CDN16 v Minister for Immigration - [2018] FCCA 1947

FEDERAL CIRCUIT COURT OF AUSTRALIA

CDN16 & ORS v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 1947

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Refugee Review Tribunal – temporary protection visa – Migration Review Tribunal – Independent Protection Assessor.

Legislation:
Migration Act 1958, ss.473BA, 473DB, 473GA, 473GB
Immigrants and Emigrants Act 1949 (Sri Lanka)

Cases cited:
AJJ15 v Minister for Immigration and Border Protection [2016] FCCA 482
AMA16 v Minister for Immigration and Border Protection [2017] FCAFC 136
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; 236 FCR 593; 75 ALR 630; 75 ALD 630
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; 197 ALR 389
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176
Minister for Immigration and Border Protection v MZYTS and Another [2013] FCAFC 114; (2013) 230 FCR 431
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123; 259 ALR 429
MZZQY v Minister for Immigration and Border Protection [2015] FCA 883
MZZUT v Minister for Immigration and Border Protection [2015] FCA 141
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1; 219 ALR 27
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
Ponnudurai v Minister for Immigration and Multicultural Affairs [2000] FCA 91

First Applicant:

CDN16

Second Applicant

CDS16

Third Applicant

CDT16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File number:

MLG 1661 of 2016

Judgment of:

Judge Mercuri

Hearing date:

20 March 2018

Date of last submission:

20 March 2018

Delivered at:

Melbourne

Delivered on:

20 July 2018

REPRESENTATION

Counsel for the Applicants:

Ms A. Burt

Solicitors for the Applicant:

Ambi Associates

Counsel for Respondents:

Mr N. Wood

Solicitors for the First Respondent:

Clayton Utz

ORDERS

The application filed on 4 August 2016 and amended application filed on 21 February 2018 be dismissed.
The applicants pay the first respondent’s costs of the proceeding in a sum to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1661 of 2016

CDN16

First Applicant

CDS16

Second Applicant

CDT16

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision made by the Immigration Assessment Authority (the “IAA”) on 25 July 2016. In that decision, the IAA affirmed a decision of a delegate (the “delegate”) of the Minister for Immigration and Border Protection (the “Minister”) not to grant the applicants a temporary protection visa.[1]
[1] The initial application was made by the applicant wife, her husband and their child.
In essence the applicants argue that the decision of the IAA to refuse to grant them protection visas is affected by jurisdictional error.
The three applicants consist of a husband, wife and their child. The applicants claim that the IAA erred in the manner in which it dealt with some of the applicant wife’s claims. The applicants do not contend that the IAA erred in the manner in which the IAA dealt with the separate or related claims made by the husband. To the extent that the remaining applicant is a child, their claims were based on satisfying the criteria for a protection visa as a member of the same family unit as the applicant husband and/or applicant wife.
For the purposes of these reasons and to avoid confusion, I will refer to the principal applicant in this proceeding as the applicant wife.

