BWT16 v Minister for Immigration

[2018] FCCA 1920

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWT16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1920

Catchwords:

MIGRATION – Application for review of a decision of the Immigration Assessment Authority – whether the Authority failed to consider information that was before the delegate – whether the discretion of the Authority to not seek new information from the Applicant was legally reasonable – whether the Authority failed to take into account the impact of torture or trauma on the Applicant’s memory – whether the Authority failed to consider an integer of the Applicant’s claim – whether the Authority engaged in illogical reasoning – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.5AA, 36, 46A, 65, 473CC, 473DB, 473DC

Cases cited:
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12
Minister for Immigration and Citizenship v SZRKT & Anor [2013] FCA 317
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575
MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123
MZYXS v Minister for Immigration and Citizenship [2013] FCA 614

Applicant: BWT16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 1551 of 2016

Judgment of: Judge Hartnett

Hearing date: 16 April 2018

Delivered at: Melbourne

Delivered on: 13 July 2018

REPRESENTATION

Counsel for the Applicant: Ms Burt

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Mr Petrie

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1551 of 2016

BWT16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. By amended application filed 27 March 2018, the Applicant seeks judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) made on 12 July 2016 pursuant to s.473CC of the Migration Act 1958 (Commonwealth) (‘the Act’). The Authority affirmed an earlier decision made on 2 June 2016 by a delegate of the First Respondent (‘the Minister’) under s.65 of the Act to refuse to grant the Applicant a temporary protection (subclass 785) visa (‘the visa’). The Authority’s decision came after a review conducted in accordance with Part 7AA of the Act, which is known as the “fast track” regime.

2. The Applicant relies upon five grounds of review, each of which is resisted by the Minister.  The amended application contains six separate grounds of review, but on the hearing of the matter, the Applicant withdrew from ground 4 of the amended application,  which was not pressed by the Applicant. 

3. The grounds of application remaining are as follows:-

   Ground 1: The IAA failed to 'review' the applicant's case when it failed to consider the letters, which the applicant provided, and the supportive information contained within those letters.

   PARTICULARS

   1. The applicant provided a significant number of letters of support to the delegate.

   2. These letters were provided to the IAA.

   3. The letters contained information which was relevant to a number of aspects of the applicant's case including whether he was arrested in 2012, whether the Sri Lankan authorities had been interested in the applicant and his family at various times, the extent of his history of torture and trauma and whether he had perceived links to the militant movement.

   4. Aside from references to a couple of distinct aspects of the letters, the IAA did not consider the letters and the information contained within them.

   5. The failure to consider the corroborative information contained therein amounted to a jurisdictional error.

   Ground 2: The IAA failed to exercise the discretion to seek new information at interview in a manner which was legally reasonable.

   PARTICULARS

   1. At the delegate's interview the applicant was not given an opportunity to explain his case in two critical respects:

   a. The applicant did not provide a full account of his interactions with Sri Lankan authorities on previous trips overseas including one to Malaysia.

   b. The applicant did not provide a full account of his interactions with the Sri Lankan authorities between 2001 and 2012.

   2. The IAA was aware of the delegate's interview and the limitations of that interview.

   3. The IAA proceeded to make determinations about matters which it was aware, or ought to have been aware, that the applicant had not had the opportunity to comment on.

   4. In those circumstances, the IAA ought to have exercised its discretion to seek new information from the applicant.

   Ground 3: The IAA failed to ‘review' the applicant's case when it failed to consider the impact of torture or trauma on a person's memory in a way that was consistent with the AAT Guidelines on Vulnerable Persons. Alternatively, the IAA's decision was legally unreasonable insofar as it failed to take into account the impact on torture or trauma on memory.

   PARTICULARS

   1. The applicant has a history of torture and trauma.

   2. The applicant complained of memory problems at interview and explained some of the effects of his memory.

   3. The IAA considered this explanation without relevant information about the impact on memory of torture and trauma.

   …

   Ground 5: The IAA failed to consider an ‘integer' of the applicant's case in relation to complementary protection that he may be the victim of kidnapping.

   PARTICULARS

   1. The IAA accepted that there are reports of kidnapping and abductions in Sri Lanka.

   2. The IAA finds, in relation to the applicant's refugee claims, that the kidnapping will not amount to a real chance of harm for a convention reason.

   3. There is no consideration of whether the risk of kidnapping or abduction is a real risk of significant harm.

   Ground 6: The IAA engaged in illogical reasoning.

   PARTICULARS

   1. The IAA engaged in two particular finding which were illogical.

   2. First, the IAA found that the applicant would not be suspected of LTTE links when detained on return, despite previously having been detained and interrogated about being a Sea Tiger.

   3. Second, the IAA found that the applicant was not arrested in 2012, relying in part of the delay between the end of the war and the applicant's arrest. There was no logical basis to find that there was delay and it made the applicant's claim implausible.”

