this basis.  This was in circumstances where she had not claimed to have been harassed in the past, and she would be returning with her husband and would not be imputed with a pro-LTTE opinion, these being the factors identified in country information as vulnerabilities for women in Sri Lanka.

8. Based on the evidence before it, the Authority was satisfied at [47] that the applicant mother departed Sri Lanka, flew to India legally and on her own passport. Accordingly, it was not satisfied that the applicant mother would be charged with illegal departure on return to Sri Lanka. The Authority considered at [48] country information in relation to involuntary returnees which indicated that involuntary returnees were subject to investigative processes on return. However, it found at [50] that these were followed regardless of ethnicity, and did not amount to serious harm at [53]. The Authority considered at [54] the applicant mother’s claim that she would attract greater scrutiny upon return because she was vocal and forthright to be speculative and unsupported by country information. Nor did the Authority accept at [56] the applicant mother’s claim (insofar as it was raised) that returnees were vulnerable to intimidation and extortion upon return, noting that the claim was not supported by country information. In respect of the applicant mother’s claim that she and the applicant father would be required to regularly report to police on return to Sri Lanka, the Authority was not satisfied at [55] that this would amount to serious harm.

9. Noting that the applicant mother was in immigration detention at the time of the “data breach”, the Authority considered whether she faced a real chance of harm in Sri Lanka on this basis.  The Authority was not satisfied at [57]-[59] that the applicant mother’s claims for protection were revealed in the data breach, or that the Sri Lankan authorities had accessed the applicant mother’s personal information.  In any event, the Tribunal was satisfied that the applicants would be identified as failed asylum seekers on return to Australia but that they did not face a real risk of harm as a result. Nor was it satisfied at [59] that the release of the applicants’ personal information on the internet exposed the applicant mother to a real chance of harm.

10. The Authority considered the applicant mother’s fear of harm as a result of her husband’s claims.  In light of its findings that her husband did not face a real chance of harm on return to Sri Lanka for the reasons he claimed, the Authority was not satisfied at [34] that the applicant mother faced harm on these bases.

11. Having considered the applicant mother’s claims cumulatively, the Authority found at [61] that she did not meet the requirements of s.36(2)(a) of the Migration Act. Turning to complementary protection, the Authority had regard to its anterior findings of fact and found that the applicant mother would not face a real risk of significant harm on the bases claimed. In particular, the Authority was not satisfied at [66]-[67] that any requirement to report to the authorities upon return to Sri Lanka, or routine questioning at the airport, amounted to significant harm. The Authority found at [68] that the applicant mother did not meet the requirements of s.36(2)(aa).

BRW17, BRX17 and BRY17

1. The applicant children are male child citizens of Sri Lanka born in 2008, 2011 and 2013 who each arrived in Australia as an unauthorised maritime arrival on 3 November 2012.[5]  They applied for the visas on 2 February 2016 but did not make claims of their own for protection.[6]  The delegate refused their applications on 14 November 2016 as part of the refusal of the applicant father’s application.[7]  The Authority affirmed the delegate’s decision following its decisions concerning the applicant children’s parents.[8]

   [5] CB 333

   [6] CB 51

   [7] CB 333-334

   [8] CB 445 [12], 446 [16]

The current proceedings

1. The applicant father’s judicial review application was filed first on 10 April 2017.  Those of the applicant mother and the applicant children followed on 21 April 2017.  The applications were initially docketed to Judge Barnes but at a callover on 11 March 2019, they were transferred to my docket.

2. Procedural orders had been made by a registrar on 27 July 2017.  Order 2 made on that day required the applicants to file and serve any amended applications by 16 November 2017.  Those orders were not complied with.  Instead, amended applications containing entirely new grounds were filed on 26 May 2020.  At the trial on 5 June 2020, counsel for the Minister objected strenuously to leave being granted to permit the applicants to rely upon the new grounds.  Counsel suggested that the substantial breach of the registrar’s orders was not an isolated incident but constituted a pattern of behaviour by the relevant practitioners.  Counsel for the Minister put the proposition that any future occurrence might call for a costs order personally against the practitioners.

