BSE18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 612
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BSE18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 612
File number: MLG 880 of 2018 Judgment of: JUDGE LADHAMS Date of judgment: 17 July 2023 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming decision not to grant applicant protection visa – whether Tribunal failed to consider relevant considerations, information and material – whether Tribunal had a duty to inquire under s 424 of the Migration Act 1958 (Cth) – whether Tribunal decision was illogical, irrational or unreasonable – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth) ss 424, 476, 477 Cases cited: ANB15 v Minister for Immigration and Border Protection [2016] FCCA 3244
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 58 ALD 609; [2000] HCA 1
Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214; [2006] FCAFC 61
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304; [2022] HCA 17
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155; [1985] FCA 46
Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51
Division: Division 2 General Federal Law Number of paragraphs: 88 Date of hearing: 13 June 2023 Place: Perth Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: Ambi Associates Counsel for the First Respondent: Mr A Cunynghame Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
MLG 880 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BSE18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
17 July 2023
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
The applicant is a citizen of Sri Lanka who applied for a protection visa. A delegate of the Minister made a decision not to grant the applicant a protection visa and that decision was affirmed by the Administrative Appeals Tribunal (Tribunal) on 8 March 2018. The applicant now seeks judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act), of the Tribunal decision.
The applicant advances three grounds before this Court asserting jurisdictional error on the basis that the Tribunal:
(a)failed to have regard to and consider relevant considerations, information or material;
(b)did not exercise its powers according to law because it rejected the relevance or probative value of a particular piece of evidence without seeking further information; and
(c)made a decision that was unreasonable or without logically probative evidence.
For the reasons explained below, I have found that the applicant has not established that the Tribunal decision is affected by jurisdictional error. The application to this Court is therefore dismissed.
VISA APPLICATION AND RELATED DECISIONS
On 20 November 2012 the applicant made an application for a protection visa claiming to fear harm on the basis of his Tamil ethnicity, his Hindu religion, his actual or imputed political opinion as a supporter of the Tamil National Alliance (TNA), his imputed support for the Liberation Tigers of Tamil Eelam (LTTE) as a young Tamil male and his profile as a young Tamil male who departed Sri Lanka illegally and claimed asylum in Australia.
On 5 August 2013 a delegate of the Minister made a decision not to grant the applicant a protection visa.
The applicant then made an application to the Tribunal for review of the delegate’s decision and the Tribunal purported to affirm the delegate’s decision on 26 March 2015. The applicant sought judicial review of this decision and on 21 December 2016 the Federal Circuit Court quashed the Tribunal’s decision and remitted the matter to the Tribunal for reconsideration according to law.
On 31 January 2018 the applicant attended a hearing before the Tribunal to give evidence and present arguments. The applicant was represented when his matter was before the Tribunal and provided submissions and additional documents to the Tribunal before and after the hearing.
On 8 March 2018 the Tribunal affirmed the delegate’s decision.
TRIBUNAL DECISION
The Tribunal accepted that:
(a)the applicant is of Tamil race and from the Batticaloa district;
(b)the applicant became involved in the TNA shortly before the Parliamentary elections in April 2010 and was actively involved in campaigning for the TNA and a particular candidate during that election campaign;
(c)the applicant was involved in the Tamil Hindu Youth Movement for four years and it was through that that he came to know the candidate he campaigned for;
(d)the applicant continued to attend meetings at the TNA offices and was involved in political discussions and meetings after the 2010 election;
(e)the applicant was subjected to threats as a result of his political activities, in the form of three or four threatening phone calls in July 2011;
(f)the applicant was abducted by an armed group in February 2012 and detained, beaten and interrogated before being released later in February 2012 after his captors became convinced he would not continue to campaign for the TNA; and
(g)the applicant departed Sri Lanka by boat, without permission from the Sri Lankan authorities, and this method of departure is illegal in Sri Lanka.
Based on country information, the Tribunal found that the applicant did not face a real chance of serious harm solely on the basis of his Tamil race or the fact that he is a young male from Batticaloa in the Eastern province. The Tribunal found that the applicant did not hold a profile of a type indicated in the United Nations High Commissioner for Refugees (UNHCR) eligibility guidelines as requiring protection on the basis of imputed LTTE opinion and found that his political activities with the TNA did not amount to evidence of any role in post-conflict Tamil separatism. The Tribunal was not satisfied that there was a real chance the applicant would be imputed as a sympathiser or supporter of the LTTE or opponent of the Sri Lankan government and did not accept that there was a real chance he would be targeted for harm on that basis, or because of any political opinion imputed to him as a consequence of his Tamil race or ethnicity or because he originates from an area formerly controlled by the LTTE.
The Tribunal accepted that if the applicant returns to Sri Lanka, he will resume his support for and activities with the TNA and may over time become a senior member of the TNA and run for the election himself. The Tribunal considered country information and did not consider that there was a real chance the applicant would face harm because of his involvement with the TNA, noting the very significant changes to the political and security situation in Sri Lanka since the end of the conflict in 2009 and the 2015 elections.
