Ciw17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 572
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CIW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 572
File number: MLG 1154 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 engage in an active intellectual consideration of country information and applicant’s claims – whether Authority unreasonably failed to exercise its discretion in s 473DC of the Migration Act 1958 (Cth) to get new information – whether Authority decision was unreasonable in relation to fact-finding – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5AAA, 5AA, 5H, 36, 46A, 473DB, 473DC, 473CA, 476, 477 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62
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 SZIAI (2009) 111 ALD 15; [2009] HCA 39
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 58 Date of hearing: 28 June 2022 Place: Perth Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: WLW Migration Lawyers Counsel for the Respondents: Ms D Gang Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1154 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CIW17
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 filed pursuant to s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicant seeks judicial review of a decision made by the Immigration Assessment Authority (Authority). On 25 May 2017 the Authority affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa.
The grounds of application advanced by the applicant allege that the Authority decision is affected by jurisdictional error on the basis that the Authority:
(a)failed to engage in an active, intellectual consideration of country information and/or the question of whether the applicant would face a real chance of serious harm or a real risk of significant harm during a possible brief period of detention on return to Sri Lanka; and
(b)misunderstood or misapplied the law, or acted unreasonably by:
(i)failing to exercise its discretion in s 473DC of the Migration Act to get new information from the applicant; and/or
(ii)failing to properly apply the real chance test or the real risk test to find that the applicant was owed protection.
The applicant has not established that the Authority decision is vitiated by jurisdictional error and the application to this Court is dismissed.
BACKGROUND
The applicant is a citizen of Sri Lanka. He entered Australia at Cocos (Keeling) Islands in September 2012 without a visa. He is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 30 November 2015 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 11 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 authorities because of his Tamil ethnicity and his past affiliation with the Liberation Tigers of Tamil Eelam (LTTE). The applicant also claimed to fear harm from the Sri Lankan Army because of a report he made to a local council against a contractor.
On 7 October 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 21 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 16 November 2016 the applicant’s representative provided a written submission to the Authority.
On 22 May 2017 the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
AUTHORITY DECISION
The Authority accepted that the applicant was a credible witness and accepted his claims as to facts and events.
The Authority identified that the applicant’s claim that he may be imputed as a supporter of, sympathetic to or connected with the LTTE had five bases: his previous involvement with the LTTE in 2005 to 2007, a forced confession in 2008, his association with his maternal uncle who was a member of the LTTE in the 1990s, exposure by a disgruntled contractor and his general profile as a young Tamil male and a Tamil from the east. Taking into account country information, and the claims advanced by the applicant, the Authority was not satisfied that the applicant had a pro-LTTE profile, or would be imputed with such a profile, and therefore was not satisfied that he would face a real chance of serious harm on that basis. In reaching this finding, the Authority took into account that the applicant was never detected, stopped or questioned when conducting his LTTE activities, and that on the two occasions he was rounded up by the authorities following his forced confession in 2007, he was released without being subject to any reporting requirements.
The Authority found based on various country information reports that the situation in Sri Lanka for Tamils had significantly improved and continued to do so. The Authority then considered the applicant’s ethnicity and religion and was satisfied that young Tamil males do not face a real chance of serious harm on the basis of age and ethnicity alone, and that Tamil Hindus do not face a real chance of serious harm merely based on their religion.
The Authority found that there was not a real chance that the applicant would be subject to 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.
Based on an individual and cumulative consideration of the applicant’s claims, the Authority was satisfied that the applicant did not face a real chance of serious harm for any reason. 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 be conduct that amounts to significant harm.
PROCEEDINGS BEFORE THE COURT
The application for judicial review was filed within 35 days of the date of the Authority decision in accordance with s 477(1) of the Migration Act. The applicant filed an amended application on 12 January 2022.
The applicant raises the following three grounds in his amended application:
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 failed to consider with an actual intellectual engagement the material before it relating to the abuse of human rights in Sri Lanka, including torture. That material included submissions and reports from various independent sources (including material cited or quoted at CB 163-177; 193; 199-200; 203-204 and note 16; 207-211; 266, [11]; 267, [13]; 303-305).
b)Further or in the alternative to Particular (a) to this Ground, the Authority failed to consider with an actual intellectual engagement the question whether the Applicant had a real chance of suffering serious or significant harm while in detention on his return as an illegal emigrant, when this was a question squarely raised by the material before it, including the material before it relating to the abuse of human rights in Sri Lanka, including torture. The Applicant refers to the material cited in Particular (a) to this Ground.