The applicant’s claims

As stated, in the application before the IAA, the applicant wife together with her husband and their child sought temporary protection visas. Although the applicant wife and her husband each made separate applications, in its decision, the IAA referred to the applicant wife, her husband and their son, collectively as ‘the applicants’.
The applicant wife is Tamil and her husband is Singhalese/Burgher.
In the proceedings before the IAA, the applicant wife and husband each claimed that they would be targeted on the basis of being in a mixed race marriage. They now have one child.
The applicant wife and her husband recounted threats visited upon them by Tamil men and thugs; that they had received threatening visits at the applicant husband’s workplace in 2012, abusive phone calls threatening to kill them if their relationship did not cease; after they were married, in September 2012 the applicants were visited by a group of Singhalese men with swords and wooden sticks who called for the applicant wife and her husband; these men came on another occasion, while the applicant and her husband were hiding elsewhere, and damaged the applicant’s husband’s property; and that the applicant wife received regular threatening phone calls.
The applicant wife also claims she had a politically active past; she assisted the Liberation Tigers of Tamil Eelam (the “LTTE”) by fundraising and delivering supplies as a teenager (the period during 2007 to 2009) while residing with her aunt and uncle who were providing temporary shelter and accommodation to the LTTE; The applicant wife confirmed however that she had never been a member of the LTTE and ‘was forced to undertake these fundraising activities by (her) aunt…’.[2]
[2] Court book at page 314 at paragraph [24].
When the applicant wife was a student studying political science, she claims that she also worked for the Tamil National Alliance (the “TNA”). She put up posters, handed out election pamphlets, was involved in vote canvassing and in organising TNA meetings and events. She addressed meetings of the TNA. This was for a period of about 18 months from 2011 to 2012.
The applicant wife’s father was involved with the Ealam People’s Revolutionary Liberation Front (the “EPRLF”) and disappeared when she was a one year old child.
The applicant wife also claimed that as a result of her father’s connections to the EPRLF, her aunt’s connections to the LTTE, and her own involvement in the TNA, that she would have an, ‘adverse political profile’.[3]
[3] Court book at page 312 at paragraph [12].
In her Statutory Declaration dated 18 August 2015, the applicant wife says:
I am also afraid I will be seriously harmed by the Sri Lankan authorities if forcibly returned because I will be imputed with an anti-government political opinion. I fear this will happen for the combined reasons of being returned as a Tamil failed asylum seeker who fled Sri Lanka illegally, because my father had links to EPRLF, because of my fundraising activities for the LTTE in Vavuniya under the order of my aunt, Grace … and because of my active involvement with the TNA. All these things combined would give me an adverse political profile and would make the Sri Lankan authorities suspect that I am opposed to them. I fear that I will be violently interrogated by the authorities on return. I fear I will be arbitrarily detained and imprisoned. I fear that because of my imputed adverse political profile, I will be subjected to violence including of a sexual nature by the authorities. I fear that if I am detained, including for departing illegally, I will suffer violence in the prison I am taken to because I am a Tamil woman. Conditions in Sri Lankan prisons are awful and the authorities can harm whoever they want. I believe that I will be harmed intentionally if detained because I am a Tamil woman with an adverse political profile.[4]
[4] Court book at page 312 at paragraph [12]:
The applicant wife says further:
I also fear being seriously harmed and persecuted by the Sri Lankan authorities because of my Tamil race, as well as my real and imputed political opinion. I fear that I will be violently interrogated, seriously beaten and tortured. I fear that I will be viewed as being opposed to the Sri Lankan government for the combined reasons of being a Tamil woman from the eastern province who has worked actively with the TNA, who applied for asylum overseas after fleeing Sri Lanka illegally, who did fundraising for the LTTE as a teenager and who has family links to people who were involved with the EPRLF and the LTTE.[5]
[5] Court book at page 318 at paragraph [47].
The applicant wife further expands upon these concerns:
I fear the authorities will use the excuse of me departing Sri Lanka illegally to detain me for many days or weeks to further interrogate and find out about me. I fear that because of my adverse profile I will be seriously mistreated physically and sexually by the Sri Lankan authorities during any interrogation while I am detained…. I fear I will be seriously physically harmed by other inmates and the authorities who will purposefully target me for a combination of all of the reasons stated above….[6]
[6] Court book at page 318 at paragraph [49]; and page 319 at paragraph [50].
The applicant wife claimed that the Sri Lankan authorities were unable to protect her and her family because they are corrupt and ineffective.
The applicant wife claimed that she and her family had their details leaked by the Australian Department of Immigration as part of a, ‘data breach’.[7]
[7] Court book at page 318 at paragraph [48].
The applicant wife also raised concerns as she and her family would return to Sri Lanka as failed asylum seekers.
The applicant attended an interview with the department on
10 December 2015. Although there is no transcript before the court of that meeting, there is a summary of what occurred at that meeting in the IAA’s decision record.[8] Relevantly, at paragraph 12 of the IAA’s decision record it notes that the applicant wife stated that:
While she and her family members have never experienced any issues with the Sri Lankan authorities because of their associations with the various political groups listed above, her cumulative adverse profile may put her in danger. [9]
[8] Commencing at court book page 531.
[9] Court book page 531 at paragraph [12].
In addition, both during that interview and following, the department put to the applicant wife certain ‘adverse information’ to which she was given the opportunity to respond.[10]
[10] Court book at page 532 at paragraph [13]; and pages 443 to 446.
The applicant wife’s representative provided a written submission following the applicant wife’s meeting with the department.[11] These submissions addressed, among other things,
a)the country information which shows that Sri Lankan authorities and security forces have committed serious human rights abuses against Tamils who were, or were suspected of being associated with the LTTE after the end of the war;
b)although the applicant wife agreed that Sri Lankan authorities had not shown adverse interest in her to date, her changed circumstances might lead to such interest in the future; and
c)the applicant wife fell within the United Nations High Commissioner for Refugees (the “UNHCR”) Guidelines as to the types of individuals who might require protection.
[11] Court book at pages 463 to 472.
Importantly, the applicant wife’s representative made the following submission:
…We submit that country information supports that given her cumulative adverse profile, [the applicant] …would be subjected to interrogation, likely violent, on forced return to Sri Lanka either when being held in remand or shortly after her return to her home area where she will likely be subjected to periods of arbitrary or pre-trial detention. We submit that there is a real chance that she will be violently interrogated and harmed on return as a result of her adverse cumulative profile and that this chance is neither far-fetched nor remote.
…if our clients are held in remand, detained or imprisoned apart from the deplorable prison conditions they would encounter, they would, especially …[the applicant], given her cumulative adverse profile, be targeted by prison authorities for severe mistreatment, punishment and torture (including of a sexual nature) and that such …be specifically targeted against her because of her cumulative adverse profile. [12]
[12] Court book at page 471.