3. I make no comment on those submissions, other than to confirm that they were put.  I granted leave to the applicants to rely upon their amended applications for two reasons.  First, notwithstanding the very substantial delay making the amendments, those amendments narrow significantly the field of dispute between the parties.  Secondly, the pre-hearing written submissions filed on behalf of the Minister in each matter dealt with the proposed new grounds of review. 

4. The adult applicants assert that the Authority decision was based on alleged facts which do not exist, and that the Authority failed to properly consider what would happen to the child applicants on return to Sri Lanka.  The child applicants repeat that latter claim.

5. Although separate judicial review applications were filed, I heard them together and have dealt with them in a single decision.

6. I received into evidence the court books in each matter filed on 24 August 2017.  I also received the affidavit of Senthil Rajan Sinnarajah made on 5 June 2020, to which is annexed a DFAT Thematic Report dated 3 October 2014 (Report).  It is apparent that the Report was before the Authority and, indeed, is referred to by the Authority in its reasons.  It was not, however, included in the court books.  An affidavit by the applicant father and the applicant mother made on 3 June 2020 was not read.  Neither were the affidavits accompanying the original applications read.

Consideration

1. Counsel for the applicants put three fairly straightforward propositions in his submissions.  First, he drew attention to the Authority’s reasons at [23] in the applicant father’s case[9] which at the end of that paragraph references the Report at page 9.  The apparent intention of the Authority was to refer to [3.5] at page 9 of the Report which states:

   In the north and east, Sri Lankan security forces maintain a significant presence and a high level of awareness of the civilian populations of the area.  For example, according to a 2013 UNHCR survey, 87 per cent of mostly Tamil Internally Displaced People (IDPs) who had returned to their homes in the north and east had been visited by the military and 71 per cent had been visited by the military or the police Criminal Investigation Department (CID) for interviews.  Sri Lankan authorities have also increased the security presence in the north and east from time to time.  For example, in March 2014, a number of check-points were established due to an alleged resurgence of LTTE activity.  DFAT is aware of credible reports of people being stopped, detained and questioned by security forces at the time.

   [9] CB 423 Footnote 2

2. Counsel submitted that that paragraph says nothing about the awareness of local officials of legal departures. 

3. Counsel contrasted this with the applicant mother’s claim to have been stopped and questioned at the airport.  There was some confusion or uncertainty as to whether the family travelled together when they left Sri Lanka or whether the applicant father had departed earlier (possibly by boat, though legally).[10]

   [10] cf CB 261-362

4. In my view, the propositions advanced on behalf of the adult applicants do not advance their case very far at all.  The issue here is whether Sri Lankan authorities would know that the applicants had left the country legally.  As I read the Authority’s reasons at [23] in the applicant father’s case, it is an uncontroversial proposition that the Sri Lankan authorities maintain records of departures and that those records would be available to local officials if they had some cause to refer to them. 

5. Neither do I see any particular significance that the applicant mother was stopped briefly and questioned at the airport about her reason for travel.  Whilst that would have been highly peculiar if she had been travelling with the applicant father, in terms of what she told the authorities at the airport, there is no persuasive evidence that the couple travelled together. 

6. The main focus of the parties’ oral submissions concerned the question whether the Authority fell into error by failing to deal with the question of what would happen to the applicant children on return to Sri Lanka if their parents were subjected to the questioning on return, which the Authority accepted might or would occur.  In that regard, the applicants seek to draw support from the recent decision of the Full Federal Court in DNQ18 v Minister for Immigration.[11] 

   [11] [2020] FCAFC 72

7. That case is, in my view, distinguishable from the present cases.  First, this is not a case where claims of a fear of harm were made either by the children on their own behalf or by their parents on behalf of the children.  The children claimed as members of their parents’ family group and the parents made no claims in respect of the children.  Secondly, the Authority in these cases did not make any findings concerning the risk that the children might be taken into detention because it did not need to.  It did not find that the parents would be taken into detention.  The critical difference between these cases and DNQ18 is that in DNQ18 the applicants confronted a risk arising from their illegal departure.  In the present cases, all of the applicants had departed Sri Lanka legally on their own passports, notwithstanding earlier claims that they had departed illegally.

