CSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 1057

Federal Circuit and Family Court of Australia

(DIVISION 2)

CSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 1057

File number(s):	MLG 1302 of 2017
Judgment of:	DEPUTY CHIEF JUDGE MERCURI
Date of judgment:	21 December 2022
Catchwords:	MIGRATION LAW – application for judicial review – decision of the Immigration Assessment Authority – Safe Haven Enterprise (subclass 790) visa –  where applicant appears to take issue with delegate’s findings – no jurisdiction – where applicant alleges mistakes in interpreting – no evidence before the court in relation to the quality and accuracy of interpreting – where applicant takes issue with Authority’s dismissal of claims to fear harm – where Authority largely accepted applicant’s claims – where Authority found some claims were embellished – finding that Authority’s findings were reasonably open on evidence before it – no jurisdictional error established – application dismissed with costs.
Legislation:	Migration Act 1958 (Cth), s 476
Division:	Division 2 General Federal Law
Number of paragraphs:	78
Date of last submission/s:	22 August 2022
Date of hearing:	22 August 2022
Place:	Melbourne
Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the First Respondent:	Mr N Rogers of Australian Government Solicitor

ORDERS

MLG 1302 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CSG17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

order made by:	DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:	21 December 2022

THE COURT ORDERS THAT:

1.The application filed on 20 June 2017 be dismissed.

2.The applicant pay the first respondent’s costs in a sum to be fixed if not agreed.

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

DEPUTY CHIEF JUDGE MERCURI:

Introduction

1. This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the Authority’) dated 25 May 2017 to affirm a decision of the then Minister for Immigration and Border Protection (‘the Minister’) to refuse the applicant a Safe Haven Enterprise (subclass 790) visa (‘protection visa’).

   Background

2. The applicant is a Sri Lankan national of Tamil ethnicity and Hindu faith.  He arrived in Australia as an irregular maritime arrival on 8 September 2012.[1]

   [1] Authority decision record dated 25 May 2017 at paragraph [1].

   Protection visa application filed on 9 August 2013

3. The applicant applied for a protection visa on 9 August 2013, lodged on his behalf by his solicitors at the time.[2]  Accompanying this application is a statutory declaration, declared on 9 August 2013, in which the applicant sets out the background to his arrival in Australia, the reasons why he left his country of origin and why he fears harm if he were to return.[3]

   [2] Court book at pages 41 to 105.

   [3] Court book at pages 106 to 108.

4. Relevantly, it is noted in the record of the applicant’s irregular maritime arrival entry interview on 16 January 2013 that he claimed that in 2008, he was taken forcefully by the LTTE to undergo training in gun-shooting.[4]  He stated that he escaped after five days of training.

   [4] Court book at page 37.

5. On 1 August 2014, the applicant was notified, via his solicitors, that his application for a protection visa was invalid due to the operation of section 91K of the Migration Act 1958 (Cth) (‘the Act’), by which the applicant was prevented from lodging a valid application unless the Minister agreed to lift the section 91K bar.[5]

   [5] Court book at page 131.

   Protection visa application filed on 29 April 2016

6. The applicant applied again for a protection visa on 29 April 2016.[6]  This application was made with the assistance of a migration agent.  Upon request from the Department, on 25 May 2016, the applicant, via his migration agent, provided a statement dated 22 December 2015 in support of his application for a protection visa.[7]

   [6] Court book at pages 133 to 197.

   [7] Court book at pages 204 to 207.

7. In this statement, as to why he fears returning to Sri Lanka, the applicant said:

   5.I fear returning to Sri Lanka because I am Tamil and have been suspected by the CID of being a supporter of the LTTE and I fear that this will still be the case if I return.[8]

   [8] Court book at page 204 at paragraph [5].