The process

As the applicant wife was categorised as an ‘unauthorised maritime arrival’[13] having arrived in Australia between 13 August 2012 and

31 December 2013, and that she had not been taken to Manus Island or Nauru, the IAA was obliged to ‘review’ a fast track decision; pursuant to section 473DB of the Migration Act 1958 (“the Act”). In relation to the IAA process, the requirements of natural justice by statute are contained within sections 473BA, 473GA and 473GB of the Act.
[13] Court book page 1 to 50.
The general principles applying to reviews pursuant to Part 7AA of the Act have been summarised in, Minister for Immigration and Border Protection v BBS16[14] referring to AMA16 v Minister Immigration and Border Protection.[15] I not intend to repeat this summary.
[14] [2017] FCAFC 176 at paragraph [3].
[15] [2017] FCAFC 136 at paragraphs [12] to [27].
As stated, the applicants do not take issue with the findings of the IAA in relation to the husband or the child or in relation to the claims made by the applicant wife in relation to her alleged fears arising from the fact that she is in a mixed marriage or her alleged links to the LTTE.

The IAA’s reasons

The IAA’s reasons dealt with the applicant wife as well as her husband and her child. For the purposes of these reasons, I do not propose summarising those aspects of the IAA’s reasons which do not relate to the applicant wife.
The IAA considered the applicant wife’s claim that she had or would have been perceived to have an ‘adverse profile’[16] is claimed and concluded that it was not satisfied that she would have such a profile.
[16] Court book at page 531 at paragraph [12].
The IAA also referred to the UNHCR guidelines[17] and expressly stated that it had regard to those guidelines and other country information provided by the applicant wife.[18]
[17] Court book at page 607 at paragraph [32].
[18] Court book at page 606 at paragraph [31].
In summary, the IAA:
a)accepted that the applicant wife was in a mixed marriage but was not satisfied as a result she faced a real chance of serious harm;
b)accepted that the applicant wife’s father was in the EPRLF but was not satisfied that there was a real chance that this would result in the applicant wife being targeted, particularly noting that a couple of decades had passed since the applicant wife’s father’s disappearance and the evidence that the Sri Lankan authorities had never questioned the applicants or any other member of her family;
c)accepted that the applicant wife collected money and medicine for the LTTE, and that the Sri Lankan authorities had recorded her details during a raid on her aunt’s house, however noted that since that incident, the applicant wife had never been questioned with regard to any connection she might have to the LTTE; and concluded that only had low level connection to the LTTE;
d)accepted that the applicant wife had worked for the TNA albeit as a teenager and in a relatively junior part-time role and rejected the applicant wife’s claim that she would be targeted because of this involvement with the TNA;
e)was not satisfied that the applicant wife would be at risk as a failed asylum seeker noting that thousands of Tamils had been returned to Sri Lanka since the end of the war in 2009; those who had been harmed were only those with substantial links to the LTTE or outstanding warrants and the applicant was neither;
f)accepted that as a result of the data breach, the applicant wife’s details may have been accessed by the Sri Lankan government, however was not satisfied that the data breach would have an adverse impact on the applicant wife given the nature of the information disclosed;
g)accepted that the applicant wife might be charged for breaching the Immigrants and Emigrants Act 1949 (Sri Lanka) and that as a result she may be placed on remand for up to 24 hours and if a Magistrate was not available that she may be taken to prison - however it found that she would be fined for the offence; and
h)also considered the potential for harm under the complimentary protection criteria and stated:
I am not satisfied that any brief detention, questioning, fine or other penalty would amount to significant harm as defined under the Act. I accept that the applicants may be remanded in custody for a short period either at the airport or at a prison, while waiting to be brought before a magistrate. I have found the applicants have no specific profile that would result in longer detention, custodial sentence or additional interrogation. DFAT advises that the risk of torture or mistreatment for people suspected of an offence under the IAEA is low. I find that the likelihood that the applicants will be detained in prison is remote, but if they are detained, I accept the applicants may experience poor prison conditions during this detention. Critically I note that country information indicates the poor conditions are due to overcrowding, poor sanitation and lack of resources I find there is no real risk that the applicants will be arbitrarily deprived of his or her life or be tortured. While the conditions are poor, I find there is no intention to inflict pain or suffering or extreme humiliation. In these circumstances the poor prison conditions to which the applicants may be subject do not of themselves constitute significant harm as defined under the Act. I am not relatively, any processes encounter under the IAA, would constitute significant harm is exhaustively defined under ss36(2A) and 5 of the Act (emphasis added).[19]
[19] Court book at page 640 at paragraph [68].