4. The Applicant relied upon an affidavit affirmed by Ms Alexandra Jannetto on 27 March 2018, to which was annexed a true copy of the transcript of the audio recording of the departmental hearing conducted by the delegate of the Minister. The Applicant also relied upon submissions dated 26 March 2018.

5. The First Respondent seeks dismissal of the application. The First Respondent relied upon submissions dated 9 April 2018.  There is also before the Court the evidence as contained in the Court Book filed by the First Respondent on 13 April 2018.

Background

1. The Applicant departed Sri Lanka on 11 August 2012 and arrived in Australia on 1 September 2012 by boat and without a visa. He was therefore an unauthorised maritime arrival within the meaning of s.5AA of the Act.

2. On 16 January 2013 and at the Scherger Immigration Detention Centre, the Applicant attended an interview with an officer of the Department (‘the entry interview’).  The Applicant was assisted during the course of this interview by an interpreter fluent in the Tamil and English languages.  The Applicant thereafter, being the 6^th day of August 2013, submitted a purported application for a protection (Class XA) visa.  This application was found to be invalid.  The Applicant was invited by the Department of Immigration & Border Protection (‘the Department’) to apply for either a temporary protection (subclass 785) visa (TPV) or a safe haven enterprise (subclass 790) visa (SHEV).

3. The Minister lifted the (s.46A of the Act) bar on 13 August 2015, and on 15 September 2015, the Applicant applied for the SHEV visa.  Included in the application was a statutory declaration in which the Applicant set out the bases on which he claimed to be entitled to the visa.  In summary, the Applicant claimed:- 

   a)that he was born on 10 June 1981 in Jaffna in the northern province of Sri Lanka.  He claimed to be an ethnic Tamil of the Catholic faith. 

   b)In 1996, the Applicant’s family travelled from Vanni to Mannar, but did not return to Vanni in defiance of a command made by the Liberation Tigers of Tamil Eelam (‘LTTE’).  In response, the LTTE pressured the Applicant to join them, but the Applicant refused.  He did, however, agree to help smuggle goods to the LTTE from Mannar, though the Applicant said he had no choice but to agree; 

   c)the Applicant was required to bribe the Sri Lankan Army (‘the army’) in consequence of his smuggling activities.  The Applicant feared harm and fled to India in August 1999; 

   d)the Applicant claimed his father was either murdered by the army in 2001 or that he committed suicide, albeit that he and his family suspected that he had been murdered.  His father was found hanging.  The family dog was found killed nearby.  There was a judicial investigation into the death, but no conclusion was reached; 

   e)the Applicant returned from India to Sri Lanka in February 2001 following his father’s death.  He was arrested by the Sri Lankan Navy who intercepted the boat on which he was travelling.  He was tortured by the navy, who accused him of being a member of the LTTE.  He was detained in custody for approximately four months as a consequence of drugs being found on the boat on which he was travelling. The Applicant claims not to have known of the existence of the drugs.  He was released without charge in June 2001, though he was required to report regularly while the case was ongoing.  The case was eventually dismissed after three and a half years.  The Applicant was found not to have been a part of any drug cartel; 

   f)after his release, the Applicant was forced to help the LTTE.  He did this from 2006 to 2009 by smuggling goods and providing mobile phones to the LTTE.  He claimed to have purchased at least 50 to 60 phones.  He claimed to also have been required to carry messages between the LTTE and people residing in Mannar from 2002 until 2009.  The army found one of the phones provided by the Applicant to the LTTE and traced it to the Applicant; 

   g)The Applicant was detained on 11 March 2012, whereupon he was interrogated and received beatings to his head for several hours.  His family paid a ransom of five lakhs for his release; 

   h)the Criminal Investigation Division (‘CID’) began extorting money from the Applicant.  After initially paying the extortion money, the Applicant ceased.  The CID threatened to kill him in reprisal, and the Applicant thereafter went into hiding;

   i)by reason of these matters, the Applicant claimed to fear harm on the basis of his ethnicity and imputed support of the LTTE.  The Applicant claimed to fear such harm from the navy, the army, the CID and other police.  The Applicant also claimed to fear significant harm from having left Sri Lanka illegally and from being a failed asylum seeker.

4. The Applicant provided the Department with a number of documents in support of his visa application.  These included, amongst others:- 

   i)a letter from Mr Niladhari, dated 2 September 2004 (‘Niladhari letter’); 

   ii)a letter from the “Family Rehabilitation Centre” dated 30 August 2005 (‘family rehabilitation letter’); 

   iii)a letter from Mr Manuel Croos, dated 25 August 2005 (‘Croos letter’); 

   iv)a letter from Mr Adaikalanathan MP dated 21 December 2004 (‘Adaikalanathan letter’); 

   v)a letter from the Mannar Clinic Maternity & Nursing Hospital dated 23 August 2005 (‘Mannar Clinic letter’); and

   vi)two different versions of the same letter from Mr Feldano, dated 7 January 2013 (‘Feldano letter’).