The Tribunal accepted that there was a real chance that upon return to Sri Lanka, the applicant would be charged under the Immigrants and Emigrants Act 1948 (Sri Lanka) (Immigrants and Emigrants Act) with offences relating to his illegal departure in 2012, but found that the questioning he would face upon his return would quickly establish that he was not of interest to the Sri Lankan authorities. While the Tribunal accepted that the applicant may be questioned, charged and held on remand for a period of up to several days, it was not satisfied that there was a real chance the applicant would face harm during this process. The Tribunal accepted that conditions in prisons in Sri Lanka are generally poor and accepted that the applicant may face a fine for breaching the Immigrants and Emigrants Act, but also considered that the applicant would not be treated differently from other returnees who have breached departure laws and was satisfied that the Immigrants and Emigrants Act was a law of general application that was not applied in a discriminatory way.
The Tribunal was not satisfied that the applicant would face a real chance of serious harm upon his return to Sri Lanka as a result of his Hindu religion or as a result of the Sinhalisation of Tamil areas.
The Tribunal also considered the applicant’s claims cumulatively and found that there was not a real chance he would face serious harm on the separate or cumulative bases of his Tamil ethnicity, his actual or imputed political opinion, his illegal departure from Sri Lanka, or the fact that he has sought asylum in Australia.
The Tribunal considered the complementary protection criterion and, largely based on the same findings of fact that it made in relation to its assessment of the refugee criterion, found that the applicant did not face a real risk of significant harm as a necessary and foreseeable consequence of being returned to Sri Lanka.
JUDICIAL REVIEW APPLICATION
The applicant filed his application for judicial review on 5 April 2018, which is within 35 days of the day on which the Tribunal decision was made, as required by s 477(1) of the Migration Act.
The applicant relies on an amended application filed on 30 May 2023. That application contains the following three grounds:
1.The Tribunal fell into jurisdictional error in failing to have regard to and to consider as required by law relevant considerations, information or material.
Particulars
a.The Tribunal did not have regard to and consider all the material before it, relating to the risk of harm to persons in detention or prison in Sri Lanka.
b.The Tribunal failed to consider the material submitted which post-dates First Tribunal’s decision. These materials include
I.Relevant critique in relation to the recent Country Information Report of Sri Lanka.
II.Submission provided by a friend of the Applicant about the suffering and persecution he faced after being sent back to Sri Lanka from Australia as a failed Asylum Seeker.
III.Relevance of high level of activities conducted by Karuna Amman in Sri Lanka
c.The Tribunal failed to cumulatively consider all of the evidence and material provided in support of the applicant’s claims in reaching its decision that the Applicant did not fall with the definition of a Refugee and meet the criterion for protection under section 36(2)(a) of the Migration Act 1958 (“the Act”) or the criterion under section 36(2)(aa) of the Act.
2.The Tribunal fell into jurisdictional error in that it did not exercise its powers according to law.
Particulars
a. The Tribunal rejected the relevance or probative value of:
“ .... a letter from [name] who states that after coming to Australia by boat in 2012, he was deported back to Sri Lanka in October 2016 after his visa application was rejected. He states since that time he has been interrogated and tortured on many occasions by the Sri Lankan security forces.... "
The Tribunal said:
“However the Tribunal has no information about the nature of any interest the Sri Lankan authorities may have in [name], including his profile (if any) or the reasons he has been interrogated. He does not suggest he has been detained or charged under the I & E Act or any other act and gives no details of the interrogations and torture he claims to have suffered. For these reasons I give little weight to the suggestion that the applicant will face interrogation or torture on return to Sri Lanka. “
(Tribunal’s Statement of Decision and Reasons, Court Book 429-430, [64]-[65])
The Tribunal erred in conducting the review under section 412 of the Act by dismissing the letter as of no or little relevance or probative value, without seeking or inviting further information under sections 56, 414, 415, 424, 425, or 427 of the Act about the situation of the author and his circumstances.
3.The Tribunal fell into jurisdictional error in that it was unreasonable or acted without logically probative evidence.
Particulars
a.The Tribunal was unreasonable in its conclusions about the risk of harm to persons in detention or prison in Sri Lanka and whether the Applicant had a real chance of suffering serious harm or a real risk of suffering significant harm while in detention or prison.
b.The Tribunal was unreasonable in not finding that when the applicant had suffered abduction, this was for reason of his membership of the particular social group of persons with political opinion.
c.Further or in the alternative to particular (a) to Ground 2, in dealing with the letter noted in that particular, the Tribunal was unreasonable to “give little weight to the suggestion that the applicant will face interrogation or torture on return to Sri Lanka” when it did not know the reason for the interrogation and torture of the person who wrote the letter, and did not ask or seek information about this, whether under sections 56, 414, 415, 424, 425, or 427 of the Act or otherwise.
The evidence before the Court comprises the court book filed by the Minister on 17 April 2019 and a supplementary court book containing two reports from the Department of Foreign Affairs and Trade (DFAT) filed by the applicant on 29 May 2023.
GROUND 1: FAILURE TO CONSIDER ALL RELEVANT CONSIDERATIONS, INFORMATION AND MATERIAL
By ground 1, the applicant asserts that the Tribunal failed to have regard to and consider all relevant considerations, information and material. The ground primarily relates to the applicant’s claims that he would face harm as a result of having left Sri Lanka illegally and as a failed asylum seeker. The Tribunal relevantly accepted that Sri Lankan authorities may become aware of or infer that the applicant departed Sri Lanka illegally and that, upon his return to Sri Lanka, he will be questioned at the airport and will likely be charged with departing Sri Lanka illegally. It also accepted that he may be held on remand for a period of most likely less than 24 hours, but possibly for several days while waiting for a bail hearing. The Tribunal did not accept that there was a real chance the applicant would be sentenced to a jail term for breaching the Immigrants and Emigrants Act and it did not accept that there was a real chance he will face harm during questioning at the airport and while held on remand, noting DFAT’s advice that 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.
