CTE16 v Minister for Immigration
[2019] FCCA 1808
•28 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CTE16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1808 |
| Catchwords: MIGRATION – Immigration Assessment Authority – protection (Class XA) (subclass 790) Safe Haven visa – whether the Authority failed to consider, engage with or evaluate information before it – whether the Authority failed to consider a claim – whether the Authority acted illogically or irrationally – whether the Authority failed to give proper consideration to the Applicant’s claims – Application dismissed. |
| Cases cited: AZG15 v Minister for Immigration and Border Protection [2018] FCA 226 BSL15 v Minister for Immigration and Border Protection [2018] FCA 1898 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 ETA067 v The Republic of Naru [2018] HCA 46 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2016] FCAFC 87 |
| First Applicant: | CTE16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File number: | MLG 2074 of 2016 |
| Judgment of: | Judge Blake |
| Hearing date: | 20 May 2019 |
| Date of last submission: | 20 May 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 28 June 2019 |
REPRESENTATION
| Counsel for the applicants: | Mr Hartley |
| Solicitors for the applicant: | Ambi Associates |
| Counsel for the first respondent: | Mr Goodwin |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Australian Government Solicitor |
ORDERS
The application filed on 26 September 2016 and amended on 22 January 2019 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2074 of 2016
| CTE16 |
First Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Immigration Assessment Authority (‘Authority’) on 29 August 2016. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the Applicant a protection (Class XA) (subclass 790) Safe Haven visa (‘Visa’).
For the reasons which follow, I have decided to dismiss the application for judicial review.
Background Facts
The background facts to this matter were set out in the Outline of Submissions filed by the Applicant in the matter. The background was described as uncontroversial. The First Respondent did not take any issue with it. I adopt it as set out below.[1]
[1] Paragraphs 4-7 of the Applicant’s Outline of Submissions.
The Applicant is a Sri Lankan Tamil of Hindu faith.
In 2009, the Applicant was injured in a bomb blast in Sri Lanka. He was hospitalised. Video was taken of him assisting other injured persons at the hospital.
For around 16 months commencing in May 2009, the Applicant was detained by the Sri Lankan Army in a rehabilitation camp (rather than an internally displaced person’s camp). This is because he was suspected by the Army to have assisted wounded Liberation Tigers of Tamil Eelem (‘LTTE’) combatants during the Civil War. The basis for this suspicion were his injuries and the video footage referred to above. These injuries may have been regarded as indicating that the Applicant had had a combat role.
On release, the Applicant was required to regularly report to the authorities. In late 2010, he went with others to India on a validly issued passport, on a Hindu religious pilgrimage. When he returned in 2011, he was questioned by the Criminal Investigation Department (‘CID’) and a CID agent accompanied the Applicant to Batticaloa to ensure that he was (as he said he was) attending his mother’s funeral there. He was once again required, for several months, to report to the CID.
If the Applicant were now to return to Sri Lanka, he would do so as a failed asylum seeker who departed illegally.
Procedural History
The Applicant arrived in Australia in September 2012 as an unauthorised maritime arrival. The Applicant applied for the Visa on 19 January 2016. The Visa application was supported by a Statutory Declaration dated 14 January 2016 and a submission to the delegate dated 27 April 2016 was prepared by the Applicant’s migration agent.
On 14 July 2016, a delegate of the Minister refused to grant the Applicant the Visa. The matter was subsequently referred to the Authority on 18 July 2016 for review and determination.
On 8 August 2016, the Applicant’s migration agent provided the Authority with a submission and a Statutory Declaration of the Applicant also dated 8 August 2016.
On 29 August 2016, the Authority affirmed the decision not to grant the Applicant the Visa.
On 26 September 2016, the Applicant filed an application for review in this Court and an affidavit in support.
Orders were made by consent by Registrar Caporale on 15 March 2017 which provided, among other things, as follows:
a)the matter be listed for a Final Hearing before Judge McNab on 19 February 2019 at 10.00am;
b)the Minister file a serve a Court Book by 29 March 2017;
c)the Applicant file and serve 28 days before the Final Hearing, any amended application with proper particulars of the grounds of the application, any affidavits, a supplementary Court Book, if any, and written submissions; and
d)the Minister file and serve 14 days before the Final Hearing, written submissions.
The Applicant subsequently filed an amended application (Application), and a written outline of submissions on 22 January 2019. The Minister filed an outline of written submissions on 5 February 2019.
The Applicant’s claims
The Applicant’s claims to fear persecution are set out in his Outline of Submissions and also at paragraph [3] of the Decision and Reasons of the Authority (‘Decision’) as set out below.
