COZ16 v Minister for Immigration
[2020] FCCA 514
•11 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COZ16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 514 |
| Catchwords: MIGRATION – Application to review decision of Immigration Assessment Authority – whether Authority failed to “properly” consider an integer of the Applicant’s claims such that it constructively failed to exercise jurisdiction. |
| Legislation: Migration Act 1958 (Cth), s.473CB |
| Cases cited: COZ16 v Minister for Immigration & Anor [2017] FCCA 979 |
| Applicant: | COZ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2479 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 6 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 11 March 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Hodges Legal |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 16 August 2016 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2479 of 2016
| COZ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Immigration Assessment Authority (the Authority) dated 16 August 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Safe Haven Enterprise visa (SHEV).
The Applicant, a citizen of Sri Lanka of Tamil ethnicity, arrived in Australia in September 2012. In September 2013 he lodged a protection visa application which the Department found was invalid. In November 2015 he was invited to apply for a Temporary Protection visa or a Safe Haven Enterprise visa. He lodged an application for a Safe Haven Enterprise visa on 9 December 2015.
The Applicant had sworn a statutory declaration of 29 August 2013 in support of his 2013 application. He repeated and elaborated on his claims in a statutory declaration of 5 December 2015 and in his departmental interview. He claimed that he had lived in a Liberation Tigers of Tamil Eelam (LTTE) controlled area in Sri Lanka until 2009 when the Sri Lankan army defeated the LTTE, but that neither he nor his close family members were LTTE fighters or members. He claimed that in April 2009, after the Sri Lankan army surrounded the area, he and his family were transferred to a checkpoint in another district where their personal details were recorded. He claimed that while they were at the checkpoint his (named) brother and sister (the siblings) were removed from the family by the Sri Lankan army because they suspected the siblings were LTTE cadres. The family were told that the siblings would be questioned and released.
A few days later, the Applicant and his family (other than the siblings) were transferred to an army camp. During 6 months at the army camp, the Applicant was interrogated on three occasions by Criminal Investigation Department (CID) officers. They asked if he was an LTTE member and if he had connections/links to the LTTE. He and the other family members were released from the army camp in November 2009, but his two siblings remained missing, despite several efforts by the family to locate them. He claimed that his family “now believe both my siblings are likely to be held in a secret prison somewhere in Sri Lanka due to their perceived involvement in the LTTE”.
The Applicant claimed that in August 2010 he lodged a complaint with the Sri Lankan Human Rights Commission (HRC) in Colombo regarding his siblings’ disappearance. The HRC received a written response from Sri Lankan army headquarters in November 2010 which stated that “Security Forces Headquarters (Mulathive) states that no persons by the names of Mr [X] and Mr (sic) [Y] have been taken into custody by the Army”. It appears that this response (a copy of which was provided to the Department) was understood by the delegate as confirmation that the siblings had not been taken into custody.
The Applicant claimed that about a month or two later CID officers (who showed him their identification cards) started to visit his family home. They interrogated him in Tamil for about an hour each visit. They asked him questions about his family’s association with the LTTE, including whether they had any links with the LTTE, whether they provided any support to the LTTE or if they knew of people in the area who were LTTE cadres. The CID officers came to the house once every two to three months and asked the same questions. They did not harm the family.
However the Applicant claimed that in August 2012 four or five men whom he had never previously met came to his home. The delegate described the Applicant’s oral evidence about this visit as follows:
The applicant was questioned at the Protection visa interview about the final visit in August 2012. The applicant explained that in August 2012, about four to five people visited his house which was more than the normal number of people. The applicant explained that unlike previous visits, these people were unidentified and did not show their identification card, they were annoyed and angry, and spoke to the applicant roughly in a mixture of Tamil and Singhalese. The applicant stated that due to the stress and tension, he was unable to remember the date or time of this visit. The applicant added that he feared that they may be people from the armed groups that were active in his area as they work in conjunction with the Army and for their own personal gains. The applicant was asked about which groups he referred to. The applicant stated that there were several groups, he knew them but he did not know which groups were operating in his area and therefore unable to provide the name of the armed group which he feared. The applicant was asked to explain what happened during this particular visit, the applicant explained that they wanted to interrogate him, and asked him questions about his personal particulars and activities from birth up to that period of time. They asked about those with LTTE linkage and wanted the applicant to identify LTTE cadres or supporters in his area and spoke roughly when the applicant responded that he didn’t know any LTTE associates. They also asked the applicant whether he helped the LTTE dig bunkers during the war. The applicant stated that they also interrogated the applicant about the HRC letter and cautioned him not to lodge any complaints regarding his missing siblings. The unidentified men said that the HRC complaint should be the last one and if he continued to pursue their disappearance with other agencies, what happened to his siblings would happen to the applicant.
The Applicant claimed that he feared these threats would be carried out and hence decided to flee Sri Lanka. He left Sri Lanka in August 2012. He was aware that his mother continued to search for his siblings, who remained missing.
The Applicant claimed to believe that he was at risk of being harmed by the Sri Lankan authorities, as they continued to suspect that he was involved with or had links to the LTTE, or by Tamil paramilitary groups that worked closely with the Sri Lankan government.
The Applicant also claimed that the authorities perceived that Tamils in the north of Sri Lanka, particularly those originating from former LTTE controlled areas, were involved with the LTTE. He claimed that he would attract adverse attention wherever he lived in Sri Lanka.
The Applicant provided supporting documentation, including Sri Lankan country information and what his agent described as a generic submission.
In her reasons of 12 July 2016 the delegate summarised the Applicant’s oral evidence and the oral submission of his agent.
The submission to the Authority
The Applicant’s matter was referred to the Authority. On 30 July 2016 the Applicant’s agent provided a written submission to the Authority.
The agent submitted that even if the Applicant was not himself personally suspected of association with the LTTE while at the checkpoint, his siblings were so suspected. It was said to be irrelevant that the Applicant’s siblings were not members of the LTTE or did not have actual LTTE involvement, as they had both been arbitrarily detained on suspicion of association with the LTTE, separated from their family and taken, supposedly for “questioning” by the authorities, immediately after the war and both remained missing.
The agent contended that, on the facts presented by the Applicant and accepted by the delegate, the Sri Lankan authorities were responsible for the siblings’ disappearance as they strongly believed both siblings were members of the LTTE. It was suggested that the fact that the siblings were not released after questioning would indicate that the authorities who questioned them were likely to have drawn the strong inference that the siblings were in fact members of the LTTE and that this may have led the authorities to act in a manner that was likely to have caused or contributed to the disappearance of the siblings.