Principles relevant to the resolution of the ground
There is no material dispute between the parties as to the principles relevant to the resolution of this ground. The Tribunal was required to consider all claims advanced by the applicant and their component integers: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [57]. In so doing, the Tribunal was required to consider all relevant evidence and a failure to consider material that is of sufficient importance can amount to a failure by the Tribunal to perform its statutory task: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [98], [111], [112]. In relation to the level of engagement with the material that was required, the comments of the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) 178 ALD 304; [2022] HCA 17 at [25] are relevant. The High Court there said (footnotes omitted):
It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
In conducting the review, the Tribunal was not obliged to engage in a line by line refutation of the relevant material: Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 58 ALD 609; [2000] HCA 1 at [67]. Also, the Tribunal was not required to expressly refer to each and every individual piece of evidence and make findings on each and every piece of evidence provided by an applicant: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [67]-[68], [73]-[74], [77], [89], [91].
With these principles in mind I then turn to the particulars of this ground.
Particular (a): Did the Tribunal fail to have regard to and consider all the relevant material before it relating to the risk of harm to persons in detention or prison in Sri Lanka?
By particular (a), the applicant claims that the Tribunal did not have regard to and consider the material before it relating to the risk of harm to persons in detention or prison in Sri Lanka.
In his written submissions, the applicant set out the following information extracted from the DFAT Country Information Report Sri Lanka dated 24 January 2017 (2017 DFAT report) (emphasis in applicant’s submissions; footnotes omitted):
TORTURE
4.12A number of reputable organisations have, over the last couple of years, published allegations of torture perpetrated by Sri Lankan military and intelligence forces, mostly related to cases from the period immediately following the civil conflict and involving people with imputed links to the LTTE (but are not reserved to this group).
4.13 These reports include:
•International Truth and Justice Project’s (ITJP) 2016 report, Silenced: Survivors of torture and sexual violence in 2015
•ITJP’s 2015 report, A Still Unfinished War: Sri Lanka’s Survivors of Torture and Sexual Violence 2009- 2015
•Freedom from Torture’s (FFT) 2015 report, Tainted Peace: Torture in Sri Lanka since May 2009
•Amnesty International’s 2012 report, Locked Away: Sri Lanka’s Security Detainees.
The 2016 ITJP report cited 20 cases of torture in 2015. FFT’s report cited eight torture cases in 2015. DFAT notes that verification of the evidence presented in these reports is complicated by the fact that many allegations are made anonymously, often to third parties, including by individuals who are outside Sri Lanka, and in some cases individuals who are in the process of seeking asylum. However, DFAT assesses that there have been credible reports of torture carried out by Sri Lankan military and intelligence forces during the civil conflict and in its immediate aftermath.
….
4.15DFAT is also aware of reported instances of torture carried out by the police. The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment visited Sri Lanka during April and May 2016 and reported that torture might be carried out by police in relation to regular criminal investigations, a risk which can increase when there is a perceived threat to national security.
4.16In October 2016, the Human Rights Commission of Sri Lanka (HRCSL) submitted a report to the UN Committee Against Torture that claimed ‘torture to be of routine nature… practiced all over the country, mainly in relation to police detentions’ and that torture is used during interrogation and arrest and is used regardless of the nature of the suspected offence. A total of 208 torture complaints were received by the HRCSL as at 31 August 2016, compared to 600 in 2013. The geographic locations of torture reports are spread across Sri Lanka, with the most being reported in Colombo.
4.17… Victims of torture can complain to the Human Rights Commission of Sri Lanka or directly to the Supreme Court about a violation of their fundamental rights…..
4.18DFAT assesses that torture in Sri Lanka, perpetrated by either military, intelligence or police forces, is not presently systemic or state-sponsored. DFAT further assess that the risk of torture from military and intelligence forces has decreased since the end of the civil conflict.
4.19DFAT assesses that in cases where police are alleged to have mistreated or tortured an individual, such practices generally reflect low capacity, lack of training and due process in arrest and detention procedures, and poor policing methods that focus on extracting confessions rather than undertaking thorough investigations.
4.20Because few reports of torture are proved or disproved it is difficult to determine the prevalence of torture but DFAT assesses that irrespective of their religion, ethnicity, geographic location, or other identity, Sri Lankans face a low risk of mistreatment that can amount to torture, in most cases perpetrated by the police. The incidence of torture has reduced in recent years, and therefore the allegations of torture pertain to a relatively small number of cases compared to the total population of Sri Lanka.
Torture and mistreatment of returnees
4.21DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka but cannot verify these reports given that many allegations are made anonymously, often to third parties and sometimes long after the torture is alleged to have occurred.
4.22Thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment. Although it does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low and continues to reduce, including for those suspected of offences under the Immigrants and Emigrants Act. Overall monitoring has reduced under the Sirisena Government and community fear of mistreatment has also decreased.
