BPU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 424
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BPU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 424
File number: MLG 760 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 31 May 2022 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority considered applicant’s claims for protection and component integers of claims – whether Authority misunderstood or misapplied the phrases ‘real chance’ and ‘real risk’ – whether Authority decision was unreasonable, irrational or illogical – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 5AA, 5H, 5J, 36, 46A, 473CA, 473CB, 473DC, 473DD, 473EA, 476 Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Citizenship v SZQRB at (2013) 210 FCR 505; [2013] FCAFC 33
Division: Division 2 General Federal Law Number of paragraphs: 66 Date of hearing: 17 May 2022 Place: Perth Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: Ambi Associates Counsel for the First Respondent: Mr G Johnson Second Respondent: Submitting appearances, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 760 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BPU17
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:
31 MAY 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
Before the Court is an application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicant seeks judicial review of a decision made by the Immigration Assessment Authority (Authority). On 27 March 2017 the Authority affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa.
The applicant relies on three grounds of application which allege, in summary, that the Authority failed to consider integers of the applicant’s claims, misunderstood or misapplied the ‘real chance’ test and made findings of fact that were unreasonable, illogical or irrational. For the reasons explained below, I find that the applicant has not established jurisdictional error in the Authority decision. I therefore dismiss the application to the Court.
BACKGROUND
The applicant is a citizen of Sri Lanka. He entered Australia at Cocos (Keeling) Islands in October 2012 without a visa. He is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 21 December 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 him from applying for a protection visa.
On 8 February 2016 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 government and the Karuna group if he returns to Sri Lanka because of his real or imputed links to the Liberation Tigers of Tamil Eelam (LTTE).
On 23 June 2016 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection.
On 17 October 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 27 March 2017 the Authority affirmed the decision of the delegate not to grant the applicant a protection visa.
AUTHORITY DECISION
The Authority had regard to:
(a)the material referred by the Secretary under s 473CB of the Migration Act;
(b)a submission provided on behalf of the applicant by a migration lawyer on 6 November 2016;
(c)an updated country information report on Sri Lanka published by the Department of Foreign Affairs and Trade (DFAT), in relation to which the Authority was satisfied that the requirements of s 473DD of the Migration Act were met; and
(d)a Committee Against Torture (CAT) report dated November-December 2016, which was provided by a migration lawyer on behalf of the applicant, and in relation to which the Authority was satisfied that the requirements of s 473DD of the Migration Act were met.
The Authority accepted that the applicant’s father was detained for a period of time in 1999. However, the Authority found that the applicant’s father was of no ongoing interest to the Sri Lankan authorities and was not satisfied that the applicant or his siblings would be of any interest to the authorities or imputed with any association with the LTTE because of this incident.
The Authority accepted the applicant’s claim that in 2005 he was rounded up with other Tamils who were working in Sinhalese areas and detained for a period of seven days on suspicion of LTTE involvement, and that he was slapped and punched while in detention. The Authority was satisfied that once the applicant’s identity was established, he was no longer of any interest to the authorities for any reason, and would not be of interest to the authorities now as a result of this incident.
The Authority accepted the applicant’s claim that he was forcibly taken by the LTTE in August 2006 for five months, that he was beaten while detained, and that he subsequently escaped. The Authority noted the applicant’s evidence that during his involvement with the LTTE he was not a combatant and did not provide any support and assistance, he was never trained to use weapons, explosives or other equipment and was mainly involved in labouring tasks. The Authority was satisfied that the applicant had no other LTTE association or link and was satisfied that the applicant would not be imputed as a combatant, cadre or high-profile member or supporter of the LTTE. The Authority was also satisfied that the applicant would not be imputed with any familial link or association with the LTTE.
The Authority noted the applicant’s claim that while he was in the LTTE camp, his brother S was kidnapped and tortured by the Karuna group or Tamil Makkal Viduthalai Pulikal (TMVP), and that the applicant and S were both scared of remaining in Sri Lanka after this. The Authority considered the applicant’s evidence that he obtained a passport after his release from detention in 2005 and travelled to Malaysia and Qatar in 2007 and 2009 respectively, returning to Sri Lanka on both occasions without being stopped, questioned or arrested at the airport. The Authority considered it to be implausible that, if the authorities were searching for the applicant to arrest him, he would be able to travel to Colombo and depart the country on his own passport. The Authority was not satisfied that the applicant went to Qatar to escape from the Karuna group or because the authorities were searching for him to arrest him.