5. The Department, by correspondence of 21 September 2015, acknowledged receipt of the Applicant’s valid application for the SHEV visa.  By correspondence of 24 November 2015, the Department invited the Applicant to attend an interview to discuss his visa application and his claims that he was a person in respect of whom Australia had protection obligations.

6. On 8 December 2015, the Applicant attended an interview with a delegate of the Minister.  As set out in paragraph 9 of the delegate’s decision, dated 2 June 2016, during the protection visa interview on 8 December 2015, the Applicant made relevant additions to his written claims which were as follows:- 

   a)though the Applicant agreed to help the LTTE in the past because he feared harm from the LTTE, the Applicant does not fear harm from the LTTE now; 

   b)the Applicant will be harmed because he is a Tamil, and his Tamil ethnicity also increases the chance he will be harmed for the other reasons claimed;  and

   c)the Applicant fears harm for his imputed political opinion and his race but did not fear harm for membership of any particular social group.  The Applicant said instead that being a Tamil and being from the north of Sri Lanka would increase the chance the Applicant would be imputed with a political opinion in favour of the LTTE.

7. On 18 December 2015, an officer from the Department sent the Applicant’s migration agent an email in which some inconsistencies were identified in the Applicant’s claims.  The two most important concerns were said to be:-

   “Letters provided by your client suggest his father committed suicide after being defrauded.  This contradicts the applicant’s claim that his father was murdered by security forces.

   The applicant made a number of claims relating to his arrest in March 2012, and the events that followed.  There were significant discrepancies between the applicant’s written account, and his evidence at interview.”

8. The delegate noted that these concerns were “not an exhaustive list”.

9. On 2 June 2016, a delegate of the Minister refused to grant the visa.  As a consequence, on 8 June 2016, the matter was referred to the Authority.  By correspondence of 8 June 2016, the Applicant was advised of the referral.  The Applicant was advised, relevantly, as follows:- 

   “The decision of the Minister for Immigration and Border Protection to refuse you a protection visa has been referred to the Immigration Assessment Authority (the IAA) for a review.  This matter was referred to the IAA on 8 June 2016.    

   The Department of Immigration and Border Protection (the department) has provided us with all documents they consider relevant to your case.  This includes any material that you provided to the departmental officer before they decided to refuse you a protection visa.  The IAA will proceed to make a decision on your case on the basis of the information sent to us by the department, unless we decide to consider new information.  We can only consider new information in limited circumstances, which are explained in the attached fact sheet and Practice Direction.”

10. The Applicant’s migration agent provided submissions to the Authority on the Applicant’s behalf on 27 June 2016.

11. On 12 July 2016, the Authority affirmed the delegate’s decision.  The Authority set out the information before it in paragraphs 3 and 4 of its decision and reasons (‘the Decision Record’).  Those paragraphs are as follows:-

    “3. I have had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act).

    
    
    

    4. On 27 June 2016 the IAA received a submission from the applicant providing reasons he disagreed with the delegate’s decision and inferring that aspects of his claims including his psychological condition had been overlooked.  The submission also referred to information from the most recent DFAT report, which the delegate considered.  To the extent that the submission contains arguments responding to the delegate’s decision, reasserts claims and references country information that was before the delegate, I am satisfied that this does not constitute new information as defined in section 473DC(1) of the Act.  I have had regard to this information.”

12. The Authority made the following findings and observations:-

    a)the Authority accepted that the Applicant was a Tamil citizen of Sri Lanka and that Sri Lanka was his receiving country for the purpose of the assessment; 

    b)the Authority accepted that the Applicant assisted the LTTE between 1998 and 1999, but did not accept that the LTTE tortured the Applicant or that the Sri Lankan authorities were aware of the Applicant’s LTTE activities prior to his departure; 

    c)the Authority accepted the following claims in respect of the Applicant’s 2001 arrest and father’s death as set out in the Decision Record, relevantly, at paragraphs 17 to 19:

    “17. I accept the applicant returned from India in 2001 because his father died.  I accept that he caught a boat back to Sri Lanka and was dropped off at an island close to the mainland because the water was too shallow to take him all the way.  I accept he was forced to wait there overnight and that the permits of passing fisherman did not allow for them to collect him.  I accept he was then collected by the Sri Lankan Navy.

    18. The applicant has provided various letters of support which note that he was arrested by the navy in 2001 on suspicion of LTTE activities and was then imprisoned until a court case was completed.  I accept the applicant was interrogated about whether he was working in intelligence for the Sea Tigers (LTTE’s naval branch) and was detained for two to three days and badly beaten and tortured by the Navy.  I found above that the Navy’s suspicion of LTTE membership was not based on any knowledge of the applicant’s prior activities.  The letters of support do not indicate the subject of the court case.  While I have considered whether the applicant was imprisoned for this suspected LTTE activity, having reviewed the totality of his evidence, I accept his claims that the court case and imprisonment related to drug smuggling offences.