8. The applicant went on to explain that:

   (a)in 2009, the area in which he lived was under the control of the LTTE (‘Liberation Tigers of Tamil Eelam’).  The applicant and his family were told by the SLA to leave their home and move to the Vavuniya refugee camp, which was under SLA control, where he stayed for around a year;

   (b)in 2009, whilst he was staying at the camp, he was taken and questioned by the Criminal Investigations Department (‘CID’) for approximately an hour about whether he had any connections with the LTTE.  The interrogator did not believe the applicant’s claims that he did not have any connection to nor did he support the LTTE, as he and his family had been living in a LTTE-controlled area.  Following the questioning, a photo was taken of the applicant and he was permitted to return to the camp;

   (c)after the applicant was released from the camp, he was returned to his hometown, where he was made to fill out forms and have his photo taken;

   (d)from 2010, the applicant drove an auto-rickshaw which he had bought from his savings from his work as a labourer.  The applicant drove the auto-rickshaw as a taxi and would sometimes drive members of the Sri Lankan Army (‘SLA’) because he was afraid that they would harm him if he refused.  The applicant describes the difficulties he experienced when driving members of the SLA, including sometimes not being paid by them, but concedes that he was never harmed by them;

   (e)approximately every two weeks to once per month, when the applicant parked his auto-rickshaw in the carpark, it would get searched by the CID.  On these occasions, the applicant feared that weapons would be planted in his vehicle.  The applicant similarly feared that weapons would be planted in his vehicle by the members of the SLA who he drove, and that he would be accused of them belonging to him.  He claimed that this same situation had occurred to other Tamil drivers;

   (f)in 2012, the applicant was stopped by members of the CID whilst driving his auto-rickshaw and had his vehicle searched.  He was subsequently taken to an office of the CID for questioning, where he was threatened and accused of being connected to the LTTE.  In relation to this incident, the applicant said:

   … I denied this but they threatened to shoot and kill me. They put a pistol into my mouth when they threatened me. They had also tied my hands behind my back. I kept denying that I was connected to the LTTE. They released me on condition that I would have to come any time they called me, and said that I was not allowed to leave the area without their knowledge. They took my photo and took me back to my vehicle.[9]

   [9] Court book at page 204 at paragraph [12].

9. The applicant stated that it was this incident in 2012 that prompted him to decide to leave Sri Lanka.  He claimed that since arriving in his Australia, his wife, who remained in Sri Lanka, told him that the CID had visited his house on three occasions to inquire about his whereabouts.[10]

   [10] Court book at page 204 at paragraph [14].

10. In relation to why he thought that he would not be protected by Sri Lankan authorities if he were to return, the applicant said that he feared harm from the CID and the SLA.[11]

    [11] Court book at page 204 at paragraph [15].

11. The applicant said that he could not relocate to another area within Sri Lanka, as the government controlled the entire country, and therefore, he feared that he would be targeted everywhere because he was ‘a Tamil from the North suspected of being connected with the LTTE’.[12]

    [12] Court book at page 204 at paragraph [16].

12. On 6 September 2016, the applicant was invited to attend an interview with the Department, scheduled for 28 September 2016.[13]  The interview was subsequently rescheduled at the request of the applicant to 4 October 2016.[14]

    [13] Court book at pages 218 to 220.

    [14] Court book at page 223.

13. On 18 October 2016, the applicant was notified that his protection visa application had been refused by a delegate of the Minister.[15]

    [15] Court book at pages 236 to 253.

    IAA Review

14. On 26 October 2016, the applicant was notified that the delegate’s decision had been referred to the Authority for review.[16]

    [16] Court book at pages 255 to 256.

15. On 9 November 2016, the applicant provided a submission to the Authority in support of his application for review.[17]  In his submission, the applicant indicated that he had received pro bono assistance from the Asylum Seeker Resource Centre in preparing his submission.

    [17] Court book at pages 269 to 271.

16. In this submission, the applicant indicated that he was not able to provide a full submission in relation to why he disagreed with the Department’s decision due to the short timeframe in which he was required to provide the submission, his lack of legal assistance and the complexity of the delegate’s decision record, which he was required to respond to.[18]

    [18] Court book at page 270.

17. The applicant also raised various concerns in relation to the Authority’s process, including that it was not fair or reasonable due to the short deadlines, his need to have access to all of the information before the Authority in order to properly present his case, his inability to present new country information and his belief that he ought be afforded an oral hearing.[19]

    [19] Court book at pages 270 to 271.

18. The applicant had filed a Freedom of Information (‘FOI’) request on 8 November 2016, in which he requested:

    ·a copy of the delegate’s decision of 18 October 2016;

    ·an audio recording of the protection visa interview;

    ·a copy of the protection visa application; and

    ·a copy of the letter from the Authority acknowledging the referral for review.[20]

    [20] Court book at pages 264 to 267.

