Cim17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 571
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CIM17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 571
File number: MLG 1151 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 18 July 2022 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – whether Authority failed to consider all claims for protection and their component integers in an active, intellectual manner – whether Authority misunderstood or misapplied s 473DC of the Migration Act 1958 (Cth) – whether Authority acted unreasonably – whether Authority misunderstood or misapplied the real chance test and real risk test – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5AAA, 5AA, 5H, 5J, s 36, 46A, 473CA, 473CB, 473DB, 473DC, 473DD, 476, 477 Cases cited: ABT17v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
AMT15 v Minister for Immigration and Border Protection (2018) 74 AAR 366; [2018] FCA 366
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62
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 210
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155; [1985] FCA 46
Division: Division 2 General Federal Law Number of paragraphs: 83 Date of hearing: 27 June 2022 Place: Perth Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: Ambi Associates Counsel for the First Respondent: Ms D Gang Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1151 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CIM17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
18 JULY 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
Before the Court is an application by which the applicant seeks judicial review of a decision made by the Immigration Assessment Authority (Authority). On 5 May 2022 the Authority affirmed a decision made by a delegate of the Minister not to grant the applicant a protection visa. The application is brought pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant relies on an amended application filed on 10 January 2022 containing three grounds. The applicant alleges that:
(a)the Authority failed to consider a relevant consideration or an integer of the applicant’s claims, including:
(i)whether the combination of the applicant being a family member of a Liberation Tigers of Tamil Eelam (LTTE) member, a returned failed asylum seeker and a person investigated by the authorities on or after his return would give rise to a real chance of serious harm;
(ii)the various submissions and information before it relating to abuses of human rights;
(iii)whether the applicant had a real chance of suffering persecution or significant harm by torture while in detention or otherwise under the control of the Sri Lankan authorities on his return to Sri Lanka; and
(iv)the limitations of the Department of Foreign Affairs and Trade (DFAT) report relied on by the Authority;
(b)the Authority misunderstood the law or applied the wrong legal test:
(i)by not seeking new information under s 473DC of the Migration Act in relation to corroborative letters submitted by the applicant and an informational gap identified by the Authority relating to whether the applicant complained to police about the claimed threats in September 2012; and
(ii)in its interpretation or application of the term ‘real chance’ in s 5J(1)(b) and ‘real risk’ in s 36(2)(aa) of the Migration Act; and
(c)the Authority acted unreasonably in failing to seek new information under s 473DC of the Migration Act, giving no weight to a corroborative letter provided by the applicant, and in finding that the applicant did not face a real chance of serious harm or a real risk of significant harm.
The applicant has not established that the Authority decision is affected by jurisdictional error and the application to this Court is therefore dismissed.
BACKGROUND
The applicant is a citizen of Sri Lanka. He entered Australia at Cocos (Keeling) Islands in October 2012 without a visa. He is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 7 April 2016 the Minister’s Department sent to the applicant an invitation to apply for a protection visa. The invitation advised the applicant that the Minister had exercised the power in s 46A(2) of the Migration Act to lift the bar in s 46A(1) which had, until that time, prevented him from applying for a protection visa.
On 27 April 2016 the applicant lodged a valid application for a Safe Haven Enterprise visa, which is a type of protection visa. In a statement which accompanied his protection visa application, the applicant claimed to fear harm from the Sri Lankan Army (SLA) on the basis of his Tamil ethnicity and imputed links to the LTTE. The applicant also claimed to fear harm from the Sri Lankan authorities or a Tamil paramilitary group because of his involvement in supporting a candidate of the Tamil National Alliance (TNA) in a 2012 Provincial Council election.
On 30 August 2016 the applicant attended an interview with an officer of the Department to discuss his claims for protection.
A delegate of the Minister made a decision on 14 October 2016 not to grant the applicant a protection visa. The matter was then referred to the Authority pursuant to s 473CA of the Migration Act.
On 2 November 2016 the applicant’s representative provided a written submission to the Authority.
On 5 May 2017 the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
AUTHORITY DECISION
The Authority had regard to:
(a)the material provided by the Secretary under s 473CB of the Migration Act;
(b)a submission provided by the applicant’s representative, including the reference in the submission to a country information article which the Authority assessed to be new information that met the requirements of s 473DD of the Migration Act; and
(c)new information in the form of an updated DFAT report which the Authority obtained itself and in relation to which the Authority was satisfied that the requirement in s 473DD(a) was met.