The agent submitted that although the Applicant himself was not himself a member of the LTTE, for these reasons his claim “falls squarely within the risk profiles mentioned in the UNHCR Eligibility Guidelines and the more recent DFAT report of 18 December 2015”.
The submission quoted the reference in paragraph 3.35 of the DFAT 2015 Report to the December 2012 United Nations High Commission for Refugees (UNHCR) Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka (the Eligibility Guidelines) as follows:
Imputed membership of the Liberation Tigers of Tigers Eelam (LTTE)
3.35 The UNHCR’s December 2012 Eligibility Guidelines for Sri Lanka note that a person’s real or perceived links with the LTTE may give rise to a need for international refugee protection. Although the nature of these links can vary, this may include:
1) persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;
2) former LTTE combatants or ‘cadres’;
3) former LTTE combatants or ‘cadres’ who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, ‘computer branch’ or media (newspaper and radio);
4) former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;
5) LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;
6) persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.
(emphasis added in submission to the Authority)
The agent’s submission continued:
9. It may be unclear as to how the Sri Lankan authorities perceived the Applicant’s siblings to be, however their perception of both siblings caused/resulted in the arrest, and subsequent disappearance. At the least the authorities are likely to have suspected that both siblings were LTTE cadres/combatants and hence were separated from the rest of the family.
10. Therefore the applicant falls under the risk profiles listed in the UNHCR Guidelines and the DFAT report which remains valid.
It was also submitted that it was necessary to consider the totality of the Applicant’s circumstances.
The Authority’s Decision
The Authority was of the view that the agent’s submission provided reasons the Applicant disagreed with the delegate’s decision and inferred that aspects of his claims had been overlooked. It was satisfied that “to the extent” that the submission contained arguments responding to the delegate’s decision and reasserted claims that were before the delegate it did not constitute new information and it had regard to it.
The Authority continued at paragraph 3:
The submission also attaches correspondence of 28 April 2016 between executives of the Sri Lankan Presidential Commission to Investigate Complaints Regarding Missing Persons regarding a complaint lodged by the applicant’s mother. No explanation has been provided as to why this letter could not have been provided earlier. While I accept it may be credible personal information, given both the delegate and myself have accepted the applicant’s claims regarding the continued efforts by his mother to locate his missing siblings in Sri Lanka, I am not satisfied it may affect the consideration of the applicant’s claims. Nor am I satisfied there are exceptional circumstances to justify considering this piece of information.
No issue was taken in these proceedings with any aspect of the Authority’s consideration of new information.
The Authority summarised the Applicant’s claims as contained in the information given to it under s.473CB of the Migration Act 1958 (Cth) (the Act). In that summary the Authority referred to the Applicant’s complaint to the HRC regarding his siblings’ disappearance. However the Authority stated that: “Around November 2010 the family received a written response from the SLA [the Sri Lankan Army] stating the siblings were (sic) taken into the Army’s custody”. It appears that this is a reference to the letter from the Sri Lankan Army (SLA) to the HRC referred to at [5] above. There is no evidence before the court of any letter to the Applicant’s family from the SLA. In fact, the SLA letter to the HRC (which is in English) stated that “no persons [of two specified names] have been taken into custody by the Army” (as the Applicant explained in his statutory declarations).
In any event, the Authority accepted that the siblings were taken at the checkpoint and had never been released.
The Authority recorded that the Applicant claimed to fear being abducted and killed by the Sri Lankan authorities for reason of his “suspected involvement with the LTTE” because he originated from a particular area in Sri Lanka; had family members perceived to be LTTE cadres; was “already suspected and regularly interrogated”; and because he had sought asylum in Australia. It recorded that he also feared being harmed in relation to the threat he had received in response to his HRC complaint and because he had left Sri Lanka illegally. In addition, he claimed to fear harm from armed Tamil paramilitary groups who remained active in the Northern Province and worked closely with the Sri Lankan authorities.
At paragraph 7 of its reasons the Authority acknowledged that the Applicant had provided documentary evidence and had been internally consistent in relation to his identity, movements within Sri Lanka and his claims for protection. It found that he had provided detailed, apparently spontaneous, recollections at the SHEV interview and that there had been no apparent attempt to embellish his claims. It accepted that his accounts were plausible when considered against cited country information, in particular in relation to post-war interrogations, home visits, enforced disappearances and the handling of complaints and the treatment of family members of victims of enforced disappearances. The Authority was satisfied that the Applicant had provided a plausible explanation for a discrepancy regarding the date of his siblings’ disappearance. It accepted that he was a credible witness who had provided “a genuine reflection of his recollections”.
The Authority also accepted that the Applicant originated from a particular region in the Northern Province of Sri Lanka which was a Tamil majority and formerly LTTE controlled area and the site of intense wartime fighting. It accepted that during the war more Tamils were detained under Emergency Regulations and the Prevention of Terrorism Act (PTA) than any other ethnic group. It noted that DFAT assessed that this was primarily due to LTTE members and supporters being almost entirely Tamil. The Authority accepted that, at times, LTTE support had been imputed on the basis of ethnicity and that elements of the Emergency Regulations remained in force under the PTA, including the ability to detain individuals without charge.
At paragraph 9 of its reasons the Authority accepted that neither the Applicant nor any member of his family, including the siblings, had any “actual involvement with the LTTE” and that any interactions with the LTTE resulted from the family residing in LTTE controlled areas. It continued at paragraphs 9 and 10:
9. … Nevertheless I accept that at the end of the war, the applicant’s siblings were separated from the family and taken for interrogation at the Omanthai Checkpoint at the end of the war. I find the applicant’s suggestion plausible that they may have been singled out due to their age, and because LTTE cadres were among the mingling crowd at the checkpoint at that time, some of whom were surrendering. Given that they were never released, I accept this suspicion was never lifted.
10. I note the UNHCR does include persons with family links to former LTTE combatants or cadres among its risk profiles. However, UNHCR also advises that the issue of whether a person with an identified profile is need (sic) of protection depends on the specifics of the individual case.