19. The requested documents were subsequently released to the applicant on 10 November 2016.[21]

    [21] Court book at page 274.

20. On 26 April 2017, the applicant was invited by the Authority to comment on recent country information about conditions in Sri Lanka derived from the DFAT report ‘DFAT Country Information Report Sri Lanka’ dated 24 January 2017, which the applicant was put on notice may be the reason, or part of the reason, for affirming the decision of the delegate.[22]

    [22] Court book at pages 280 to 290.

21. On 4 May 2017, the applicant provided his response to the April 2017 invitation.[23]  In this response, he claimed that failed asylum seekers returning to Sri Lanka from Australia are targeted and tortured by its military intelligence unit.  He attached three untranslated news articles to this submission which he said supported this claim.

    [23] Court book at pages 291 to 303.

22. The applicant further stated:

    Even nowadays military intelligence unit comes to my house in Sri Lanka at least once or twice a month and asks for me. If you send me back to Sri Lanka I strongly believe I will face big threats such as kidnap, torture and even murder.[24]

    [24] Court book at page 291.

23. Ultimately, on 25 May 2017, the Authority affirmed the decision under review.[25]

    [25] Court book at pages 306 to 326.

    Authority decision

24. The Authority’s decision record of 25 May 2017 is at pages 306 to 326 of the court book.

25. At paragraph [2] and following, the Authority sets out the material to which it had regard in making its decision.  In particular, at paragraph [4], the Authority refers to the applicant’s submission of 9 November 2016, in which he raised several concerns about its process.

26. At paragraph [5], the Authority outlines the ‘IAA Practice Direction 1’ (‘Practice Direction’), a copy of which was provided to the applicant and annexed to the Authority’s acknowledgement of referral of 26 October 2016.  The Practice Direction outlined the process for providing submissions, including the timeframe in which such submissions were to be submitted.  At paragraph [6], the Authority also makes reference to the legislative framework under which the Authority operates.  In this context, the Authority was satisfied that the applicant had been provided with adequate opportunity to seek assistance and provide any further submissions.  The Authority was further satisfied that the applicant had been afforded sufficient opportunity to fully present his case for protection and that notwithstanding the applicant’s complaints otherwise, the Authority was not required by law to afford him an oral hearing.

27. At paragraphs [7] to [9], the Authority referred to new country information, which it had obtained from DFAT’s most recent January 2017 country report, to which it had regard in making its decision.  The Authority noted that the applicant was invited to comment on the new country information as contained in the 2017 DFAT report on 26 April 2017, and that a response was provided on 4 May 2017.

28. In particular, the Authority noted that the applicant’s response included a new claim that even up to the date of his submission, Sri Lankan authorities continued to visit his home in Sri Lanka, and further, that the response was accompanied by three news articles which had not been before the delegate.  Nevertheless, the Authority considered this new information that had been provided by the applicant, although it declined to attach any weight to the news articles in circumstances where no English translation had been provided.[26]

    [26] Authority decision record dated 25 May 2017 at paragraph [9].

29. At paragraph [10], the Authority summarises the applicant’s claims for protection.

30. At paragraphs [11] to [25], the Authority outlines its factual findings and the country information on which it based those findings.  Relevant, at paragraph [21] of its decision record, the Authority largely accepted the applicant’s claims:

    21.Based on his generally consistent evidence on the incidents, his supporting documents and the country information, I accept the claims the applicant made in his SHEV application and SHEV interview, except as discussed below. I accept that in lived (sic) in a LTTE controlled area during the war; that he was displaced from late 2008; that in early 2009 he was made to do physical and arms training by the LTTE for five days but he fled on the sixth day; that around April 2009 he and his family were placed in an IDP camp in Vavuniya by the SLA where they were held until about April 2010; that he was questioned and photographed by the CID when he was first placed in the camp, he was questioned by the CID on a number of occasions while held in the camp and when he was released from the camp; and that he and his family had to fill in forms and photos were taken when they were released. I accept that he started working for himself as an auto driver in 2010; that sometimes at night he would take SLA members in his auto but the soldiers didn’t always pay for the trips; he was scared of, but wasn’t harmed by, the SLA; that his auto was frequently searched by the CID; that the trips for the SLA and the searches by the CID made it difficult to work; and he knew other auto drivers who had weapons planted in their autos.