The Authority considered it plausible that in 2012 a member of the Karuna group, who had previously been an instructor at the LTTE camp, recognised the applicant. The Authority accepted that the applicant may have a genuine fear of being identified as a former LTTE member and harassed by the Karuna group, but was not satisfied that the fear was well-founded, given that the applicant’s role in the LTTE was very minor and that there was no evidence before the Authority suggesting that the Karuna group, any other paramilitary group or the authorities were searching for him or showing any interest in him or his whereabouts when he left Sri Lanka.
Based on country information before the Authority, the Authority found that the applicant did not face a real chance of serious harm on the basis of being a Tamil, a Tamil from the Eastern Province or a Hindu. The Authority acknowledged the applicant’s submission that there was country information that refers to Tamils being at risk of torture, detention and disappearance. However, the Authority noted that these reports relate to persons with links to the LTTE or who are subject to criminal investigation. The Authority found that while the reports of torture may be plausible, the applicant’s past period of detention and forced training, as well is his subsequent escape from the LTTE, would not give rise to a real chance of harm, even if it were to come to the attention of the authorities.
The Authority found that the applicant would not face any harm if he returned to Sri Lanka as a 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) (Immigrants and Emigrants Act) 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.
Overall, the Authority was not satisfied that the applicant would face a real chance of serious harm on the basis of real or imputed links to the LTTE; at the hands of the Karuna group, Pillayan group or TMVP; because he has a profile or history with the authorities; as a wealthy Tamil; and/or for being a returned asylum seeker who departed Sri Lanka illegally.
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. The conclusion in relation to complementary protection was largely based on the same findings of fact made when assessing the applicant’s claims for the purposes of the refugee criteria in s 36(2)(a).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings in this Court by way of an application filed on 13 April 2017. On 4 November 2021 the applicant filed an amended application.
The amended application raises three grounds of review. These grounds are:
1.The Immigration Assessment Authority fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material question of fact.
Particulars
a)The Authority accepted that the applicant had been detained for seven days, slapped and punched in detention and brought before a court in Sri Lanka, that after this he was briefly a non-combatant and involuntary member of the LTTE, and that if he returns to Sri Lanka the authorities will check criminal and court records, but in assessing the risk to the applicant if he returns to Sri Lanka it did not make a finding whether his brother S was detained and tortured by the Karuna Group while the applicant was in the LTTE camp, nor a finding about why the applicant’s brother T as found to be a refugee and given asylum in France, but these factors may have affected the Authority’s assessment of whether the applicant had a well-founded fear of persecution or a real risk of significant harm.
2.The Authority fell into jurisdictional error in that it misunderstood the law or applied the wrong legal test.
Particulars
b)The Authority erred in interpreting or applying the "real chance" test required by section 5J of the Migration Act 1958, shown by its finding that the Applicant did not have a real chance of suffering serious harm or significant harm such as to meet criteria for protection under section 36(2)(a) and 36(2)(aa) of the Act, despite the material before it including submissions, and recent reports relating to torture and abuse of human rights including torture of persons in detention.
3.The Authority fell into jurisdictional error in that it acted irrationally, illogically, or unreasonably.
(a)The Authority accepted that persons with family links to LTTE cadres may be at risk of harm, according to the UNHCR Guidelines, and that the applicant had been detained for seven days, slapped and punched in detention and brought before a court in Sri Lanka, and that after this he was briefly a non-combatant and involuntary member of the LTTE, and that "it is plausible that a member of the Karuna Group recognized the applicant", but was not satisfied that there was a real chance or real risk of persecution or significant harm to the applicant, having this background or profile, if he returned as an illegal emigrant and failed asylum seeker, and was interrogated on return.
(b)The Authority accepted that the applicant had been detained for seven days, slapped and punched in detention and brought before a court in Sri Lanka and that he would face at least short detention and interrogation if he were to return, and it also had extensive material before it about torture of returnees and detainees, but it was not satisfied that there was a real chance or real risk of persecution or significant harm to the applicant in detention on his return.
(c)Further or in the alternative to particular (b) to Ground 2 and particular (b) to Ground 3 of this Application, the Authority was unreasonable in finding that the Applicant did not have a real chance of suffering serious harm or significant harm such as to meet criteria for protection under section 36(2)(a) and 36(2)(aa) of the Act, despite the material before it including submissions, and recent reports relating to torture and abuse of human rights including torture of persons in detention.