(emphasis added)
Consistent with country information in relation to the post-war treatment of LTTE members and non-members who the Sri Lankan authorities suspected had “assisted” the LTTE, even peripherally, the Authority accepted that after the “separation” of the siblings, the Applicant and the rest of his family were taken to an army camp for several months and that during this time the Applicant was interrogated on suspicion of LTTE links and support. The Authority found that the fact the Applicant was not harmed, formally charged or detained for a longer period at the time of his release from the army camp indicated that “the authorities did not then believe that he was engaged in LTTE activity”.
The Authority accepted that the Applicant travelled to Colombo in August 2010 to lodge a complaint with the HRC regarding his siblings’ disappearance and that this was his earliest practicable opportunity to do so. It also accepted that approximately one month later he became subject to ongoing home visits by the CID every two to three months in which he would be interrogated for about an hour. While the Authority noted the proximity in time to the HRC complaint, it observed that the Applicant did not claim that he was questioned about the complaint “or even about his siblings’ activities” before the August 2012 visit. The Authority had regard to country information about routine home visits and questioning and observation of Tamils from former LTTE controlled areas at that time. It was satisfied that “the visits and questioning from the authorities between 2010 – August 2012 [were] a result of routine ongoing monitoring by authorities commonly conducted against Tamils in the Northern Province at that time”.
The Authority continued at paragraph 13:
I accept these visits were intimidating and that the applicant started looking for an opportunity to leave Sri Lanka to avoid these problems. Nevertheless I am satisfied the applicant was never physically harmed, formally arrested, detained or taken away for rehabilitation or any other purpose which would indicate that authorities believed he was engaged in LTTE activity, or that they imputed him with LTTE membership or support on account of his familial links to his siblings.
The Authority accepted that the last home visit and questioning (before the Applicant left Sri Lanka) in August 2012 was “different” to the previous occasions. It stated at paragraph 14 of its reasons:
… I accept that unlike previous occasions where CID officers would present evidence of their identity to him and would often involve the same officers, the persons that interrogated him in August 2012 were unknown and did not identify themselves. I accept they asked him the same usual questions about LTTE involvement, support and his knowledge of other LTTE connections, but that they also raised with him the issue of his HRC complaint and threatened him not to pursue the matter. I consider it unusual that the applicant’s mother was not threatened on this occasion in relation to her complaints and reports however the applicant speculated it was because the process with the Human Rights Commission was to contact the SLA directly for response. Country information indicates that that (sic) intimidation, harassment and threats were carried out against some complainants of enforced disappearances. It is not implausible that the applicant was threatened as claimed and that these unknown persons may have been members of an armed paramilitary group colluding with certain authorities at that time. I note the applicant could not provide the names of any such groups operating in his area and I am satisfied that he has not previously had any problems with them apart from the single occasion of questioning.
However the Authority went on to refer to changes and reforms in Sri Lanka as follows at paragraph 15:
However in the almost four years that the applicant had been in Australia the situation in Sri Lanka has changed considerably. Various mechanisms have also been established to support investigations and enquiries into missing persons and while the limitations of some of these mechanisms has been recognised, the Sirisena government has taken steps to support the families affected by enforced disappearances, committing to establish, with the cooperation of the ICRC, an Office on Missing Persons ‘based on the principles of the families’ right to know. In October 2015 the Sri Lankan government decided to issue official certificates to families affirming the status of their disappeared relatives as ‘missing’ rather than ‘deceased’, thereby recognising the sensitive emotional needs of remaining family members, allowing them to access certain benefits and recognising the need for continued investigations. In December 2015 the Sri Lankan government signed the International Convention on Enforced Disappearances and committed to criminalise enforced disappearances.
(footnotes omitted)
The Authority found it “noteworthy” that while the Applicant had lodged one complaint to the HRC, his mother had lodged numerous complaints and reports with various bodies, both before and after the August 2012 threat against the Applicant, but had not been threatened or harmed on account of her pursuits, despite her continued efforts. The Authority was satisfied that, apart from six monthly registration checks involving home visits by the authorities, the Applicant’s family had not been approached by the authorities or unknown men at any other times. It was satisfied that the family had not been interrogated about the Applicant, the complaint to the HRC or any other body or the Applicant’s siblings and nor had they been harmed or threatened.
The Authority acknowledged at paragraph 17 of its reasons that the circumstances suffered by the Applicant’s family were “tragic”. It accepted that unknown persons had threatened the Applicant on one occasion. However it found that this was “reflective of harassment and intimidation against some HRC complainants at that time”. It noted that it was some six years since the HRC complaint by the Applicant and that his mother had continued to agitate, but she had not been subject to any threats or harm. It found that her experience and the country information it had cited indicated a “more transparent environment” had developed in Sri Lanka “to address the thousands of unresolved enforced disappearances and to support the families of missing persons” (footnote omitted).
The Authority continued at paragraph 18 of its reasons:
I am satisfied that while the applicant was interrogated at the end of the war and was subsequently subject to monitoring, he was not himself perceived as being an LTTE member and did not have a profile that led him to being physically harmed, arrested or detained by authorities. I find that the threat in August 2012 was an isolated incident in his numerous interactions with authorities over the previous two years. While I note that the government has kept a close watch on the situation in former LTTE controlled areas including the applicant’s Northern Province, the changes in Sri Lanka since the applicant’s departure including for persons of the applicant’s profile are significant.
(footnote omitted)
The Authority also found that there had been a marked improvement in the situation for Tamils in the broader political landscape (including in relation to discrimination), a more proactive approach to human rights and reconciliation, noticeable demilitarisation of the North and East and the cessation of forced registration of Tamils. This was said to indicate that the trend of monitoring and harassment of Tamils in daily life had generally eased, such that the Tamil community felt more confident to refuse or question the motives of any monitoring activities that still occurred.
The Authority referred to a DFAT assessment that there were currently fewer individuals detained under the PTA and that country information no longer supported a finding that Tamil ethnicity of itself imputed LTTE membership or a pro-LTTE opinion, even when combined with place of origin. It referred to the fact that in its December 2012 “Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka” (the source cited by the Applicant’s agent in relation to risk profiles), UNHCR had advised that originating from an area that was previously controlled by the LTTE did not in itself result in the need for international protection. The Authority was of the view that this advice remained current, in line with improvements in the security situation and a decrease in militarisation and monitoring trends in the North.
The Authority stated at paragraph 22:
I accept that Tamils in the applicant’s area were harmed during the war and subsequently. In considering the risk of such harm to the applicant in the reasonably foreseeable future, I have considered the UNHCR’s 2012 advice which is its most current risk assessment and continues to be relied upon in and reinforced by, more recent and current reports from a variety of other credible sources, including DFAT and the United Kingdom Home Office. Country information indicates that the security situation in Sri Lanka, including in the North and the East has greatly improved since the war ended in May 2009 and DFAT, the UNHCR and other authoritative sources do not indicate in their recent and current reporting that Tamils are at risk of persecution in Sri Lanka purely on account of their race.
