BTJ17 v Minister for Immigration
[2021] FCCA 962
•10 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BTJ17 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2021] FCCA 962 |
| Catchwords: MIGRATION – Persecution – review of Immigration Assessment Authority (“IAA”) decision – visa – protection visa – refusal. ADMINISTRATIVE LAW – Allegation that the IAA’s decision affected by jurisdictional error by reason that the IAA failed to consider a claim and failed to consider whether certain information was excluded from being taken into account in reaching the decision because it failed to satisfy the test in s.473DD(b)(ii) of the Migration Act 1958. |
| Legislation: Migration Act 1958, ss.5, 5H, 5J, 36, 473BB, 473CA, 474 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| First Applicant: | BTJ17 |
| Second Applicant: | BTK17 |
| Third Applicant: | BTL17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1242 of 2017 |
| Judgment of: | Judge Cameron |
| Hearing date: | 23 March 2021 |
| Date of Last Submission: | 23 March 2021 |
| Delivered at: | Sydney |
| Delivered on: | 10 May 2021 |
REPRESENTATION
| Solicitor for the Applicants: | Mr D. Taylor (Sydney West Legal and Migration) |
| Counsel for the Respondents: | Mr G. Johnson |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1242 of 2017
| BTJ17 |
First Applicant
| BTK17 |
Second Applicant
| BTL17 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicants are citizens of Sri Lanka who arrived by boat at the Cocos Islands in 2012 without a visa permitting them to enter and stay in Australia. On 7 March 2016 they lodged an application for Safe Haven Enterprise Visas (“SHEV”) with what is now the Department of Home Affairs (“Department”). While the second and third applicants each made separate statements and claims, their principal claims arose from those of the first applicant and they are considered members of the first applicant’s family unit.
The applicants alleged that they feared persecution in Sri Lanka because of their ethnicity, religion, imputed political opinion, because the first applicant had had to report to police stations over the years and because they had left Sri Lanka illegally and sought asylum in Australia. On 29 September 2016, in separate decisions, a delegate (“Delegate”) of the first respondent (“Minister”) refused each of the applicants’ applications following which they were referred to the second respondent (“IAA”) for review. The reviews were conducted and decided together. The applicants were unsuccessful before the IAA and have applied to this Court for judicial review of the IAA’s decision on their cases.
In this judicial review proceeding the Court’s task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
FAST TRACK REVIEW LEGISLATIVE FRAMEWORK
On 18 April 2015 the Act was amended to provide for a “fast track review” process in relation to certain unauthorised maritime arrivals: sch.4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
Definitions
Section 5(1) of the Act relevantly defines a “fast track applicant” as a person:
(i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii)who has made a valid application for a protection visa in accordance with the determination;
The applicants are fast track applicants.
Section 5(1) defines a “fast track decision” as a decision to refuse to grant a protection visa to a fast track applicant. A “fast track reviewable decision” is relevantly defined as a fast track decision in relation to a fast track review applicant: s.473BB of the Act. Certain fast track applicants are excluded from the fast track review process but it has not been suggested that any of the applicants was such an applicant.
Fast Track Process and Procedures
Part 7AA of the Act sets out the IAA fast track process and procedures.
Section 473CA is found in pt.7AA and provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. There is no provision for a fast track applicant to apply to the IAA for a review.
Division 3 of pt.7AA of the Act sets out the manner in which fast track reviews are conducted. Section 473DA provides that that division and ss.473GA and 473GB are to be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews. The relevant sections of div.3 relevantly provide:
473BB Definitions
In this Part
…
new information has the meaning given by subsection 473DC(1).
…
473DB Immigration Assessment Authority to review decisions on the papers
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
…
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA
Since 18 April 2015, the criteria for the grant of a protection visa have been found in s.36 of the Act, supported by the definitions of “refugee” and “well-founded fear of persecution” set out in ss.5H and 5J of the Act respectively.
BACKGROUND FACTS
Protection visa claims
The second and third applicants made some separate statements and claims but as recorded earlier, their principal claims arose from those of the first applicant. Their written claims for protection were made in a visa application on 7 March 2016 which stated that all three applicants were included in the same application. A post-interview submission asked that the second and third applicants be considered as members of the first applicant’s family unit.