2.The Authority fell into jurisdictional error in that it misunderstood the law or erred in interpreting or applying the law.
Particulars
a)The Authority erred in not seeking new information under section 473DC of the Migration Act 1958 (“the Act”) about an informational gap noted by the Authority, namely that the Applicant said, and the Authority accepted, that he had been forced to confess to LTTE involvement, but the Authority observed that there was no information about whether this was confession to general involvement or specific activities. (CB 266, [11]; 319, Decision, [19])
b)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, shown by its findings that the Applicant did not have such a real chance or risk of harm. (CB 319-327, Decision [19], [21], [23], [28], [29], [40], [41], [43], [45]-[46], [51]-[52], [54])
3. The Authority fell into jurisdictional error in that it was unreasonable.
Particulars
(a)Further or in the alternative to Ground 2, and by reason of the matters set out in the Particulars to that Ground, the Authority was unreasonable.
GROUND 1
The applicant asserts by ground 1 that the Authority failed to consider with an active, intellectual engagement:
(a)various country information which was before the Authority in relation to human rights abuses, including torture, in Sri Lanka (particular (a)); and
(b)the question of whether the applicant would face a real chance of serious harm or a real risk of significant harm as a result of human rights abuses, including torture, if detained on return to Sri Lanka (particular (b)).
Particular (a)
In advancing particular (a), the applicant relied on his post-interview submission to the delegate and his submission to the Authority, in which he referred to or extracted various items of country information. The applicant submitted to the Court that the ‘thrust of this material was that even after the end of the war and 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’.
The applicant submitted that the Authority failed to grapple with the range, depth, complexity, consistency and general probative value of the material as supporting the proposition that the culture of torture continued, and that the applicant had a real chance of suffering persecution or significant harm, simply by being a person charged with an offence.
I have carefully reviewed the extracts from and submissions about the country information in the applicant’s submissions to the delegate and the Authority. Much of the information relates to the practice of torture against people who are perceived as anti-government or pro-LTTE.
The Authority clearly considered country information about the possible profiles of people associated with the LTTE which might give rise to a need for protection. The Authority considered the applicant’s circumstances and made a clear finding that the applicant did not have any such profile. The Authority also expressly acknowledged ‘the country information in the referred materials (including the applicant’s post-interview submission)’ at [39] of its reasons, and referred to some of the country information in other paragraphs, in assessing the applicant’s chance of harm from his actual or imputed LTTE associations. It was not necessary for the Authority to refer in its reasons to each of the individual country information reports before it.
I accept the Minister’s submission that the Authority carefully considered the profile of the applicant, and compared that to the information about the types of people likely to face harm on account of any actual or imputed LTTE links. The Minister submitted, and I accept, that the Authority’s findings that the applicant had a low profile and that the country information did not suggest that persons with a similarly low profile to the applicant would face serious harm, amounts to an active, intellectual engagement with the applicant’s submissions, including the country information. To the extent that the ground raised by the applicant asserts that the Authority failed to consider the range, breadth and severity of country information in relation to the applicant’s claim to fear harm as a result of an actual or imputed pro-LTTE opinion or involvement, it is not established.
Some of the references to country information cited in the applicant’s submissions addressing torture and other human rights abuses in Sri Lanka appear not to be limited to persons suspected of supporting the LTTE or otherwise being anti-government. The applicant’s submission is that the Authority did not consider this information in finding that the applicant would not face a real chance of serious harm, or a real risk of significant harm, simply by being in prison charged with an offence. It appears that this is a reference to the Authority’s finding that the applicant is likely to be charged with breaching the Immigrants and Emigrants Act, and might be detained for several days while waiting to appear before a Magistrate.
In the applicant’s submissions to the delegate and the Authority, the country information was referred to in support of his claim that he would face harm as a Tamil or as an imputed LTTE supporter. There was a comparatively small amount of country information referred to in the applicant’s submissions that addressed the risk of torture and human rights abuses for people in custody who are not imputed with a pro-LTTE profile, and none which expressly relates to people detained for a short period of time for breaching the Immigrants and Emigrants Act.
The main information referred to in the applicant’s submissions, other than that which primarily relates to Tamils, people suspected of LTTE involvement or people who are suspected of being anti-government, is an Amnesty International report published in 2015/2016 which was referred to in the 2016 UK Home Office report. This report addresses torture and other ill treatment of detainees, suspected deaths in police custody and human rights challenges including persistent use of arbitrary arrest and detention, torture and other ill treatment, enforced disappearances and deaths in custody and a long-standing climate of impunity for these and other violations. The Authority was clearly aware of this information, having cited the UK Home Office report in its reasons and having also referred to the applicant’s submissions. There is nothing in the information, as cited in the submissions, to identify the types of people at risk of harm from such treatment. I infer that the Authority did not refer to this information expressly in its consideration of the risk of harm faced by the applicant as a result of breaching the Immigrants and Emigrants Act because it did not consider the information to be material to that assessment. It is reasonably apparent from the Authority’s reasons that the Authority did not see this information as extending to people accused of breaching the Immigrants and Emigrants Act because it expressly said at [52]:
… There is no evidence that any prisoners subject to short periods of detention awaiting prosecution under the I&E Act have been subject to the death penalty or have been otherwise arbitrarily deprived of their life, nor that they have been tortured. There is also no indication that authorities or others, through any act or omission intentionally inflict pain or suffering such as to meet the definition of cruel or inhuman treatment or punishment, nor any intention to cause extreme humiliation…
Ultimately, the Authority referred to other country information before it, including a 2017 Department of Foreign Affairs and Trade (DFAT) report on Sri Lanka and concluded that the applicant would not face a real chance of serious harm or a real risk of significant harm as a result of breaching the Immigrants and Emigrants Act and potentially being detained for a few days.
I do not accept the applicant’s submission that the Authority’s reliance on the DFAT report was insufficient because the information in the DFAT report only refers to DFAT’s assessment that detainees are not subject to mistreatment during processing at the airport. I accept that the final sentence of [5.20] of the DFAT report is a reference to treatment at the airport. In that sentence, DFAT assessed that ‘detainees are not subject to mistreatment during processing at the airport’. However, the Authority also referred in its reasons to other parts of the DFAT report, including DFAT’s assessment 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. That part of the DFAT report was not restricted to the anticipated treatment at the airport.
The applicant has not established that the Authority has failed to properly engage with the country information before it.
Particular (b)
Particular (b) focuses on whether the Authority addressed the question of whether the applicant would face a real chance of serious harm or a real risk of significant harm during any short period of detention he may face in Sri Lanka as a result of breaching the Immigrants and Emigrants Act.
The applicant submitted that the Authority failed to consider what would happen to him while he was under investigation or in prison for breaching the Immigrants and Emigrants Act, in circumstances where the Authority accepted that he had been involved with the LTTE and acted as a courier or carried parcels on over 100 occasions, and where his uncle had previously been a member of the LTTE.
I do not accept this submission. The Authority clearly considered the applicant’s past involvement with the LTTE, his forced confession, his uncle’s involvement and the assertion that a contractor told the authorities that the applicant had been involved with the LTTE. Despite accepting the applicant’s account of past events, the Authority formed the view that the applicant would have a low profile and would not be of interest to the Sri Lankan authorities. This finding, coupled with the Authority’s acceptance of information in the DFAT report that the majority of returnees face a low risk of torture and mistreatment upon return to Sri Lanka and that the applicant would not otherwise face treatment that could be considered to comprise serious harm or which falls within the definition of significant harm, amounts to an active intellectual consideration of the question of whether the applicant would face harm while in detention for having breached the Immigrants and Emigrants Act.
Ground 1 is not established.
GROUNDS 2 AND 3
Grounds 2 and 3 raise related issues and it is convenient to address those grounds together.
Section 473DC of the Migration Act
By particular (a) of grounds 2 and 3, the applicant asserts that the Authority misapplied s 473DC of the Migration Act or acted unreasonably in failing to exercise the discretion in s 473DC of the Migration Act to obtain new information about an ‘informational gap noted by the Authority’ in relation to whether the applicant identified specific or general involvement when forced to confess to LTTE involvement.