(footnote omitted)
The Authority also found that while country information indicated that “Tamils of the applicant’s profile” were still subject to discrimination and harassment, it did not indicate that this was of a level amounting to serious harm. The Authority found the Applicant would not face a real chance of serious harm as a result of official or societal discrimination for reasons of his race upon return to Sri Lanka.
The Authority continued at paragraphs 24 and 25:
24. I accept the applicant fears becoming victim to an enforced disappearance like his siblings however, as noted above, the security situation for Tamils and others in Sri Lanka has improved. DFAT’s assessment is that since the war’s end, incidences of extra-judicial killing, disappearances and kidnapping for ransom has fallen considerably. DFAT reports that no particular group has been the targeted (sic) of kidnapping attacks and they do not appear to be ethnically-based.
25. Given the factors discussed above, I am not satisfied that the applicant faces a real chance of harm from authorities or those colluding with them now or in the reasonably foreseeable future on the basis of his Tamil race, or his Tamil race and origins from the North, nor for his familial links to his siblings or his complaint to the HRC. Further, the country information before me also does not indicate that the applicant would face persecution in the reasonably foreseeable future on account of his being a Tamil of male gender. I found above that the applicant was not considered an LTTE member and was not considered to meet an LTTE supporter profile. I find that his profile has not been elevated since he left Sri Lanka. I am not satisfied that his profile is such that the applicant has a well-founded fear of persecution on the basis of any imputed LTTE support or links.
The Authority went on to consider whether the Applicant faced a risk of serious or significant harm as a returned failed asylum seeker. In that context, it was “satisfied that while he was monitored from 2010-2012 authorities did not then, and have not since, perceived the applicant to be an LTTE member or to have an LTTE supporter profile”. It referred to DFAT advice that re-entry procedures were applied without discrimination. It found that this indicated that the “authorities do not impute failed Tamil asylum seekers as being LTTE members or supporters”. Given the improved situation regarding the handling of enforced disappearances, the Authority was not satisfied that the Applicant would face the risk of attracting any adverse attention “on this basis”. It found that there was no indication that he had engaged in any activities with the Tamil diaspora in Australia that would “elevate his profile” or bring him to the adverse attention of the authorities on return.
The Authority addressed the fact that the Applicant had departed Sri Lanka illegally. No issue is taken with the Authority’s findings that the process leading to charge, conviction and punishment for breaching relevant provisions in the Immigration and Emigration Act (the I&E Act) would not amount to persecution for the purposes of the Act.
In considering whether the Applicant would face problems getting bail if charged under the I&E Act, the Authority stated at paragraph 34 that:
… The authorities’ interest in the applicant after December 2009 was limited to monitoring and questioning and while I accepted he received one threat from unknown persons in relation to the HRC complaint, on the evidence his mother has not experienced any issues which would indicate the applicant will have problems in this process. On the evidence before me, noting the improved security situation in Sri Lanka, and the fact that the authorities’ interest in the applicant was limited to monitoring and questioning apart from one incident I found occurred in isolation, and given there is no evidence he has been accused of any crime, I am also not satisfied there is any reason the application will not be granted bail.
The Authority acknowledged that DFAT had assessed that the Sri Lankan authorities may monitor any member of the Tamil diaspora returning to Sri Lanka, “depending on their risk profile”. However it stated at paragraph 36 that:
… apart from the isolated incident, the authorities’ interest in the applicant post December 2009 has been limited to monitoring and questioning and given the decreased monitoring and harassment of Tamils and that the applicant has never been found to be an LTTE member or supporter and is not returning with any elevated profile which would lead to be of adverse interest to the authorities, I am not satisfied he would be considered to have a risk profile that would result in monitoring upon return.
At paragraph 37 of its reasons the Authority concluded its consideration of the Refugees Convention criterion by stating that it had considered the Applicant’s circumstances in their totality and was not satisfied that the Applicant, as a Tamil male from the Northern Province, “who was not previously considered to be an LTTE member or supporter, even with his family links to suspected cadres, and who was monitored and questioned by the authorities and threatened once by unknown person” would have a real chance of being harmed upon return, even though he would be returning to his home region having been charged under the I&E Act and as a failed asylum seeker who had spent considerable time in Australia. It did not accept that his claims, either individually or cumulatively, gave rise to a well-founded fear of persecution in the reasonably foreseeable future.
Similarly, the Authority concluded on the basis of its earlier findings and country information, that the Applicant did not meet the complementary protection criterion. It had regard to country information that indicated that Tamil males were no longer at risk of harm on account of race and that there was an enhanced environment of transparency supporting families of victims of enforced disappearances. It found that the Applicant would not face treatment amounting to significant harm for reasons of his race, gender, origins or because he had lodged a complaint with the HRC. It repeated its finding that the Applicant “was not perceived as being an LTTE member or to have had an LTTE supporter profile”. For “the same reason” it had found that the Applicant would not face a real chance of serious harm in relation to “these matters”, the Authority found that there was not a real risk he would suffer significant harm.
The Authority noted that the Applicant would be returning to Sri Lanka as someone who had previously been monitored and questioned by the authorities and as a failed asylum seeker. It accepted that he may be questioned on return as part of re-entry procedures, but referred to cited country information indicating that harassment and monitoring of Tamils (including in the North) has generally eased. It noted the absence of evidence that the Applicant had been openly critical of the Sri Lankan authorities, or engaged in any activities with the Tamil diaspora in Australia that would “elevate his profile” or bring him to the adverse attention of authorities. It concluded:
In summary, having regard to the cumulative circumstances and profile of the applicant, I do not accept his profile is such that he would face a real risk of significant harm. I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.
The Authority affirmed the decision not to grant the Applicant a protection visa.
These proceedings
The Applicant sought judicial review by application filed in this court on 13 September 2016. That application was dismissed (see COZ16 v Minister for Immigration & Anor [2017] FCCA 979). An appeal to the Federal Court was allowed (see COZ16 v Minister for Immigration and Border Protection (2018) 259 FCR 1; [2018] FCA 46). The matter was remitted to this court for reconsideration by a judge other than the primary judge. Future references to COZ16 are to the decision of the Federal Court.