Ground One

The first ground of review is:
The Second Respondent (IAA) erred by failing to consider submissions and claims that the Applicant wife would suffer serious harm, or significant harm, as a Tamil woman.[20]
[20] Applicant’s amended application filed 21 February 2018 at page 3.
This ground relies upon a finding that the applicant wife made a claim that she would be targeted on the basis of her gender and that the IAA failed to consider that claim.
The principles which apply to the Court’s determination of whether the decision-maker has properly identified and considered each of the claims made by an applicant are aptly summarised by Judge Smith of this court in: AJJ15 v Minister for Immigration and Border Protection:[21]
The tribunal’s duty is to “review” the decision of the delegate:
s. 414(1); Minister for Immigration & citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25]. That means that, like the delegate before it, the Tribunal must determine whether it is satisfied that a review applicant satisfies the criteria for the grant of a protection visa: s.65(1). Those criteria involve the assessment of the possibility of events occurring when a visa applicant returns to his/her own country of nationality or residence. Those are factual matters which vary according to the evidence before the Tribunal, both that given by or on behalf of a review applicant as well as other information about the circumstances pertaining in the relevant country. Thus, it has been said that the Tribunal cannot discharge its statutory review task without ‘a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the on-going circumstances on the ground’: Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [38].
Similarly, it has often been said that for the Tribunal to fail to respond to a substantial, clearly articulated argument relying upon established facts is to deny an applicant procedural fairness and to constructively fail to exercise its jurisdiction: Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [25]. The Tribunal may, of course, “fail to respond” to a claim or argument in a number of ways. It may simply overlook the claim or argument or misunderstand it or its relevance to the issues on the review: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63]. (emphasis added)
[21] [2016] FCCA 482 at paragraphs [25] to [26].