In its decision the IAA summarised the facts alleged in support of the applicants’ claim for protection visas. As summarised by the IAA, the applicants relevantly made the following claims.
First applicant
The first applicant alleged that:
a)he is a Tamil Hindu from Sri Lanka’s Northern Province;
b)in 2004, he was caught in a mine explosion with some school friends. One friend was killed and another injured. He believed the attack had been aimed at the Sri Lankan Army (“SLA”). After the blast, SLA troops detained him and took him to the SLA camp and held him until late in the day;
c)later that year, he attended a nearby technical college and had to pass the SLA camp. Soldiers would stop him and his friends and force them to work in the camp;
d)in 2005 he began helping his father, who was supporting the United National Party (“UNP”). This included helping a family friend, who was a UNP Member of Parliament (“MP”);
e)in 2006, he and his father were delivering election supplies. The truck they were in was shot at and their driver ran off. He believed the attackers were from the Eelam People’s Democratic Party (“EPDP”) because they had been near an EPDP camp. He stopped his political work after this incident;
f)three people who had also been supporting the UNP MP were murdered in their homes. The first applicant thought it was the EPDP, the SLA or the Karuna Group. Unknown people also came to his home but he was not there;
g)in 2008, the MP was assassinated and he thinks the EPDP and the government were responsible;
h)
i)in 2009, he started working in his uncle’s shop. One day, while charging batteries for a customer, the SLA turned up and assaulted them and told them to report to the camp each day. After about a month, his uncle paid a bribe so they could stop reporting to the camp;
j)in 2010, he decided to open his own shop in a different area and bought a motorcycle. The army would come to his shop and take the motorcycle and use all the fuel. One day he refused to hand over the motorcycle and the army took his identity card and beat him. His father-in-law saw this happen and secured his release. He decided to close his shop;
k)he started work in the canteen of the government hospital. The army commander who had previously harassed him and his uncle saw him and would come to the canteen to threaten him. He was afraid that he would be abducted so he left;
l)he opened up a new shop in a different area. He was approached by people whom he believed were EPDP and was told to pay bribes but refused. The next day, men came to his shop and hit him on the head with a bottle. He was hospitalised for 14 days and could not work. He sold his shop to repay loans;
m)in 2012, he started working for a wholesale trading company. The SLA were one of the customers but the soldiers would take goods without paying. His employer told him to stop supplying them but the SLA threatened and beat him. When he was making deliveries, he was attacked and his goods were taken. His employer made him pay for the stolen goods. The army kept harassing him and would often look for him at his house during the day;
n)he left the trading company and started working in a restaurant. On one occasion he was beaten by drunken soldiers and on several occasions armed men came to the restaurant, his house and his parents’ house looking for him. He did not know who they were and stayed away from his home;
o)in 2016, his uncle was cut with a knife and hospitalised when he refused to pay a bribe;
p)at an earlier point he did work at SLA camps. Sometimes the SLA’s trucks were used to carry dead bodies and he was forced to unload the bodies onto bulldozers; and
q)he was afraid to return to Sri Lanka because of his ethnicity, his religion, his imputed political opinion and because he had left Sri Lanka illegally and sought asylum in Australia. His father is still monitored because of his past involvement with the UNP.
Second applicant
The second applicant alleged that:
a)he is a Tamil Hindu from Sri Lanka’s Northern Province;
b)in 2007, there was a bomb blast when he was going to school. He and some other students were detained by the SLA for around four hours;
c)in 2010, he started working in a milk factory. He was harassed by soldiers who would steal goods and he would be forced to pay for the stolen items. On one occasion he was detained briefly but his employer arranged his release;
d)in late 2010, he was abducted by unknown men who held him for three hours and questioned him about his father’s and brother’s involvement with the UNP;
e)in 2012 he was threatened by people he thought were EPDP. Once, some EPDP came to the family house looking for the first applicant. They threatened to abduct him, the second respondent, if they could not find the first applicant; and
f)he was afraid to return to Sri Lanka because of his previous political involvement, being a Hindu, being a Tamil, seeking asylum and because of his links to the first applicant.