The Authority accepted many of the applicant’s claims about his familial links to the LTTE and past interactions with the Sri Lankan authorities he and his family members experienced, including that:
(a)the applicant’s family lived in close proximity to an area controlled by the LTTE;
(b)Tamils in this area were suspected of being LTTE members;
(c)the SLA conducted regular house checks and his family was subject to these checks and were asked about family members and any association with the LTTE;
(d)on one occasion the army stopped the applicant on his way to school and questioned him;
(e)the applicant lived in another area with his aunt from 2006 to 2012 to avoid ongoing harassment by the SLA and to avoid being conscripted by the LTTE; and
(f)the applicant had an uncle who was a member of the LTTE who went missing in 1998 and was possibly killed by the SLA, an uncle who was killed in 2008 and an uncle who disappeared around 1990, and these uncles were targeted in some way during the civil war.
The Authority accepted as plausible that the applicant was involved in supporting a TNA candidate at the 2012 Provincial Council election. The Authority accepted the applicant’s account that he was not a TNA member and that his role was to distribute notices and stick up promotional material which his friend gave to him and found that his claimed role was at a very low level. The Authority considered it was implausible that somebody of such low-level involvement would come to the adverse attention of paramilitaries, or that unknown people would come to the applicant’s family home after his departure. The Authority was not satisfied that the applicant was threatened by paramilitaries in September 2012, and did not accept that the applicant would face serious harm from the paramilitaries or unknown people on return to Sri Lanka because of his role in 2012 Provincial Council election, or that he would face serious harm if he were to become politically active or engage in similar activities on return to Sri Lanka.
The Authority accepted that the applicant may have an ongoing subjective fear as a young Tamil male who lived close to a LTTE controlled area, whose uncle was a LTTE member killed by the SLA, and whose other uncles may have been imputed as LTTE supporters and have disappeared or been killed on that basis. However, the Authority was not satisfied that the applicant would face a real chance of any harm on return to Sri Lanka, finding that he did not have the profile of a person identified as being at risk of harm in the United Nations High Commissioner for Refugees guidelines and would not be perceived as a supporter of the LTTE. The Authority found that the treatment the applicant faced in the past was part of the general monitoring and scrutiny to which the civilian Tamil population were subjected during the war and its immediate aftermath. Noting the significant change in the country circumstances since the end of the war and the defeat of the Rajapaksa government in 2015, the Authority was not satisfied that there was a real chance the applicant would experience harm on return to Sri Lanka for reason of his Tamil ethnicity.
The Authority found that the applicant would not face a real chance of serious harm because of his illegal departure from Sri Lanka or as a returning failed asylum seeker. The Authority found that the anticipated treatment the applicant would face upon return to Sri Lanka for breaching the Immigrants and Emigrants Act 1949 (Sri Lanka) would not amount to serious harm and, in any event, the law was one of general application which would not be applied in a discriminatory manner.
Having considered the totality of the applicant’s circumstances and country information, the Authority was not satisfied that there was a real chance of the applicant being persecuted in Sri Lanka in the reasonably foreseeable future. The Authority concluded that the applicant did not meet the definition of a refugee in s 5H(1) of the Migration Act and therefore did not meet the requirements of s 36(2)(a).
The Authority also found that the applicant did not meet the complementary protection criteria in s 36(2)(aa) as there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, there was a real risk that he would suffer significant harm. This complementary protection finding was based on similar factual findings to those made for the purpose of the refugee assessment, as well as its assessment that any mistreatment that the applicant would face upon his short detention on return to Sri Lanka would not amount to significant harm.
PROCEEDINGS BEFORE THIS COURT
The application for judicial review was filed on 31 May 2017, which is within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act. On 10 January 2022 the applicant filed an amended application.
The amended application raises the following three grounds:
1.The Immigration Assessment Authority (“The Authority”) fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material question of fact.
Particulars
a) The Authority accepted:
(i)that one of the applicant’s uncles was an LTTE member who went missing in 1998 and was possibly killed by the army, that another was killed in 2008 and another disappeared around 1990, and that it was plausible that they were targeted in some way. (Decision Record [15]);
(ii)that the current UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka provided relevant guidance and that it advised that family members of LTTE members may be at risk (Decision Record [29]);
(iii)that returning failed asylum seekers who left Sri Lanka illegally would be processed by the authorities and this would involve checking records and investigations (Decision Record [36]);
but the Authority did not consider whether, in combination, the factors of being a family member of an LTTE member, a returned failed asylum seeker, and a person investigated by the authorities on or after return may affect whether the applicant has a real chance of persecution or a real risk of serious harm, for example by spending longer in detention and being at greater risk of harm during that process, or by being subject to harm after release.
b)The Authority failed to consider with an actual intellectual engagement the submissions and information before it relating to abuse of human rights, including torture. (CB pp. 125 - 155; CB 196, [29]; CB 197, [32]- CB 198, [34]; CB 199, [38]; CB 199-200, [43]; CB 201, [51])
c)Further or in the alternative to particular (b) to this Ground, the Authority failed to consider with an actual intellectual engagement the question whether the Applicant had a real chance of suffering persecution or significant harm by torture or other serious or significant harm while in detention or otherwise under the control of the Sri Lankan authorities, on his return to Sri Lanka. This question was squarely raised by the Applicant’s evidence, his submissions, and the findings of the Second Respondent. (CB pp. 125 - 155; CB 196, [29]; CB 197, [32]- CB 198, [34]; CB 199, [38]; CB 199-200, [43]; CB 201, [51])
d)The Authority failed to consider the limitations of the DFAT report on which it relied. (CB 199-200, [43] and note 15.)