Accepting this as a proper statement of principle, it is also the case that the IAA is not required to deal with claims not expressly made or which do not arise clearly on the material.[22] Nor does an unarticulated claim depend on creative or constructive activity by the decision-maker.[23] Rather, an unarticulated claim must arise sufficiently on the material such that decision-maker appreciate its existence.[24]
[22] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1; 219 ALR 27 at paragraph [61].
[23] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1; 219 ALR 27 at paragraph [58].
[24] NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at paragraph [15].
In support of this ground, the applicant refers to the fact that in the written submissions filed on the applicant wife’s behalf on 6 January 2016, her representative stated:
We submit therefore, that there is a real chance that… (the applicant) (and… (her husband) by association) will face serious harm at the hands of the Sri Lankan authorities if forcibly returned on account of her cumulative adverse profile. Her cumulative adverse profile is:
·   being a young Tamil woman from the Eastern Province;
·   whose father was involved in the EPRLF;
·   who lived in Vavuniya from December 2006 to June 2010;
·     who was forcibly involved with assisting the LTTE between 2007 to early 2009;
·   who worked for the TNA in Trincomalee;
·     who fled Sri Lanka illegally given the fear of being harmed because of her mixed race marriage;
·   who applied for asylum in Australia;
·     who had a child in Australia that is not registered with the Sri Lankan authorities;
·   who would be forcibly returned as a failed asylum seeker; and
·     who lived with a family for over two years that was suspected of providing material assistance to the LTTE and whose uncle and cousin were forced to flee Sri Lanka after experiencing harm and mistreatment by the security forces following the end of the civil war because of their suspected involvement with and support of the LTTE.[25]
[25] Court book at page 470.
In addition, the applicant refers to those parts of her material in which she expresses concern about being imprisoned if returned to Sri Lanka on the basis of having left the country illegally and being subjected to violence of a sexual nature.
For example, reference is made to the Statutory Declaration filed by the applicant dated 18 August 2015, the relevant extract of which are set out in paragraphs 13 to 15 above.
The applicant wife’s representative also made the following submission in the post interview submission filed on behalf of the applicant wife dated 6 January 2016:
We also submit that if our clients are held in remand, detained or imprisoned, apart from the deplorable prison conditions they would encounter, they would, especially (the applicant wife), given her cumulative adverse profile, be targeted by the prison authorities for severe mistreatment, punishment and torture (including of a sexual nature) and that such against her because of her cumulative adverse profile.[26]
[26] Court book at page 471.
It was submitted on behalf of the applicant wife that a claim for protection on the basis of gender clearly arose from the material before the IAA and was supported by country information. It was submitted on behalf of the applicant wife that the IAA did not deal with this claim either expressly or impliedly.
The applicant wife says that the only reference to this claim was an oblique one in the IAA’s decision record where it says:
…the applicants claim to fear harm if they return to Sri Lanka because the husband and wife departed Sri Lanka illegally. In particular they fear being interrogated and mistreated during any such interrogation, including sexual mistreatment of the wife. They fear too the prison conditions in Sri Lanka.[27]
[27] Court book at page 610 at paragraph [50].
In response, the first respondent argues that the applicant wife did not, with the clarity required by the authorities, claim to fear harm as a woman per se. Rather, it is said on behalf the first respondent that the applicant wife claimed that because of her perceived adverse political profile she would, if returned to Sri Lanka, be subjected to violence (including sexual violence).
The first respondent argued that the IAA clearly understood this claim and dealt with it in its reasons. In particular, it dealt with it by rejecting the premise upon which it was based. That is, the IAA rejected that the applicant had the political profile which she asserted.
Moreover, it is submitted for the first respondent that the IAA made general findings as to the treatment that she could expect to receive if she had to spend any time in custody as a result of having left Sri Lanka illegally.