[3] The applicant has claimed to fear persecution on the basis of his Tamil race, is Hindu religion, and imputed political opinion as a supporter of the LTTE and as a member of the particular social group comprising failed asylum seekers returning from a Western country and persons having illegally departed Sri Lanka.
The Applicant’s claims to fear persecution were not accepted by the Authority. The Authority affirmed the decision of the delegate not to grant the Applicant the Visa.
The Application in this Court comprises four grounds of review. I turn now to deal with each of the grounds of review
Ground 1
The first ground of review in the Application is:
The IAA constructively failed to exercise its jurisdiction by reason that the IAA failed lawfully to consider the claims made by the Applicant to satisfy the criteria for a Protection Visa under s 36 of the Migration Act 1958 (Cth) ("the Act"), or significant evidence in support of such claims.
Particulars
a. The Applicant made various claims to fear harm in Sri Lanka. In particular, the Applicant claimed that as a Tamil, (potentially) failed asylum seeker who had been in a Western country for a long period of time and as a person who has certain adverse interactions with Sri Lankan authorities faced a real chance of being harmed by Sri Lankan Authorities on his return to Sri Lanka.
b. In particular, the Applicant claimed that he faced a real chance of being harmed during the process of interrogation that the Sri Lankan Authorities would conduct upon his return, whether or not the Sri Lankan Authorities ultimately concluded that he was or was not a person of interest due to actual or perceived LTTE connections.
c. The Applicant also claimed that he faced a real chance of being harmed having regard to country information to the effect that:
(i) persons detained by Sri Lankan Authorities (including "normal" Tamils with no connections to the LTTE) had been tortured for the purpose of extracting false confessions that they had assisted the LTTE;
(ii) persons had been tortured by the Sri Lankan Authorities so as to instil terror in the broader Tamil population and to discourage involvement with the LTTE;
(iii) persons had been detained by Sri Lankan Authorities in abominable conditions and deprived of basic human rights;
d. The IAA failed to consider these claims, or to consider this significant evidence in support of his claims.
Under this ground of review, the Applicant contends that the Authority did not consider, engage with or evaluate information that the Authority had before it. The information was submitted by the Applicant’s representative and is contended was relevant to the Applicant’s claims.
The information that is said not to have been engaged with by the Authority relates to two of the Applicant’s claims:
a)his claim to fear harm on the basis of imputed support for the LTTE; and
b)his claim to fear harm as a failed asylum seeker returning from a Western country having illegally departed Sri Lanka.
I deal firstly with the alleged failure of the Authority to properly engage with information relating to the claim of fear of harm on the basis of imputed support for the LTTE. The particular information which it is said that the Authority did not have regard to in respect of this claim is as follows:
a)a Human Rights Watch, World Report 2016 - Sri Lanka dated 27 January 2016. That document refers to ‘Police in Sri Lanka continued to routinely torture and ill-treat individuals taken into custody to extract “confessions”…’. The report also contains a reference to police abuses against criminal suspects and abuses that occur in police custody (Court Book 100).
b)a report from Minority Rights Group International, State of the World’s Minorities and Indigenous Peoples 2015 – Sri Lankan, dated 2 July 2015. This report provided that the Government in Sri Lanka ‘continues to commit human rights abuses against religious and ethnic minorities Sri Lanka’. The report highlights the Sri Lankan Government continues to ‘subject Tamils to interrogation and harm given they are scared the LTTE will resurge’ (Court Book 101 – 103).
c)A United States Department of State 2014 Country Report on Human Rights Practices - Sri Lanka, dated 25 June 2015. This report provides, among other things that ‘The major human rights problems reported over the year were: attacks on, and harassment of, civil society activists, journalists and other persons viewed as a sympathisers of the Liberation Tigers of Tamil Eelem (LTTE)’ (Court Book 103 – 104).
d)A submission by the Applicant that a Freedom From Torture report ‘makes it evident that an individual does not need to have had strong links to the LTTE to be imputed to pro LTTE sentiments and be subjected to torture. Furthermore, the report indicates that many individuals are detained and interrogated in the weeks after their arrival in Sri Lanka’. In respect of this report, the Applicant also submitted that ‘The key findings of the report make it evident that torture is still prevalent in Sri Lanka and many individuals are at risk of harm. Of particular importance, it is clear from the below information that the links do not need to be strong rather individuals perceived to be associated in even a small way can be subjected to serious harm’.