In reality, there are no separate issues raised in relation to the misapplication ground, and the applicant’s complaint is one of unreasonableness.
The applicant asserts that the Authority identified an ‘informational gap’ at [19] of its reasons, where it said:
The applicant claims that after his family was displaced in 2007, he was taken with “many other boys” to a SLA camp and beaten. He claims that he was kept for two days and forced “to confess LTTE involvement.” There is no other information in the referred materials about this confession, such as whether it related to a general involvement with the LTTE or to the more detailed activities the applicant actually undertook (purchasing phones and equipment as well as delivering parcels). I take into account that the applicant was released after making this “confession” and was not charged or subject to reporting or monitoring requirements. He has not claimed that the authorities have ever approached him since 2007 in relation to this “confession”. I also take into account that he was detained by the SLA during another round up approximately 12 months later and although he was fingerprinted, he was not questioned about his “confession” and was again released without charge or follow up. He was then interrogated in 2009, in relation to the murder of a Singhalese doctor, but his evidence to the delegate is that all of the young Tamil men near the hospital were taken in for questioning. The applicant was released shortly after and again not subject to any reporting or monitoring. Considering all of this evidence, I am not satisfied that the applicant’s confession was to anything other than a general or non-specific involvement with the LTTE. I am satisfied that the applicant did not have any other profile with the authorities as a result of his involvement with the LTTE or because of his forced confession.
The applicant submitted that the Authority acted unreasonably in finding that the applicant’s confession was to general involvement with the LTTE, in circumstances where the Authority identified that there was no information before it as to whether the applicant’s confession in 2007 or 2008 was to general involvement or specific activities for the LTTE, without first exercising its discretion in s 473DC to obtain further information from the applicant.
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].
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.
The applicant has referred to two such cases in his submissions, neither of which are analogous to the present case. That is not determinative because each case needs to be assessed on its own facts. However, to the extent that other cases may provide some guidance on the types of discretionary decisions that are legally unreasonable, the cases identified by the applicant do not assist him to establish jurisdictional error.
The first case referred to by the applicant was Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210. In that case, the Full Court of the Federal Court found that the Authority unreasonably failed to consider the possible exercise of the discretion to get new information from the applicant about whether the applicant could reasonably relocate to another area within his home country, in circumstances where relocation had not been an issue before the delegate and the applicant was not asked by the delegate to comment on relocation in any detail.
The second case referred to by the applicant was ABT17. In that case, 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. The applicant acknowledged that the factual circumstances between this case and ABT17 are different, but pointed to there being an ‘informational gap’ in the materials in the present matter.
The applicant also relied on the following comments of the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39 (SZIAI) at [25]:
… 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 applicant submitted in this regard that it was not legally reasonable for the Authority to make a positive finding that the applicant’s confession was general in nature without making some inquiries about the nature of that confession.
The Authority neither misapplied s 473DC of the Migration Act nor acted unreasonably in not seeking additional information from the applicant in the present matter. In considering this issue, it is relevant to consider the statutory context in which the review took place. This includes that it is for the applicant to provide sufficient information to show that he met the criteria for the protection visa, and that the Authority will generally conduct reviews based on the referred materials without getting or accepting new information: see ss 5AAA and 473DB(1) of the Migration Act.
The simple fact that the Authority has a discretion in s 473DC(1) to get new information does not make it unreasonable for the Authority not to exercise that discretion when an applicant fails to provide sufficient information to satisfy the Authority that he or she meets the criteria for a protection visa. In the present case, the applicant’s confession to LTTE involvement was part of the case that he advanced before the delegate. It was not a new issue that arose in the review by the Authority. This was not a matter where credibility or demeanour was an issue. Any ‘informational gap’ that arose was simply an informational gap in the applicant’s own case that came about from an absence of detail in his claim regarding his confession. There was no feature of this case that made it unreasonable for the Authority not to seek further information. Further, no feature of this case gave rise to any ‘duty to inquire’ in the manner discussed in SZIAI. It was a simple case of the applicant not providing sufficient information to establish that he engaged Australia’s protection obligations.
In any event, it was open to the Authority to draw inferences in the manner it did in reaching the conclusion that the applicant’s confession was general in nature. These were logical inferences to draw based on the applicant’s own evidence about the lack of consequences of his forced confession in the four to five years between the making of the confession and the applicant leaving Sri Lanka.
Particular (a) of grounds 2 and 3 does not establish any jurisdictional error.
‘Real chance’ and ‘real risk’ tests
Particular (b) of grounds 2 and 3 asserts that the Authority either misunderstood or misapplied the real chance and real risk tests, or made a decision that was unreasonable in finding the applicant did not meet these tests.
Both parties accept that the explanation of the ‘real chance’ test in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62 is applicable in the present matter. In that case, the High Court said 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.
The applicant at [55] of his written submissions identified the following findings of the Authority which were said to demonstrate that the Authority misunderstood or misapplied the real chance test:
❖I am not satisfied that the applicant’s confession was to anything other than a general or non-specific involvement with the LTTE. I am satisfied that the applicant did not have any other profile with the authorities as a result of his involvement with the LTTE or because of his forced confession. (CB 319, [19])
❖I am not satisfied that the contractor knew or provided any particular or specific information about the applicant’s activities in 2005-2007. (CB 320, [21])
❖I am satisfied that the applicant did not have a profile with the authorities beyond the contractor’s allegations…. there is no evidence before me or in the referred materials that indicates that a person with such a low-profile would face a real chance of serious harm should the authorities visit and question him. (CB 320, [23])
❖I am not satisfied on the evidence that the circumstances were such that the contractor and the SLA elements would continue to hold a grudge and seek to harm the applicant some five years later. (CB 321, [28])
❖I am satisfied that the applicant did not and will not have an adverse profile arising from this incident… (CB 322, [29])
❖I am therefore satisfied that the applicant would not be at risk on return on the basis of any adverse security or criminal profile and I find that there is not a real chance he would be subjected to harm because he is a returning asylum seeker. (CB 324, [40])
❖While I find that a period of detention of more than a few days is remote, I accept that such detention may occur in a Sri Lankan prison. (CB 325, [43])
❖As I am satisfied that the applicant does not have any more than a low-level profile with the authorities, I am also satisfied that when his claims are considered cumulatively, the applicant does not face a real chance of serious harm for any reason. (CB 325, [45])
❖DFAT advises that the risk of harm for the majority of returnees, including those suspected of offences under the I&E Act is low and there is no indication before me that the applicant faces a real risk of significant harm during the investigation, questioning or while held in airport detention. (CB 326, [51])
❖…., I have considered the conditions the applicant may face if he is held in a nearby prison while waiting to come before the magistrate. There is no evidence that any prisoners subject to short periods of detention awaiting prosecution under the I&E Act have been subject to the death penalty or have been otherwise arbitrarily deprived of their life, nor that they have been tortured. There is also no indication that authorities or others, through any act or omission intentionally inflict pain or suffering such as to meet the definition of cruel or inhuman treatment or punishment, nor any intention to cause extreme humiliation. ….Accordingly, I am not satisfied that the applicant will face a real risk of significant harm during any questioning or his time in detention or prison while awaiting his magistrates court hearing. (CB 327, [52])
The same findings were said to be made unreasonably.
The findings identified by the applicant do not demonstrate that the Authority misunderstood the real chance test or the real risk test. Nor were the findings made unreasonably. It was part of the Authority’s fact-finding function to make findings about whether the applicant would face harm upon his return to Sri Lanka. The gist of the Authority’s decision is that the applicant is a person who has a low profile with the government authorities and, taking into account the improved security situation since the applicant left Sri Lanka in 2012, he would not face harm upon return to Sri Lanka. It was open to the Authority to find that the applicant would not face a real chance of serious harm or a real risk of significant harm.
The country information relied on by the applicant did not compel the Authority to find that there must be a real chance of serious harm. As discussed in relation to ground 1, the Authority considered country information about the people most at risk on return to Sri Lanka and found that the applicant did not have the profile of those at risk of serious harm. 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].
CONCLUSION
The applicant has failed to establish that the Authority decision is affected by jurisdictional error. It follows that the application for judicial review must be dismissed.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 18 July 2022
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