31. However, the Authority went on to question the truthfulness of some of the applicant’s other claims.  In particular, at paragraph [23], the Authority rejected the applicant’s claim that he had been threatened with a gun by the CID in 2012.  The Authority noted the variety of reasons given by the applicant for his departure from Sri Lanka and questioned why the applicant had not mentioned the CID placing a gun in his mouth and threatening to kill him until his 2015 written statement.  The Authority did not accept the applicant’s attribution of his omission of this incident to the stress of a long sea voyage in circumstances where the interview took place some four months after he had arrived in Australia.  Ultimately, the Authority found that the applicant had embellished this claim in order to enhance his protection claims.

32. Moreover, at paragraph [24] the Authority accepted the applicant’s claim that his family had been visited by the CID in Sri Lanka in the period between 2012 and 2014.  However, it did not accept his latest submission that the CID continued to visit his home once to twice per month and ask for his whereabouts.  In circumstances where the applicant had not claimed any earlier adverse attention from military intelligence, the Authority did not consider it plausible that Sri Lankan military intelligence would suddenly become interested in the applicant four years after his departure, and on this basis, found that this claim was also embellished.

33. At paragraph [25], the Authority further accepted that if the applicant returned to Sri Lanka, he would be considered by the authorities as a failed asylum seeker who had departed unlawfully.

34. At paragraphs [26] to [27], the Authority set out the legislative criteria to which it must have regard when making a refugee assessment.  At paragraphs [28] to [40], the Authority considered the applicant’s claim to fear harm due to his profile as a Tamil auto driver and male from the north with suspected LTTE links and an imputed political opinion.

35. At paragraphs [28] to [32], the Authority sets out the improvement in conditions for Tamils in Sri Lanka since the election of the Sirisena government in 2015.  At paragraph [32], in relation to this country information, the Authority found that:

    32.… The country information discussed above indicates the monitoring and harassment of Tamils in the north and east has significantly decreased, there have been significant positive developments for Tamils in the country’s politics and the situation has generally improved, including in relation to the security situation and overall military involvement in civilian life, including in the north.

36. At paragraph [33], the Authority sets out its finding that the applicant had experienced harassment as an auto driver, involving the CID frequently stopping and questioning him and searching his vehicle, and also that some SLA members did not pay for trips in his auto-rickshaw.  Based on the country information, the Authority accepted that this situation may recur if the applicant returned to Sri Lanka, however, did not consider that the ‘harassment of his auto driving work is or would be to such an extent that it threatens the applicant’s capacity to subsist or otherwise constitutes serious harm’.

37. At paragraphs [34] to [37], the Authority discussed the country information in relation to when an individual’s real or perceived link with the LTTE may give rise to the need for refugee protection, noting that ‘originating from an area that was previously controlled by the LTTE’ does not, of itself, constitute such a circumstance.[27]  The Authority also considered country information in relation to the current treatment of those with suspected LTTE links.[28]  At paragraph [38], the Authority re-iterated its previous acceptance of the majority of the applicant’s claims.  However, at paragraph [39], the Authority went on to reject the applicant’s claims to fear harm by reason of any links to the LTTE or imputed political opinion.

    [27] Authority decision record dated 25 May 2017 at paragraph [34].

    [28] Authority decision record dated 25 May 2017 at paragraphs [35] to [37].

1. The Authority outlined its reasoning for this finding as follows:

   39.… First, on the evidence, residing in a LTTE controlled area of itself does not give rise to a need for protection and many people living in LTTE controlled areas were obliged to undergo training. Secondly, although the applicant was questioned by the CID a number of times at the IDP camp, country information indicates that such questioning was common and that those with suspected LTTE links at the camps were separated and taken to Rehabilitation Centres but the applicant was ultimately released from the camp. Thirdly, the photographing of the applicant and his family, together with the forms they were required to complete prior to their release from the IDP camp are consistent with country information about the registration requirements imposed on Tamils and the subsequent visits and interviews the Sri Lankan authorities routinely made to IDP camp returnees. Fourthly, although the applicant was frequently stopped and questioned by the CID and the CID searched his auto, the applicant was never subsequently arrested or charged after any of those incidents. Fifthly, country information suggests that harassment and monitoring of Tamils in the north was routine as was the monitoring and questioning of Tamils who were released from IDP camps. Sixthly, the CID has shown no further interest in the applicant after their three routine visits to ask his wife about his whereabouts. Seventhly, the SLA interest in the applicant when he was an auto driver was in order to occasionally obtain free trips as discussed above, and was not in relation to any suspected LTTE links. …

2. Consequently, the Authority found that the applicant did not have an adverse profile that country information suggests would make him of interest to authorities should he return to Sri Lanka by reason of any real or perceived links to the LTTE, for any imputed political opinion, as a Tamil auto driver and/or as a Tamil male from the north.[29]

   [29] Authority decision record dated 25 May 2017 at paragraph [40].