Third applicant
The third applicant alleged that:
a)she is a Tamil Hindu from Sri Lanka’s Northern Province;
b)she had been harassed and threatened by people who were looking for the first applicant. She was present when the first applicant was hit in his shop with a bottle; and
c)she is afraid to return to Sri Lanka because she is a Tamil Hindu and because of what has happened to the first applicant.
The IAA’s decision and reasons
After discussing the claims made by the applicants and the evidence before it, the IAA found that it was not satisfied that the applicants are persons to whom Australia has protection obligations under s.36 of the Act. The IAA’s decision was based on the following findings and reasons.
Information before the IAA
The first applicant provided the IAA with a letter from his father, first in Tamil and latterly in English. The English version relevantly said:
TO WHOM IT MAY CONCERN
I, … of the above address, wish to inform you that, I am a United National Party political supporter in Jaffna district. I have …
They are joining with me for Sri Lanka Election period to UNP supporter. If they were working election activities, they were threatning by unknown arms group. So, they were kidding various places because they are young person. ….
Every parliament election myself and my [family] were supporting political activities. They were continuous watched up by some of unknown arms group. On … 2012 unknown peoples came to our house, and told them get out from your house, nothing we destroyed your family.
So, my … were threatened and escape from their house. Then on … 2012 went to Australia by ship because they were afraid. After they went to Australia unknown peoples came and harresing me continiously.
The Sri Lanka politic change from SLFP. to UNP. But no use us. Unknown peoples continiously came to my house and ask … about them.
Within three months period they came two times and asked about my … . Where are they? On … 2016 they close their faces by black textile. They told me, if your … family came to this village we will shoot them. In this threatning my family is living with afraid.
In this condition my … family will come here no safety for their future life.
I, informed you that presently condition, my … family will come here , their future life is threatning by unknown peoples to them.
The IAA was not satisfied that there were exceptional circumstances to justify it considering that letter as there was no explanation as to why it could not have been provided to the Delegate.
Facts and Findings
The IAA:
a)accepted that the applicants are all Tamil Hindus from the Northern Province;
b)accepted as plausible that following the mine explosion in 2004 the SLA would have taken the first applicant and his friends, as young Tamil males in the area, to the army camp and questioned them until satisfied that they had not been involved;
c)found the first applicant’s claim that soldiers forced him and his friends to do maintenance and labour for them when he had to pass the army camp plausible;
d)was satisfied that the first applicant was not and would not be imputed with any involvement in the LTTE or any other anti-government or separatist organisation;
e)accepted that the first applicant assisted the MP and was involved in a shooting incident as he claimed and that there were UNP posters displayed on the truck, making it easily identifiable. However, it did not accept that he or his father were specifically targeted in the incident. The IAA noted that no evidence was presented that any person pursued the driver of the truck when he ran from the incident;
f)accepted the first applicant’s claim that other assistants and later the MP were killed and also accepted that the first applicant had a genuine belief that the EPDP had been involved. However, the IAA did not accept that the killers also targeted the first applicant or that they visited his home;
g)was satisfied that the first applicant’s involvement with the UNP ended in 2008 and recorded that it had no evidence that he had any interest in re-engaging with them. The IAA noted that while the first applicant said he stopped working for the UNP before the MP’s assassination and his father continued on, there was no evidence his father had been threatened or attacked since the shooting incident. Information before the IAA also recorded that the UNP had become part of the government;
h)was not satisfied that the first applicant’s father was facing harm or was of any interest to the authorities or the EPDP from his UNP involvement as there was no evidence to support the first applicant’s claim his father was still being monitored or what that entailed. The IAA also did not accept the claim that the father was at risk because of his activities as a Justice of the Peace as no evidence was presented that the father had been harassed or threatened because of his role. The IAA was therefore not satisfied that the first applicant was at risk of harm;
i)accepted that as the first applicant was a young Tamil male living in the Northern Province, he might have been subject to the harassment and threats claimed, but only opportunistically, and it was not satisfied that he was targeted because he was of adverse interest to authorities;