    19. I accept the applicant was then re-united with the three other people who had come on the boat from India and that they were jointly and separately interrogated about Cannabis found on board.  I accept the applicant was previously unaware of the drugs on board but that they were all accused of drug smuggling.  I accept the applicant was charged and imprisoned for six months in a prison in Anuradhapura, and following his release he was required to report regularly to the police station until six months after the case was finalised.  I accept that while the case was ongoing for three and a half years, the applicant was found not to have been involved in the drug smuggling operation.”; and

    d)the Authority accepted the Applicant’s father died in tragic circumstances, but noted that there were no ongoing negative repercussions for the Applicant as a result of the death of his father or the investigation that followed.

13. As to the psychological state of the Applicant after his release from prison in 2001, the Authority found, as relevantly set out at paragraphs 23 and 24 of the Decision Record:- 

    “23. At the SHEV interview the applicant stated that after he was released from prison he received six months physical treatment and three years mental health counselling.  At the SHEV interview, the applicant was unable to recall the names of either of the two doctors who regularly treated him over the three years and stated that his memory was affected and he does not remember things well since he was beaten on the head.  He stated that he has been working in a factory and does not remember people’s names when they are introduced.  The applicant reiterated his mental health issues in a post-SHEV interview submission and in his submission to the IAA. 

    24. I accept the applicant suffered trauma resulting from his father’s death, his arrest, torture and detention and formal imprisonment.  I accept that some parts of the applicant’s memory may be affected.  However, the applicant’s oral evidence about all the events leading up to his 2001 release and return to Mannar was fluid and detailed.  This is in contrast to many of the applicant’s responses in relation to the events which occurred after his release from Anuradhapura Prison in 2001.  The evidence provided by the applicant in relation to these events contained inconsistencies and some aspects were implausible.  I have taken into account the applicant’s past trauma and accept that while some cognitive challenges may exist, I am not satisfied this accounts for the material discrepancies and the implausibility of particular events in the post 2001 aspects of the applicant’s claims.”

1. The Authority did not accept that the Applicant assisted the LTTE upon his return to Sri Lanka or that he was arrested in relation to that assistance.  The Authority found, relevantly, the following:-

   “28. The applicant has consistently stated he assisted the LTTE by giving them a mobile phone which he purchased in his name, that the phone was found and traced to him, that he was arrested in March 2012 and that his release was secured through a bribe. At the SHEV interview, he stated that from about 2006 - 2009 he again smuggled goods, including many (at least 50 - 60) mobile phones.  He stated they required monthly payments. He also stated he purchased two phones in his own name – one he kept and the other he gave to the LTTE so they could communicate.

   29. In his written application he stated one of the phones was left by [sic] on the battlefield by an LTTE member and the Army found the phone and traced its purchase back to him.  He stated he was arrested, detained and interrogated by the Army about this on 11 March 2012.  He stated they showed him the phone records and sought answers.  However, at the SHEV interview, he stated he had had problems with the police in 2009 and referred to his arrest in relation to the phone as an example of those problems.  He stated that the security forces arrested him and asked him why he thought they arrested him.  He admitted to them straightaway that he had bought phones for the LTTE.  He confirmed to the delegate that the only evidence the police had was evidence he gave them.  The delegate put to the applicant that in his written application he stated the security forces had found the phone and traced it back to him.  The applicant responded that the police did not tell him anything directly, but they told the boy that negotiated on his behalf that they had found the phones somewhere.  I consider it implausible that the authorities would not tell the applicant this directly when he was detained four-five hours, beaten and interrogated, but they would tell a boy who was negotiating his release.

   …

   31. The delegate asked the applicant why, if the authorities found the phone in 2009, he was not arrested until 2012.  The applicant responded that maybe that was the time they found out.  He stated that at that same time they also arrested many other people who helped the LTTE with phones.  However, I find this explanation to be inconsistent with his claim that the phone was dropped on the battlefield and found when the Army cleared the area after the war.  I also find this inconsistent with his statement that he had problems in 2009 and was arrested.

   …

   34. I do not accept the applicant would have been released in 2012 if he was of concern to the authorities for having LTTE links.  DFAT assesses that since the end of the war, many thousands of LTTE members who were employed in administrative roles or provided other types of high level military support to the LTTE were arrested and detained in rehabilitation centres and have since been released.  In addition to high profile members any other low-profile LTTE members who came to the attention of Sri Lankan authorities would be detained and subject to detention and rehabilitation centres.  The applicant resided in the LTTE controlled and Army controlled areas in the Northern Province during and in the aftermath of the war, had previously been interrogated by the Navy about being a Sea Tiger after returning from India, was previously arrested and imprisoned for criminal activity, and had given the authorities an admission and documentary evidence that he had recently worked for the LTTE by supplying these phones.  I am not satisfied that the Applicant would have been released by the authorities on this occasion without any conditions, warning or formal arrest and without being sent to a rehabilitation camp, regardless of any bribe, particularly, when on the applicant’s own evidence, they were targeting and arresting the people who had helped the LTTE with mobile phones.