3. At paragraphs [41] to [55], the Authority considered whether the applicant would face harm on return by reason of being a failed asylum seeker.  At paragraphs [42] to [46], the Authority outlined the country information relevant to this assessment.  At paragraph [47], the Authority accepted that the applicant would be considered as a failed asylum seeker on his return, however, it relied on country information that assessed the risk of mistreatment or torture for the majority of returnees as low and which continues to reduce.  In particular, the Authority considered that the applicant was never arrested or charged in relation to suspected LTTE involvement and his questioning by the CID at the IDP camp, the CID questioning and searches while an auto driver and the questioning of his wife after he left Sri Lanka were part of the Rajapaksa’s routine monitoring of Tamils at the time.

4. Ultimately, the Authority did not consider that being an asylum seeker in Australia, without more, meant that the applicant would be of adverse interest to authorities in Sri Lanka if he were to return.  At most, it found that the applicant:

   50.… may be detained and questioned at the airport for up to 24 hours, faces a fine for breaching the IE Act and, depending on the availability of a Magistrate at the time he is charged under that Act, or if a relative is required to guarantee any bail surety, may face a short period of being held in prison.

5. The Authority did not consider that this rose to the level necessary for a finding of serious harm.[30]  The Authority also noted that the application of emigration laws is not discriminatory and so would not constitute persecution.[31]

   [30] Authority decision record dated 25 May 2017 at paragraph [53].

   [31] Authority decision record dated 25 May 2017 at paragraph [54].

6. At paragraph [56], the Authority then considered the applicant’s claims cumulatively and concluded that whilst it accepted that he may experience some harassment if returned to Sri Lanka and decided to work again as an auto driver, his circumstances as a whole did not give rise to a well-founded fear of being persecuted for a Convention reason if he were to return to Sri Lanka, now or in the reasonably foreseeable future.

7. Having concluded that the applicant did not meet the requirements for refugee status, the Authority went on to consider Australia’s complementary protection obligations.  At paragraphs [58] to [59], the Authority outlined the relevant legislative criteria to which it must have regard.  The Authority referred to its earlier finding that the applicant may experience some harassment as an auto driver, however, did not accept that this rose to the level necessary to constitute significant harm and trigger Australia’s complementary protection obligations.[32]

   [32] Authority decision record dated 25 May 2017 at paragraph [60].

8. Moreover, for the reasons provided in relation to the applicant’s claim for refugee status, the Authority did not consider that the applicant’s profile as a Tamil from the north with suspected LTTE links or imputed political opinion, a returned Tamil failed asylum seeker from Australia or a combination of these meant that he faced significant harm if he were returned to Sri Lanka now or in the reasonably foreseeable future.[33]

   [33] Authority decision record dated 25 May 2017 at paragraph [61].

9. For each of these reasons, the Authority affirmed the delegate’s decision.

   Proceedings in this court

10. The applicant filed his application for judicial review in this court on 20 June 2017, accompanied by an affidavit sworn on 13 June 2017.

11. On 21 February 2018, orders were made by Registrar Luxton setting the matter down for final hearing on 19 November 2019, in addition to orders for the filing of material.  Relevantly, despite the orders permitting the filing of any amended application with proper particulars of the grounds of the application and written submissions, the applicant did not file any further material prior to the matter coming on for hearing.

12. That hearing was subsequently vacated and on 6 April 2022, by orders of Registrar Carney, the matter was re-listed for final hearing before me on 22 August 2022.  Orders were also made to reflect the current name of the first respondent.

13. When the matter came on for hearing before me on 22 August 2022, the applicant appeared on his own behalf with the assistance of a Tamil interpreter.  After explaining the role of this court in determining judicial review applications, I asked the applicant what submissions he wished to make in relation to his judicial review application.  The applicant explained that he could not return to Sri Lanka as he was currently receiving treatment and receiving dialysis nightly.  Otherwise, the applicant did not have anything further to add to his application for judicial review and was content to rely upon those grounds as they were put in his application.