8. While counsel for the applicants sought to argue that a claim arose squarely on the material in relation to the applicant children, I reject that contention.

9. I otherwise agree with the Minister’s submissions concerning the grounds of review advanced.

Applicant father

1. The first ground (Ground 4), when read with the applicant father’s submissions, appears to claim the Authority’s finding at [23][12] that the Sri Lankan authorities would be aware that he left Sri Lanka legally was illogical or unreasonable.  This was an available inference from the country information the Authority there refers to.  The choice and interpretation of country information is a factual issue for the Authority.[13]  The suggestion that the Authority should have found that the authorities were not aware that the applicant father left legally simply because it accepted in a separate decision that his wife was questioned when leaving Sri Lanka[14] is no more than arguing with the Authority’s factual findings.  No “extreme” illogicality in the Authority’s reasoning at [23][15] as would be necessary to make out legal unreasonableness within the principles in CQG15 v Minister for Immigration[16] at [59]-[61] has been established.  This ground does not rise above an appeal for merits review, but the Court cannot review the merits of the Authority’s decision.[17]  This ground fails.

   [12] CB 423

   [13] NAHI v Minister for Immigration [2004] FCAFC 10 at [13]

   [14] CB 473 [47]

   [15] CB 423

   [16] (2016) 253 FCR 496

   [17] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272

1. The second ground (Ground 5) concerns the applicant children.  The children did not make their own claims for protection.  The applicant father did not claim that he faced harm because of what may happen to his children, and no such unarticulated claim can be said to clearly arise from the Authority’s findings within the principles in NABE v Minister for Immigration (No 2).[18]  This ground has no relevance to the Authority’s decision concerning the applicant father and so must fail.

   [18] (2004) 144 FCR 1

Applicant mother

1. The first ground (Ground 4), when read with the applicant mother’s submissions, appears to repeat the first ground in the applicant father’s application, claiming that the Authority’s findings at [23][19] that the Sri Lankan authorities would be aware that he left Sri Lanka legally was illogical or unreasonable, and then asserts that this “affects” the applicant mother’s claims. As stated in the Minister’s submissions in the applicant father’s application, there was no legal illogicality in the Authority’s findings concerning the applicant father at [23].[20] Still less can there be said to be any such illogicality in the Authority’s findings concerning the applicant mother at [47],[21] which simply accepted what the applicant mother herself stated at CB 322.  The Authority cannot be said to have acted illogically in accepting the applicant mother’s own account of her departure from Sri Lanka, or as her submissions seem to suggest to have found that this account was in fact incorrect.  This ground fails.

   [19] CB 423

   [20] CB 423

   [21] CB 473

2. The second ground (Ground 5) concerns the applicant children.  The children did not make their own claims for protection.  The applicant mother did not claim that she faced harm because of what may happen to her children, and no such unarticulated claim can be said to clearly arise from the Authority’s findings within the principles in NABE.  This ground has no relevance to the Authority’s decision concerning the applicant mother and so must fail.

Applicant children

1. The amended application contains one ground.  The ground is unmeritorious.  It claims the Authority did not make findings as to what might happen to the applicant children if their parents were returned to Sri Lanka.  However this was not necessary as the children did not make their own claims for protection, but relied upon their parents’ claims as members of their family unit.[22]  As the parents’ claims failed then the applicant children necessarily failed to satisfy the criteria for the visa.  This ground fails.

   [22] sections 36(2)(b) and (c) of the Migration Act; eg Re Minister for Immigration; Ex parte Applicant S134/2002 (2003) 211 CLR 441 at [30]-[32]

Conclusion

1. The applicants have failed to establish that any of the decisions of the Authority are affected by a jurisdictional error.  The decisions are therefore privative clause decisions and the applications must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 25 June 2020