There is some force to the submissions put by the first respondent in this respect.
The only reference to gender are those set out in the applicant wife’s submissions summarised above. Whilst the applicant wife’s written submission refers to the applicant wife’s cumulative adverse profile as including, ‘being a young Tamil woman from the Eastern Province’,[28] this does not, in my view, amount to a claim based on gender per se.
[28] Court book at page 470.
As noted in, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs:
The critical question… is whether the applicant has a well-founded fear of persecution for one of the Convention reasons. If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, … to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision.
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived.… The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court in its reasons are not to be scrutinised ‘with an eye keenly attuned to error.’ Nor is it necessarily provide reasons of the kind that might be expected of a court of law.
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. [29]
[29] Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; 236 FCR 593; 75 ALR 630; 75 ALD 630 at paragraphs [45] to [47].
I am not satisfied that it can properly be said that the claim now advanced that the applicant wife feared persecution because she is a woman, could be said to squarely arise from the material before the IAA. There is nothing in the material before the IAA which could be said to give rise the necessary causation between the applicant wife’s gender and the requisite fear of persecution required.
In this particular case, it is also relevant in considering how and what relevance is to be attributed to the applicant’s cumulative adverse profile, and in particular to her being, ‘a young Tamil woman from the Eastern Province’, that at the time the matter was before the IAA:[30]
a)the application related to both the applicant wife and her husband (and child); and
b)the principal issues before the IAA revolved around the applicant wife’s marriage to a non-Tamil and the applicant wife’s political beliefs given her own activities and those of her family with organisations supportive of the Tamil cause.
[30] Court book at page 470.
In this context, a reference to applicant as a, ‘young Tamil woman from the Eastern Province’[31] is clearly more a descriptor of the applicant by reference to her ethnicity, place of birth and gender rather than a claim of fear of persecution based on gender per se.
[31] Court book at page 470.
The other references to gender from which the alleged gender claim is said to arise, are made in the context of the alleged torture that the applicant may suffer, including that it would be of a sexual nature, if she were to be detained on her return to Sri Lanka as a result of having departed Sri Lanka illegally. It cannot be said in my view that this gives rise to a claim of a fear of persecution based on gender.
To say that one fears being subjected to sexual abuse, if imprisoned, is not necessarily the same as saying that one fears persecution because of their gender. The sexual assault is the form of the feared persecution and that is not the same as saying that the person’s gender is the ground on which the fear of persecution is based.
The claim before the tribunal was that the applicant wife feared persecution because of her actual or imputed political associations, because of her mixed marriage and, if forced to return, because she would be returning as a failed asylum seeker and as a result of having left the country illegally. The form of persecution that she feared if she was to be returned to which she specifically referred was torture, including of a sexual nature. The concerns about being subjected to sexual violence, is the consequence of the alleged persecution, not the basis for it. The tribunal considered this claim and concluded that it had no merit.[32]
[32] Transcript page 17 at lines 5 to 10.
Finally and for completeness, I also note that the applicant wife was represented throughout the proceedings before the IAA and made numerous submissions both in writing and at the interview before the IAA. Again whilst this is not determinative, it is a significant factor in determining in this case whether a claim now said to arise is clearly identifiable from the material before the IAA.[33]
[33] See comments of Beach J in MZZQY v Minister for Immigration and Border Protection [2015] FCA 883 at paragraph [27] and Middleton J in MZZUT v Minister for Immigration and Border Protection [2015] FCA 141 at paragraph [18].
For these reasons, ground one must fail.