j)did not accept that the SLA had any ongoing interest in the first applicant such that they would constantly visit his house, search for him, question his relatives and confront him at his new workplace. Although it accepted that the first applicant had suffered threats and harassment as claimed, these were opportunistic incidents relating to business difficulties and not because of any adverse security or other profile. The IAA was not satisfied that the first applicant would be of any ongoing interest to the SLA or other government authorities;
k)accepted the first applicant’s claim that while working at his shop he was asked to pay bribes and was injured when he refused. However, the IAA was satisfied that this incident was simple extortion, not something arising out of the first applicant’s ethnicity or political profile, and that he would not face serious harm from the EPDP or similar groups if he returned to Sri Lanka;
l)was satisfied the first applicant did not face a real chance of harm from or was of any interest to the government, the SLA or any paramilitary or political organisations;
m)generally accepted the claims made by the second applicant and, although he did not make a specific claim of fearing harm because of his relationship with the first applicant, was satisfied that because the first applicant did not face a real chance of harm the second applicant did not either on account of their relationship;
n)accepted the third applicant’s claim that she had been harassed and distressed by the events surrounding the first applicant but, given that it was satisfied the first applicant did not face a real chance of harm, was of the view that it followed that the third applicant did not face a real chance of harm because of her relationship with him;
o)accepted the first applicant’s claim that his uncle was attacked in around May 2016 but was not satisfied that that was related to the applicants or that they would face a real chance of harm arising from that incident; and
p)accepted that there might be some instances of general harassment and threats against Hindus but took into account that the government was taking steps to rein in religious violence and was therefore satisfied that the applicants did not face a real chance of harm for being Tamil, Tamils from the North Province or Hindus.
PROCEEDING IN THIS COURT
In the further amended application the applicants alleged:
1.The decision of the second respondent Immigration Assessment Authority (the Authority) was affected by a jurisdictional error of the type identified in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37, in that the Authority failed to comply with s 473DD of the Act.
Particulars
(a)The applicant provided a letter from the first applicant's father to the Authority in support of his claims (the Letter).
(b)The Authority found that the information was new information and thus s473DD applied, but refused to consider the evidence on the basis that s4730D(a) was not made out in the circumstances;
7. On 20 October 2016, the primary applicant provided the IAA with a document in Tamil. The IAA advised the primary applicant that documents need to be translated in English. On 26 October 2016, the primary applicant provided an English translation to the IAA. The document is a letter from the primary applicant's father, dated 20 October 2016. This letter post-dates the delegate's decision and I am satisfied that it is new information. The applicants’ post-interview submission does not state that the applicants are seeking further information from Sri Lanka. The correspondence with the IAA does not explain why this letter could not have been provided before the delegate's decision. Having considered these factors, I am not satisfied that there are exceptional circumstances to justify considering this new information.
(c)The Authority failed to consider whether s 473DD(b)(ii) was satisfied and hence whether this could affect the consideration of whether s. s 473DD(a) [sic] was satisfied
(d)The error was material in that the letter contained a new claim about the Sri Lankan authorities’ continued adverse interest in the applicant
“The Sri Lanka politic change from SLFP to UNP. But no use us. Unknown peoples continuously came to my house and ask … about them.
Within three months period they came two times and asked about my … . Where are they? On … 2016 they close their faces by black textile. They told me, if your … family came to this village we will shoot them. In this threatening my family is living with afraid.”
(e)If the Authority had considered this new information it could have come to a different conclusion in the review.
2.The decision of the second respondent Immigration Assessment Authority (the Authority) was affected by jurisdictional error in failing to assess the first applicant's claims of being a witness to human rights abuses and atrocities.
Particulars
(a)The Applicant was forced to participate in the disposal of dead and still living but wounded Tamil person's bodies
40. Soon the army began bringing in dead people. and the dying. in the army trucks. These were Tamil people who had been attacked and killed by the army. We had to get those bodies and people out from the trucks. Some people were missing limbs and still alive. There was blood and flesh everywhere. The army would put the bodies into a bulldozer and take them away.