The applicant filed written submissions on 8 November 2021 and an affidavit of Sneha Mahesh deposed on the 8 November 2021 which annexed a section of the transcript of the applicant’s interview with the delegate. The Minister filed written submissions on 19 November 2021.
CONSIDERATION
Ground 1
Applicant’s submissions
The applicant submitted that the Authority accepted that he had been detained for seven days, slapped and punched in detention and brought before a court in Sri Lanka, that after this he was briefly a non-combatant and involuntary member of the LTTE, and that if he returns to Sri Lanka the authorities would check his criminal and court records. The applicant submitted that the Authority erred in its assessment of the risk he would face if he returns to Sri Lanka because it failed to make findings as to whether:
(a)his brother S was detained and tortured by the Karuna group while the applicant was in the LTTE camp; and
(b)his brother T was found to be a refugee and given asylum in France.
The applicant submitted that whether his brother S was detained and tortured was important because:
(a)the claim that S was tortured by the Karuna group while being detained and interrogated about the applicant’s involvement in the LTTE, if accepted, must necessarily have been a finding that the applicant’s brother had suffered treatment amounting to persecution for one or more of the reasons of race, membership of a particular social group, or political opinion, and this may have led the Authority to find that the applicant’s profile was more serious than a person whose own involvement with the LTTE was minor, involuntary, long gone, and sure to be forgotten; and
(b)it was explicitly consistent with the submissions and evidence that there was an entrenched culture of torture in Sri Lanka, and if the Authority had accepted that S had been interrogated about the applicant’s involvement with the LTTE and beaten, this may have affected the Authority’s decision by changing its view on whether there was a real chance or a real risk that the applicant himself might be beaten or otherwise seriously or significantly harmed on return.
The applicant submitted that whether his brother T fled to France and was recognised as a refugee was important because it underscored the violence of the pro-government forces in Sri Lanka and the application of violence to a member of the applicant’s family. The applicant also submitted that the formal recognition and objective determination of T as a refugee by France, a state party to the 1951 Convention Relating to the Status of Refugees, added weight to the subjective fear of the applicant.
Minister’s submissions
The Minister submitted that the Authority should be found to have taken into account the matters identified by the applicant because:
(a)the Authority was aware of the applicant’s claims regarding T and S, having referred to these claims in its reasons; and
(b)the Authority did not expressly accept or reject the claims about S and T and this does not point to non-consideration, but rather, reflects that the Authority did not consider that conclusions about these matters were material questions of fact it needed to determine.
The Minister submitted that the Authority was not required in conducting its review to determine whether either of the applicant’s brothers were the subject of persecution in the past, or faced a real risk of persecution or other harm in the future. Rather, the Authority’s task was to consider whether the applicant had a relevant risk of harm. The Minister submitted that the Authority found that there was no evidence, and no claims, that the Karuna group had any interest in the applicant arising from his brothers, and found that the applicant’s brothers were not, and would not be imputed to be, involved with the LTTE. In these circumstances, there was no reason the applicant’s profile as a person of interest to the Sri Lankan authorities could have been affected by the claims advanced about his brothers.
Resolution
It is well-established that the Authority is required to consider each of the applicant’s claims for protection and the component integers of those claims. As the Full Court of the Federal Court said in AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18]:
It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration & Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:
•The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration & Multicultural Affairs (2001) 233 FCR 136 per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.
•The Tribunal is only required to consider such claims where they are either:
(a)the subject of substantial clearly articulated argument, relying on established facts; or
(b)clearly emerge from the materials: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 144 FCR 1 per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration & Border Protection [2017] FCA 512 per Barker J (at [67]).
•These principles apply to the IAA regime: Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:
… A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]–[61] per Black CJ, French and Selway JJ).
(Emphasis added.)
•As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]–[68]):
(a) such a finding is not to be made lightly (NABE at [68]);
(b)the fact that a claim might be said to arise from materials is not enough (NABE at [68]);
(c)to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration & Border Protection (2016) 241 FCR 214 per Markovic J (at [37]–[38])). In SZUTM, Markovic J said:
37.While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38.Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.
(d)while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration & Citizenship (2008) 49 AAR 77 per Flick J (at [21]); and
(e)understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.