Ground Two

The second ground of review is:
The Second Respondent erred by failing to consider the relevant category of the UNHCR Guidelines about Tamils at risk of harm in Sri Lanka due to sheltering or supporting LTTE personnel or having family links with a person who sheltered or supported LTTE personnel. …alternatively, the IAA erred by misapplying the ‘real chance’ test.[34]
[34] Applicant’s amended application filed 21 February 2018.
In support of this second ground, it was argued on behalf of the applicant that there was no ‘consciousness and consideration’[35] by the IAA, of the fact that the applicant wife fell within a category of persons recognised by the UNHCR as requiring protection.
[35] Applicant’s amended application filed 21 February 2018.
In the alternative, it was submitted on behalf of the applicant wife that the IAA erred by only having regard to the applicant wife’s previous history and whether she had been targeted in the past because of her LTTE support and failed to look to the future when applying the ‘real chance’ test.[36] It was said that although the past may be a good guide, the task for the IAA was to undertake a ‘future focussed enquiry’[37] and it failed to do this.
[36] Applicant’s amended application filed 21 February 2018.
[37] Ponnudurai v Minister for Immigration and Multicultural Affairs [2000] FCA 91 at paragraphs [13] to [25].
In response the Minister submits that it is evident from the IAA’s decision record that the IAA considered the UNHCR Guidelines and that the interpretation and significance of those UNHCR Guidelines was ultimately a matter for the authority. It was put on behalf of the Minister that at the heart of argument is impermissible merits review.[38]
[38] Transcript page 15 at lines 38 to 45.
It was further submitted for the Minister that, the IAA clearly considered the specifics of the applicant’s circumstances and having regard to country information, including the UNHCR Guidelines and the 2015 DFAT report, the IAA concluded that a person with the applicant wife’s low level LTTE connections, did not face a real chance of attracting adverse attention from Sri Lankan authorities. This conclusion, it was said on behalf of the Minister, was clearly open on the evidence before the IAA and there is no jurisdictional error.
At the hearing the applicant wife tendered the UNHCR Guidelines[39]. No objection was taken by the Minister.
[39] Exhibit A, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka dated 21 December 2012.
It is common ground that, the IAA noted that it: ‘had regard to the country information provided by the migration agent and in particular the current UNHCR Guidelines’. [40]
[40] Court book at page 632 at paragraph [31].
As stated in, Minister for Immigration and Border Protection v MZYTS and Anor[41] in which the Court was dealing with a claim that the tribunal in that case had failed to ‘consider’ certain relevant information, the Court observed:
The Convention basis for protection which he articulated then was that, at the time of the Tribunal hearing in early 2011 and for the foreseeable future after early 2011, there were growing risks of politically-motivated violence for people like him in Zimbabwe, if he were to be returned there. This basis , together with the terms of ss 65 and 36(2)(a), read with the content of Art 1 of the Refugees Convention, required the Tribunal to assess and determine what might happen to him if he were compelled to return there is 2011, or in the near future thereafter.
That task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence an material advanced by the visa applicant, most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there.[42]
[41] [2013] FCAFC 114; (2013) 230 FCR 431.
[42] Minister for Immigration and Border Protection v MZYTS and Another [2013] FCAFC 114; (2013) 230 FCR 431 at paragraphs [37] to [38].
The UNHCR Guidelines relevantly state:
… the possible risks facing individuals with the profiles outline below require particularly careful examination. UNHCR considers that individuals with these profiles – though this list is not exhaustive – may be, and in some cases are likely to be in need of international refugee protection, depending on the individual circumstances of their case.[43]
[43] UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka dated 21 December 2012.
The UNHCR Guidelines then set out a list of eight categories of particular profiles. It was submitted on behalf of the applicant wife that the IAA’s reasons do not engage at all with these particular categories and therefore there is no evidence that the IAA gave the UNHCR Guidelines the level of consideration contemplated in MZYTS.
It is evident from the IAAs decision record, and I find, that the IAA considered the specifics of the applicant wife’s individual case and concluded that her links to the LTTE were not such as to bring her to the attention of the authorities on her return. This is consistent with the UNHCR Guidelines. Moreover, the IAA stated that it did consider the UNHCR Guidelines and there is no reason to go behind that statement in this instance. The IAA also referred to more recent country information in greater detail.[44] The weight to be given to particular country information is a matter for the IAA.
[44] Court book at page 606 at paragraph [32]; page 607 at paragraphs [32] and [37]; and page 608 at paragraph [37].
Finally, I turn to deal with the alternative argument that the IAA focussed only on the applicant wife’s previous history and whether she had been targeted because of her LTTE support and failed to conduct a future focussed assessment in applying the ‘real chance test’. In support of this proposition, the applicant wife referred to the decision of Burchett J in Ponnudurai v Minister for Immigration and Multicultural Affairs. [45]
[45] [2000] FCA 91 at paragraphs [13] to [25].
I find that a fair reading of the IAAs reasons shows that it undertook the necessary forward looking exercise to determine whether the applicant wife faced a real chance of harm if returned to Sri Lanka. For example, in paragraph 32, the IAA noted that whilst accepting that the applicant wife was a Tamil from the Eastern Province and had lived in the Northern Province as a teenager, it went on to refer to DFAT country information which indicated that:
…the overall situation for Tamils in Sri Lanka has improved since the end of the civil conflict in 2009… DFAT advises that the monitoring and harassment of Tamils in these areas has decreased under the new government. … Both DFAT and the UNHCR assess that Tamil civilians who live in former LTTE areas in the North and East, including Tamils that provided low level support to the LTTE, may be monitored by Sri Lankan authorities, but are at a low risk of being detained or prosecuted.[46]
[46] Court book at page 632 at paragraph [32]; and page 633 at paragraph [32].
I find that the facts in this case are distinguishable from those before his Honour Burchett J in Ponnudurai. I further am satisfied that the IAA did conduct the necessary forward focussed exercise required by the ‘real chance’ test.
For these reasons, ground two is not made out.

Conclusion

As neither of the applicant’s grounds have been made out, the application must be dismissed with costs.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate:

Date: 20 July 2018