2.The Authority fell into jurisdictional error in that it misunderstood the law or applied the wrong legal test.
Particulars
b)The Authority erred in not seeking new information under section 473DC of the Migration Act 1958 (Cth) (“the Act”) relating to the letters submitted in corroboration of the Applicant’s claims about his history and his claim to need protection. (CB 81-82; CB 195, [19])
c)The Authority erred in not seeking new information under section 473DC of the Act about an informational gap noted by the Authority, relating to whether the Applicant complained to police about the claimed threats in September 2012, and if not, why not.
d)The Authority erred in interpreting or applying the term “real chance” of persecution in section 5J(1)(b) of the Act and “real risk” of significant harm in section 36(2)(aa) of the Act. (CB 195, [20], [21]; CB 196, [26]; CB 197-198, [33]; CB 199-200, [43]; CB 201, [51])
3.The Authority fell into jurisdictional error in that it was unreasonable.
Particulars
(a)Further or in the alternative to particular (b) to Ground 2 of this application, the Authority was unreasonable in not seeking seek new information under section 473DC of the Act relating to the letters submitted in corroboration of the Applicant’s claims about his history and his claim to need protection. (CB 81-82; CB 195, [19])
(b)Further or in the alternative to particular (a) to this Ground, the Authority was unreasonable in giving no weight to the corroborating letter it mentioned at [19] of its reasons. (CB 81; CB 195, [19])
(c)Further or in the alternative to particular (c) to Ground 2 of this application, the Authority was unreasonable in not seeking new information under section 473DC of the Act about an informational gap noted by the Authority, relating to whether the Applicant complained to police about the claimed threats in September 2012, and if not, why not.
(d)Further or in the alternative to particulars (b), (c) and (d) to Ground 1 and particular (d) to Ground 2 of this application, the Authority was unreasonable in rejecting claims of the Applicant relating to him coming to the adverse attention of paramilitary forces, being at risk because of real or imputed connections to the LTTE, or because of returning as an illegal emigrant and being in detention or prison. It was therefore unreasonable in not finding that he had a “real chance” of persecution pursuant to section 5J(1)(b) of the Act or a “real risk” of significant harm in section 36(2)(aa) of the Act. (CB 195, [20], [21]; CB 196, [26]; CB 197-198, [33]; CB 199-200, [43]; CB 201, [51])
GROUND 1
The Authority is required to consider all claims for protection advanced by an applicant and their component integers: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [57]. The Authority is required to consider the applicant’s claims in an active, intellectual manner: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 at [45]; Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188 at [37]. The dispute between the parties in relation to ground 1 lies in whether the Authority considered the applicant’s claims, and the evidence in support of those claims, in an active, intellectual manner.
Particular (a)
The applicant submitted that the Authority failed to consider whether the combination of factors of the applicant being a family member of a LTTE member, a returned failed asylum seeker, and a person who will be investigated by the authorities on or after his return to Sri Lanka would give rise to the applicant having a real chance of persecution or a real risk of significant harm. The applicant suggested that an example of such harm that might arise from this combination of factors could be spending longer in detention and being at greater risk of harm during that process, or being subject to harm after his release.
The applicant acknowledged that the Authority conducted a cumulative assessment of some of his claims at [44] of its reasons. The basis of particular (a) appears to be that the Authority did not refer to the applicant being a failed asylum seeker or that he may be subject to brief detention and investigation for breaching the Immigrants and Emigrants Act upon his return to Sri Lanka in this cumulative assessment. The Authority said at [44]:
I have considered whether, when taken together, the totality of the applicant’s circumstances will lead to a real chance of him suffering harm from the authorities, including being a young Tamil male who lived close to an LTTE controlled area and who had interactions with the authorities, whose uncle was an LTTE member killed by the army, and whose other uncles may have been imputed as LTTE supporters, or for his role in the 2012 election, or if he should be politically active in the future. However, considering the country information before me, I am not satisfied that there is a real chance of the applicant been persecuted in Sri Lanka in the reasonably foreseeable future. I find that the applicant’s fear of persecution is not well-founded.
The error alleged by the applicant in particular (a) is not established.