The applicant submitted that the thrust of this material is that even after the end of the war and the change of government in 2015, there was an entrenched and pervasive culture of torture and abuse by the police and other authorities, especially of persons in custody, even for minor offences. I do not accept that this is a complete and accurate characterisation of the report as a whole. Rather, this characterisation reflects the applicant isolating and embellishing those parts of the report which assist his case, while disregarding other relevant parts of the report. The 2017 DFAT report acknowledged that DFAT was aware of some allegations of torture, and that there were credible reports of torture carried out by the military, intelligent forces and police, including after the end of the civil conflict. However, DFAT assessed that torture was not systemic or state-sponsored and that the risk of torture or mistreatment for the majority of returnees was low.
In oral submissions, Counsel for the applicant drew attention to the footnotes throughout the Tribunal decision, where the Tribunal cited the country information that it relied on. Counsel for the applicant submitted that where the Tribunal relied on the 2017 DFAT report, it has given specific paragraph references, which do not include [4.12] to [4.20]. Counsel for the applicant submitted that it should be inferred that the Tribunal did not consider those specific paragraphs.
I accept that the Tribunal did not in its footnotes expressly refer to [4.11] to [4.20] of the DFAT report. However, I do not accept that the Tribunal failed to consider these parts of the report, or that the failure to expressly cite these paragraphs amounts to jurisdictional error.
It is quite clear that the Tribunal had regard to the DFAT report as a whole, having cited a range of paragraphs appearing in different parts of the report throughout its decision. I accept the submission advanced by Counsel for the Minister that where the Tribunal has repeatedly and extensively referred to the 2017 DFAT report throughout its reasons, the Court should be slow to find that the Tribunal did not consider [4.12] to [4.20] of that report. The Tribunal was not required to refer to every single paragraph of the report or to provide a line by line refutation of the evidence in that report in order to demonstrate that it had considered the report.
The Tribunal cited those parts of the 2017 DFAT report that most directly addressed the risk of harm to the applicant, taking into account the relevant factual findings made by the Tribunal in relation to the applicant’s circumstances. In this regard, I note that:
(a)the only risk that the applicant may be detained that was accepted by the Tribunal was the risk that the applicant may be questioned on his return and detained on remand for up to a few days before being brought before a magistrate to face charges of breaching the Immigrants and Emigrants Act;
(b)the Tribunal expressly cited [4.21] and [4.22] of the 2017 DFAT report, which expressly addressed the risk to returnees, including those suspected of breaching the Immigrants and Emigrants Act.
In particular, at [58] of its reasons, the Tribunal cited [4.21] and [4.22] of the 2017 DFAT report in support of the following proposition:
As discussed with the applicant at the hearing, DFAT reports that thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture and mistreatment and it assesses the risk of torture or mistreatment for the majority of returnees is low and continues to reduce, including for those suspected of offences under the I & E Act.
The proper inference to be drawn from the Tribunal’s reasons as a whole and the references to the 2017 DFAT report throughout its reasons is that the Tribunal had regard to the whole of the report, but only cited those paragraphs that were most relevant to its findings.
The applicant in his written submissions also referred to reports that his representative had cited in submissions to the Tribunal, including but not limited to reports from the International Truth and Justice Project and the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment. The Tribunal indicated at [28] of its reasons that, in assessing the applicant’s claims, it gave ‘careful consideration to the independent sources cited in the submissions of the applicant’s representative about the situation for Tamils in Sri Lanka’. That information was described as including ‘a summary of Sri Lanka’s political history prepared by the applicant’s representative, further submissions on the applicant’s claims and further information about the situation in Sri Lanka’.
The Tribunal also expressly acknowledged its consideration of the submission provided by the applicant’s representative at various places in its reasons including:
(a)at [32], in relation to the treatment of Tamils;
(b)at [46], in relation to the risk of harm to the applicant from his past and future support of and activities with the TNA; and
(c)at [66], in relation to the applicant’s claims to face harm as a failed asylum seeker and person who departed Sri Lanka illegally.
It is clear from this that the Tribunal considered the information provided by the applicant. Even if it did not expressly refer to every individual source of information cited in the applicant’s submissions, it is clear that it had regard to the applicant’s submissions and that it considered all the information referred to in those submissions.
The applicant’s complaint that the Tribunal did not consider the various information cited in his submissions appears in reality to amount to a complaint that the Tribunal did not, based on that information, accept that the applicant would face a real chance of serious harm or a real risk of significant harm, and in particular torture, during the few days that he may possibly be detained while waiting to come before a magistrate after being charged with breaching the Immigrants and Emigrants Act. However, the weight to be given to country information was a matter for the Tribunal as part of its fact-finding function: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. The Tribunal gave cogent reasons for preferring the country information that it relied on over that supplied by the applicant. It was open to the Tribunal to give weight to the country information in this manner.
No jurisdictional error is established by particular (a).
Particular (b): Did the Tribunal fail to consider material submitted which post-dates its earlier purported decision?
By particular (b), the applicant asserts that the Tribunal did not consider material provided by his representative including a critique in relation to the 2017 DFAT report of Sri Lanka, a submission provided by a friend of the applicant about the persecution that he suffered after being returned to Sri Lanka from Australia, and the reports of recent political activities and statements by the leader of the Karuna group in Sri Lanka.
I do not accept that the Tribunal failed to consider this information.