(b)The Authority found:
… In the post-interview submission, the primary applicant also refers to country information that suggests Tamils are at risk of abduction to deter them from testifying against the government in upcoming justice initiatives. The primary applicant submits that this is relevant given the atrocities he witnessed while working [at the army camp]. If this information is true, there is no evidence before me that the primary applicant witnessed atrocities being committed and while I accept that he was forced to help remove dead bodies from vehicles, he has never claimed to have witnessed any other activities, made any complaints or statements or taken any other action that could lead to his being targeted. I am satisfied that he is not at risk for any reason in relation to his duties … .
(c)The Authority did not dispute that the applicant was forced to dispose of dead bodies but did not consider about the applicant being forced to dispose of living but severely injured persons, and thereby misunderstood the factual basis underlying the seriousness of the claim.
(d)[abandoned]
(references omitted)
CONSIDERATION
Ground 1
The first ground of the (further) amended application relates to the letter from the first applicant’s father which the IAA did not consider because it did not believe that the circumstances warranted it. The applicants alleged that that amounted to a material failure by the IAA to observe the requirements of s.473DD of the Act and specifically s.473DD(b)(ii). They submitted:
30.If the Authority had considered this new information it could have come to a different conclusion in [sic] the review in that the new information was corroborative of his claims that the Sri Lankan authorities maintained an adverse interest in him.
The IAA’s reasoning for not considering the letter was set out in para.7 of its decision record, which the applicants quoted in their pleading. Their pleading also cited AUS17 v Minister for Immigration and Border Protection (2020) 94 ALJR 1007, where the High Court relevantly said that:
… the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). (at 1011 [12])
Section 473DD(b)(ii) required the IAA to consider whether the information set out in the letter was credible personal information that had not been known previously but, if it had been, might have affected the consideration of the applicants’ claims. The Minister accepted that the IAA had not considered whether the father’s letter was information of that sort and further accepted that the letter was not, on its face, incapable of meeting the relevant description.
In AUS17’s case, the High Court described a failure to assess information against, relevantly, s.473DD(b)(ii) as:
… a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a). (at 1011 [12] per Kiefel CJ and Gageler, Keane and Gordon JJ))
However, for such a breach to constitute jurisdictional error on the part of the IAA, the breach must give rise to a “practical injustice”, which will occur if the breach is material to the IAA’s decision: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 443 [38]. A breach of a duty will usually be material if discharging the duty could have resulted in the making of a different decision: Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780 at 788 [29]-[31].
Notwithstanding his concession that the IAA had failed to comply with s.473DD(b)(ii), the Minister submitted that the letter said nothing that had not been said previously in support of the visa application and that, because those matters were considered by the IAA, its s.473DD(b)(ii) error was not material to the outcome of the review. The materiality of the information in the letter is a matter to be determined objectively.
The relevant allegations in the letter were that:
a)the first and second applicants participated in election campaigning for the UMP and were threatened by armed groups.
The first applicant declared in paras.30 and 31 of his 6 May 2016 statutory declaration submitted in support of the visa application that his family supported the UNP and he did too, campaigning with his father in 2006. In para.31 of his statutory declaration the first applicant alleged that in 2006 he and his father had been shot at while delivering election supplies for the UNP. The IAA considered this evidence at paras.18 and 19 of its decision record and concluded that although it was prepared to accept that the first applicant had been involved in a shooting incident as he claimed, neither he nor his father had been the targets. It was satisfied that the first applicant was not a person of interest to the authorities, paramilitary or political groups in Sri Lanka.
In paras.19, 20 to 24 of his statutory declaration of 6 May 2016 submitted in support of the visa application, the second applicant alleged that in 2010, presumably late 2010 as the poll was declared in 2011, he had been campaigning for the UNP MP’s wife and, also in late 2010, he had been abducted for a period, questioned about his family’s political activities and told:
… you people are working for UNP and we cannot guarantee the safety of your life.
The IAA considered these claims at para.35 of its reasons and accepted that unknown people had taken the second applicant to the jungle and asked him questions about the work his family had been doing for the UNP. However, it rejected the proposition that the questioners had been soldiers and went on to conclude that, notwithstanding subsequent visits to the family home by unknown persons, referred to below, the second applicant did not face a real chance of harm from the EPDP or from any other paramilitary or political group on the basis of his family’s involvement with the UNP.
b)on … 2012 the family home was visited by “unknown persons”.