The Applicant now relies on an amended application filed on 8 March 2019.
Whether failure to “properly consider” an integer of the Applicant’s claims
There is one ground in the amended application. It is as follows:
The IAA constructively failed to exercise its own jurisdiction, in that it failed to properly consider an integer of the applicant’s claim.
Particulars
a. At [4] the applicant claimed that in April 2009, two of his siblings (brother and sister) were taken away by Sri Lankan authorities after his family was transferred to the Omanthai Checkpoint.
i. Further, the Applicant claimed that as a result of his siblings’ detention, he and his family were subject to periodic interrogation by CID officers and at one point was threatened that he would suffer the same fate as his siblings.
b. At [9] the IAA found it plausible that the applicant’s siblings were singled out due to their age and because LTTE cadres were among the crowd at the time when some were surrendering.
i. The IAA went on to state that “given they were never released, I accept this suspicion was never lifted”.
c. The IAA accepted that the siblings were separated from their family and taken for interrogation at the Omanthai Checkpoint at the end of the war [9].
d. The IAA accepted, at [11], that the applicant was interrogated (during the period that the applicant and his family were detained) on suspicion of LTTE links and support though he was not harmed.
e. At [12], the IAA accepted that the Applicant personally lodged a complaint with the Human Rights Commission (HRC) in August 2010, approximately eight months after his release from the army camp [11].
f. The IAA accepted that one month after lodging the complaint, the applicant became subject to ongoing home visits by the CID every two to three months during which the applicant was interrogated for approximately an hour [12].
g. While the IAA noted the UNHCR risk profile Eligibility Guidelines at [10], it failed to consider whether the applicant wold (sic) fit into one of these categories.
h. The specific categories that are relevant to the applicant’s case are:
i. Former LTTE combatants or “cadres”
ii. Persons with family links or who are dependant on or otherwise closely related to persons with the above profiles.
(emphasis added in application)
The UNHCR Eligibility Guidelines referred to in this ground were not in evidence in the earlier proceedings in this court or before the Federal Court on appeal (see COZ16 at [18]). After remittal, a registrar made consent orders listing the matter for hearing that did not contemplate the filing of any further affidavit evidence. Subsequently the Applicant filed an affidavit annexing a copy of the UNHCR Eligibility Guidelines of December 2012.
The First Respondent pointed to the absence of orders for the filing of further evidence and in pre-hearing submissions opposed leave being granted to the Applicant to rely on this affidavit “for the reasons that follow”. The submission went on to address the merits of the Applicant’s ground of review. The First Respondent also submitted that to the extent the Guidelines were relevant, they appeared in the Applicant’s submission to the Authority.
I was not asked to grant leave to the Applicant to rely on this evidence. At the start of the hearing the solicitor for the Applicant accepted that there was no leave to file the affidavit. He did not seek to rely on it. Rather, he agreed that, so far as relevant, the UNHCR profiles were in the courtbook and stated that he was happy to proceed on that basis.
It may have been preferable for the UNHCR Eligibility Guidelines to have been in evidence before the court given the remarks of Griffiths J in COZ16 at [59]. However those remarks (about the need to address and determine the construction and application of the Guidelines) were made in relation to the Applicant’s then contention that the Authority had misapplied the Guidelines. That ground has not been maintained.
In any event, it is not disputed that the limited DFAT summary of part of the UNHCR Eligibility Guidelines referred to in the agent’s submission to the Authority is accurate (as far as it goes). Other aspects of the UNHCR Guidelines, including the statement by UNHCR that persons with the listed profiles were “likely” to be in need of international protection, are referred to in country information provided by the Applicant to the delegate which is in the courtbook. It is also not in dispute that the reference in paragraph 10 of the Authority’s reasons to UNHCR advice that whether a person with an identified profile was in need of protection depended on the specifics of the individual case was a reference to the UNHCR Eligibility Guidelines.
In support of the ground now relied on, the Applicant referred to the remarks of Hill J in NACP v Minister for Immigration and Indigenous Affairs (2003) 129 FCR 458; [2003] FCA 499 at [40] that where an administrative tribunal failed to consider the case advanced by an applicant before it the tribunal would have made a jurisdictional error. It was contended that the Authority’s duty to review involved a duty to make a finding on any “substantial, clearly articulated argument relying upon established facts” in the sense considered in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26 at [24] per Gummow and Callinan JJ.
The Applicant observed that his agent’s submission to the Authority of 30 July 2016 expressly referred to the UNHCR Eligibility Guidelines and emphasised the sixth quoted profile: “persons with family links or who are dependent on or otherwise closely related to persons with the above profiles”. It was submitted that a claim that the Applicant was within this risk profile as a family member of persons with perceived links to the LTTE within any of the other five listed profiles set out at [17] above, in particular as suspected former LTTE combatants or ‘cadres’, was clearly made to the Authority, but was not properly considered.
The court’s attention was drawn to aspects of the judgment of Griffiths J in COZ16 as a helpful analysis of issues raised by the Applicant.
The Applicant contended that his claim in support of his visa application was, as Griffiths J subsequently observed, that risk profile six identified by UNHCR “simply required a family link with a person imputed with LTTE connections” (see COZ16 per Griffiths J at [17]) and did not require the visa applicant himself or herself to be imputed with LTTE connections or sympathies.
The Applicant submitted that the Authority’s reasoning demonstrated that it had failed to consider his claim to fall within the UNHCR Guidelines and to be in need of protection as a family member of siblings who were suspected to be former LTTE combatants or cadres. Consistent with the approach of Hill J in NACP, this was said to constitute a jurisdictional error.
In further support of this ground the Applicant contended that, similar to the obligation of a tribunal conducting administrative review, the Authority must give proper, genuine and realistic consideration to the merits of the Applicant’s case (see Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; [1987] FCA 457). Reliance was placed on the remark of Black CJ in Tickner v Chapman (1995) 57 FCR 451 at 462; [1995] FCA 987 that the requirement to “consider” a representation or submission “involves an active intellectual process directed at that representation or submission”.
The Applicant pointed to the fact that the Authority had accepted that the siblings had been separated from the family in 2009 and that the suspicion surrounding them “was never lifted”. It was submitted that the Authority’s acceptance that the suspicion as to whether the siblings had any links to the LTTE had never been lifted amounted to an acceptance that the Applicant continued to have perceived links to the LTTE as a family member of perceived cadres. However it was submitted that the Authority had failed to give proper and genuine consideration to this family relationship aspect of his case.
It was acknowledged that the Authority had reasoned that the fact that the Applicant was not harmed, charged or detained from 2009 to 2012 indicated that the authorities did not then believe that he was engaged in LTTE activity. However, it was contended that this did not address his family relationship claim and also overlooked the August 2012 incident. It was also pointed out that while the Authority (and also the First Respondent) had suggested that the 2012 incident was “isolated”, not only was this the first real threat made to the Applicant, but he thereafter departed Sri Lanka, so that the threat could not have been repeated.
The Applicant also acknowledged that in paragraph 10 of its reasons the Authority had “noted” that UNHCR included persons with family links to former LTTE combatants or cadres among its risk profiles. However it was submitted that this reference and the use of the expression “note” (similar to the expression “have regard to”) did not, in itself, provide evidence of genuine consideration of the Applicant’s claim that he may fall within the Guidelines as a family member of suspected former LTTE combatants or cadres. It was pointed out that in Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152; [2001] FCA 389, Sackville J had stated at [58] that the expression “have regard to”:
… suggests a process of consideration of information. In order to consider something it is doubtless necessary to know that the thing exists, but more is needed. A decision-maker may be aware of information without paying any attention to it or giving it any consideration.
While the Authority observed that UNHCR advised that the issue of whether a person with an identified profile was in need of protection depended on the specifics of the individual case, the Applicant pointed to the fact that in SZVZN v Ministerfor Immigration and Border Protection [2017] FCA 954, in considering whether the Administrative Appeals Tribunal had considered a submission that the appellant fell within the UNHCR Guidelines, Bromwich J had stated (at [42]) that:
... the Tribunal’s regard to the individual circumstances of the appellant’s case does not compel the conclusion that the UNHCR Guidelines were considered, or at least considered in a way that addressed the issue raised on behalf of the appellant...
(emphasis added)
It was acknowledged that in considering whether an applicant was at risk, it was necessary for the Authority to look at all the circumstances and to consider the specifics of the individual case, but it was submitted that in this case the Authority had failed to do so in a way that addressed the issue raised on behalf of the Applicant by his agent. It was reiterated that, on the basis of the Authority’s finding about the suspicion never having been lifted, it had accepted that the Applicant had a family connection to two people who were not only still suspected of LTTE involvement, but who had been detained, never released and were still missing. While the Authority had considered some of the circumstances, it was submitted that it had not adequately considered the Applicant’s family link to his missing siblings and the particular significance of that link in light of the UNHCR Guidelines.
It was suggested that more was needed from the Authority than simply stating that it had had regard to the individual circumstances of the Applicant’s case (see SZVZN at [45]) and that it did not properly “consider” the Applicant’s claim or submission in relation to the basis on which he claimed to fall within the UNHCR risk profiles.
In essence, it was submitted that while the Authority had noted the UNHCR Guidelines and had referred in its reasons to the family links to former combatants and cadres profile, it had not properly dealt with the claim that the Applicant made. This was said to be a claim that he fell within the sixth profile in the UNHCR Guidelines and had a real chance of serious harm on return to Sri Lanka as the brother of siblings who had been detained by a group colluding with the government, were missing and assumed to be still in detention and in relation to whom the “suspicion” of LTTE involvement had never been lifted.
The Applicant acknowledged that the Authority had reached a general conclusion as to its lack of satisfaction that he faced a real chance of harm due to his familial links to his siblings, as well as his other attributes, but contended that this general conclusion did not properly “consider” the claimed risk to him constituted by being a family member of two siblings who were detained, apparently under terrorism legislation, on suspicion of former LTTE involvement.
The First Respondent submitted that the thrust of the Applicant’s contentions appeared to be that the Authority fell into error in that it had failed to find that he was at risk of harm because he came within one of the identified risk profiles in the UNHCR Guidelines. It was submitted that, contrary to the situation considered in SZVZN (and also see Dranichnikov), in this case the Authority had made express reference to and had plainly considered the potential impact of the Guidelines on the Applicant’s case.
In so far as the Applicant’s contention amounted to a submission that the Authority did not properly consider the risk that flowed from the fact that he was a person with familial connections to those imputed with LTTE connections, the First Respondent submitted that this contention could not be made out in circumstances where the Authority had referred to the UNHCR Guidelines (including at paragraph 10 of its reasons) and had noted the UNHCR advice that the issue of whether a person with an identified profile was in need of protection depended on “the specifics of the individual case”.
The First Respondent submitted that the Authority’s reasons made it clear that it had considered the specifics of the Applicant’s individual case and that, to the extent that the Applicant’s ground relied upon an error associated with applying the UNHCR Guidelines to the findings it made in respect of the Applicant’s claims, such contention could not be accepted as “it was a matter for the Authority to consider and apply the Guidelines”. This was said not to be a case in which the Authority was “required” to engage in an active intellectual process in considering the UNHCR Guidelines. “Rather”, it was said to have “made express reference to and plainly considered the potential impact of the Guidelines to the applicant’s case and found that the applicant was not at risk”. The First Respondent pointed to each of the Authority’s references to the Applicant’s “profile”.
In so far as the Applicant’s case depended on an asserted absence of reasons or of adequate reasons, the First Respondent submitted that it was clear from the chain of reasoning in the Authority’s decision that it sufficiently explained why it was of the view that the Applicant was not at risk of harm for reason of an imputed pro-LTTE opinion by virtue of his familial association to his missing siblings.
In oral submissions, the solicitor for the First Respondent reiterated the contention that the Authority had approached its task by dealing with the Applicant’s specific circumstances and that, in referring to the UNHCR at paragraph 10 of its reasons, the Authority was indirectly referring to the Guidelines (as was said to have been acknowledged by Griffiths J in COZ16 at [59]). The First Respondent submitted that this reference ought to be seen as a reference to the Applicant’s specific claim, particularly as the Authority had noted, as the UNHCR Guidelines advised, that the issue of whether a person with an identified profile was in need of protection depended on the specifics of the individual case.
Reference was also made to the fact that the Authority had considered the fact that from 2009 (when the siblings disappeared) until August 2012 the Applicant had not experienced any harm, despite routine visits and questioning by the authorities who did not raise the issue of his siblings. The First Respondent contended that this had led the Authority to conclude that, despite the fact that such visits were intimidating, what occurred was not such as to indicate that the authorities believed the Applicant was engaged in LTTE activity or was imputed with LTTE membership or support on account of his familial links to his siblings. It was submitted that, in this way, in paragraphs 10 through to 13, the Authority had dealt with the claim said in these proceedings not to have been considered.
The First Respondent also contended that the Authority’s consideration was not limited to what it said in paragraphs 10 to 13 (see Griffiths J at [54] in COZ16). The solicitor for the First Respondent referred to the Authority’s subsequent consideration of the August 2012 incident which it identified as the only “problem” the Applicant had experienced with unknown persons who may have been members of an armed paramilitary group colluding with certain authorities at that time. It was pointed out that the Authority also had regard to the fact that, despite the mother’s various complaints and reports in relation to the Applicant’s two missing siblings and regular registration checks, the family had not been approached by the authorities or unknown men at any other time. It observed that they had not been interrogated about the Applicant, about the complaint to the HRC or any complaint to any other body or about the Applicant’s siblings and that they had not been harmed or threatened.
The First Respondent submitted that the Authority had identified a single incident in August 2012 as a problem and was of the view that the Applicant himself was not perceived to be an LTTE member and that he did not have a “profile” that had led to him being physically harmed, arrested or detained by the authorities in the past. It was pointed out that it was in these circumstances that the Authority had considered the change in circumstances in Sri Lanka.
In so far as the Authority referred to persons of the Applicant’s “profile”, it was submitted that this involved an acceptance that the Applicant had siblings who were missing and that he had made a complaint to the authorities about them being missing. The Authority was said to have considered this aspect of the Applicant’s claims in addressing the relevance of the changes in Sri Lanka since the Applicant’s departure.
It was contended that it was apparent from reading the Authority’s decision as a whole that it considered the specific circumstances of the Applicant, including the relevance of the significant improvements in Sri Lanka, before reaching conclusions which expressly addressed his risk due to familial links to his siblings and his complaint to the HRC.
The First Respondent pointed out that in its ultimate finding in relation to the Refugees Convention criterion, the Authority had specifically stated that it had considered the circumstances in their totality and had referred expressly to the Applicant as a person who, among other things, had family links to suspected cadres.
Consideration
In COZ16 Griffiths J observed (at [54]) that it was necessary for this court on judicial review to consider whether the Authority’s reasons provided an adequate response to the Applicant’s claims. It was in that context that his Honour referred (at [50]-[51]) to the need to address matters such as the significance of the Applicant’s uncontested evidence that his siblings were still missing and his claim that in August 2012 he had been threatened with the same fate as his siblings if he continued to complain which, it was suggested at [51], arguably put the Applicant in a different position from his mother.
While the ground of review now relied on is expressed as a failure “to properly consider” an integer of the Applicant’s claim, it is implicit in the Applicant’s contentions that in so far as the Authority considered whether the Applicant himself was imputed with LTTE connections, it had failed to consider his claim based on risk profile six in the UNHCR Eligibility Guidelines as a person with family links to, or who was closely related to, persons within another listed profile.
Whether seen as a failure to consider properly an integer of the Applicant’s claim or a failure to consider a submission central to his case (see SZVZN at [47]), for the reasons that follow I am satisfied that the Authority failed to exercise its jurisdiction as required.
It is not disputed that the Guidelines (which were before and were cited by the Authority) identify six categories of people with certain “profiles” that may be taken to indicate real or perceived links to the LTTE such that persons with any of those profiles are likely to be in need of protection against future mistreatment for reason of real or perceived prior “links” to the LTTE. While the sixth profile (on which the Applicant relied) requires a real family link, dependency or close relationship, the requisite relationship is with persons within one of the other five profiles, which relate to previous real or perceived links. The Applicant’s agent submitted that the siblings were suspected or perceived former LTTE combatants or cadres.
On its face, the sixth profile would extend to persons simply because of their family links to suspected cadres. This was the basis suggested in the agent’s submission to the Authority and was the claim said not to have been properly considered by the Authority.
The agent’s submission to the Authority reflected his oral submission to the delegate in the protection visa interview. The delegate relevantly recorded that in that interview the Applicant’s agent had made oral submissions in support of the Applicant’s claims, including that the location and timing of his siblings’ separation at a checkpoint at the end of the war (where, according to country information, such action may be based on appearance, imputed political opinion or membership in the LTTE) was different to the situation of a person who went missing during the war. The agent submitted that it was likely that the siblings’ disappearance was “related to the government’ (sic) perception of the siblings as combatants” (perhaps because of their appearance and age). This was said to fall within the risk profiles in the UNHCR Guidelines referred to in the 2015 DFAT Report. In this way the aspect of the Applicant’s claims in issue in the ground of review was raised with the Department.
The agent submitted to the delegate that the fact the siblings were targeted in the past and the authorities’ “perception” of them could attract adverse attention to the Applicant who had the same family name and who had been detained (although he did not undergo torture). It was also contended that it was possible that the authorities “may perceive him to be an LTTE cadre as well”.
In addition, the Applicant’s representative submitted to the delegate that the siblings may have been perceived to be “members of the LTTE” because of their appearance (age and size). It was contended that the actions undertaken by the Applicant’s mother in continuing to pursue the whereabouts of the missing siblings would increase the risk of the Applicant being targeted, because her activities would fall into the category of a low-level human rights activist. I note that this aspect of the claim was not considered by the Authority.
The relevant aspect of the family relationship claim was clarified in the submission to the Authority as a contention that the Applicant may be in need of protection as falling within the sixth UNHCR risk profile as a person with family links to suspected LTTE cadres/combatants.
Country information the Applicant provided to the Department cited the UNHCR Eligibility Guidelines as stating that persons with the listed profiles were “likely to be in need of international refugee protection on account of their (perceived) political opinion, usually linked to their ethnicity” and that “the same is likely to apply to [their] family members” (emphasis added). The information provided to the Department and before the Authority also referred to country information about “systematic abuse [of] people suspected of unacknowledged LTTE links, and abuse of their families by members of the security forces”.
Any consideration of whether an applicant had a need for protection as a person with a profile identified in the UNHCR Eligibility Guidelines would have to address both whether the person’s circumstances fell within a listed profile and also the individual circumstances of that case. In this case, despite the reference to the inclusion of persons with family links to former LTTE combatants or cadres in the UNHCR risk profiles, the Authority failed to consider properly the Applicant’s claim.
The profile relied on in support of the Applicant’s claims was not that the siblings were in fact former LTTE combatants or cadres, but rather that they were perceived to be former LTTE combatants or cadres and that he was their family member. The Applicant’s claim to fear harm in this respect was as a family member of the siblings, not as a person who was himself suspected to be an LTTE member or supporter. His individual circumstances included the fact that his siblings had been detained by the authorities and remained missing and the suspicion surrounding them had never been lifted, as well as the fact he had received an August 2012 warning which prompted his departure from Sri Lanka and which arguably put him in a different position from his mother.
If the Authority was of the view that the UNHCR Guidelines did not extend to persons with family links to perceived (rather than actual) former LTTE combatants and cadres, its reasons do not reveal this. There was no consideration of any such possibility.
As Griffiths J observed in COZ16 at [9], the Authority made a series of findings from paragraphs 7 to 14 (described at [26] – [32] above) which might be described as favourable to the Applicant’s case. I am not persuaded that paragraphs 10 to 13 of the Authority’s reasons sufficiently considered the aspect of the Applicant’s claim that is the subject of the ground of review such as to provide a basis for its ultimate conclusion at paragraph 37.
As Griffiths J observed in COZ16 at [21], there was no finding in relation to the specifics of the Applicant’s case in paragraph 10, in circumstances where (as Griffiths pointed out in COZ16 at [54]) it was an important part of his case that, in spite of all the recent reforms in Sri Lanka, his two siblings remained missing and he was threatened with the same fate if he continued to complain about their disappearance.
The reference in paragraph 10 of the Authority’s reasons to persons with family links to “former LTTE combatants or cadres” does not address the Applicant’s claimed relationship to perceived former LTTE combatants or cadres and does not respond to his agent’s submission in relation to the basis on which he was said to fall within the UNHCR risk profiles.
While the Authority made findings about whether in December 2009 the authorities believed that the Applicant himself was “engaged in” LTTE activity and whether at the time of the 2010 to pre-August 2012 visits the authorities believed that he was “engaged in LTTE activity” or imputed him with “LTTE membership or support on account of his familial links”, the Applicant did not claim he feared harm because of his own perceived LTTE activities, membership or support (which would have been within one of the first five UNHCR risk profiles). These findings did not address the Applicant’s claim in so far as it was based on his fear as a family member of persons perceived to be LTTE cadres who had been detained and in relation to whom suspicion had not been lifted, or the relevance of the August 2012 threat.
Further, paragraph 13 of the Authority’s reasons proceeded on the incorrect basis that the Applicant’s claim was limited to a claim that he himself would be imputed with LTTE connections or support, whereas his claim included a claim that he was likely to face harm on the basis of a perceived link to the LTTE as a close family member of persons who were imputed with LTTE connections. Whether or not this was the proper construction of the Guidelines, the Applicant made a claim to fear harm on this basis which the Authority did not consider.
As indicated and as cited in country information provided to the Department, the UNHCR Guidelines referred to the likely need for protection not only for persons seen as involved in some way with the LTTE (in the first five categories of risk profile) but also for family members of individuals with those profiles. Other country information referred to reports of abuse, not only of former LTTE members or people suspected of unacknowledged LTTE links, but also to abuse of their families by members of the security forces.
The Authority’s consideration of changes in Sri Lanka in relation to mechanisms to support investigations and inquiries into missing persons and to support families did not sufficiently address the Applicant’s claim that he feared he would meet a similar fate to his two siblings, who were still missing in circumstances where the Authority accepted that the suspicion that they were LTTE combatants or cadres had never been lifted, and where he had been threatened. As Griffiths J pointed out in COZ16 at [54], it was an “important part” of the Applicant’s case that:
… in spite of all of the reforms which have taken place in Sri Lanka in recent years, his two siblings remained missing and that he was threatened with the same fate if he continued to complain about their disappearance.
In addition, the Authority’s findings in relation to the consequences of the complaint made by the Applicant to the HRC and, indeed, the complaints made by his mother (who had not been so threatened), did not suffice to address his claim to fear harm as a person with a family link to people still suspected of LTTE involvement.
While the Authority referred to the Applicant’s “profile” in terms of whether he himself was perceived as being an LTTE member or had a profile that had led him to being physically harmed, arrested or detained by the authorities and to the fact that the changes in Sri Lanka since the Applicant’s departure “including for persons of his profile” were significant, it did not deal with the tension between these findings and the UNHCR Guidelines.
In so far as the Authority dealt with the Applicant’s subjective fear of becoming victim to an enforced disappearance like his siblings by reference to the improvements in the security situation for Tamils and others, this conclusion did not address the claimed basis for the particular fear in issue, which was not his Tamil ethnicity as such. The Authority also considered what would happen to the Applicant on return to Sri Lanka as a failed asylum seeker. However it failed to consider, in the sense of actively engaging with, the individual circumstances of the Applicant who would be returning to Sri Lanka as a person whose two siblings were missing after having been taken on suspicion of being LTTE combatants or cadres, either in its findings in relation to the risks for Tamils or failed asylum seekers generally or in its consideration of general improvements in conditions in Sri Lanka.
The Authority’s conclusion that it was not satisfied that the Applicant faced a real chance of harm due to his familial links to his siblings and that it was not satisfied that his profile was such that he had a well-founded fear of persecution on the basis of any imputed LTTE support or links was based on its earlier findings and is not in itself such as to establish that the Authority properly considered the family relationship claim. Further, the ultimate finding at paragraph 37 was relevantly limited to a consideration of whether the Applicant faced a real chance of harm as a person “who was not previously considered to be an LTTE member or supporter, even with his family links to suspected cadres”, thus failing to make a finding on the Applicant’s claim that he had a perceived “link” to the LTTE simply as a family member of suspected cadres, not just as a person previously considered to be an LTTE member or supporter himself. In any event, even if this conclusion is seen as relating to the family member of suspected cadres claim in itself, the Authority’s reasoning and analysis discloses no explanation for why, notwithstanding country information before it about mistreatment of family members of those suspected of LTTE associations, the Authority was not satisfied that the Applicant had a real chance of serious harm on that basis.
The Authority failed to address and in that sense give proper consideration to this aspect of the Applicant’s claims or submission. His individual circumstances and the UNHCR Guidelines were not considered in a way that addressed a claim critical to the Applicant’s case (see SZVZN at [42]) and hence the Authority failed to exercise its jurisdiction as required.
As jurisdictional error has been established, the application should be remitted to the Authority for reconsideration according to law.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 11 March 2020
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