The Tribunal clearly considered the critique of the 2017 DFAT report, as can be seen from [66] of its reasons, where it said (footnote omitted, emphasis added):
I have carefully considered the information to which I have been referred by the applicant’s representative and I note in particular the criticisms of the DFAT report contained in the Information Report about Sri Lanka authored by Dr L Bopage et al, which questions the evidence for DFAT’s assertion that failed asylum seekers may be safely returned to Sri Lanka. That report goes on to refer to lengthy periods of pre-trial detention lasting on average for three to four years, the use by the Sri Lankan authorities of torture and other inhuman and degrading punishments to obtain confessions and suggests the DFAT report should not be used as the basis for assessing the fate of refugees. However given my findings below, I do not accept that the applicant will face a lengthy period in pre-trial detention for offences under the I & E Act.
An English translation of the letter provided by the applicant’s former flatmate appears at page 299 of the court book and states:
I came to Australia on [date redacted] 2012 by boat, seeking protection. During the last four years, I was living in Australia and applied for Visa. My visa application was rejected on the grounds that there is no danger to my life in Srilanka. On [date redacted] 2016, Immigration Officers deported me to Srilanka.
Since then I have been interrogated and tortured on many occasions by the Security Forces and [Criminal Investigation Department (CID)] over the phone and in person. Due to fear of being further persecuted, I am unable to lodge a complaint about this. Hence I am physically and mentally affected and suffer from depression. Under such circumstances, there is no guarantee to my life and I am living in hideouts.
In want to affirm that, when Tamil youths like me are deported, they will also undergo similar treatment and my friend [name redacted] will not be exempted from this.
The Tribunal clearly considered this letter at [64] and [65] of its reasons, where it said:
64.As noted above, the applicant and his representative provided further documents and submissions after the hearing, including a letter from [name] who states that after coming to Australia by boat in 2012, he was deported back to Sri Lanka in October 2016 after his visa application was rejected. He states since that time he has been interrogated and tortured on many occasions by the Sri Lankan security forces and CID over the phone and in person. He states he is unable to lodge a complaint about this and is suffering depression and living in hiding.
65.However the Tribunal has no information about the nature of any interest the Sri Lankan authorities may have in [name], including his profile (if any) or the reasons he has been interrogated. He does not suggest he has been detained or charged under the I & E Act or any other act and gives no details of the interrogations and torture he claims to have suffered. For these reasons I give little weight to the suggestion that the applicant will face interrogation or torture on return to Sri Lanka.
In oral submissions, Counsel for the applicant acknowledged that the Tribunal noted the letter and its content, but that the Tribunal leapt over the weight to be given to the letter. Counsel for the applicant submitted:
… it was open to the tribunal, acting lawfully, to proceed in a number of ways.
It could have said, “Well, this is not very detailed. It doesn’t give me very much information. But so far as it goes, it concerns serious matters and it is from somebody closely associated with the applicant. And therefore there is some weight I should give to it”. Or it could have said, “There is not much detail in this. I want some more information about why this person was detained, what he was asked about, whether he was charged, and so on”. The tribunal took neither of those paths. And in the context of a case where the tribunal had made a finding that this applicant had himself been abducted, detained, interrogated, tortured, permanently injured and threatened for political reasons, in my submission, it was not consistent with the tribunal’s obligation to consider the material before it to deal with the letter in that way.
I do not accept the applicant’s submission. The Tribunal addressed the weight to be given to the letter, by giving the letter ‘little weight’. It gave a plausible justification for giving little weight to the letter, namely:
(a)the lack of detail about the author’s circumstances and reasons for interrogation; and
(b)the lack of detail about the nature of the treatment that the author faced.
The lack of detail about the author’s circumstances and reasons for interrogation is a plausible reason for giving little weight to the letter because it indicates that there was no basis to determine whether those circumstances were comparable in any meaningful way to the applicant’s circumstances. The lack of detail about the nature of the treatment that the author faced was a plausible reason for giving little weight to the letter because it meant that there was no way to meaningfully consider whether the treatment described by the author as ‘torture’ met the definition of that phrase in the Migration Act, or would otherwise be treatment that would amount to ‘serious harm’ or ‘significant harm’. The two options suggested by Counsel for the applicant in his oral submissions were options that were open to the Tribunal, but they were not the only options. In circumstances where it was for the applicant to provide sufficient details and evidence to establish his claims for protection, and where the Tribunal was not required to make the applicant’s case for him, it was open to the Tribunal to give little weight to the letter for the reasons it gave: see principles referred to at [60] below.
The Tribunal clearly considered the submissions regarding the Karuna group at [51] of its reasons, where it said (footnote omitted):
I have carefully considered the independent sources to which I was referred by the applicant’s representative regarding the Karuna group and its persecution of supporters of the TNA. I accept that during the conflict and for several years afterwards TNA candidates, staff and supporters faced attacks and harassment by the military and the Sri Lankan authorities as well as opposition Tamil parties including the TMVP and the Karuna group. However the materials before me do not suggest this harassment is ongoing. I have been referred to several sources indicating Karuna remains politically active in the east of Sri Lanka and I accept this to be the case, but none of them suggest he or his associates are targeting TNA supporters. As discussed with the applicant at hearing, DFAT refers to an attack on a TNA political meeting in Kilinochchi in March 2013 but notes that this kind of practice has not been reported since Sirasena became President.
As indicated in the discussion above in relation to particular (a), the Tribunal also referred more generally to the information provided by the applicant and noted that it had regard to this information at various places throughout its reasons. I accept the Minister’s submission that the applicant is really trying to challenge the weight given to this material by the Tribunal and that this is a matter for the Tribunal.