This claim was made in para.32 of the first applicant’s statutory declaration and was considered at para.19 of the IAA’s reasons. A claim to this effect was also made by the second respondent in para.36 of his statutory declaration and considered at paras.36 and 37 of the IAA’s reasons. Significantly, the IAA accepted that unknown persons may have come to the house but it did not accept that they had intended harm to the first or the second applicants.
c)the house was visited on several more occasions after the applicants had left for Australia and on … 2016 “they” came and asked the father about [family] and threatened to shoot them if they returned to the village.
Claims that people came to the father’s home looking for the applicants, implicitly after they had left Sri Lanka, were made in para.85 of the first applicant’s statutory declaration and para.45 of the second respondent’s statutory declaration and were considered by the IAA at paras.29 and 37 of its reasons.
The allegations contained in the letter were not wider in scope nor, apart from the reference to 2016, more particular than the allegations the applicants made themselves. Moreover, although the IAA accepted that:
a)the first and the second applicant had been involved in incidents with people who met the description “unknown arms group”;
b)people meeting the description “unknown peoples” did come to the family home; and
c)after reciting the second applicant’s allegations that unknown people came to the house, including masked people on three occasions in 2012, the IAA made a comprehensive finding at para.37 of its reasons that it accepted that “unknown persons may have come to the house”,
it concluded, based on other material available to it, that those events did not carry the significance that was contended for them.
The IAA did not deal specifically with the allegation in the letter that masked individuals came to the family home in 2012 asking after the applicants and making threats. However, that allegation was really no more than a repetition of and elaboration on the allegations made by the first and second applicants that unknown people came to the house before and after they left Sri Lanka in 2012. Those claims were rejected by the IAA at para.29 of its reasons where it said:
As I am satisfied that the primary applicant is not a person of interest to the authorities, paramilitary or political groups, I do not accept the claims that the authorities or any of these groups have been seeking the primary applicant since he left Sri Lanka in 2012
and in para.37, where it said:
I have found that the primary applicant ceased his involvement with the UNP prior to 2008 and was not a person of interest to the EPDP. It is also implausible that the EPDP would be searching for the primary applicant (who was no longer active) but not trying to locate/threaten the father (who was still an active UNP supporter). While I accept that unknown persons may have come to the house, I do not accept that they were EPDP, that they were searching for the primary applicant to harm him or that they threatened to abduct or harm the third applicant. …
The letter said nothing more, in substance, than the applicants had already said to the Department and there is no reason to think that the IAA might have been led to a conclusion different from the one it reached had it taken into account the letter’s expression, albeit in different terms, of claims already made.
For those reasons I find that the IAA’s error in failing to consider whether the letter met the test in s.473DD(b)(ii) of the Act was not material to the outcome of the review. I consequently find that that error does not justify the granting of constitutional writs.
Ground 2
The second ground of the (further) amended application alleged that the IAA had not considered a claim made by the first applicant to the effect that he witnessed atrocities and Tamils were at risk of abduction, and thus harm, to deter them from testifying to such events.
Witness to atrocities
The claim to have witnessed atrocities was said to have been made in the first applicant’s statutory of 6 May 2016 in which he stated:
37.Sometime in the end of 2008, early 2009, the curfew was over but we would still be checked by police or army on the road whenever we went anywhere. ...
38.… the army … would wait for us … and take us. You can't say no to the army so we had to go.
…
40.Soon the army began bringing in dead people, and the dying, in the army trucks. These were Tamil people who had been attacked and killed by the army. We had to get those bodies and people out from the trucks. Some people were missing limbs and still alive. There was blood and flesh everywhere. The army would put the bodies into a bulldozer and take them away.
…
42.During that time there was UNHCR and ICR people functioning in the area, everyone knew what was going on. Some army officials videoed, quietly, the people and the bodies. They are now selling the videos. (emphasis added)
The applicants submitted that it was implicit in that evidence that the wounded and dead were Tamil victims of war and that in order to be out of sight of NGOs who were in the local village but not in the army camp, the disposal of the bodies was undertaken in the camp. In support of that interpretation, the applicants relied on the following passage from a transcript of the first applicants’ interview with the Delegate:
Interpreter: … whether we like it or not when they ask something we have to oblige and go and do their work. OK so we're supposed to do that work … for them, but when they take us to do their work, but at the same time they will ask us to unload the dead bodies and those sort of
Case officer: so when you went to do … work for the army was that at the Army base
Interpreter: OK so it's inside the army camp so as we enter like yeah they will take our IDs and everything.
Case officer: OK that's I was a bit confused… but now I understand, yeah, it was at the Army base
Interpreter: Say like in that place when we were working like yeah all international aid workers like the companies were there, like ICRC, UNHCR and all the officers were in that village.
The applicants submitted that the evidence was to the effect that the first applicant had witnessed the handling of living people as well as corpses, the implication being that persons who were still alive were placed, with the corpses, on bulldozers to be, presumably, buried alive. The applicants submitted that amongst the first applicant’s claims was one that he had witnessed living people being placed on bulldozers which, they argued, the IAA had failed to consider.
Risk of abduction
The significance of the first applicant having allegedly witnessed living people being placed with corpses onto bulldozers, presumably to be killed, was said to lie in the risk of harm faced by people who witnessed atrocities committed by an arm of the Sri Lankan government. In their written submissions in support of the visa application, the applicants’ representatives relevantly said:
43.The International Truth and Justice Project Sri Lanka report outlined that the 2015 victims interviewed were often tortured:
“To maintain control over the Tamils through an atmosphere of oppression and tyranny and deter them from testifying against the government in upcoming justice initiatives.”
44.This is relevant given the atrocities witnessed by the applicant … in 2009.
The risk said to be posed to the first applicant because of what he saw at the army camp was, it was submitted, identified in the UN High Commissioner for Refugees publication UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum- Seekers from Sri Lanka, 21 December 2012, to which the IAA referred at footnote 9 of its decision record. A copy of a portion of those guidelines was annexed to Mr Taylor’s 28 February 2021 affidavit and stated in part:
A.5Certain Witnesses of Human Rights Violations and Victims of Human Rights Violations Seeking Justice
Observers have expressed concern over the absence of an effective mechanism to ensure the protection of and assistance to witnesses and victims of human rights violations and abuses. The UN Committee against Torture expressed concern in its November 2011 Concluding Observations about impunity in the cases of attacks, including against witnesses. This has an impact on the regular judicial system, but has also affected the LLRC [Lessons Learnt and Reconciliation Commission] proceedings.
Persons seeking justice after mistreatment by the police have reportedly been harassed and received threats, in an attempt to make them withdraw their cases. In August 2012, a complainant of a human rights violation was reportedly arrested and tortured by the police in Negombo. In February 2012, a Tamil businessman was reportedly abducted in Colombo, two days before the scheduled hearing in his Fundamental Rights case. He had reportedly filed a Fundamental Rights petition with the Supreme Court against the police concerning torture during 28 months of detention after his arrest in 2009. It was also reported that he had filed a petition with the Secretariat of the UN Committee Against Torture. Before and during the session of the UN Human Rights Council (HRC) in Geneva in March 2012, harassment and intimidation of human rights defenders, activists and NGO-workers engaging with the HRC process were reported by different sources. …
… Observers have also noted with concern that the LLRC lacks witness and victim protection mechanisms. Cases of hardship and subsequent harassment faced by civilians who testified before the LLRC have been reported, including the case of a witness who was summoned for an interview by the Criminal Investigation Department after having given evidence to the LLRC. Witnesses have reportedly been photographed by members of the security forces during LLRC sessions. In Jaffna, witnesses have reportedly been threatened by armed men.
Persons of the above profile are, depending on the individual circumstances of the case, likely to be in need of international refugee protection on account of their (perceived) political opinion. Ethnicity may also play a role. Depending on the circumstances of each individual case, the same may apply to family members and other dependants of individuals with the above profile. It should be kept in mind that nobody can be expected or required to suppress their political views to avoid persecution. This profile may overlap with the previous profile for human rights defenders or activists who seek to make use of national legal proceedings or international human rights mechanisms.
(references omitted) (emphasis added)
The applicants submitted that this was evidence before the IAA that being a witness in Sri Lanka to conduct of the sort witnessed by the first applicant was sufficient to generate a risk of harm to that witness.
IAA finding
The IAA relevantly found:
26.… In the post-interview submission, the primary applicant also refers to country information that suggests Tamils are at risk of abduction to deter them from testifying against the government in upcoming justice initiatives. The primary applicant submits that this is relevant given the atrocities he witnessed while working [at the army camp]. If this information is true, there is no evidence before me that the primary applicant witnessed atrocities being committed and while I accept that he was forced to help remove dead bodies from vehicles, he has never claimed to have witnessed any other activities, made any complaints or statements or taken any other action that could lead to his being targeted. I am satisfied that he is not at risk for any reason in relation to his duties … .
Discussion
The applicants submitted that the IAA did not dispute that the first applicant had been forced to dispose of dead bodies but failed to consider his claim that he had been forced to dispose of living but severely injured persons. They argued:
The disposal of the wounded living and dead bodies of victims of atrocities is itself part of the atrocity.
However, the first applicant’s evidence did not go so far as to say that he had witnessed the occurrence of an atrocity. He said that he helped to remove “bodies and people” from the buses and that the army “would put the bodies into a bulldozer” but he did not say that living people were put on bulldozers. The IAA correctly understood that to have been the case when it summarised in the following terms the first applicant’s evidence on this issue:
At about the same time, the … primary applicant was sent to the SLA camps to … work. Sometimes … trucks were being used to carry dead bodies and he was forced to unload the bodies and put them onto bulldozers. … .
That is to say, the IAA was correct to conclude that it had no evidence:
… that the primary applicant witnessed atrocities being committed and while I accept that he was forced to help remove dead bodies from vehicles, he has never claimed to have witnessed any other activities …
The applicants submit in this proceeding that disposal of dead bodies was “itself part of [an antecedent] atrocity” but they were represented at the departmental stage and did not make that claim to the Delegate. Rather, their submission, quoted earlier, referred to “the atrocities witnessed by the applicant while working … in 2009”, which limited the claim to conduct witnessed at the camp. There was no error in the IAA not considering the wider claim concerning an antecedent atrocity now propounded for the first time: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at 479 [1]; SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 at 35 [37]; SZRPA v Minister for Immigration and Citizenship [2012] FCA 962 at [10] and [26]; SZQFR v Minister for Immigration and Citizenship [2013] FCA 574 at [57]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at 513, 514 [30], [31].
The other element of the applicants’ second ground was a contention that witnessing atrocities in the army camp was sufficient to give rise to a justified fear of harm. In support of that argument reference was made to the UNHCR guidelines quoted earlier, the relevant section of which commences with the following words:
Observers have expressed concern over the absence of an effective mechanism to ensure the protection of and assistance to witnesses and victims of human rights violations and abuses. The UN Committee against Torture expressed concern in its November 2011 Concluding Observations about impunity in the cases of attacks, including against witnesses. …
That passage would, without more, suggest that witnessing certain events would justifiably lead to a fear of consequential harm. However, a fuller reading of the section makes it clear that the witnesses of whom it speaks are people who give evidence, make claims or otherwise bring human rights abuses to public attention. The passages set out in the box in the quotation most relevantly:
Persons of the above profile are, depending on the individual circumstances of the case, likely to be in need of international refugee protection on account of their (perceived) political opinion …
show that to be so. That section of the guidelines is concerned with individuals to whom are imputed political opinions by reason of their advocacy or complaints.
It should be noted that the first applicant gave no hint of ever having wanted to speak publicly or make a complaint about his alleged experience or of having actually done so. On the evidence, there is also no reason to believe that he was censoring himself. It is difficult to see how a person who sees an atrocity committed by the Sri Lankan army but does nothing is likely to be imputed with a political opinion adverse to the Sri Lankan government or to need protection on that account.
The first applicant did not fall into the class of persons the UN Guidelines identified as potentially being at risk of harm as witness to human rights violations and abuses. As a consequence, even accepting for the sake of argument that he saw an atrocity at the army camp, however described or characterised, I am not persuaded that the IAA erred by not considering the applicant’s circumstances by reference to those guidelines.
CONCLUSION
Jurisdictional error on the part of the IAA has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 10 May 2021
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