   35. While, I accept that a person’s psychological condition may explain some trouble recalling specific details or incoherent sequencing in events,  I am not satisfied that this explains the issues in the applicant’s evidence in relation to his post-2001 claims.  I have taken the applicant’s condition into account however given the various inconsistencies in the applicant’s statement and the implausible nature of certain claims discussed above I am not satisfied that the applicant re-commenced his work for the LTTE and provided them with support from 2001 - 2009.  Given the above discussion around his interrogation and release, I am not satisfied that the applicant was arrested in relation to the mobile phones or his support for the LTTE.  I am satisfied that the authorities did not have an interest in the applicant on the basis of any suspected LTTE links.”

   (Footnotes omitted.)

2. Due to inconsistencies in the Applicant’s claims, the Authority did not accept that, after the Applicant’s return to Sri Lanka in 2009, he was extorted for money by a CID officer or lived in hiding at any time up to his departure from Sri Lanka. Nor did the Authority accept that the Applicant was harassed or required to report for questioning or was otherwise of interest to any branch of the military police or other authorities.

3. The Authority found that the Applicant did not face a real chance of harm due to his Tamil race or imputed LTTE support. The Authority found that the Applicant would not be harmed for being a failed asylum seeker who departed the country illegally. The Authority found that the Applicant was not a refugee and did not meet the requirements of the complementary protection criteria under s.36(2)(aa) of the Act.

4. In making various findings, the IAA had regard to relevant country information, including the ‘DFAT, Country Information Report Sri Lanka of 18 December 2015’; the ‘UNHCR, Eligibility guidelines for assessing the international protection needs of asylum seekers from Sri Lanka of 21 December 2012’, and the ‘US Department of State, “Human Rights Report 2014 Sri Lanka” of 25 June 2015’.

Ground 1: 

1. The Applicant contends that the Authority failed to exercise its review function by reason of its failure to adequately deal with the letters identified in paragraph 9 above. The letters deal, relevantly, with the following matters:-

   a)The Niladhari letter principally deals with the Applicant’s arrest in 2001.  It states that:-

   “Although he was released, the Police suspect him.”

   The letter is dated 2 September 2004, but it does not otherwise provide any information regarding how or why the police might have suspected the Applicant in 2004. 

   b)The family rehabilitation letter dated 30 August 2005 attests to the fact that the Applicant had:-

   “… medical problems due to torture.”

   c)The Croos letter provides that the Applicant was arrested by the navy in 2001 and that the Applicant was investigated for three years.  No other substantive claims were made.

   d)The Adaikalanathan letter states that the Applicant was arrested and tortured in 2001 and that, after his release:

   “… the forces were after him.”

   The letter goes on to state that the Applicant was visited and harassed frequently by the police and that this:-

   “… worsened with the Hero’s Day celebration on the 27^th of November 2004.”

   e)The Mannar clinic letter states that the Applicant was admitted to the clinic in 2001 with injuries due to his assault by the security forces.  He was:

   “Treated for confusion and Depresive [sic] illness.”

   And suffered a:

   “Loss [of] appetite, loss of sleep, and palpitation after the assault by the security forces.”

   f)The Faldano letter is provided in two different formats as set out in the Court Book at pages 131 and 269.  It is useful to set that correspondence out in these reasons.  Both letters provided were dated the 7^th day of January 2013.  The first letter, as set out in the evidence as contained at Court Book 131, is, relevantly, as follows:-

   “To whom it may concern,

   … [the applicant] is a person who is known to me for a considerable length of time. 

   He hails from a Tamil-speaking Roman Catholic Family, having lost his father during his child hood on account of security violence … [illegible] … the Terrorist Investigation Department (TID) had on recovery of the said Telephone from L.T.T.E controlled places traced his name and had subjected him to security arrest and detention.

   Later on the intervention of his mother … who had pleaded with them he had been released on payment of a big ransom.

   As a follow up, the process of investigation continued repeatedly and his family members too were under constant surveillance and interrogation. 

   Also as a consequence of his mental trauma that followed frequent questioning by security men, this young man resorted to the use of drugs as well. 

   And subsequently sensing danger ahead, he had decided to leave this country and I am reliably informed that he is presently in Australia and is seeking refugee status.”

   g)The second letter, dated the same date, as contained on page 269 of the Court Book, is relevantly, as follows:

   “To whom it may concern,

   This is to certify [the applicant] … is a person who is known to me for a considerable period. 

   He hails from a Tamil speaking Roman Catholic family.

   On or about 11.3.2012 he was taken to custody by the Terrorist Investigations Department (TID) of the Mannar Police on an allegation that he was suspected of having links with the L.T.T.E.

   In the course of the inquiry he was countered of having secret connection with a particular Number, which telephone was claimed to be one that belonged to the L.T.T.E.  …

   He was detained at the Police station for a full day and was later released on condition that he was to report at the Police station as and when required.  As a follow up, this process continued repeatedly, and his family members too were being harassed by such conduct of the security men. 

   This frightened this young man and sensing danger ahead he had decided to leave this country and I am reliably informed that he is presently in Australia and is seeking refugee status in that noble country. 