e)A submission from the Applicant, based on key findings from the report referred to above, which were as follows. First, ‘Those at particular ongoing risk of torture include Tamils with a real or perceived association with the Liberation Tigers of Tamil Eelam (LTTE) at any level and whether current or historic’. Second ‘the Sri Lankan authorities take a strong interest in the activities of the Tamil diaspora in the UK and many returning to Sri Lanka with a real or perceived past connection to the LTTE, at whatever level and whether directly and/or through a family member or acquaintance, have been tortured and interrogated about their activities and contacts in the UK’.
f)A 2015 report prepared by the Oakland Institute, The Longs Shadow of War – the struggle for Justice in post-war Sri Lanka (Court Book 106 – 108).
g)A 2013 decision of the United Kingdom Upper Tribunal (Court Book 108).
h)A 2014 report prepared by the United States Department of State, 2013 Country Reports on Human Rights Practices in Sri Lanka (Court Book 108 – 109).
i)A further Human Rights Watch Report (Court Book 181).
In his written submissions to this Court, the Applicant placed particular emphasis on the country information from the Minority Rights Group International Report, extracted below, which was supplied and which he says was not considered by the Authority:
‘Despite the civil conflict formally ending five years ago, Sri Lanka’s minorities continue to be harassed and intimidated by state security forces for activism or suspected separatism. In February and March, in what the OHCHR called the biggest search operation since 2009, the government arbitrarily detained over 65 people in the north of the country claiming that the LTTE was trying to re-establish itself. ….
…..
One of the drivers of continued human rights abuses in Sri Lanka is the fact that, five years after the conflict, the country remains highly militarised…’.
The Applicant also emphasised the country information in the United States Department of State, 2014 Country Reports on Human Rights Practices, Sri Lanka. The most relevant extract is set out below.
‘The major human rights problems reported over the year were: attacks on, and harassment of the, civil society activists, journalists, and persons viewed as sympathisers of the Liberation Tigers of Tamil Eelam (LTTE) by individuals allegedly tied to the government; involuntary disappearances, arbitrary arrest and detention, torture, abuse of detainees, rape, and other forms of sexual and gender-based violence committed by police and security forces; and widespread impunity for a broad range of human rights abuses.’
There is then the information that the Applicant says that the Authority failed to engage with in relation to his claim to fear harm because he is a member of a group of failed asylum seekers returning from a Western country having illegally departed Sri Lanka. In relation to this aspect of his claim, the Applicant claims that he relied on a report prepared by the Freedom from Torture Medical Foundation (Court Book 109 – 110) and a 2014 report published by the Asylum Research Consultancy (Court Book 110 – 116). The Applicant submits that the central point of these reports is that they highlight the “extreme risks” faced by individuals returning to Sri Lanka.
The Applicant’s submissions in relation to the alleged failure by the Authority to engage with the information set out above in respect of both of the identified claims are as follows. The Applicant claims that the Authority has failed to engage with the information supplied by the Applicant. In dealing with the matter, the Authority in its Decision referred to none of those sources. A review of the Authority’s decision discloses that, in relation to the Authority’s consideration of the imputed political opinion claim, the only source of country information to which the Authority referred is the Country Information published by DFAT in December 2015. In respect of the claim about being a failed asylum seeker, the Applicant says the Authority did not refer specifically to any country information at all in coming to its decision.
The Applicant relied on Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431. In MYZTS, an applicant for a protection visa made submissions to the Refugee Review Tribunal (‘RRT’) in support of his application for review. The RRT rejected the visa applicant’s claims. The matter was subject of a review before the then Federal Magistrates Court where the jurisdictional error alleged was that the RRT had failed to have regard to the most current information in determining the application for refugee status, including a post hearing submission. The Federal Magistrate found the RRT’s decision was affected by jurisdictional error because ‘it failed to have regard to the most recent country information available to it (in the sense of “engaging” with that material as it found the authorities required) or because it failed to consider the visa applicant’s claims as at the time of the Tribunal decision, rather than at a time prior to the 2010 reports, upon which the Tribunal relied’.
The Minister appealed the decision of the Federal Magistrate to a Full Court of the Federal Court of Australia. At paragraph [42] of its decision, the Full Court said the following:
‘There are no references at all in the “Country Information” part of the Tribunal’s reasons to the country information referred to in the post-hearing submission. Nor is any of that country information extracted. Unsurprisingly then, there is then no subsequent discussion by the Tribunal of the strengths or weaknesses of the more recent country information, as it may or may not have applied to the ‘individual features’ of the claim before it’.