    Grounds of review

14. In his application for judicial review, the applicant outlines five grounds of review:

    1.That the decision of the second respondent, the Immigration Assessment Authority, was affected by legal error.

    2.The reviewer states ‘I … do not accept that he would have been allowed to be released from the camp in 2010 if these suspicions (LTTE affiliation) existed.’ I was released from the camp after the first time the CID interviewed me in 2010. I had denied any involvement with LTTE when they asked me. They may have only come to know about my involvement AFTER I was resettled from the camp. That is why I was released as they had not yet come to know about my affiliation with the LTTE. They would have found out after through their network of informants.

    3.That there have been mistakes in interpretation during my entry and my arrival interviews. These mistakes seriously impact the credibility of my claims. Specifically, the reviewer states that my perceived discrepancies are ‘fundamental’ to my claims. These discrepancies are the results of mistakes in interpretation and therefore the decision was not made with all relevant information and therefore not according to just process.

    4.UN and other Human rights bodies agree that Tamils have been targeted and given an imputed political opinion sympathising with the LTTE. The reviewer accepts that my family have been monitored. The reviewer cannot guarantee my safety and bases her dismissal of my claims on reports that acknowledge the ‘monitoring of Sri Lankan Tamils continues’. Torture is commonly used, according to the reports released by the United Nations. So if the reviewer accepts I have been associated with the LTTE however briefly, and my family has been monitored, and that the risk of torture is real, they have based their dismissal of my claims of poorly interpreted information that undermines my credibility.

    5.I cannot provide more details yet, as I have not been able to secure legal representation. More details will be provided by the legal representative.

15. I will address each of these grounds in turn.

    Ground 1

16. Without in any way being critical of the applicant, who is representing himself in these proceedings, ground 1 asserts that the decision of the Authority was affected by legal error, but does not particularise what that error is.

17. When asked to elaborate on this ground at the hearing before me, the applicant re-iterated that he thought there to be errors in the Authority’s decision, but was not able to identify what that was.  Without anything further, ground 1 does not disclose any jurisdictional error on the part of the Authority and is therefore not made out.

    Ground 2

18. By ground 2, the applicant takes issue with the IAA’s findings that he would not have been released from the camp in 2010 if he were suspected of having LTTE links.  The applicant states that the authorities probably only came to know of his affiliation with the LTTE, through its network of informants, after he had been released from the camp.

19. It is not apparent from the Authority’s decision record where such a finding was made.  As pointed out by the Minister, by this ground, the applicant may be taking issue with the delegate’s, and not the Authority’s, findings.  In this regard I note that the delegate made the following finding in its decision record of 18 October 2016:

    … However, given the nature and purpose of the screening which occurred at this time, I am not satisfied that applicant would have been returned to the IDP camp after the questioning if he were still suspected as being LTTE-affiliated. I also do not accept that he would have been allowed to be released from the camp in 2010 if these suspicions existed. As a result, I accept the CID questioned the applicant while he was in the IDP camp in 2009, in the course of identifying former LTTE combatants. However, I do not accept that after this questioning they continued to suspect he was connected to the LTTE.[34] (emphasis added)

    [34] Court book at page 242.

20. Indeed, at paragraph [38] of its decision record, the Authority accepted that the applicant had been questioned by the CID about suspected LTTE links ‘on a number of occasions while held at the camp and when he was released from the camp’ (emphasis added).

21. This court does not have the jurisdiction to review a decision by the Minister’s delegate.[35]  As such, this ground, in so far it relates to the delegate’s decision, is not made out.

    [35] Migration Act 1958 (Cth) s 476(2)(a).

22. In any case, by this ground, the applicant does little more than seek impermissible merits review.

23. For these reasons, Ground 2 is not made out.

    Ground 3

24. By ground 3, the applicant takes issue with the quality of interpreting at his entry and arrival interviews, which he says seriously impacted the way in which his claims were put to decision-makers.  In particular, the applicant says that the quality of interpreting gave rise to findings that there were ‘fundamental’ perceived discrepancies in his claims.