   Taking into consideration, the Political situation in this country wherein the basic Democratic principles are being violated, and the independence of the judiciary is being challenged by the Executive I very strongly recommend that his application be considered favourably.”

   As can be seen from the above, one of these letters refers to the Applicant turning to drugs, and the other version does not.  The delegate identified that the letters raised a claim that the Applicant was suspected of involvement with the LTTE.  The delegate concluded that the claim of involvement with the LTTE was fabricated and that at least some of the letters provided by the Applicant may be bogus.  The delegate stopped short of finding that any bogus document had been provided, as the delegate had “insufficient evidence to form a reasonable suspicion” that the documents were, in fact, bogus.

2. It is clear from the Decision Record that the Authority had before it the referred to letters.  The Applicant argued it is not clear what the Authority made of the letters and their relevance in determining the Applicant’s case. Further, the Applicant argued, it is not clear what the Authority made of the issue identified by the delegate.  The Applicant argued that the Feldano letter was potentially corroborative of the Applicant’s account.  In paragraph 25 of the Applicant’s submissions, the Applicant submitted that the letters had the potential to effect:-

   a)the Authority’s assessment of whether the Applicant had been repeatedly harassed and his family harassed by the Sri Lankan authorities in 2012;

   b)the Authority’s assessment of the level of impact of his torture and trauma;  and

   c)the Authority’s assessment of whether the Applicant was incarcerated in 2012;

   d)the Authority’s assessment of the role of the Applicant’s links to militant movements in his arrest in 2001; and

   e)the Authority’s assessment of whether the Applicant was frequently visited and harassed by police in about 2004.

3. The Applicant argued it was open to the Authority to seek new information from the Applicant or to interview him.  Neither of those courses were adopted by the Authority. 

4. The Authority, however, accepted that the Applicant was arrested in 2001 and tortured by the Sri Lankan Navy.  The Authority also accepted that there were court proceedings in 2001 and that the Applicant was imprisoned for alleged drug smuggling offences.  The Authority referred specifically at paragraph 18 of the Decision Record (which is contained at paragraph 3(c) above) to the fact that “the applicant has provided various letters of support.”

5. There was, as submitted by the Minister, therefore, no need for the Authority to otherwise refer to or rely upon the Niladhari letter, the family rehabilitation letter, the Croos letter, the Adaikalanathan letter, or the Mannar clinic letter, because those letters did not refer to any matter beyond what the Authority accepted.  To the extent that the Niladhari letter suggested in 2004 that the police still suspected the Applicant, that may be readily read as being a reference to the drug smuggling case against the Applicant, which was ongoing at the time of the letter.  These letters were as submitted by the First Respondent, otherwise insubstantial or inconsequential. 

6. This leaves for consideration the Feldano letters.  The Minister concedes these were not expressly referred to by the Authority. The Court finds that they were not required to be expressly mentioned by the Authority. 

7. It was clear that the Authority had in its possession, and had canvassed, the decision of the delegate. It is clear the Authority had read and considered the delegate’s decision, and the delegate had, in its decision, accurately summarised the Feldano letters as supporting the Applicant’s claim to have been arrested in 2012.  Paragraph 39 of the delegate’s decision is set out in the evidence as contained in the Court Book at page 314, which is in evidence in the proceedings.  Paragraph 39 is as follows:-

   “39. The applicant has provided letters in support of his claim that he is suspected of involvement with the LTTE.  A matter regarding the letters provided in support of the application has some significance.  A letter authored by Emmanuel Caius Feldano on 7 January 2013 was submitted with the application.  Another letter also authored by Emmanual Caius Feldano on 7 January 2013 was submitted after the application (submission of 1 October 2015).  Both letters have identical opening paragraphs, before the text of each differs from the third paragraph. but both support the applicant’s claim to have been arrested in 2012. The version submitted after the application however describes the applicant abusing illicit drugs.  I asked the applicant why he had provided two different letters written on the same day by the same author.  At first he said he did not know why the letters were different, and then said he asked his mother on two separate occasions to get letters of support for the applicant’s application. and that each letter must have been provided on a separate occasion.  This does not explain why the author would produce a second letter largely similar to the first, or why he would date the second letter to match the first.  I do not place great weight on this, but nor does it enhance the credibility of the letters.”

8. The Court finds, as submitted by the First Respondent, that the letters themselves were not of critical significance, to the Applicant’s claims and, even were that to be wrong, any significance they did hold was diminished as a consequence of the inconsistencies between the two versions as identified by the delegate.  The Feldano letters were merely corroborative of the claims made by the Applicant in his statement attached to the visa application, which the Authority clearly considered.  The Authority referred to the Applicant’s alleged arrest in 2012, and the surrounding circumstances, including the Applicant’s claim that the army tracked him down by tracing a mobile phone he had allegedly supplied to the LTTE.[1]

   [1] Decision Record, 5, 28-34.

9. There was no obligation on the Authority to expressly consider the letters in its Decision Record. It is clear that the Authority gave the necessary consideration required to the letters. Ground 1 shall be dismissed. 