Paragraphs [48] and [49] of the Full Court decision then record the submissions made by the Minister in relation to this matter. The Full Court, then at paragraph [50], in dismissing the Minister submission’s notes as follows:
‘…The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post hearing submissions is indicative of omission and ignoring, not weighing and preference.’
Observations on the importance of a tribunal consciously engaging with the claims, submissions and evidence before it were also made by Justice Kenny of the Federal Court of Australia in BSL15 v Minister for Immigration and Border Protection [2018] FCA 1898. See in particular paragraphs [64], [66] and [67] of that decision.
In response to these matters, the First Respondent submitted that it is well-established that the weight to be given to relevant country information is a matter for the Authority itself: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. The absence of a reference to particular material does not necessarily mean it was not considered: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1.
It was then contended by the First Respondent that the Court should infer that the country information referred to by the Applicant was considered by the Authority. It is said that the inference, in relation to the Applicant’s claim to fear harm based on imputed political opinion as a supporter of the LTTE, is able to be drawn having regard to paragraphs [5] – [7] of the Decision which are as follows:
‘5. I have had regard to the material referred by the Secretary under s.437CB of the Migration Act 1958 (the Act).
6. I have also had regard to a statutory declaration by the applicant accompanied by a submission from his representative provided to the IAA. Certain aspects of the declaration and submissions provide arguments as to why the delegate’s decision was wrong and discuss country information which had already been before the delegate, and to this extent new material does not constitute new information and has accordingly been considered.
7. The submissions also referred to a February 2010 Human Rights Watch report regarding a lack of due process for LTTE suspects, provided in response to the delegate’s findings concerning a lack of country information regarding prosecutions through the Sri Lankan courts was used as a basis to doubt the applicant claims in this regard.’ (citations omitted)
There is also at paragraph [22] of the Decision, an express reference to the ‘further country information provided to the IAA’ concerning prosecutions by reason of a suspected connection to the LTTE. It is said by the First Respondent that this reference is:
a)a reference to the information referred to at paragraph [7] of the Decision referred to above;
b)a reference to the information supplied by the Applicant; and
c)provides a further basis for the Court to draw an inference that the country information supplied by the Applicant has been considered.
In respect of the Applicant’s claim based on being a failed asylum seeker, the inference that the relevant material was considered by the Authority was said to be able to be drawn having regard to paragraph [26] of the Decision which provides as follows:
‘Having regard to the country information in the referred material and in particular in the DFAT reports, I am not satisfied there is a real chance the applicant would be harmed by the Sri Lankan authorities by virtue of his returned as a failed asylum seeker. In particular, I note the information in the DFAT reports…’
The First Respondent submitted that the decisions in MZYTS and BSL15 need to be read in context of what the High Court had to say in ETA067 v Republic of Nauru [2018] HCA 46. At paragraph [13] of that decision, Bell, Keane and Gordon JJ stated as follows:
‘The absence of an express reference to evidence and the tribunal’s reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal. That is especially so when regard is had the content of the obligation to give reasons, which here, included referring to the findings on any “material questions of fact” and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons every piece of evidence presented to it’. (citation omitted)
At paragraph [14], their Honours then went on to say:
‘Further, there is a distinction between an omission indicating that the Tribunal did not consider evidence (or an issue raised by it) to be material to an applicant’s claims, and an omission indicating that a tribunal failed to consider a matter that is material: including one that is an essential integer to the applicant’s claims or that would be dispositive of the review’. (citations omitted)
I have considered carefully the competing propositions above. On balance, I am prepared to draw an inference that the Authority had before it and considered the country information supplied by the Applicant. The Authority stated clearly that it had the information referred to it by the Secretary in paragraph [5]. Further, in paragraph [6] of the Decision, the Authority expressly refers to the statutory declaration and submission provided to the Authority by the Applicant and notes that those documents ‘provide arguments as to why the delegate’s decision was wrong and discuss country information which had already been before the delegate’. Third, the Authority expressly mentioned that it considered the Human Rights Watch Report referred to by the Applicant in his submission to the Authority: see paragraph [7] of the Decision. The reference to the ‘further country information’ supplied to the Authority in paragraph [22] of the Decision further supports the inference that the country information supplied by the Applicant has been considered.
The above are clear statements supporting the inference that the Authority considered the material before it, including the material alleged by the Applicant not to have been considered. I accept that it is for the Authority to attribute the weight to be given to country information. I also accept and apply the comments of the High Court in ETA067 that, inter alia, an absence of a reference to evidence does not mean that the evidence was not considered.