It is also well-established that the Authority is not required to specifically refer to every item of evidence that was before it: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46].
In considering this ground, it is useful to identify exactly how the applicant raised the claims or evidence about his brothers.
In his statutory declaration that accompanied his protection visa application, the applicant said about T:
In 2004, my brother [T] fled Sri Lanka and went to France to seek protection. My brother was granted refugee status in France.
In the same statutory declaration, the applicant said about S:
I later found out also that in December 2006, the Karuna group took my second brother because he had a motor vehicle accident. He was arrested by the Karuna group and he was taken to their camp. He was detained in the camp for around five days. He was tortured by the Karuna group. They filled bottles with sand and beat him with bottles. They questioned him about my other brother.
The applicant’s claims about S were expressed differently in his protection visa interview with the delegate. In that interview, the following exchange took place:
Q: Anyone in your family ever involved in the LTTE?
A: No.
Q: So you had two brothers that left, they never-
A: While I was in this LTTE camp like my other brother was taken by the Karuna group and they threatened him and assaulted him and asked him about myself being involved in the LTTE and everything.
Q: Okay, that was in 2006?
A: 2006 to 2007. Some time in between that time while I was in the LTTE camp.
Q: Okay and, he was in a motor bike accident?
A: They chased him in the motorbike and threatened and assaulted him and took his motorbike.
Q: Oh I see okay. All right, and how was he able to get out of the Karuna camp?
A: My whole family went to the place where my brother was kept and cried and even my uncle and everybody they said that I was not involved in the LTTE and they told the facts like year and after some time-
Q: So they released you?
A: Yeah
The Authority was clearly aware of the applicant’s claims or evidence about T and S. In summarising the applicant’s claims at [9] of its reasons, the Authority said:
•In 2004, his brother T left Sri Lanka and went to France. T has been granted refugee status in France.
…
•In 2006, his second brother, S, was kidnapped by the Karuna group because they wanted his motorcycle. S was tortured but was released after about five days.
The Authority made findings in which it directly or indirectly considered the applicant’s claims and evidence insofar as they involved S and T. In assessing whether the applicant would face harm upon return to Sri Lanka as a result of his forced recruitment by the LTTE or any actual or imputed pro-LTTE political opinion, the Authority considered whether the applicant would face any risk of harm on account of his brothers and relevantly said at [18], [21], [30], [34] and [37]:
18.…The delegate also asked the applicant whether any of his brothers had had any involvement with the LTTE. The applicant consistently stated that he was the only member of the family that has been involved with the LTTE.
…
21.… I am satisfied that he will not be imputed with any familial link or association with the LTTE.
…
30.I also note that there is no evidence or claims before me that the Karuna group has had any interest in the applicant arising from his brothers, T or S. The applicant has consistently stated that the Karuna are interested in him because of his LTTE association. I have found that the applicant’s brothers are not and will not be imputed to have been involved with the LTTE and I am satisfied that the applicant is not and will not be a person of interest to the Karuna group because of any familial links or associations to the LTTE.
…
34.… I have found that the applicant has not been imputed with any association with or support for the LTTE and has no familial association with any person who has such a profile.
…
37.… I have also found that he is not at risk because of his association with his brothers. …
The Authority referred to the applicant’s claims involving S in greater detail under the heading ‘Overseas travel’, where it said at [22]-[23]:
22.The applicant claims that in December 2006, while he was in the LTTE camp, his brother S was kidnapped and tortured by the Karuna group/TMVP. Information before me is that the Karuna group is a former LTTE paramilitary group that broke away from the LTTE. It supported the government and reportedly acted alongside or on behalf of the military. After the end of the conflict, Karuna group members helped the security forces to identify LTTE cadres. The group formed a political party (TMVP) which contested the provincial council elections in the Eastern Province in 2008. At about this time there was a split within the group and Karuna's deputy, Pillayan, formed his own group and took leadership of the TMVP. Pillayan became the Chief Minister of the Eastern Province in 2008. In October 2015, Pillayan was arrested by the Criminal Investigation Division (CID) and remanded in custody on charges relating to the killing of a political rival.