Ground 2: 

1. The Applicant contends that the Authority acted unreasonably by not scheduling an interview with the Applicant under s.473DC(3) of the Act. The Applicant claims that, at his interview with the delegate, he was not afforded a proper opportunity to put relevant matters as to two topics raised by the delegate. The first was when the Applicant was asked, at his interview with the delegate, about his travel to Malaysia, in circumstances where he was then not able to provide a full account of his interactions with Sri Lankan authorities on previous trips overseas, and the second considered the Applicant’s account of working for the LTTE from 2001 to 2009, which was rejected by the Authority because of the Applicant’s circumstances of interrogation and release. The Applicant claimed that he had only given a partial account at his interview with the delegate as to a number of arrests he claimed occurred.

2. The Applicant submitted that the Authority went outside the parameters of the delegate’s interview, making new factual findings.  Some of those findings related to new country information; some to the charge of implausibility; and some to issues never covered in the delegate’s interview.  In essence, the Applicant claimed that the Authority traversed into territory not canvassed by the delegate; indeed, that the delegate had directed the Applicant away from, and then made adverse findings without the Applicant having the opportunity to fully put his claims at interview in relation to matters found against him by the Authority.

3. This ground cannot succeed.

4. In DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12, the Full Court of the Federal Court of Australia said at 72:

   “In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate.  We do not consider that the fast track statutory regime at Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate.  To that extent we agree with the primary judge ... that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.”

5. The Authority did not consider any new “points” or matters that were not the subject of the delegate’s decision.  Indeed, the Applicant was asked, in his interview with the delegate, whether he had “put forward all your claims for protection”.  The Applicant answered yes.  The Applicant has not stated how it was he was not given an opportunity to state his case.  He provided written submissions to both the delegate and the Authority after the delegate’s hearing.  He attended an interview with the delegate.  He was given opportunities to state his case.

6. In any event, as submitted by the First Respondent, this ground misconceives the operation of s.473DB(1) of the Act, which provides that the Authority must review a fast track reviewable decision without interviewing an Applicant, subject to limited exceptions. Critically, no exception is made in Part 7AA of the Authority to interview an applicant on the basis of a claim that they did not get the opportunity to fully state their case before the delegate.

Ground 3: 

1. This ground must be dismissed.  The Authority did not fail to take into account the impact of torture or trauma on memory.  A decision maker’s obligation to have regard to an applicant’s psychological state goes to the question of whether the applicant has had a meaningful opportunity to be heard, notwithstanding any mental illness.[2]

   [2] Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575, 17 - 20.

1. The Applicant has not placed evidence before the Court to the effect that he was suffering from a medical condition at the date of the delegate’s decision, which may have prevented him from meaningfully participating in the hearing.  The Authority expressly noted at paragraphs 23 to 24 of the Decision Record (which are referred to in paragraph 18 above) that the Applicant had suffered trauma which may have affected his memory.  The Authority noted, however, that the Applicant’s oral evidence was fluid and detailed, and that his past trauma did not account for any inconsistencies in his claims.

2. The Applicant also contended that the Authority made a jurisdictional error by not considering the guidelines published by the Administrative Appeals Tribunal (‘AAT’) concerning vulnerable persons.  The AAT publishes “guidelines on vulnerable persons” for the Migration Refugee Division.  There is, of course, however, nothing to mandate that the guidelines should apply to a hearing of the Authority.  The Authority must act on the basis of the material provided to it by the Secretary.  Whilst the Authority has the power to seek new information if it requires it, in the circumstances of this case, that was not necessary.  It cannot be said that the Authority acted unreasonably in respect to its assessment of the evidence of the Applicant.

Ground 5:

1. The Applicant claims with respect to this ground that the Authority committed a jurisdictional error by failing to consider the prospect of him being kidnapped in the context of the complementary protection criterion.  This was not a claim made by the Applicant before the Authority.  Rather, it arose in the context of the Authority’s consideration of country information and, in particular, that provided by DFAT.

2. At paragraphs 44 and 45 of the Decision Record, the Authority found as follows:-

   “44. DFAT acknowledges that there is a moderate level of societal discrimination resulting largely from the conflict.  However, the report does not identify the affected ethnic groups or the nature and level of this discrimination.  While I acknowledge the applicant’s psychological condition, he has previously received mental health counselling or treatment in Sri Lanka and has worked various jobs, including in a factory and running a small business/shop in Sri Lanka.  I am not satisfied that the applicant will not be able to attain employment or access to basic services in Sri Lanka on account of his race, gender or origin. Given the country information below indicates monitoring in the North and East has significantly decreased, that there have been significant positive developments for Tamils in the country’s politics and that the situation has generally improved, I find that the applicant would not face a real chance of harm in the form of official or societal discrimination for reasons of his race upon return to Sri Lanka. 