The Authority carefully considered whether the applicant would face a real chance of persecution as a result of his familial links to the LTTE. In finding that the applicant did not have any profile on the basis of his family connections, the Authority took into account that his familial links did not lead to the applicant being charged or detained by the authorities at any time in the past and that he was able to live openly at his aunt’s house and continue his secondary schooling and work. The Authority also considered that the applicant would not be imputed as a supporter of the LTTE simply by being a young Tamil male who lived in close proximity to an area once controlled by the LTTE.
The Authority clearly took this finding into account in its assessment at [43] that the applicant would not face a real chance of persecution as a failed asylum seeker. The Authority said at [43] (footnotes omitted):
I am not satisfied that the applicant’s status as a failed asylum seeker would result in him experiencing adverse attention on return to Sri Lanka. DFAT has assessed that the risk of torture or mistreatment for the majority of returnees, including those suspected of offences under the I&E Act, is low. I accept that there are reports of mistreatment of returned asylum seekers who have an actual or imputed profile of LTTE links, and I note the references to various accounts listed in the post-interview submission; I have taken into account the media report included in the post-interview submission regarding the mistreatment of a Tamil returnee in 2015, but I note that this person had been an LTTE member for a period of six years. I do not accept the applicant has such a profile or would be perceived as such. I am not satisfied that there is a real chance the applicant would face any harm as a returning failed Tamil asylum seeker.
This finding demonstrates that the Authority cumulatively considered whether the applicant faced a risk of harm as a failed asylum seeker taking into account its findings as to whether he would be imputed with a pro-LTTE profile.
It is clear from the immediately preceding paragraphs of the Authority’s decision that the Authority accepted that upon return to Sri Lanka the applicant could be detained and questioned at the airport and its finding at [43] should not be considered in isolation to its earlier findings.
The applicant submitted at the hearing that any investigation might disclose that the applicant had three uncles who were targeted in relation to their involvement with the LTTE. The applicant submitted that at the end of the investigation the issue might be resolved in the applicant’s favour but there was a question as to what would happen during that process. The Authority clearly found that the applicant would not be perceived as a person with a pro-LTTE profile on account of his uncles’ real or perceived involvement with the LTTE. This finding that the applicant would not be perceived to be a supporter of the LTTE, in conjunction with its findings based on country information, sufficiently addressed the applicant’s claims to face harm because of his association with his uncles.
Particular (b)
The applicant submitted that the Authority failed to actively and intellectually engage with the submissions and information before it relating to abuses of human rights, including torture.
The applicant in his submissions to the Court extracted a series of quotes from the country information that was before the Authority. The applicant submitted that the thrust of the material was that even after the end of the war and the change of government in 2015, there was an entrenched and pervasive culture of torture and abuse by the police and other authorities, especially of persons in custody, even for minor offences.
In advancing this particular, the applicant has highlighted some of the submissions he made to the Authority based on country information. The applicant submitted to the Authority that the country information suggested he may face a risk of harm as a Tamil with suspected LTTE links. Some, but not all, of the country information otherwise relied on by the applicant in relation to this particular refers to treatment of those with suspected LTTE links. Some of the information refers more generally to torture and mistreatment of criminal suspects and those in police custody.
In considering whether the Authority failed to actively and intellectually consider the country information before it, it is important to take into account not only the Authority’s comments on the country information and findings based on that information, but also its findings in relation to the profile of the applicant. In this regard, it is relevant that the Authority found that the applicant would not be imputed with a pro-LTTE profile, had only low-level political involvement, and that the applicant would likely be charged with breaching the Immigrants and Emigrants Act and could face several days in prison while waiting to appear before a magistrate.
I make the following observations about the findings of the Authority that the applicant referred to in his submissions in relation to this particular:
(a)The Authority’s acknowledgement at [29] of its reasons that there continue to be reports of arbitrary detention and harm perpetrated by the security forces in Sri Lanka, particularly of Tamils, is an acknowledgement of some of the country information that might be favourable to the applicant.
(b)At [32] the Authority referred to a significant change in the country circumstances since end of the war and was not satisfied that the applicant would face a real chance of harm for reason of his Tamil ethnicity notwithstanding the murder of two students at Jaffna University in 2016. There is no jurisdictional error in this finding. It is evident from a review of the paragraph as a whole that the Authority considered that the situation in Sri Lanka was improving and that the applicant did not face a real chance of harm. It is implicit that the Authority did not see the murder of two university students as changing the general trend of improvements reported in the country information.
(c)At [34], in considering the applicant’s low-level political involvement in supporting a TNA candidate, the Authority observed that country information does not support ongoing harassment of people with low profile political involvement. The country information that the applicant has referred to in advancing particular (b) does not contradict this finding or refer at all to people with low profile political involvement.
(d)At [36] the Authority referred to DFAT’s assessment that returnees are not subject to mistreatment during processing at the airport. None of the country information referred to by the applicant refers to treatment of people being processed at the airport and it is difficult to ascertain the basis on which the applicant seeks to impugn the Authority’s finding at [36].
(e)In considering the possible treatment that the applicant may face for breaching the Immigrants and Emigrants Act, the Authority:
(i)referred to country information that indicated that the general prison conditions in Sri Lanka are poor due to gross overcrowding and poor sanitary conditions: [37];
(ii)accepted that there were reports of mistreatment of returned asylum seekers who have actual or imputed profile of LTTE links: [39]; and
(iii)referred to country information from DFAT reporting that the risk of torture or mistreatment for the majority of returnees is low, including for those suspected of an offence under the Immigrants and Emigrants Act: [37], [51].
I do not accept the applicant’s submission that the Authority failed to properly grapple with the range, depth, complexity, consistency and general probative value of the country information.
There was simply no need for the Authority to engage extensively with country information regarding possible mistreatment of people with imputed or actual LTTE profiles, given its finding of fact that the applicant held no such profile.
In relation to the brief period of detention that the applicant might face as a result of breaching the Immigrants and Emigrants Act, I infer that the Authority did not refer to the country information in the applicant’s submissions because it did not consider that country information to be material to the outcome of the review. Contrary to the country information published by DFAT on which the Authority relied, the country information referred to in the applicant’s submissions did not specifically address the risk of harm faced by people suspected of breaching the Immigrants and Emigrants Act. It was open to the Authority to rely on the more specific information published by DFAT. I do not accept the applicant’s submissions in relation to limitations of the DFAT report, which is the subject of particular (d), addressed below.
Particular (b) does not establish jurisdictional error.
Particular (c)
The applicant submitted that the Authority failed to actively and intellectually consider the question of whether the applicant faced a real chance of persecution or significant harm by torture or other mistreatment while under the control of the Sri Lankan authorities on his return to Sri Lanka, especially while in detention as an illegal emigrant during the process of being charged and undergoing investigation.
The Authority clearly considered this issue. The Authority:
(a)accepted that the applicant would be considered by the Sri Lankan authorities to be a failed asylum seeker who departed Sri Lanka illegally: [35];
(b)accepted that the applicant may face a penalty for breaching the Immigrants and Emigrants Act, which would most likely be a fine: [35];
(c)accepted that as an involuntary returnee the applicant would be subject to an investigative process at the airport to confirm his identity and noted DFAT’s assessment that returnees are treated according to standard procedures regardless of their ethnicity and religion and are not subject to mistreatment during the processing at the airport: [36];
(d)accepted that the applicant may be questioned by police at the airport and charged under the Immigrants and Emigrants Act, and may be required to remain in police custody at the Criminal Investigation Department Airport Office for up to 24 hours or at a nearby prison while waiting to be brought before the Magistrates Court: [37], [39];
(e)accepted that general prison conditions in Sri Lanka are poor due to gross overcrowding and poor sanitary conditions: [37];
(f)expressed the view that there was no information to indicate that the applicant would plead not guilty to breaching the Immigrants and Emigrants Act, but accepted that if he did plead not guilty and no family member was present, he may face a longer period in prison: [38];
(g)found that the applicant would face only a brief period in detention and, even having regard to the general poor prison conditions, this would not amount to serious harm: [40];
(h)did not consider any likely questioning of the applicant by the authorities at the airport, any surety imposed, or the imposition of a fine under the Immigrants and Emigrants Act to amount to serious harm: [41];
(i)accepted that there were reports of mistreatment of returned asylum seekers who have an actual or imputed profile of LTTE links but was not satisfied that the applicant had such a profile or would be perceived as having such a profile: [43];
(j)was not satisfied that any treatment the applicant would face during the investigation process or while been held at the airport would amount to significant harm: [49], [50];
(k)did not accept that any period of time in prison waiting to appear before a magistrate would amount to significant harm: [49], [50]; and
(l)referred to its finding that the applicant was not a person of interest to the Sri Lankan authorities in concluding that there was not a real risk that the applicant would be subjected to mistreatment during any possible brief period in detention on return to Sri Lanka: [51].
These findings of the Authority show an active and intellectual engagement with the question of whether the applicant would face harm while in the control of the authorities upon his return to Sri Lanka.
Particular (d)
The applicant submitted that the Authority failed to consider the limitations of the DFAT report on which it relied because the assessment by DFAT that returnees face a low risk of harm only applied to the period that a returnee may be held at the airport, and not to subsequent detention in prison.
This submission is based on [5.20] of the DFAT country information report on Sri Lanka, which reads (emphasis added):
For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal and court records. DFAT assesses that returnees are treated according to the standard procedures, regardless of their ethnicity and religion. DFAT further assesses that detainees are not subject to mistreatment during processing at the airport.
I accept that the final sentence of this paragraph is a reference to processing at the airport. However the Authority has not referred to specific paragraphs in its footnotes in its decision. The DFAT report also includes [4.22] which reads (emphasis added):
Thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment. Although it does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low and continues to reduce, including for those suspected of offences under the Immigrants and Emigrants Act. Overall monitoring has reduced under the Sirisena Government and community fear of mistreatment has also decreased.
This paragraph is not limited to the treatment that returnees face at the airport and it was open to the Authority to rely on this paragraph in finding that the applicant was not at risk of harm upon his return to Sri Lanka.
Particular (d) does not establish jurisdictional error in the Authority decision.
Ground 1 is dismissed.
GROUNDS 2 AND 3
There is considerable overlap between grounds 2 and 3 and it is convenient to address the grounds together. The grounds and particulars raise three issues for consideration:
(a)whether the Authority misunderstood or misapplied s 473DC of the Migration Act, or otherwise acted unreasonably in failing to exercise the discretion in s 473DC to obtain new information for the purpose of conducting the review;
(b)whether the Authority acted unreasonably in failing to give more weight to a corroborative letter provided by the applicant; and
(c)whether the Authority misunderstood or misapplied the real chance test or the real risk test, or otherwise made unreasonable findings of fact in rejecting the applicant’s claim to engage Australia’s protection obligations.
Section 473DC of the Migration Act
Section 473DC of the Migration Act provides:
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
It is well-established that the discretionary powers conferred on the Authority by Part 7AA of the Migration Act, including s 473DC, are subject to the implied condition that they be exercised reasonably: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21]; ABT17v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (ABT17) at [3]; Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210 at [82].
There can be times when a failure by the Authority to exercise its discretion in s 473DC to get new information, or to consider the exercise of that discretion, can be legally unreasonable.
In the present case, the applicant submitted in relation to ground 2 that the Authority misunderstood or misapplied the law in relation to s 473DC and submitted in relation to ground 3 that the Authority acted unreasonably in failing to exercise the discretion in s 473DC(1) to get new information. The grounds are essentially a different way of expressing the same complaint.
Ground 2, particular (b) and ground 3, particular (a)
The allegation raised by ground 2, particular (b) and ground 3, particular (a) is that the Authority erred by not seeking new information relating to letters submitted by the applicant in corroboration of his claims.
The applicant provided two letters to the Department to corroborate his claims for protection. The first was a letter from a Bishop with a letterhead which identified and provided contact details for a Diocese. The content of the letter is as follows, with redactions as required to protect the identity of the applicant:
This is to inform that [the applicant] hails from a respectable and educated family.
He has been bordered at our relative house in [place] and that time he was wanted some unknown persons and they use to cancel his bordered by white van to the house and threatened the family to hand over.
Also the same white van and the unknown persons came his house and threatened her too. As such, she made a complaint at the Police of [place] on [date] … and shifted her son to some safety place.
Actually, he is very honest, trustworthy and spiritual minded also well studying student who is having all healthy attitudes with good morals and conducts.
I very much kindly request to any relevant sources to help him and get and off from this mind and allow him to live with peace and harmony. I pray for his successful, safety and bright happy future with full of hopes.
May God Bless him ever.
At [19] of its reasons, the Authority considered this letter and said:
I have had regard to the letter from the [Diocese] dated … 2012. There is no indication in this letter that the author is aware of the applicant’s situation other than by hearsay; there is no indication that he was a witness to the events or otherwise able to verify the veracity of the claimed events. I give no weight to this letter.
The second letter was from an Eastern Provincial Council member and does not appear to contain any contact details in English on the face of the letter. The letter states:
This is to certify and confirm that [the applicant] of [address] is well known to me.
He has supported me during the last Provincial election on behalf of Tamil National Alliance and participated in the canvesing programme.
Due to the above reason he was threaten by unknown persons and he has no impact normal life. As such he has left the country to Australia seeking refugee status.
At [18] of its reasons, the Authority considered this letter and said:
The letter dated … 2012 from the Eastern Provincial Council Member stated that the applicant “participated in the canvassing campaign” and that he is “well known” to the Council Member. At his SHEV interview the applicant stated that he had never met the Council Member. Noting this discrepancy and that from the applicant’s account he was not well known to the Council Member, I give little weight to the letter from the Council Member.
The applicant relies on two main cases to support his submission that the Authority erred by not getting new information from the authors of the letters.
The first case is Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39, where the High Court said at [25] (footnotes omitted):
… It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
The second case is AMT15 v Minister for Immigration and Border Protection (2018) 74 AAR 366; [2018] FCA 366 (AMT15). In that case, the applicant had claimed to face harm because of his association with the TNA and provided in support of his claims a letter on a Parliamentary letterhead addressed to the applicant in his capacity as ‘Policy Propagation Secretary’ advising of a particular annual conference and enclosing an agenda for the meeting. The Tribunal held that the document did not overcome its concerns about the applicant’s credibility and did not give reasons for this finding, simply stating that it did not give evidentiary weight to the document. The Court described the significance of the document at [45] where it said:
The document, presently under consideration, was of a markedly different character. It was not a statement or a testimonial which had been prepared for the ostensible purpose of aiding an applicant’s refugee claims. It pre-dated the events of the evening of 27 May 2012. It appeared on official letterhead and contained numerous contact details for the author. Although there was some country information before the Tribunal (to which it did not refer in its reasons) relating to the prevalence of the production of counterfeit documents for the purpose of identity fraud, there was no evidence before the Tribunal which suggested that documents of the kind presently under consideration were sometimes fraudulently produced to bolster cases relating to refugee claims. The authenticity of the letter was not questioned. Yet the Tribunal, having “considered” the document declined to give any weight to it. The inconsistencies which led to the Tribunal’s wholesale rejection of AMT15’s credibility arose from AMT15’s account of events which occurred after the TNA meeting on 27 May 2012. Had the authenticity of the letter been established by a telephone call or fax transmission, it would have had the potential to corroborate AMT15’s claims to have been an active participant in the TNA. This may have led the Tribunal to adopt a more benign assessment of AMT15’s credibility. It is one thing for a decision-maker, having examined a particular document, to conclude that its contents were insufficient to overcome his or her concerns about an applicant’s credibility; it is another altogether for the decision-maker to decline to place any weight on the contents of the document without explaining why the corroborative material in the document should be discounted or ignored.
The Court found that the failure to make obvious inquiries about the document which had the potential to have a material bearing on the applicant’s credibility amounted to jurisdictional error. This error was described at [47] where the Court said:
The Tribunal was not under any obligation to gather evidence or to make a case for AMT15... However, in circumstances in which there was no reason to suggest that the letter was not authentic and it contained multiple contact details for the member of the Sri Lankan Parliament whose name was printed on what appeared to be official Sri Lankan Parliamentary letterhead, it would have been relatively easy for the Tribunal to have, directly or indirectly, contacted the member of Parliament and enquired as to whether he had sent the letter to AMT15. Questions might also have been asked about whether AMT15 held the office in the TNA to which the letter referred and whether AMT15 had attended the party meeting to which the agenda related. The failure to make these obvious enquiries which had the potential to have a material bearing on AMT15’s credibility and some of his claims of political involvement, constituted, on the facts of this case, a jurisdictional error. The failure amounted to a constructive failure to exercise jurisdiction...
I do not accept the applicant’s submission that it was unreasonable for the Authority in the present case not to exercise its power under s 473DC of the Migration Act to get new information from the authors of the letters. The only matters that the applicant has identified to support his contention that the Authority should have sought further information is that the letters were on official letterheads and, in the case of the Bishop’s letter, contained contact details.
There was no feature of the present case that made it unreasonable, or otherwise amounted to a misapplication of law, for the Authority not to get new information about the letters. The letters did not relate to any new issue before the Authority, and the Authority gave a plausible justification for giving little or no weight to the letters. Put simply, the letters were provided by the applicant to corroborate his claims, and after assessing the letters, the Authority found that they had little corroborative value. The Authority did not have any obligation to establish the applicant’s case for him and there is nothing unreasonable in the circumstances of this case in it not taking any steps to remedy the deficiencies in the applicant’s evidence.
The present case is readily distinguishable from AMT15. First, as both parties acknowledged, the Authority was exercising its jurisdiction pursuant to the provisions in Part 7AA of the Migration Act. These provisions are more restrictive than those which applied to the Tribunal in AMT15. Although the Authority had the power conferred by s 473DC to get new information, and could take that information into account if it was satisfied that the requirements of s 473DD were met, reviews by the Authority will ordinarily be conducted without getting or accepting new information: see s 473DB(1) of the Migration Act.
However, even putting aside the different statutory schemes that applied to the Authority in this case and the Tribunal in AMT15, the present case is distinguishable from AMT15 on its facts. The nature of the letters in the present case is different to the letter in AMT15. The letters in the present case are more in the form of testimonials generated to support an applicant’s claims, whereas the letter in AMT15 predated the applicant’s claims for protection and was evidence which, at face value, was generated in the course of his activities which were said to give rise to his claims for protection. Further, the Tribunal in AMT15 gave no reasons for giving the letter little weight. In the present case the Authority has provided an explanation to justify its decision to give the corroborating letters little or no weight.
No jurisdictional error is established by ground 2, particular (b) or ground 3, particular (a).
Ground 2, particular (c) and ground 3, particular (c)
The applicant also submitted that the Authority erred by not exercising its discretion to get new information in relation to an ‘informational gap’ noted by the Authority. The informational gap was said to relate to whether the applicant complained to police about the claimed threats in September 2012 and if not, why not. This appears to be a reference to [22] of the Authority’s reasons where, in considering a complaint that the applicant was stopped and threatened by paramilitaries two days after the election in which he supported a TNA candidate, the Authority said:
I note the applicant’s mother lodged a police complaint in December 2012 stating that she was concerned for the applicant safety, yet there is no indication that the applicant complained to the police about the claimed threats in September 2012, despite claiming to be in fear for his safety.
While acknowledging that the case is factually different, the applicant relies on the High Court decision in ABT17 to support his assertion that the Authority erred by not exercising its discretion to get new information from the applicant to bridge this informational gap.
In ABT17, the High Court held that it was unreasonable for the Authority not to invite the applicant to an interview to assess for itself the applicant’s demeanour before making an adverse credibility finding against the applicant based on an oral account given by the applicant at an audio-recorded interview with the delegate, in circumstances where the delegate accepted the account. The High Court found that there was an ‘informational gap’ because the delegate was able to visually assess the applicant’s demeanour, but the Authority was not.
ABT17 does not support the proposition that the Authority must exercise its discretion to get new information every time there is an informational gap in an applicant’s case. In the present case, any informational gap is in the information provided by the applicant in support of his claims. This is different from the type of informational gap discussed in ABT17, which was an informational gap in the information available to the Authority compared with the information available to the delegate.
There is no feature of this case which made it unreasonable for the Authority not to get new information from the applicant about whether or not he reported the claimed threats in September 2012 to the police and whether there were any particular reasons as to why he did or did not report the matter. I accept the Minister’s submission that it was a matter for the applicant to make his case and establish the relevant facts in his favour: see s 5AAA of the Migration Act; Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; [2006] FCAFC 61 at [76]. I also accept the Minister’s submission that the Authority was not required to make the applicant’s case for him (see Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155; [1985] FCA 46 at [33]) and that if there was an informational gap in the applicant’s own material that meant he was unable to establish his claims for protection, that does not amount to error on the part of the Authority.
Ground 2, particular (c) and ground 3, particular (c) do not establish jurisdictional error.
Unreasonableness in weight given to corroborative evidence
In relation to ground 3, particular (b), the applicant submitted that the Authority acted unreasonably in giving no weight to the letter from the Bishop discussed above. The reasons given by the Authority for giving no weight to this letter were that there was no indication that the author was aware of the applicant’s situation other than by hearsay and no indication that he was a witness to the events or otherwise able to verify the veracity of the claimed events.
I have already found above that the Authority did not act unreasonably in not getting further information about this letter. There is also nothing unreasonable in the Authority’s decision to give this letter no weight. It has provided an evident and intelligible justification for giving the letter no weight. Another decision-maker may have given the letter more weight but the weight given to the letter by the Authority was within the area of decisional freedom of the Authority: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [28].
Ground 3, particular (b) does not establish jurisdictional error.
‘Real chance’ and ‘real risk’ tests
Ground 2, particular (d) asserts that the Authority erred in interpreting or applying the terms ‘real chance’ of persecution in s 5J(1)(b) of the Migration Act and ‘real risk’ of significant harm in s 36(2)(aa) of the Migration Act. Ground 3, particular (d) asserts further or alternatively that the Authority was unreasonable in rejecting claims of the applicant relating to him coming to the adverse attention of paramilitary forces, being at risk because of real or imputed connection to the LTTE, or because of returning as an illegal emigrant and being in detention or prison. The assertion is that the Authority acted unreasonably in not finding that the applicant had a real chance of persecution or a real risk of significant harm.
The ‘real chance’ test was explained by the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62 at [12]:
… If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.
It has been held that the ‘real risk’ test imposes a similar standard: Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33 at [246], [297], [342].
There is nothing on the face of the Authority decision to indicate that it has misunderstood or misapplied these terms and the only matter that the applicant has pointed to is that the Authority did not find in his favour.
The gist of the applicant’s submission in relation to his assertion of unreasonableness appears to be that, taking into account some of the information before the Authority and the Authority’s findings of fact, such as the applicant having three uncles who may have been targeted and that the applicant would be subject to investigation upon his return to Sri Lanka, it was unreasonable to find that he did not engage Australia’s protection obligations.
As discussed above, the Authority carefully considered the applicant’s profile, and the country information about people most at risk of harm, and found that the applicant did not have a profile that would place him at risk of harm. These findings were open to the Authority.
The Authority has provided an evident and intelligible justification for its findings, and its decision cannot be said to be unreasonable: see, for example Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [10], [82].
Ground 2, particular (d) and ground 3, particular (d) do not establish jurisdictional error.
CONCLUSION
In circumstances where the applicant has not established that the Authority decision is affected by jurisdictional error, the application to this Court must be dismissed.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 18 July 2022
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