Another matter relevant to the claim based on imputed political opinion, raised by the First Respondent, is that whatever may be the state of the country information provided by the Applicant, this is a matter in which the Authority went on to make a direct finding that the Applicant was not a person of significant interest based on his ability to leave the country.
A review of the decision discloses that there is some force in this submission. The Authority considered a profile of the Applicant. It then examined whether that profile meant the Applicant would face a serious chance of harm.
In order to determine whether the Applicant was a person who faced a serious chance of harm, the Authority undertook the following:
a)At paragraph [13] of the Decision, the Authority noted that the Applicant was able to depart Sri Lanka lawfully notwithstanding his detention in a rehabilitation camp preceding his departure, and that he was not on any stop list. This view was taken by the Authority on the basis of the DFAT country information available to it and which it attributed weight to;
b)The Authority then considered Tamils with particular profiles who were at risk of being persecuted in contemporary Sri Lanka: see paragraph [19] of the Decision. It did this by reference to UNHCR information available to it;
c)Then in paragraph [20] of the Decision, the Authority considered the individual circumstances of the Applicant. The Authority accepted the rehabilitation process that the Applicant had been put through, the requirements that he report to the CID, and gave weight to the fact that he was able to lawfully depart Sri Lanka in 2010. The Authority also gave consideration and weight to the circumstance that although the Applicant was required to report to the CID upon his return from India, that condition only continued for several months;
d)Then, in paragraph [22], having referred expressly to the ‘further country information’ supplied, it finds a prosecution concerning a suspected connection to the LTTE would have commenced during the period of the Applicant’s rehabilitation. The Authority notes that there is not a claim that a prosecution has commenced and gives weight to the Applicant’s ability to leave Sri Lanka for India in 2010. A finding is then made as follows, ‘in view of my findings concerning the applicant’s current profile and the history that I have accepted, I do not consider that he would presently be the subject of any ongoing or outstanding investigation in relation to LTTE links’.
e)Finally, paragraph [23] summarises the reasoning and then states as follows: ‘For the above reasons taken they, I find that the applicant does not face a real chance of persecution on account of any imputed LTTE political opinion either now or in the foreseeable future upon return to Sri Lanka’.
What emerges from the above is a consideration of the Applicant’s particular circumstances and whether those circumstances would likely be of interest at the time of any potential return, such that the Applicant faced a serious chance of harm. The Authority concluded that there was no real chance of serious harm occurring.
I have already inferred that the Authority had regard to the country information submitted by the Applicant. What the Authority then did, when regard is had to the paragraphs above, is that it gave weight to the information it considered relevant, as it was entitled to do. It then developed a risk profile from the information and assessed the Applicant’s personal circumstances directly against that profile. The chain of reasoning noted above discloses a direct finding in respect of the profile of the Applicant and whether he was likely to be of any interest to the authorities. Counsel for the First Respondent submitted, and I accept, that this chain of reasoning and the ultimate direct finding made against the Applicant on the basis of his profile means that this case is distinct from cases such as MZYTS and BSL15.
In relation to the information supplied by the Applicant in support of his claim that he feared harm based on his status as a failed asylum seeker, paragraph [26] of the Decision referenced above is relevant. That paragraph, in my view and contrary to the Applicant’s argument, supports an inference that the country information supplied by the Applicant was considered.
The paragraph relevantly provides that ‘Having regard to the country information in the referred material and in particular the DFAT reports…’. The use of the phrase ‘in particular’ in my view supports the proposition that other material was considered by the Authority, however the Authority had particular regard to, or preferred the DFAT material.
Additionally, paragraphs [5] and [6] of the Decision also support an inference that the information in relation to the claim based on the Applicant’s status as a failed asylum seeker was considered by the Authority.
For the reasons set out above, I am satisfied that the Authority did not fall into error. Ground 1 of the grounds of review is dismissed.
Ground 2
Ground 2 of the grounds of review was not pressed by the Applicant.
Ground 3
The third ground of review in the Application is as follows:
The IAA was unreasonable in assuming that the Applicant would not be a target and was no longer considered to be of significant interest to the Sri Lankan Authorities due to the fact that the Applicant travelled to India in late 2010 on a Hindu Religious Pilgrimage together with a number of others and returned to Sri Lanka in August 2011. The IAA came to a wrong conclusion in relation to the Applicant's Hindu Religious Pilgrimage. (paragraph 13-15 of the Decision).
Particulars
a. The IAA failed to consider evidence and submissions relied upon by the Applicant in relation to the significance (if any) of his travel to and from India and the response of Sri Lankan authorities in relation to that matter.
b. