Bui17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 170
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)BUI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 170
File number(s): MLG 838 of 2017 Judgment of: JUDGE SYMONS Date of judgment: 18 March 2022 Catchwords: MIGRATION – application for judicial review of decision of the Immigration Assessment Authority – where Authority made findings that were more favourable to the applicant than the delegate – where Authority not satisfied as to aspects of claims due to lack of evidence – whether decision of Authority not to interview applicant unreasonable – where applicant made claims concerning the impact on him of short-term detention – where claims not considered by the Authority – where assessment of risk miscarried – application allowed Legislation: Migration Act 1958 (Cth) ss 36, 473A, 473CB, 473CC, 473DB, 473DC, 473FA) Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
AKU18 v Minister for Home Affairs [2019] FCA 267
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34
BXZ16 v Minister for Immigration and Border Protection [2020] FCA 750
CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641
DFW16 v Minister for Immigration and Border Protection [2018] FCA 746
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12
FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124
Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423; [2018] FCAFC 225
Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 21
Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610; [2015] HCA 22
Minister for Immigration and Multicultural Affairs v SBAA [2002] FCAFC 195
SZVRQ v Minister for Immigration and Border Protection [2020] FCA 375
Division: Division 2 General Federal Law Number of paragraphs: 81 Date of last submission/s: 31 January 2022 Date of hearing: 31 January 2022 Place: Melbourne Counsel for the Applicant Mr J Murphy Solicitor for the Applicant Victoria Legal Aid Counsel for the First Respondent Ms L Mills Solicitors for the Respondents Mills Oakley ORDERS
MLG 838 of 2017 BETWEEN: BUI17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE SYMONS
DATE OF ORDER:
18 MARCH 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The application filed on 27 April 2017 and amended on 23 December 2021 is allowed.
3.The decision of the Immigration Assessment Authority dated 31 March 2017 be quashed.
4.A writ of mandamus issue requiring the Immigration Assessment Authority to determine the applicant’s application according to law.
5.The first respondent pay the costs of the applicant in an amount to be determined following receipt of submissions from both parties.
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 SYMONS
INTRODUCTION AND BACKGROUND
By an application filed on 27 April 2017 and amended on 23 December 2021, the applicant seeks judicial review of a decision of the second respondent (“the Authority”) made on 31 March 2017. The Authority affirmed a decision of a delegate of the first respondent (“the Minister”) to refuse the applicant a Safe Haven Enterprise (Subclass 790) visa (“the visa”). The first respondent (“the Minister”) opposes the application. The Authority enters a submitting appearance and has not participated in the proceeding.
The applicant is a citizen of Sri Lanka who first arrived in Australia on 7 September 2012. The applicant made an application for a Protection (Class XA) visa on 6 November 2013 but his legal status as an unauthorised maritime arrival for the purposes of the Migration Act 1958 (Cth) (“the Act”) meant that this application was invalid.
The Minister subsequently “lifted” the bar imposed by s 46A(1) of the Act and on 28 October 2015 invited the applicant to apply for the visa.
The applicant made an application for the visa on 14 July 2016 with the assistance of a lawyer and registered migration agent.
In a statutory declaration made on 6 November 2013 that was provided with his visa application (“original statutory declaration”), the applicant made claims, including that:
(a)he is an ethnic Tamil who was born in Panichchavil, in the Puttalam district in the north western province of Sri Lanka;
(b)sometime in 2004, the applicant began working for his father who used to lease a van to transport passengers and goods;
(c)on 22 July 2005, the applicant offered to help a man named S to transport (using his father’s van), what the applicant understood to be a load of salt;
(d)on the journey towards Puttalam, the applicant and S were stopped at a police check point. The police officers searched the van and found weapons. The applicant and S were arrested and forced into the police jeep but later escaped and made their way eventually to a house close to the shore of the coastal village of Kattuwa;
(e)the applicant was told by S that he should not attempt to leave the house or escape and if he did he would be shot and killed;
(f)the applicant remained in the house for 5 or 6 months alongside a few other Tamil speaking men who the applicant believed were LTTE members or underworld figures involved in the smuggling of weapons;
(g)the applicant travelled to Dubai on a number of occasions. On the first occasion (April 2006), the applicant was denied entry and returned to the house in Kattuwa. On the second occasion (May 2006), the applicant gained entry to Dubai and remained there until August 2010. While in Dubai, the applicant learnt that S had been shot and killed, sometime in 2008.
(h)the applicant travelled to and lived in Dubai on a further two occasions. He returned to Sri Lanka in October 2011. A few days prior to Christmas in 2011, armed men came to the applicant’s family home in the early morning. The applicant hid in the ceiling and the men left without locating him. The applicant’s father believed the men were members of an underworld gang.
(i)after this incident, the applicant kept moving between friends’ and relatives’ homes. He was always on the move. He learnt through his father that Sri Lankan CID officers had come in search of the applicant a few times in March 2012.
(j)in April 2012, the applicant travelled again to Dubai on a tourist visa. However, he returned to Sri Lanka in June 2012 as he was not able to stay for long.
(k)upon the applicant’s return to Sri Lanka, he learnt that the CID and members of an armed gang had come in search of him while he was in Dubai. He moved between friends’ and relatives’ homes again before fleeing Sri Lanka for Australia in August 2012.
(l)the applicant apprehends that he is at risk of being targeted by the Sri Lankan police and the CID as they suspect he had dealings with an underworld gang and assisted the LTTE when he drove the van containing weapons. The applicant also fears harm at the hands of the men who occupied the house in Kattuwa.
The applicant confirmed and clarified, in limited respects, the information contained in the original statutory declaration in a statutory declaration made on 5 July 2016 (“second statutory declaration”). The applicant clarified that during his captivity in the house in Kattuwa, he had attempted to escape but had been captured and severely beaten on his return to the house.
The applicant was invited on 24 November 2016 to attend a protection visa interview. Prior to this occurring, on 9 December 2016, the applicant’s representative provided the Department with a further statutory declaration of the applicant made on the same date (“third statutory declaration”). In the third statutory declaration, the applicant disclosed for the first time that he had suffered sexual abuse while held in the house in Kattuwa. The applicant described how he had been systematically raped by people in the house (aside from S) who were often affected by drugs and alcohol. The applicant also claimed that on the occasion that he tried to escape the house, he was beaten severely and now bears scars on his legs from the incident. The applicant explained that he had not disclosed this information before because he found the subject difficult to talk about and felt very ashamed.
The applicant attended the protection visa interview on 12 December 2016. On 20 December 2016, the applicant’s representative provided the Department with written submissions including country information, a copy of the death certificate of S (with translation) and a statement from the applicant providing an explanation about the death certificate. The written submissions, which ran to 23 pages, addressed a number of topics including, concerns raised by the delegate about the plausibility of the applicant’s claim that he was detained in a house in Kattuwa by men he believed to be members of a gang involved in weapons smuggling, the plausibility and credibility of the applicant’s claims to have been sexually abused while in detention and the concerns raised by the delegate at interview that the applicant was able to travel to Dubai on many occasions in circumstances where the CID was said to be looking for him.
A delegate of the Minister refused the application for the visa on 20 February 2017. The delegate found that the applicant was not a credible witness and had falsified his claims in an attempt to enhance his application for a protection visa. The delegate did not accept any part of the applicant’s account of events in Sri Lanka. The delegate assessed the extant claims concerning the applicant’s status as a failed Tamil asylum seeker who had departed the country illegally but was not satisfied, having regard to country information and the applicant’s profile, that he was at risk of suffering relevant harm upon any return to Sri Lanka.
On 23 February 2017, the delegate’s decision was referred to the Authority by operation of s 473CA of the Act. The review was subject to, and governed by, Part 7AA of the Act.
On 16 March 2017, the applicant’s representative provided to the Authority a statement of the applicant dated 16 March 2017 which was described as “responding to the findings of the delegate”, country information on Sri Lanka and a legal submission which was said to set out why the decision of the delegate to refuse the applicant a visa was factually and legally incorrect.
In the legal submission, a request was made that the applicant “be given an in-person hearing to provide detailed evidence in support of his claims for protection in Australia, particularly as his claims were dismissed on the basis that they lacked credibility and were not properly explored by the delegate during the hearing”. The submission further requested that if the Authority held any concerns with the applicant’s credibility, he be afforded an in-person interview with the Authority.
On 31 March 2017, the Authority made a decision to affirm the decision of the delegate.
THE DECISION OF THE AUTHORITY
The Authority set out, between [4] and [9] (CB 263-264), “the information before the IAA”. In this section of the written statement, the Authority dealt with the material provided on 16 March 2017 (refer [11] above) and found, either because the material was not “new information” or because it satisfied s 473DD of the Act, that all of the material could be considered.
At [9] (CB 264), the Authority responded to the request that the applicant be granted an interview. This response is relevant to ground 1 and is, for this reason, set out below in full. It reads:
[9]The applicant also asked for an interview with the IAA on the basis that the delegate had made adverse findings as to credibility and had not “properly explored” the claims. Section 473DB of the Act provides that subject to Part 7AA, the IAA must review decisions on the papers without interviewing the applicant. Section 473DC also provides that the IAA does not have a duty to get, request or accept any new information, whether the IAA is requested to do so by an applicant or in any other circumstances. The IAA may only consider new information in limited circumstances. Furthermore, there is no statutory entitlement to a hearing. The applicant was assisted by a migration agent and a support person at the interview with the delegate. The delegate raised significant concerns about the applicant’s claims at the interview, explained the reasons for his concerns and invited the applicant to provide further information. The applicant provided some further information. I am satisfied that the relevant issues of credibility and probative evidence were identified in the interview and I am not satisfied that a further interview with the applicant is necessary or required in the circumstances.
At [10] (CB 264-265), the Authority identified the applicant’s claims and at [13] (CB 265) the Authority accepted that the applicant was a Tamil Christian from the North Western Province of Sri Lanka.
The Authority dealt first with what it described as the “incident in 2005”. The Authority set out the applicant’s evidence directed at this claim, characterising it as “consistent” ([14] CB 265). The Authority considered it plausible that the applicant was contracted to transport goods without knowing that these concealed weapons and accepted that the applicant was an unwitting participant in the smuggling incident and that he was able to escape from the police as he had claimed ([18], [19] CB 266).
However, the Authority found the applicant’s claims to have been imputed by the authorities with involvement with the LTTE and/or a criminal gang as a result of this incident and that the CID had been searching for him since 2012, to be implausible. This conclusion reflected the following considerations:
First, it was implausible that the police would not have questioned the owner of the vehicle and discovered that the applicant’s father had leased it. Yet, the applicant had not claimed and there was no evidence before the Authority that the police had ever visited the applicant’s home, spoken to his parents or siblings, or made any other enquiries in relation to him until six years after the incident ([20] CB 267).
Second, the applicant’s ability to leave and return to Sri Lanka on his own passport on a number of occasions. The Authority considered it implausible that a person suspected of involvement in a weapons smuggling operation would not be on a “stop” list or detained, or at the very least, visited, at home. The Authority found that there was “no evidence that the CID or police made any visits or enquiries, nor any evidence that the applicant’s parents or siblings were ever asked about him or his whereabouts between 2006 and March 2012” ([23]-[24] CB 267-268). The Authority was satisfied that the authorities had never identified the applicant as the driver of the van and had not been and were not now searching for him ([24] CB 268).
The Authority next dealt with what was described as “detention in 2005/2006”. The Authority in this context recorded a number of findings that were favourable to the applicant and which involved a departure from the approach taken by the delegate. The Authority:
(a)was prepared to accept that S was involved in either a paramilitary or a criminal group ([27] CB 268);
(b)was prepared to accept that the applicant was detained and mistreated as he claimed and suffered beatings and sexual abuse while he was in the house at Kattuwa ([28] and [29] CB 269); and
(c)accepted that S kept the applicant detained as he may have been able to identify S to the police and that the applicant has a genuine fear that the other gang members may want to harm him ([31] CB 269).
However, the Authority did not accept the applicant’s claim that members of S’s group were now (or had been historically) searching for him. This claim was rejected because (in the Authority’s own words), “there is no evidence before me and the applicant has not claimed that these men [the men at Kattuwa] are the same ones that he believes came searching for him in 2011” ([30] CB 269). The reasons also emerge from [31] (CB 269), relevant parts of which state:
[31] …however, the applicant departed Sri Lanka in 2006. He returned in 2010 for a visit and his evidence is that he was not targeted by any persons during that period. The first claimed incident did not occur until December 2011, over five years after he left Sri Lanka and three years after S was killed. The applicant did not see the gang members during the weapons incident and he has not claimed that he witnessed them undertaking any criminal activities other than the assaults against him personally. He does not know any details about these men other than some of the names they used. I consider it is implausible that these gang members would now be searching for the applicant to harm him because of his knowledge of S’s involvement in the weapons incident. I have also considered that the gang members were based in Negombo and the applicant and his family live in Puttalam. He has not claimed that these men had any links with Puttalam. I consider it is implausible that the gang members would, after five years, suddenly become aware that the applicant was back in Puttalam and attempt to track him down. I do not accept the claims that underworld figures have been searching for the applicant and I am not satisfied that the applicant faces a real chance of harm from members of S’s group or any other underworld group.
In relation to the applicant’s Tamil ethnicity, the Authority accepted that as a Tamil the applicant had a subjective fear of arrest, detention, disappearance and mistreatment at the hands of Sri Lankan authorities ([33] CB 269). The Authority referred to country information concerning the mistreatment of people imputed with LTTE connections ([33]-[35] CB 270) and was satisfied that the applicant did not have any links, association or imputed profile whatsoever that would bring him to the attention of authorities ([36] CB 271). The Authority noted that the applicant had not claimed his family had been dispossessed, that his father was prevented from working or that he had ever been harassed or threatened for being a Tamil ([37] CB 271). The Authority relied on country information, the applicant’s own evidence and its finding that the applicant was not of ongoing interest to authorities to conclude that the applicant did not face a real chance of serious harm on the basis of his ethnicity ([38] CB 271). The Authority found that the applicant did not face a real chance of serious harm on the basis of being a Tamil or Tamil from the North West ([39] CB 271).
The Authority considered the applicant’s claims to fear harm arising from his illegal departure and profile as a returned asylum seeker. The Authority accepted that, as a person who had left Sri Lanka unlawfully, the applicant may be questioned on return and subject to an interview and contact made with the police in his home area. However, as country information indicated that returned asylum seekers and those with an otherwise low profile were not generally at risk of harm on return to Sri Lanka, the Authority found that there was not a real chance that the applicant would be harmed or mistreated because he was a returning asylum seeker ([41] CB 271-272).
The Authority found there was a real chance the applicant would be charged and fined under the Immigrants and Emigrants Act 1949 (“I & E Act”) but was satisfied that as he did not have any profile with authorities, the applicant would not be treated differently to any other returnee ([43] CB 272). It found that if he pleaded not guilty, the applicant would be bailed on personal surety. The Authority was satisfied that there was no prospect of the applicant being given a custodial sentence and accepted he may be fined but this would not cause economic hardship or otherwise constitute serious harm ([43] CB 272). The Authority considered country information regarding prison conditions in Sri Lanka and was satisfied that even if the applicant was held in short detention in prison, the provisions and penalties of the I & E Act were laws of general application. It was satisfied that if the applicant was detained, fined and questioned this would be the exercise of laws of general application that apply to all Sri Lankans equally ([44] CB 272). The Authority was not satisfied that the applicant would face a real chance of serious harm for the reasons he claimed.
The Authority gave separate consideration (between [47]-[54] CB 273-274) to whether the applicant satisfied s 36(2)(aa) of the Act. As two of the three grounds pressed by the applicant are concerned with this analysis it suffices at this stage to record that the Authority was not satisfied that any of the claims advanced by the applicant engaged Australia’s complementary protection obligations.
PROCEEDINGS IN THIS COURT
In accordance with procedural orders made by the Court on 8 November 2017, the applicant filed an amended application and outline of submissions on 23 December 2021. On 5 January 2022, the applicant filed an affidavit of Walid Babakarkhil which annexed a transcript of the applicant’s interview with a delegate of the (then) Minister for Home Affairs. The affidavit was received without objection from the Minister. I also received, and have treated as an aide-memoire, a document prepared by the applicant’s counsel, which identified parts of the court book said to be relevant to ground 1 of the amended application.
On 13 January 2022, the Minister filed an outline of written submissions.
When the application came before me for final hearing on 31 January 2022, Mr Murphy, counsel for the applicant, informed the Court that he no longer pressed ground 2 of the amended application. Accordingly, this decision deals with the extant grounds only, being grounds 1, 3 and 4.
APPLICATION GROUND 1
Ground 1 of the amended application is as follows:
1.In failing to invite the Applicant to an interview or to otherwise provide new information, the Immigration Assessment Authority (IAA) unreasonably failed to exercise its powers to get new information in s 473DC(3) of the Migration Act 1958 (Cth) (Act) or unreasonably performed its duty to conduct the review in s 473CC of the Act.
Particulars
(i)It was a jurisdictional limit of the IAA’s duty to conduct a review, and of its power to get new information, that the IAA act reasonably.
(ii)The Applicant requested that the IAA interview him in relation to his claims.
(iii)The IAA affirmed the decision under review without interviewing the Applicant.
(iv)The IAA’s failure to interview the Applicant was unreasonable in all of the circumstances of the case, including that:
a.the IAA’s decision was based on entirely different grounds to the delegate’s decision;
b.the IAA’s decision was based upon a purported omission or absence of evidence that was not identified by the delegate at interview or in the delegate’s decision, and thus that the Applicant had no opportunity to respond to, correct or explain; and
c.the Applicant had shown himself to be capable of promptly, comprehensively and persuasively responding to purported inconsistencies, omissions or implausibilities in his claims and thus an invitation to attend an interview or otherwise provide new information was likely to be productive.
Applicant’s submissions
The applicant submits that the alleged unreasonableness in his case requires an appreciation of “the almost complete change in approach to the applicant’s evidence as between the delegate (who completely rejected it) and the IAA (who almost completely accepted it)”. The applicant submits that the IAA rejected his claim of ongoing risk of harm on the basis, largely, of an absence of evidence and that this concern or “issue” was not exposed to the applicant and/or the subject of any exploration, including at the hearing conducted by the delegate. The applicant submits that in these circumstances, it was unreasonable for the IAA not to invite the applicant to give new information. In circumstances where the applicant’s legal representatives had been “timely, diligent and comprehensive” in their submissions to the Department and the Authority, any delay caused by a request for an interview or further submissions, or evidence was unlikely to be lengthy.
The applicant places particular emphasis on what was described as his demonstrated capacity throughout the history of his visa application and review process, to provide information capable of allaying initial credibility concerns. This was said to be evident from the fact that the delegate had rejected aspects of the applicant’s account, based on perceived inconsistencies, omissions and/or implausibilties in things he said in his interview with the delegate and other material the applicant had provided and that, based (in part) on submissions and a statement subsequently provided by the applicant, the IAA had made “much more favourable” credibility findings. The applicant submitted that assessed against this procedural background, the purported rejection by the Authority of aspects of the applicant’s account based on “newly identified alleged omissions and implausibilties” without satisfying itself that the applicant was incapable of responding to those perceived omissions and implausibilties, was unreasonable. Put another way, good administrative decision-making demanded that the Authority take the applicant’s proven “track-record” into account.
The applicant relies on the transcript of the hearing before the delegate to make good the proposition that the specific concerns that made their way into the Authority’s decision (especially at [20], [23], [30] and [31] of the written statement of reasons) were not previously identified for or explored with, the applicant. At hearing, the applicant resisted the suggestion that the “issue” of the lack of interest in him by authorities was a matter that had been raised by the delegate and the subject of a response provided by his representative in written submissions to the Department that addressed the concern that the applicant’s ability to travel to Dubai on many occasions would not have been possible if the CID was looking for him (CB 197). Instead, the applicant’s counsel, Mr Murphy, submitted that the identification of the “issue” and the corresponding response was quite specific to the mechanics of the arrival/departure process. It did not, for example, comprehend or extend to matters such whether there was evidence that the applicant or his family had ever been served with an arrest warrant. This was significant because the Authority had rejected the applicant’s claims, at least in part, because there was no evidence that this had occurred (see [23] CB 268).
The applicant submits that his case is legally analogous with the case considered by the High Court in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 (“ABT17”). He contends that here (like in ABT17), the unreasonableness lies in the Authority’s failure to supplement the review material, including by obtaining the applicant’s response to the perceived omissions and implausibilites identified by the Authority in the applicant’s further written material. The applicant also relies on the decision in DFW16 v Minister for Immigration and Border Protection [2018] FCA 746 (“DFW16”), in which (the applicant submits) the Authority was held to have unreasonably failed to consider exercising its powers to invite the applicant to comment on the apparent inconsistencies it had identified as arising in its own decision-making process and in circumstances where the applicant had introduced new material at the stage of the Authority review.
Minister’s submissions
The Minister emphasised certain features of the statutory scheme created by Part 7AA of the Act. Section 473DC(2) expressly provides that the Authority “does not have a duty to get, request or accept, any new information…in any…circumstances”. Under s 473DB(1) (and subject to Part 7AA) the Authority is obliged to review a fast track reviewable decision by considering the review material provided to it under s 473CB “without accepting or requesting new information” and “without interviewing the referred applicant”. The heading to s 473DB describes the Authority’s functions as involving review “on the papers”. Section 473FA requires that the Authority, in carrying out its functions under the Act, is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).
These provisions have been interpreted such that s 473DC(3) does not confer upon the Authority a general power to invite an applicant to an interview to explain his or her claims (referring to DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at [72]) and the statutory scheme expressly contemplates review decisions being made on the basis of information the significance of which the review applicant is unaware (referring to CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [56]).
The Minister submits that the Authority’s decision was based on the evidence given by the applicant, which was largely accepted. It was not based on adverse credibility findings. With respect to the lack of police or CID enquiries before 2012, the Authority’s findings were also not based on implausibilities.
The Minister notes that the Authority turned its mind to the discretion in s 473DC and declined to invite the applicant to attend an interview because it was satisfied that the relevant issues, including probative evidence, were identified at the interview before the delegate. In these circumstances, it was not incumbent on the Authority to invite the applicant to attend an interview to explain his claim, or to make additional claims, that the police or the CID had made enquiries earlier.
The Minister referred to a passage from the delegate’s decision (CB 221) in which it was noted that the CID had sought the applicant at his family’s home in mid-2012 and that the fact that the applicant was able to leave Sri Lanka and return home through normal immigration controls without incident undermined the claim that he was wanted by the authorities on suspicion of smuggling weapons. Given this reference, the Minister submitted that the lack of police inquiries before 2012 (the subject of ground 1) was not a new issue before the Authority. Further, whether the applicant had shown himself to be a person capable of allaying initial credibility concerns was not relevant, given the Authority did not determine any alleged new issue by making credibility findings. Instead, the proper characterisation of the Authority’s approach was that it considered the applicant had not claimed that the police or the CID had made enquiries before 2012.
To the extent that the applicant identified the lack of evidence about reprisals from the gang members as a “new issue”, the Minister’s counsel, Ms Mills, referred the Court to pages of the transcript of the protection visa interview which were said to involve the sufficient raising of the issue.
Consideration of application ground 1
Authorities on the metes and bounds of legal unreasonableness recognise that there is a degree of overlap with procedural fairness. However, as the majority in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 cautioned, the “procedural fairness analysis is not the ‘lens’ through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Part 7AA is to be determined”.
The careful, forensic, framing of ground 1 by the applicant, respectfully, overlooks this caution and instead involves an “issues” based analysis by which the applicant essentially contends that the Authority’s failure to afford him a further opportunity to perfect his claims and evidence was legally unreasonable.
The question of whether the Authority’s decision not to exercise the discretion under s 473DC(1) of the Act to get information from the applicant was unreasonable must be considered by reference to the reasons actually given by the Authority.
Those reasons, which are reproduced in full at [15] above, indicate that the Authority gave consideration to the applicant’s request for an interview, but rejected the request having satisfied itself that the applicant had been afforded opportunities (when his matter was before the delegate) to respond to identified concerns directed at his credibility and at his evidence. The applicant provided responses during that interview process and subsequently, through the provision of submissions to the Department dated 20 December 2016 and submissions and a statement of the applicant to the Authority dated 16 March 2017.
While there might not be perfect symmetry between the dispositive issues that were identified in the decision of the delegate and the dispositive issues identified by the Authority, broadly speaking, both decision-makers were concerned that the applicant’s claims to apprehend harm on return to Sri Lanka from the authorities and members of the criminal gang were not substantiated having regard to the applicant’s evidence and narrative of events. Although the delegate ultimately rejected many of the applicant’s foundational claims (and certainly more than the Authority), the process of interview was not so limited and involved the exploration of issues of concern that transcended the delegate’s narrower findings and were thematically connected with concerns identified, and findings recorded by, the Authority.
In particular, the delegate (at Q 132 (T 33)) explained to the applicant that:
I have got a lot of concerns with all of your evidence today. Many of the things that you’ve said to me appear to me to be very implausible…One thing I wish to discuss is this – if the CID were after you, you couldn’t have exited and entered Immigration – Immigration controls so easily a number of times over the years.
The transcript of the protection visa interview also discloses that as part of a comprehensive response given by the applicant’s representative, submissions were made and claims identified that concerned why and how the applicant “fears harm from two sources, which is the operatives from the police and CID and also from the gang members or their associates” (T41-42, T44).
In the context of a limited review where the “primary or default” position is that the Authority has a duty to review the referred decision without accepting or requesting new information and without interviewing the referred applicant (refer ABT17 at [84]), it cannot be said that the failure of the Authority to exercise the discretion in s 473DC(1) of the Act was unreasonable.
The circumstances of this case did not involve the introduction of a new paradigm (compare Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210) or the presence of an “informational gap” (compare ABT17) which operated to compromise the integrity of the review. Instead, in circumstances that were unremarkable, the Authority was simply not satisfied, having regard to the whole of the applicant’s evidence,, that the fear he apprehended would be likely to crystallise. The Authority did not make adverse findings of credit and to the extent that it found aspects of the applicant’s claims to be implausible, this reflected the Authority’s view that there was a paucity of evidence to the effect that the applicant was, at relevant times, a person of interest to authorities or members of the criminal gang. The Authority was entitled to expect, including having regard to the nature of the fast-track application and review process, and in circumstances where the applicant had been capably represented throughout both the visa application and review, that his claims would have been comprehensively (if not exhaustively) articulated.
Ground 1 is dismissed.
APPLICATION GROUND 3
Ground 3 of the amended application is as follows:
2.In assessing whether there was a real risk that the Applicant would suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka – in particular as a result of him being an illegal departee or failed asylum seeker – the IAA failed to complete the statutory task by:
a.Failing to consider a substantial and clearly articulated claim of the Applicant that any detention he experienced would cause particular harm to him by reason of his previous experience of physical and sexual abuse while detained in Sri Lanka;
b.Failing to consider or deal with significant evidence going to the risk of physical or sexual violence to the Applicant while in detention; and/or
c.Misunderstanding, or otherwise not completing the qualitative judgment of harm that the Act requires.
Particulars
(i)As to (a), the Applicant made a substantial and clearly articulated claim that any detention he experienced would give rise to a greater degree of harm to him than other persons (see, e.g. Court Book p 211 and 249). The IAA failed to consider the claim at all in its reasons for decision and certainly did not in the complementary protection analysis at paragraph 52 of those reasons.
(ii)As to (b), the Applicant provided significant evidence going to the risk of physical or sexual violence to the Applicant while in detention (see, e.g. Court Book p 249). The IAA failed to consider or deal with this evidence at all in its reasons for decision and certainly did not in the complementary protection analysis at paragraph 52 of those reasons.
(iii)As to (c), the IAA was required to engage in a qualitative judgment – including an assessment of how the risked conduct might affect the particular individual at risk – of the risked harm in order to determine whether it amounts to ‘significant harm’ for the purpose of the Act. The IAA failed to engage in that judgment in the complementary protection analysis at paragraph 52 of the IAA’s reasons.
Applicant’s submissions
The Applicant submits that he made explicit claims to the Authority that any exposure he might have to detention upon a return to Sri Lanka would be aggravated in circumstances where he had been mistreated and the victim of repeated sexual assault in the past.
According to the applicant, the claim was made in a written submission to the Authority dated 16 March 2017 as follows (CB 249):
We submit that [the applicant’s] personal circumstances and vulnerability are of great importance in assessing whether the level of harassment and mistreatment he would face from Sri Lankan authorities in his home area arises to the level of ‘serious harm’. A lesser level of harassment may constitute ‘serious harm’ in the applicant’s circumstances, due to his vulnerability as a victim of sexual assault, and the consequent effect on him of further harassment and questioning by the Sri Lankan authorities…
The delegate’s assessment of complementary protection also failed to consider [the applicant’s] personal circumstances and vulnerability. We reiterate our submission that the treatment that [the applicant] would face if returned to Sri Lanka, including at the point of his return due to his illegal departure and/or profile known to the authorities, would constitute cruel, inhuman or degrading treatment in his circumstances.
The claim was also said to emerge from the applicant’s statement to the Authority in which he referred to his fear of being identified by the authorities at the airport and “arrested, imprisoned and mistreated and brutalised like I have been in the past” ([18] CB 253).
The applicant submitted that the claim had also been made to the Department in a submission dated 20 December 2016 and under the heading “Whether treatment constitutes significant harm” where (amongst other things) it was said (CB 211):
In assessing whether the treatment [the applicant] would face while detained would amount to significant harm, we submit it is relevant to take into consideration his vulnerability as a past victim of trauma including sexual abuse. We note the following guidance from the AAT Guide to Refugee Law:
The structure of the definition suggests that the requirement of severity is linked to the pain or suffering, rather than the nature of the act or omission which causes it.
Consistently with this, the Complementary Protection Guidelines refer to consideration of factors such as the circumstances and particular characteristics of the victim when determining whether physical or mental pain or suffering amounts to cruel or inhuman treatment or punishment.
The applicant also relied on the following submission made by the applicant’s representative at the delegate interview (T. p 44):
In terms of the risk of harm to the applicant from the Sri Lankan authorities, it is important to take into account that he has left the country illegally and what the circumstances of his return would be. Including that in relation to any treatment he faced in detention that should include consideration of his vulnerability as a victim of serious sexual abuse in the past.
The applicant submits that the error alleged in ground 3 operates on the Authority’s finding that the applicant might be “detained for several days” on his return to Sri Lanka on account of being an illegal departee and that “prison conditions in Sri Lanka are poor, due to old infrastructure, overcrowding and shortage of sanitary and other basis facilities” ([44] CB 272). The applicant submits that when the Authority came to assess whether these circumstances and conditions might engage Australia’s complementary protection obligations, it failed to assess whether the detention itself would amount to significant harm and instead asked itself (and answered in the negative), whether the applicant would be at risk of significant harm while in detention.
The applicant characterises the alleged error as a failure to engage in a qualitative assessment of harm which, it is submitted, manifest in three ways. The first being a failure to consider a substantial and clearly articulated claim and, relatedly, a failure to “confront” and take “responsibility for”, the human consequences of returning the applicant to Sri Lanka (referring to Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423, [3] (Allsop CJ, Markovic and Steward JJ agreeing) and Minister for Home Affairs v Omar (2019) 272 FCR 589, [38] (the Court)).
The second was described as a failure to consider significant evidence going to the risk of sexual violence to the applicant while in detention, namely, the Australian Centre for Country of Origin and Asylum Research and Documentation (Accord) compilation (“Accord compilation”) which it was said contained “numerous reports on sexual abuse in Sri Lankan prisons” and which had been referred to and (in part) reproduced in the applicant’s written submission to the Authority dated 16 March 2017 (CB 248-249).
The third was described as the Authority having misunderstood, or otherwise having failed to engage in, the qualitative assessment of the harm that the statute required. The applicant submitted that what was missing from the Authority’s analysis was any consideration of matters of “fact and degree” including the “gravity and frequency” of the risked harm (referring to Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 (”WZAPN”), [51] (French CJ, Kiefel, Bell and Keane JJ) and [99] (Gageler J). The applicant draws a distinction between his case and the cases considered in AKU18 v Minister for Home Affairs [2019] FCA 267, [45]-[47] (Burley J) and BXZ16 v Minister for Immigration and Border Protection [2020] FCA 750, [57]-[64] (Murphy J) where there was evidence of the required individualised analysis.
The applicant submits that the error was material as had the Authority engaged in a qualitative assessment of the harm the applicant would experience as a result of potentially being detained and/or mistreated, the Authority may well have concluded that such detention or mistreatment was such as to rise to the level of serious/significant harm for this particular person (referring to FAK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1124, [62] (Charlesworth J)).
Minister’s submissions
The Minister submits that the three matters raised by the applicant as constituting or illuminating the alleged error in the Authority’s assessment of harm are erroneous.
First, the Minister submits that the Authority did not fail to consider the applicant’s claims as can be seen from [52] of the Authority’s written decision record.
Second, the Minister refers to the principle (accepted by the applicant) that a decision-maker is not required to refer to every piece of information before it. The Minister submits that in any case, the information recorded in the extract from the Accord compilation was not evidence of particular significance, as it was not of pivotal importance to the key issue that the Authority had to determine (referring to Minister for Immigration and Multicultural Affairs v SBAA [2002] FCAFC 195, [44]).
Third, the Minister submits that the complaint that there was no analysis of the fact and degree of harm and the gravity and frequency of the harm that the applicant might suffer were he to be detained for several days is misconceived. The Minister points to the Authority’s decision at [40]-[45] as evidence that the Authority engaged in this type of consideration.
Consideration of application ground 3
I am satisfied that ground 3 of the amended application is made out.
I accept the applicant’s submission that he made explicit claims to the Authority that any detention he might experience upon a return to Sri Lanka could rise to the level of significant harm in circumstances where he had been mistreated and the victim of repeated sexual assault in the past. These submissions were serious and substantial so that in circumstances where the Authority had earlier accepted the factual sub-stratum upon which they were premised (refer [29] CB 269), the Authority was required to intellectually confront them.
Contrary to the submission of the Minister, the Authority did not confront the applicant’s claims at [52] (CB 274) or otherwise in its consideration of the conditions and treatment that might await the applicant as a person who had departed Sri Lanka unlawfully. Indeed, the Authority’s consideration and analysis at [52] is expressed in terms of generalities and says nothing about the applicant’s particular circumstances, characteristics, or vulnerabilities. It not only fails to engage with the applicant’s claims but also, as an inevitable by-product, does not involve the necessary qualitative assessment of the nature and degree of the interference with liberty that would occur with respect to this applicant.
I did not understand the Minister to put materiality in issue and I am satisfied, notwithstanding the Authority recorded a finding that there was no indication that the authorities had the intention to cause harm of the requisite kind, that there remains the realistic possibility that the Authority’s decision could have been different had it approached the evaluation of detention conditions through the prism of the applicant’s submission as to his particular circumstances.
APPLICATION GROUND 4
Ground 4 of the amended application is as follows:
4.In assessing whether there was a real chance or real risk that the Applicant would suffer serious or significant harm as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka – in particular as a result of him being an illegal departee or failed asylum seeker – the IAA failed to complete the statutory task.
Particulars
(i)In assessing whether a particular risk amounts to a ‘real chance’ or ‘real risk’ the IAA was required to evaluate the degree of risk and the level of gravity of the harm if the risk eventuated.
(ii)In the present case, there was evidence that the IAA apparently accepted that returning asylum seekers and persons who had left Sri Lanka illegally face a ‘low’ risk of ‘torture’ or mistreatment (see Court Book p 271 [40], 274 [51]).
(iii)The IAA did not evaluate the degree of risk and/or the level of gravity of the harm if the risk eventuated in order to determine whether that low risk was nevertheless a ‘real’ chance or risk.
Applicant’s submissions
The applicant submits, by reference to the Authority’s reasons at [40] and [41] and [50] and [51] that the Authority’s assessment of risk miscarried. The applicant submits that the Authority was required to do more than simply: (i) note country information that returning asylum seekers and persons who are believed to have left the country illegally face a “low” risk of “torture or mistreatment”; and then (ii) conclude that in light of the applicant’s profile, that low risk did not equate to a “real” risk/chance of serious/significant harm.
Instead, the applicant submits that a “qualitative judgment” with respect to the risk of torture or mistreatment on return would have required consideration of:
(a)the “degree” of risk (referring to WZAPN at [41]) – in this case, relatively low based on the Authority’s findings that the applicant did not have a profile of interest to the authorities; and
(b)the “level” or gravity of the harm if the risk eventuated (referring to WZAPN at [41]) – in this case, high, being the harm involved in “torture” and particularly high for the applicant because of the Authority’s findings that he had previously suffered extreme sexual and physical violence while detained in Sri Lanka.
The applicant refers to a submission made on his behalf at the delegate interview which was to the effect that substantial country information supported the conclusion that the applicant would be at higher risk of mistreatment if he was detained because of his ethnicity. The applicant also refers to a later reference to a Tribunal decision that accepted that “prisoners of Tamil ethnicity will be mistreated in prison to a greater degree than prisoners of other ethnicities because they are Tamil” (CB 209). The applicant submits that the failure to consider these matters reveals jurisdictional error in what is described as the “central question” of the statutory task (referring to SZVRQ v Minister for Immigration and Border Protection [2020] FCA 375, [36]).
Minister’s submissions
The Minister submits that no jurisdictional error is exposed by ground 4. The Authority referred to DFAT’s assessment that the risk of torture or mistreatment for the majority of returning Tamils was low, including for those suspected of offences under the I & E Act. It was on this basis (at least in part) that the Authority determined that there was not a real chance the applicant would be harmed or mistreated because he was a returning asylum seeker. The Authority also accepted that there was a possibility that the applicant would be assessed by the Sri Lankan authorities as having sought asylum in Australia ([40]).
Consideration of application ground 4
In WZAPN at [41], the majority acknowledged that in making an assessment of risk of future harm, the decision-maker may be required to balance the likelihood of harm to the person against the gravity of the feared harm to the person should the likelihood become fact.
However, it is clear that the High Court did not intend that this approach should be universally or mechanically applied. Instead, its application will depend upon the particular findings recorded by the decision-maker and the country information and submissions to which they respond.
The applicant submits that the Authority’s reasoning at [40]-[41] and again at [50]-[51] miscarried because although the Authority identified the likelihood of harm to the applicant should he be returned to Sri Lanka, it failed to complete the risk assessment by balancing this likelihood against the gravity of the identified harm.
The impugned reasons are as follows:
40.I am satisfied that the applicant departed Sri Lanka illegally. I accept that given the information before me, including the way he departed the country, there is a possibility he would be assessed by the Sri Lankan authorities as having sought asylum in Australia. DFAT has assessed the risk of torture or mistreatment for the majority of returning Tamils is low, including for those suspected of offences under the Immigrations and Emigrants Act (the I&E Act).
41.On the basis of the evidence before me, I accept that the applicant, as a person who departed Sri Lankan [sic] unlawfully, may be questioned on return as part of the airport screening process. The country information before me indicates that as a returning asylum seeker who departed illegally, the applicant may be subject to an interview and contact made with the police in this home area, his family and/or neighbours, and a check of criminal and court records. I have found that the applicant has no profile with the authorities and I am satisfied that he will not be considered returnee of interest. The country information before me indicates that returned asylum seekers and those with an otherwise low profile are not generally at risk of harm on return to Sri Lanka. I have also considered information alleging claims of torture of returnees and note that the reported cases relate to accusations of specific LTTE involvement or links. I am satisfied that the applicant does not have a profile of LTTE involvement or links. I am therefore satisfied that the applicant will not be at risk on return on the basis of any adverse security or criminal profile and I find that there is not a real chance he will be harmed or mistreated because he is a returning asylum seeker.
50.I accept that the applicant may be identified as a returned asylum seeker on return to Sri Lanka. However I am not satisfied that the applicant is of any adverse interest to the authorities. In light of this and in accordance with relevant country information, I am not satisfied the applicant faces a real risk of any harm for this reason for the purpose of s.36(2)(aa).
51.I have accepted that the applicant will be identified on arrival at the airport in Sri Lanka as having departed illegally and will likely be subject to prosecution on account of breaching the I&E Act. In relation to detention at the airport, the applicant may be questioned and detained there for up to 24 hours depending on the length of individual investigation and the availability of a magistrate. DFAT advises that the risk of harm for the majority of returnees, including those suspected of offences under the I&E Act is low and there is no indication before me that the applicant faces a real risk of significant harm during the investigation, questioning or while held in airport detention.
[footnotes omitted]
It is clear from these passages that the Authority is essentially reasoning, by reference to country information and its anterior findings concerning the applicant’s lack of LTTE profile, that the applicant is not at any risk of torture and at negligible risk of what is described as “harm or mistreatment”. In these circumstances, it was not necessary for the Authority to engage in an evaluation of the gravity of the identified harm as in the former case, it had been reduced down to nothing and in the latter case, was not meaningfully defined in terms of attributing to it a particular quality or level of gravity and/or the evaluation process (which resulted in the risk being characterised as “low”) implicitly involved a qualitative assessment reflecting the types of harm comprehended.
Ground 4 is not made out.
CONCLUSION
As the applicant has been successful in relation to ground 3 of his amended application, I will order that his matter be remitted to the Authority for redetermination and that the Minister pay the applicant’s costs of the application in a fixed amount.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 18 March 2022
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