23.The applicant claims that S owned a motorcycle that the Karuna group/TMVP wanted. The Karuna group kidnapped S and tortured him for five days, until the applicant's family was able to get him released. S fled Sri Lanka because of harassment by the group. At the interview, the applicant also said that when the Karuna group found out that the applicant had been with the LITE, they would harass S about that as well. The applicant and S were both scared of staying in Sri Lanka so their brother, T, sent money for them to travel to France. The applicant obtained a passport and in March 2007 they travelled to Malaysia. The applicant was asked whether he had any difficulty getting out of Sri Lanka and he said that he had no problems.
In my view, the Authority has considered the applicant’s claims and evidence insofar as they relate to his brothers to the extent that it was required to do so. The Authority was ultimately required to assess the risk of harm that the applicant would face if he returned to Sri Lanka. In reaching this assessment, the Authority made findings that the applicant would not be imputed with any LTTE opinion because of any family links to the LTTE. This finding was open to the Authority on the evidence before it and taking into account the way the applicant advanced his claims. Clearly, in reaching this finding, the Authority was aware of the evidence that the applicant provided about his two brothers. In these circumstances, it can be inferred that any specific thoughts that the Authority had about this evidence were not recorded in its reasons because it was not considered by the Authority to amount to material findings of fact. The Authority in its statement of reasons under s 473EA of the Migration Act is not required to set out every finding of fact no matter how trivial, but rather is only required to set out its material findings of fact.
The Authority’s reasons at [23] (extracted above) include an accurate statement of the applicant’s evidence or claims in relation to S. The Authority did not make any express statement as to whether or not it accepted this evidence, but it certainly did not reject it and it may, as both parties suggested, be open to infer that the Authority implicitly accepted the evidence or claim.
Having considered the applicant’s written and oral submissions, the real complaint seems to be that the Authority did not find that the applicant himself had a more significant pro-LTTE profile in circumstances where S had been asked about him while tortured and detained. The applicant did not advance his claims before the delegate or the Authority in this way, and there was no implied claim to this effect which clearly emerged from the materials before the Authority based on established facts. The simple fact, assuming it was accepted, that S was questioned about the applicant in a context of heightened suspicions during the war, but was then released after only a few days does not, without more, raise an implied claim that the applicant had a heightened profile because of the questions asked of his brother, nor does it amount to compelling evidence that S was questioned because the applicant had a heightened profile.
In relation to T, there is no evidence before the Court to show that the applicant expanded in any way on his basic statement that T sought asylum and was granted refuge in France in about 2004. There was no express claim by the applicant that he would have any heightened profile with the authorities because of T’s refugee status in France or for any of the underlying reasons why T was accepted as a refugee. Further, no such claim clearly emerges from the materials. Not only did the applicant fail to provide any information about the basis on which T was granted protection, but it is obvious from the approximate dates that T was granted protection at a time when the civil war was continuing. When considering whether the applicant met the criteria for a protection visa, the Authority was required to consider the level of harm the applicant would face in the reasonably foreseeable future. The mere fact that T was granted asylum in France over 12 years prior to the Authority decision, during a war which ended some eight years before the Authority decision, is of very limited relevance and does not give rise to any implied claim.
In oral submissions, when discussing T, Mr Krohn for the applicant made reference to the Authority’s power to obtain further information under s 473DC of the Migration Act. I indicated to the parties at the hearing that I had assumed that this was a passing reference to the section and not an allegation of error given that no such allegation had been pleaded. In his reply submissions, Mr Krohn said:
Perhaps just to clarify what was referred to by my learned friend and your Honour in relation to my observation about section 473DC. The claim is not yet before your Honour on the basis of a jurisdictional error which is said to be there because the authority did not exercise its power under 473DC, but it is rather said, that the authority, having up its sleeve, the ability to make further inquiries if it judged it fit, nevertheless fell into an error not having exercised that power, and not having admitted the findings about the brother S having been tortured, and about any significance for the applicant of the brother T in France as a refugee.
Having regard to this response, it remains somewhat unclear to me whether Mr Krohn was trying to assert a jurisdictional error arising from the Authority’s failure to exercise its discretion in s 473DC in the context of its consideration of this case. Certainly, there is no ground raised by the applicant in his written application asserting that the Authority unreasonably failed to exercise its discretion in s 473DC, nor was there any application to amend the grounds. In these circumstances, I assume that there is no such error alleged.
However, if I am wrong in this, and Mr Krohn was trying to raise a new jurisdictional error in his oral submissions, he would require leave of the Court to do so, and I would refuse leave. I would refuse leave not only on the basis of the late attempt to raise a new jurisdictional error, but also because any ground based on an assertion that the Authority unreasonably failed to exercise its discretion in s 473DC to obtain new information about T or S would, at a reasonably impressionistic level, lack sufficient merit to warrant the grant of leave. Any information about the basis on which T was granted refuge in France was within the applicant’s power to provide. Despite being represented when the matter was before the delegate and the Authority, the applicant chose not to provide any such information. No new issues in relation to T arose in the course of the Authority’s review. The applicant did not claim that T’s status as a refugee would increase his profile and the applicant’s primary claims for protection were based on his own brief involvement with the LTTE. The applicant had given clear evidence to the delegate that his brothers were not involved in the LTTE. Further, the evidence was that T had been granted asylum in 2004, in the middle of a civil war against Tamils. In all of these circumstances, there is nothing unreasonable about the Authority failing to exercise its discretion to obtain further information about T and the basis on which he was granted asylum.
It is unclear if there was any further information that the applicant could have provided about S, and there is no suggestion that he did not have the opportunity to say everything he wanted to say about S when discussing his claims with the delegate. At a reasonably impressionistic level, any failure by the Authority to exercise, or to consider exercising its discretion to obtain further information about S was not unreasonable.
Ground 1 does not establish jurisdictional error.
Ground 2
Applicant’s submissions
The applicant submitted that the Authority’s conclusion that he was not owed protection under ss 36(2)(a) and 36(2)(aa) of the Migration Act, despite the evidence of serious human rights violations, show that it erred in interpreting or applying the terms ‘real chance’ in s 5J(1)(b), ‘well-founded fear of persecution’ relevant to s 36(2)(a) and ‘real risk’ of significant harm in s 36(2)(aa) of the Migration Act. Relying on Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62 (Chan) at [12], the applicant submitted that a real chance is one that is not remote and may include a chance that is small but real. He further submitted that, given the evidence before the Authority of an entrenched culture of torture in Sri Lanka, it was not open to the Authority, properly construing and applying the terms ‘real chance’ and ‘real risk’, to conclude that the applicant did not face a real chance of persecution or a real risk of significant harm. The Authority therefore misinterpreted the real chance test.
In oral submissions, Mr Krohn referred the Court to various evidence before the Authority in relation to the prevalence of torture in Sri Lanka. He referred to the Authority’s findings at [42] and [44] to the effect that DFAT assessed the risk of torture or mistreatment as low for the majority of returnees and that reported cases or torture of returnees relate to accusations of specific LTTE involvement or risks and submitted that the material before the Authority was not restricted in that way. Mr Krohn further submitted that the applicant did have past ties with the LTTE and the Authority had accepted that the applicant would be detained and questioned briefly upon his return to Sri Lanka. He submitted that in these circumstances, had the Authority properly applied the real chance test, it ought to have found that the applicant would face a real risk of torture during this questioning irrespective of whether he was ultimately found to have significant ties to the LTTE.
Minister’s submissions
The Minister submitted that there is no indication from the Authority’s reasons that suggests it misunderstood the notion of a ‘real chance’ of persecution and that the applicant’s suggestion that the misunderstanding derives from the Authority’s conclusions should be rejected. The Minister submitted that the Authority asked itself the correct question which properly focused on the risk of harm in the future. The Minister also submitted that the Authority did not misunderstand the statutory test. The Authority formed a view about the risk the applicant would face having regard to his accepted circumstances and the country information that informed the Authority about the kinds of risks that certain kinds of people faced in Sri Lanka.
Resolution
There is no dispute between the parties about what the real chance test involves. The real chance test was explained in Chan at [12] in the following way:
…a fear of persecution is "well-founded" if there is a real chance that the refugee will be persecuted if he returns to his country of nationality. … I prefer the expression "a real chance" because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring … If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.
Rather, the dispute between the parties lies in how the real chance test was applied. I accept the Minister’s submission that there is nothing on the face of the Authority’s reasons to suggest that it has misunderstood the real chance test, and rather the focus of the applicant’s ground in asserting that the Authority misapplied the test is on the outcome.
The applicant has identified a number of items of country information which refer to the prevalence of or culture of torture in Sri Lanka, which continued beyond the end of the civil war. The applicant’s submission is effectively that even a small chance of harm can amount to a real chance of harm and given the various reports about the prevalence of torture, any finding that the applicant would not face a real chance of serious harm or a real risk of significant harm would demonstrate that the Authority has misapplied the real chance test.
The Authority has not erred in its application of the real chance test. In particular, the Authority has acknowledged evidence about the prevalence of torture in Sri Lanka, but has ultimately concluded that a person with the applicant’s profile would not face a real risk of torture. The Authority’s approach is best seen at [37], [42], and [44], where it said:
37.The applicant submitted to the IAA that there is other country information that refers to Tamils being at risk of torture, detention and disappearance. The applicant states that there continue to be credible reports of torture and sexual abuse by police and military intelligence units against Tamils returning to Sri Lanka who are suspected of past LTTE involvement. The applicant also refers to the CAT report and in particular, allegations of routine torture during police investigations and "white van" abductions. Again, these reports relate to persons with links to the LTTE, or who are subject of criminal investigation. While such reports of torture may be plausible, I have found that the applicant's period of detention and forced training, as well as his subsequent escape from the LTTE, would not give rise to a real chance of harm, even if it was to come to the attention of the authorities. I have also found that he is not at risk because of his association with his brothers. I also take into account that the applicant has not claimed, and there is no evidence before me, that he has been involved in any separatist, anti-government or other diaspora activities that could give rise to an imputed opposition to the government, nor has he been involved in or suspected of any criminal activities.
…
42.I am satisfied the applicant departed Sri Lanka illegally. I accept that given the information before me, including the way he departed the country, there is a possibility he would be assessed by the Sri Lankan authorities as having sought asylum in Australia. Information before me indicates that thousands of Tamils have returned to Sri Lanka since the end of the civil war in 2009, with relatively few allegations of torture or mistreatment. DFAT has assessed the risk of torture or mistreatment for the majority of returnees is low, including for those suspected of offences under the Immigrants and Emigrants Act (the I&E Act).
…
44.I have considered other country information that was before the delegate. This includes a number of media reports referring to returning Tamils being arrested at Colombo airport. All of the individuals referred to in these reports were either members of the LTTE or were close relatives of high-profile members of the LTTE. I have also considered information alleging claims of torture of returnees and note that the reported cases again relate to accusations of specific LTTE involvement or links. I am satisfied that the applicant does not have a profile as a former member of the LTTE or an association with any high-profile member of the LTTE.
The finding that the applicant would not face a real chance of serious harm, taking into account his profile, was open to the Authority on the evidence before it and does not demonstrate any jurisdictional error. The ‘real risk’ test involves the same standard as the real chance test: Minister for Immigration and Citizenship v SZQRB at (2013) 210 FCR 505; [2013] FCAFC 33 at [246]. It follows that I also find that there is no jurisdictional error in relation to the Authority’s application of the term ‘real risk’ in s 36(2)(aa) of the Migration Act. Contrary to the applicant’s submissions, the country information before the Authority did not compel the conclusion that the applicant would face a real risk of torture while the authorities in Sri Lanka question him to ascertain whether he has a more significant profile.
Ground 2 is not established.
Ground 3
Applicant’s submissions
The applicant submitted that the Authority acted unreasonably in not finding that the applicant had a well-founded fear of persecution or a real risk of significant harm despite the evidence of incidents of torture, and of an entrenched culture of torture in Sri Lanka.
The applicant submitted that the Authority’s findings that there was no real chance of serious harm or real risk of significant harm were not reasonably open to it in circumstances where the Authority:
(a)accepted that persons with family links to LTTE cadres may be at risk of harm, that the applicant had been detained for seven days, that the applicant was slapped and punched in detention on suspicion of being in the LTTE and brought before a court in Sri Lanka, and that the applicant was briefly a non-combatant and involuntary member of the LTTE;
(b)found it plausible that a member of the Karuna group recognised the applicant;
(c)did not reject the applicant’s evidence that S had been beaten while being interrogated about the applicant’s involvement with the LTTE; and
(d)accepted that there would be details about the applicant on return including checking court records.
The applicant submitted that the Authority discounted the material before it relating to torture because it disregarded the applicant as having no profile and no history. The applicant submitted that this was not reasonable given the actual history of the applicant accepted by the Authority, the experiences of the applicant’s brothers, and the inquiries to be made if he returned to Sri Lanka and the material relating to torture and abuse of human rights.
The applicant further submitted that the Authority acted unreasonably in finding that the applicant did not have a real chance of suffering serious harm or significant harm despite the material before it including submissions and recent reports relating to torture and abuse of human rights, including torture of persons in detention.
Minister’s submissions
After providing an overview of relevant authorities in relation to the proper approach to reviewing the formation of a state of satisfaction on illogicality, irrationality or unreasonableness grounds, the Minister submitted that the applicant has not established how the Authority’s conclusions are affected by error. The Minister submitted that the applicant appears to overlook that the Authority’s acceptance of the applicant’s history of forcible recruitment in the LTTE and the experiences of his two brothers, but non-satisfaction that the applicant had a profile of interest, was based on a consideration of country information that informed the Authority of the kinds of risk profiles that persons of interest would have. The Minister submitted that the Authority’s conclusion that the applicant did not have such a profile was not arbitrary or capricious. Rather, the conclusion was supported on logical grounds by reference to the country information.
Resolution
The High Court considered circumstances where findings amounting to a state of satisfaction are illogical or irrational in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16. In that case, Crennan and Bell JJ said at [131] and [135]:
131.…The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
135.…Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn…
There was much debate between the parties at the hearing as to whether the applicant is seeking a form of merits review and the extent to which the Court can review findings of fact in a judicial review application. In many ways, this debate was a storm in a teacup. The Court cannot substitute its own findings for those of the Authority. In assessing whether the Authority decision is illogical or irrational, the Court is concerned with whether the findings of the Authority were open on the evidence, even if a different decision-maker might reasonably have reached a different conclusion.
The applicant’s first challenge in this ground is to the Authority’s finding that he would not face a real chance of persecution or a real risk of significant harm if he was returned to Sri Lanka as an illegal emigrant and failed asylum seeker and interrogated, in circumstances where the Authority accepted that:
(a)persons with family links to LTTE cadres may be at risk of harm;
(b)the applicant had been detained for seven days, slapped and punched in detention and brought before a court in Sri Lanka;
(c)the applicant was briefly a non-combatant and involuntary member of the LTTE; and
(d)it was plausible that a member of the Karuna group recognised the applicant.
There is nothing illogical or irrational in the Authority’s conclusions in this regard and the Authority has given an evident and intelligible justification for its decision. In the context of this matter, nothing turns on the Authority’s reference to country information that suggests that people with family links to LTTE cadres may be at risk of harm, because the Authority found that none of the applicant’s family members had ever been involved with the LTTE. The Authority largely accepted the applicant’s claims of past harm during the war and its immediate aftermath and that he may be recognised by someone who had been with the Karuna group but found that his involvement with the LTTE was relatively minor and his profile not significant enough that he would not come to the attention of the authorities. Taking into account all the evidence before it, including a range of country information, these findings were open to the Authority.
The applicant’s second challenge in this ground is to the Authority’s finding that he would not face a real chance of serious harm or a real risk of significant harm during any period of detention he may face in Sri Lanka as a result of breaching the Immigrants and Emigrants Act. This finding was said to be illogical, irrational or unreasonable in circumstances where the Authority accepted that the applicant had previously been detained for seven days, slapped and punched in detention and brought before a court, and where it had before it extensive material about torture of returnees and detainees. In many ways this particular overlaps with ground 2. The Authority in reaching its conclusions had regard to country information addressing the types of people who are most at risk of torture upon any detention on their return to Sri Lanka. Based on the country information considered by the Authority, it was open to the Authority to find that the applicant did not have a profile that would put him at a real chance of serious harm or a real risk of significant harm. The Authority’s findings were open on the evidence before it and the Authority has given a plausible justification for its conclusion.
The third challenge is also to the finding that the applicant did not face a real chance of serious harm or a real risk of significant harm despite the fact that there was information before the Authority about torture and abuse of human rights in Sri Lanka of people in detention. There is no doubt that there was evidence before the Authority relating to torture and human rights breaches in Sri Lanka. There was also information before the Authority about the types or groups of people who are most at risk of being tortured or having their human rights breached, and the Authority found that the applicant did not belong to any of the these groups. Again, the Authority’s findings were open to it on the evidence before it. It may be that a different decision-maker might have come to a different conclusion, but that does not mean that the conclusion reached by this Authority was illogical or irrational or unreasonable.
Ground 3 does not disclose any jurisdictional error.
CONCLUSION
The applicant has not established that the Authority decision is affected by jurisdictional error. It follows that the application must be dismissed.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 31 May 2022
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