Particular (b) does not establish jurisdictional error in the Tribunal decision.
Particular (c): Did the Tribunal fail to cumulatively consider all of the evidence and material provided?
Particular (c) asserts error on the basis that the Tribunal failed to cumulatively consider all of the evidence and material provided in support of the applicant’s claims. In his written submissions in relation to particular (c), the applicant submitted that the general country information and the specific claims and evidence of the applicant needed to be considered cumulatively, and the experience of the applicant’s friend who said he had been interrogated and tortured after his return as an unsuccessful asylum seeker needed to be considered with particular care.
At the hearing, I asked the applicant if his challenge was to the cumulative assessment of the applicant’s claims at [80] and [81] of the Tribunal’s reasons and Counsel for the applicant indicated:
Your Honour, I note paragraphs 80 and 81, but – perhaps if I put it this way, your Honour. In my submission, the failure of the tribunal to consider cumulatively those two matters that I’ve raised with your Honour and focused on in my oral submissions is sufficient to have tainted or undermined the tribunal’s stated consideration of cumulative characteristics, so that therefore the errors that I’ve submitted this morning mean that the tribunal, while it set out to engage in a cumulative assessment of factors, in fact failed to complete that task.
However particular (c) might properly be understood, in my view it does not establish jurisdictional error.
To the extent that the Tribunal was required to consider the applicant’s claims for protection cumulatively, I am satisfied that it did this at [80] and [81] of its reasons, where it said:
80.Having accepted that the applicant is a young Tamil male of Hindu religion from Batticaloa in Eastern Province who was involved with the Tamil Hindu Youth Movement for four years and campaigned on behalf of the TNA in the 2010 election campaign and would continue his political activities if he returned to Sri Lanka, who departed Sri Lanka illegally by boat and has sought asylum in Australia, I have considered whether the cumulative effect of such characteristics may result in a real chance that the applicant will be targeted for harm in Sri Lanka if he returns now or in the foreseeable future.
81.Given my findings above, I do not accept there to be a real chance that the applicant will be targeted for serious harm by Sri Lankan authorities on the separate or cumulative bases of his Tamil ethnicity, his actual or imputed political opinion, his illegal departure from Sri Lanka or the fact that he has sought asylum in Australia.
To the extent that the applicant submitted that the cumulative assessment is tainted because of the errors asserted in particulars (a) and (b), that submission is not successful because I have found that the errors asserted in particulars (a) and (b) are not established. Counsel for the applicant submitted at the hearing that:
… while there are errors in relation to the DFAT report and to the letter, which may be regarded as separate and discrete errors, but that taken together, they indicate a sufficiently serious failure by the tribunal to engage with the material before it at the level required by law. That even if your Honour were not satisfied that one of those errors indicated a jurisdiction error in a failure to consider material, taken together they do.
I do not accept this submission. The Tribunal either considered and had regard to each relevant item of evidence as required by law, or it did not. I have found that the Tribunal did engage in the requisite consideration of each item of evidence. There is no basis, in the context of the ground as it is pleaded, to then find that the Tribunal did not, overall, consider the evidence sufficiently.
The Tribunal considered all of the evidence before it and gave weight to each item of evidence, as it determined to be appropriate, in assessing the applicant’s claims for protection. The weight given to the evidence and the findings made based on the evidence were open to the Tribunal. Once the Tribunal had considered all of the evidence and determined the weight to be given to each item of evidence in reaching its findings, it is difficult to see what further ‘cumulative assessment’ of the evidence the Tribunal could be expected to undertake.
Particular (c) does not establish jurisdictional error.
Conclusion in relation to ground 1
Ground 1 does not establish jurisdictional error.
GROUND 2: DUTY TO INQUIRE
The issue raised by ground 2 is whether the Tribunal had any duty to inquire into the circumstances of the author of the letter extracted at [40] above before giving little weight to the letter for the reasons it gave at [65] of its reasons.
Principles relevant to the resolution of the ground
In Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39 (SZIAI) at [25], the High Court acknowledged the possibility that a decision-maker may fall into jurisdictional error by failing to make an obvious inquiry about a critical fact the existence of which is readily ascertained.
There is no doubt that the Tribunal had the power to seek further information if it thought it necessary to do so. While the applicant referred to a range of provisions from which the power to obtain further information may derive, the most relevant is s 424 of the Migration Act. Subsection 424(1) provides:
In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal get such information, the Tribunal must have regard to that information in making the decision on the review.
Notwithstanding that the Tribunal had the power to obtain new information, as submitted by the Minister, and accepted by the applicant:
(a)it was for the applicant to provide his evidence and arguments in sufficient detail to enable the Tribunal to establish the relevant facts: Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [76]; and
(b)the Tribunal was not required to make the applicant’s case for him: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155; [1985] FCA 46 at [33].
Summary of parties’ submissions
The applicant submitted that the Tribunal erred in conducting the review by dismissing the letter as being of no or little relevance or probative value without inviting or seeking further information. The applicant submitted that if the Tribunal was not minded to make further inquiries about the letter or its author, then it was obliged not to dismiss the letter as irrelevant. Counsel for the applicant submitted that if there was a political dimension to the author’s circumstances, or if his interrogations arose in the context of being an illegal emigrant, the letter could be important.
Counsel for the applicant also noted as part of the context in which the Tribunal made its decision that the previous Tribunal decision had been quashed and the matter remitted to the Tribunal for reconsideration according to law on the basis that the Tribunal did not inquire about a critical fact. The Federal Circuit Court made this finding in circumstances where the Tribunal rejected a letter corroborating the applicant’s claims of past political activity on the basis that the Tribunal did not consider the letter to be genuine, taking into account its credibility concerns about the applicant, without making any inquiries of the author as to the authenticity of the letter: see ANB15 v Minister for Immigration and Border Protection [2016] FCCA 3244 at [11].
The Minister submitted that the Tribunal had no information before it concerning the availability or willingness of the witness to give evidence, or the nature of the interest from the Sri Lankan authorities in the witness. The Minister submitted that it was open to the Tribunal to place little weight on the evidence in the letter in support of the applicant’s claim that he would face interrogation or torture on return to Sri Lanka.
The Minister also submitted that the Tribunal decision did not turn on any one particular point and the context of the Tribunal’s finding that there was not now a risk of harm to the applicant from his political involvement with the TNA was important in assessing this ground. The Minister noted that the letter was provided following broad discussion of the information in the letter at the Tribunal hearing and there is no evidence to suggest that the Tribunal making inquiries would have yielded results.
Was it open to the Tribunal to place little weight on the letter without making inquiries?
I am not satisfied that ground 2 is established.
The assessment of whether the Tribunal decision is affected by jurisdictional error because the Tribunal failed to make an obvious inquiry about a critical fact, the existence of which is readily ascertained, has to be assessed in the context of the Tribunal decision as a whole. It is also relevant to consider the context in which the letter the subject of this ground was provided to the Tribunal.
The context of the decision as a whole is that the Tribunal considered the various claims advanced by the applicant and relevant country information and formed the view that the applicant did not have the profile of the type of person identified in the country information as being in need of protection. It appears, based on the Tribunal reasons, that at the hearing the Tribunal invited the applicant to comment on country information. The Tribunal then recorded at [62] and [63] of its reasons:
62.In response to the above information, the applicant told me that these things related to the general situation, but that his situation was different. He also stated that the Australian government and other foreign governments and organisations who authored these reports got their information from the Sri Lankan government, who were trying to avoid international scrutiny and were not truthful in their account of the treatment of Tamils. He said the Sri Lankan government hated Tamils even though the conflict was over.
63.He stated his former flatmate in Australia had been taken into immigration detention and deported from Australia and continues to be monitored and interrogated by the CID in Sri Lanka. He stated that if the Tribunal wanted to know about the situation for Sri Lankan Tamil returnees, it needed to speak to them and not take the word of the Sri Lankan government. He asked me to contact the Australian High Commission in Sri Lanka to confirm the mistreatment of his flatmate on return to Sri Lanka. He also suggested I Google the situation for Tamils in Sri Lanka. At hearing I explained to the applicant that I could not make inquiries of the Australian or Sri Lankan governments about other individuals not involved in this review application and invited him to submit any further documentation he wished me to consider after the hearing.
It appears from this that the applicant provided the letter to the Tribunal after the hearing to support his submissions that the country information referred to by the Tribunal was not reliable, or that his personal circumstances were different to the general situation set out in the country information.
Understood in its proper context, the circumstances of the author of the letter was not an obvious inquiry about a critical fact the existence of which was readily ascertainable. The circumstances of the author of the letter were matters that were not central to the applicant’s claims for protection, but rather were matters that, at best, went to the weight to be given to one item of evidence amongst many relevant to assessing the risk of harm faced by the applicant. The circumstances of the author of the letter, depending on what they were, may or may not have caused the Tribunal to find that there was some similarity between those circumstances and the possible circumstances of the applicant. This is not a critical fact for the purposes of the assessment of the applicant’s protection claims. Whether or not the author of the letter faced interrogation and torture upon his return to Sri Lanka, the nature of any claimed interrogation and torture and the reasons for it are not matters that are critical to the question before the Tribunal, namely whether the applicant would face a real chance of serious harm or a real risk of significant harm upon his return to Sri Lanka.
The letter was provided by the applicant pursuant to a post-hearing procedural fairness opportunity afforded to him by the Tribunal following some general discussion at the hearing of the author’s treatment. In the light of all the evidence before the Tribunal, and in the circumstances in which the letter was provided, it was open to the Tribunal to give little weight to the letter without making any inquiries of the author of the letter. The Tribunal was not required to take action to make the applicant’s case for him or to strengthen the probative value of the evidence he provided.
Finally, there were two issues discussed at the hearing that I have not considered to be material to the resolution of this ground, and I briefly explain why these matters were not material.
First, the fact that the previous Tribunal decision had been remitted for a failure to make an obvious inquiry does not alter the consideration of whether there is jurisdictional error in the Tribunal decision this time. At best, the previous judgment could have the effect of making the Tribunal cognisant of the type of jurisdictional error envisaged in SZIAI. However, the assessment of jurisdictional error is not based on the Tribunal member’s knowledge of the law, but rather their application of the relevant law and statutory powers. The quashing of the first purported Tribunal decision and the remittal of the matter to the Tribunal does not have any impact on the manner in which the Tribunal was required to exercise its powers in this matter or on the relevant standard for assessing whether there is jurisdictional error.
Second, at the hearing, I invited the parties to comment on any potential impact of the considerations addressed at [63] of the Tribunal’s reasons (set out at [65] above), and the Tribunal’s indication that it would not make inquiries of the Australian or Sri Lankan governments about individuals not involved in the review application.
I accept Counsel for the Minister’s submission that this sentence of the Tribunal does not amount to any statement that it could not obtain further information at all, but simply that it was not able to make inquiries of the Australian or Sri Lankan governments about individuals who are not parties to the review application. Upon reflection, I accept that this paragraph does not amount to any indication that the applicant was put on notice that the Tribunal would not be making any inquiries prior to him submitting the letter from his friend.
Ground 2 is not established.
GROUND 3: UNREASONABLENESS, ILLOGICALITY OR IRRATIONALITY
Ground 3 asserts that the Tribunal acted unreasonably or made a decision without a logically probative basis. There are two particulars to the ground that are pressed, with particular (b) having been abandoned in the applicant’s submissions. The first particular asserts that the Tribunal was unreasonable in its conclusions about the risk of harm to persons in detention or in prison and whether the applicant had a real chance of suffering serious harm or a real risk of suffering significant harm while in detention or in prison. The third particular, particular (c), is an alternative to ground 2 and suggests that the Tribunal acted unreasonably in giving little weight to the suggestion that the applicant will face interrogation or torture on return to Sri Lanka when it did not know the reason for the interrogation and torture of the person who wrote the letter and did not seek to clarify this.
Principles relevant to the resolution of this ground
In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS), Crennan and Bell JJ gave the following explanation of when a decision will be illogical or irrational 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…
To the extent that the ground takes issue with the findings of fact made by the Tribunal, it is appropriate to have regard to the principle summarised in SZMDS.
Particular (a): Were the Tribunal’s conclusions that the applicant would not suffer a real chance of serious harm or a real risk of significant harm while possibly being briefly detained unreasonable?
The applicant’s submissions for the purpose of particular (a) were to the effect that the country information before the Tribunal indicated that there remained a low risk of harm to returnees, and therefore it was unreasonable, illogical or irrational for the Tribunal not to find that there was a real chance of the applicant facing serious harm or a real risk of him facing significant harm. The applicant referred to DFAT’s assessment of the low risk of harm, and the recognised limitations set out in the 2017 DFAT report, such as its lack of monitoring of the situation of returnees and that it was unable to verify some reports of claimed torture. The ground appears to be premised on the well-known explanation in Chan v Minister for Immigration and Ethnic Affairs 169 CLR 379; [1989] HCA 62 that a real chance can be one that is less than 50%: at 389 (Mason CJ), 397 (Dawson J).
I accept the Minister’s submission in response that the finding made by the Tribunal based on this country information was not one that no rational or logical decision-maker could arrive at on the same evidence. While it is possible that some decision-makers might have looked at the information in the DFAT report and concluded that, notwithstanding that DFAT assessed the risk of harm to returnees as low, it was still a real risk, this was not the only conclusion open on the evidence. The conclusion that the Tribunal reached, that taking into account the country information and the known circumstances of the applicant, the chance or risk of harm did not amount to a real one, was one that a logical and rational decision-maker could have reached on the basis of the evidence that was before the Tribunal, including the DFAT report.
Particular (a) therefore does not establish jurisdictional error.
Particular (c): Did the Tribunal act unreasonably in giving little weight to the letter from the applicant’s flatmate without making inquiries?
Particular (c) can be understood in two ways. On the one hand it takes issue with the factual finding of the Tribunal that it gave little weight to the suggestion that the applicant will face interrogation or torture on return to Sri Lanka. I do not accept that this finding was illogical or irrational, notwithstanding that the particular circumstances of the author of the letter were not known to the Tribunal. The letter was provided by the applicant in an attempt to support his claim that he would face harm on return to Sri Lanka. This was one piece of evidence before the Tribunal for the Tribunal to assess, in circumstances where the Tribunal was not required to make the claims for the applicant and where it was up to the applicant to provide sufficient information to establish his claims. A logical and rational decision-maker, faced with the whole of the evidence before the Tribunal, could readily have reached the same decision as the Tribunal on that evidence.
Particular (c) could also be understood as asserting that the Tribunal acted unreasonably in failing to exercise its discretion in s 424 of the Migration Act to get further information before giving little weight to the letter.
It is well-established that the Tribunal is required to act reasonably in the exercise of its discretionary powers: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ), [88] (Gageler J). This includes (but obviously is not limited to) the power in s 424 to seek further information, which I found above was the most relevant power of the Tribunal to seek further information. There are no reasons in the Tribunal decision as to why it did not opt to seek further information and the Tribunal was not required to give any such reasons.
The observations and reasoning set out in relation to ground 2 above are also relevant to the resolution of this ground and particular.
Taking into account all of the information before the Tribunal, and considering this issue in the context of the Tribunal’s reasons as a whole, it was clearly open to a Tribunal acting reasonably to proceed to give little weight to the letter for the reasons it gave without seeking further information. Again, this is particularly so in circumstances where the Tribunal did not have an obligation to make the applicant’s case for him.
Ground 3 is not established.
CONCLUSION
I have found that the applicant has not established jurisdictional error in the Tribunal decision. It follows that the application to this Court must therefore be dismissed.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 17 July 2023
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