25. As with the previous ground, the basis of this claim is not readily apparent from the Authority’s decision record.  Indeed, as noted, the Authority accepted most of the applicant’s claims as being genuine[36] although, as outlined above, the Authority did find some of the applicant’s claims as having been embellished.

    [36] See Authority decision record dated 25 May 2017 at paragraphs [21] and [38].

26. At paragraph [23] of its decision record, the Authority discusses the applicant’s claim about an incident in July 2012 in which he says that the CID took him in for questioning and threatened to kill him by placing a gun in his mouth.  It found that this claim had been embellished in circumstances where the applicant did not refer to this incident in his arrival interview.

27. There is nothing in the decision record which suggests that there was any difficulty in the level of interpreting provided to the applicant at the interview or that the applicant did not understand the questions put to him.  Indeed, the Authority noted that the applicant ‘considered it safe to initially mention the CID taking his auto and the February 2012 questioning by the CID but not the July 2012 questioning by the CID’.[37]

    [37] See Authority decision record dated 25 May 2017 at paragraph [23].

28. Again, if this ground relates to findings made by the delegate, the court does not have the power to review the delegate’s decision.

29. And finally, in the absence of a transcript of interview, there is no evidence before this court as to what, if any, interpreting errors were made at the arrival interview.  The applicant has not at any stage in his submissions before the Authority or to this court identified what matters he says he put to the Department at his interview which were not accurately interpreted.  Consequently, this ground is not made out.

    Ground 4

30. By ground 4, the applicant takes issue with the Authority’s dismissal of his claims to fear harm on return in circumstances where it nevertheless accepted that monitoring of Sri Lankan Tamils continues, that his family had, in fact, been monitored, that he had been associated with the LTTE, however briefly, and that the risk of torture is real.

31. In relation to the Authority’s acceptance that monitoring of Sri Lankan Tamils continues, at paragraph [39], the Authority balanced this finding against other factors which it said ultimately supported a finding that the applicant was not at risk of harm.  This included that it had found that the CID has not shown any further interest in the applicant after their three routine visits to ask his wife about his whereabouts.

32. Similarly, at paragraph [24], the Authority went on to consider the applicant’s claim that the CID still continued to visit his family home once or twice a month.  The Authority rejected this claim as being embellished, and on this basis, did not consider that the applicant had a profile of adverse interest to Sri Lankan authorities which meant that he would be at significant risk of harm on return.

33. The Authority did accept that the applicant had an association with the LTTE, but considered that the applicant’s profile was confined to having resided in a LTTE-controlled area and being forced by the LTTE to undertake weapons training.[38]  Moreover, it found that the harassment he experienced whilst working as an auto-rickshaw driver was unrelated to being suspected of being affiliated with the LTTE.  

    [38] See Authority decision record dated 25 May 2017 at paragraph [39].

34. In considering the risk of harm to the applicant if he were to return, the Authority considered a variety of country information relevant to the risk of torture to those involved or thought to be involved with the LTTE.  The Authority at [36] found that the ‘incidence of torture has reduced in recent years; and ... the incidence of torture has reduced in recent years; … the allegations of torture pertain to a relatively small number of cases compared to the total population.’

35. Ultimately, for the reasons set out in [39] the Authority balanced all of these factors in determining the question of whether having regard to all of these factors, the applicant did face a risk of harm on return.  It concluded that notwithstanding his past experiences he did not face a real chance of serious or significant harm on his return.  This finding was reasonably open to the Authority on the material before it and does not disclose jurisdictional error.

36. Therefore, ground 4 is not made out.

    Ground 5

37. By ground 5, the applicant states that more information will be provided to the court upon engaging legal representation.  As indicated, no further material has been filed or is relied upon by the applicant other than his initiating application and accompanying affidavit.

38. Ground 5 does not disclose any jurisdictional error.

    Other matters raised

39. For completeness, I note that at the hearing before me, the applicant stated that he was currently receiving treatment and dialysis, and that he could not return to Sri Lanka for this reason.

40. Whilst this might be a matter that could be the subject of a request for Ministerial intervention, it is not a matter which is relevant to the task before this court, namely whether the Authority’s decision is affected by jurisdictional error. 

    Conclusion

41. For each of these reasons, the applicant’s grounds of review have not been made out.  I therefore make the orders set out at the commencement of these written reasons.

I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri.

Deputy Associate:

Dated:       21 December 2022