   45. There is some suggestion that abductions and kidnappings of Tamils is still occurring.  However, as noted above, DFAT assesses that since the war’s end, incidences of extra-judicial killing, disappearances and kidnapping for ransom has fallen considerably.  DFAT reports that no particular group has been the target of kidnapping attacks and they do not appear to be ethnically-based.  I do not accept that the applicant faces a real chance of being kidnapped or abducted by paramilitaries, authorities or others for reasons of his Tamil ethnicity.”

   (Footnotes omitted.)

3. The Applicant claims that the Authority failed to consider the risk of kidnapping in the context of complementary protection claims.  The Applicant argued that the Authority made no specific findings about the likelihood of being kidnapped generally, claiming a real risk of kidnapping could amount to a complementary protection claim. 

4. Under the heading ‘Complementary protection assessment’, the Authority said at paragraphs 68 and 69 of the Decision Record:-

   “68. The applicant has previously received mental health counselling/treatment in Sri Lanka and has worked various jobs including in a factory and running a small business/shop in Sri Lanka.  I am not satisfied that the applicant will not be able to attain employment or access to basic services in Sri Lanka on account of his race, gender or origin.  Having regard to country information cited above which indicates that Tamils including young Tamil males are no longer at risk of harm on account of race, even when originating from the North, I am not satisfied the applicant faces a real risk of significant harm in the reasonably foreseeable future for reasons of his race, gender or origins.

   69. I found above that although the applicant was detained, interrogated and tortured by authorities under suspicion of LTTE connections when he returned from India in 2001, it was not for reasons of his previous LTTE activity.  I accept that his six month imprisonment was in relation to drug offences.  I found that after he was released without conviction in 2001 he did not work for the LTTE again, was not subsequently arrested, interrogated and detained in relation to LTTE activity or support, and was not extorted or harassed by any other members of authorities.  I found the applicant was not of interest to any authorities on account of any previous LTTE activities or that he was otherwise suspected of LTTE support or other links when he departed Sri Lanka.  I do not accept that he would face a real chance of harm in relation to these matters upon return, and for the same reason I also find there is not a real risk he will suffer significant harm.” 

5. The Authority’s findings above are to be read together with the Authority’s earlier findings on the question of harm the Applicant may face by reason of his imputed LTTE support, which included by reason of his race as a Tamil.  As submitted by the First Respondent, it was not necessary for the Authority to, again, consider each integer of the Applicant’s claims and then to repeat its findings. As was said in MZYXS v Minister for Immigration and Citizenship [2013] FCA 614 at [31] by Marshall J:-

   “A fair reading of the Tribunal’s reasons for decision showed that it did not misapply or misunderstand the test for complementary protection claims. It applied the “real chance” test in determining whether there was a real risk that the appellant would suffer significant harm if returned to Nigeria. The finding of the Tribunal on its assessment of “real risk” is expressly linked to its findings on “real chance”. The Tribunal was entitled to rely on its finding that there was no real chance of the relevant harm alleged for Convention purposes in assessing whether there was a real chance of significant harm for complementary protection purposes, when the same essential claims and facts were being relied on in each aspect of the appellant’s case before the Tribunal. Ground 2 also lacks merit.”

6. Ground 5 must be dismissed.

Ground 6:

1. The Applicant alleges that the Authority engaged in illogical or irrational reasoning first by finding that the Applicant would not be suspected of LTTE links when detained on return, despite previously having been detained and interrogated about being a Sea Tiger; and second by finding that there was a delay between the end of the civil war and the Applicant’s arrest.  In Minister for Immigration and Citizenship v SZRKT & Anor [2013] FCA 317, Robertson J considered the relevant authorities and the consequences of illogical decision making and said at [148]:-

   “In my opinion, the ground of “engaging in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds” is to be taken to refer to extreme illogically or irrationality, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal.”

2. It is clear that a decision of the Authority may be affected by jurisdictional error, where it is “irrational, illogical and not based on findings or inferences of fact supported by logical grounds”.[3]   However, on the facts of this matter, the Authority clearly had a logical basis for making each of its findings. To the extent the Applicant submits otherwise, this ground cannot be made out. 

   [3] MZXSA v Minister for Immigration and Citizenship [2010] FCAFC 123, 42.

3. The Authority found that the Applicant was of no interest to the authorities at any time after 2001 the Authority not accepting that the Applicant assisted the LTTE between 2001 and 2009. 2001 was some 11 years before the Applicant came to Australia.  For this reason, the Authority found the Applicant wound not be harmed upon his return to Sri Lanka.  Further, the Applicant’s claim to have been arrested in 2012, in relation to a phone he supplied in 2009, the Authority found to be inconsistent.  The Authority made that finding of inconsistency on the basis of the Applicant’s evidence that the phone was found when the Army cleared the LTTE controlled area when the war ended in 2009. 

4. As submitted by the Minister, both of the Authority’s findings were logical. There was nothing in them which was suggestive of extreme illogicality when measured against the standard that it is not enough for a question of fact to be one on which reasonable minds may come to different conclusions.

5. The application will be dismissed with costs.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  13 July 2018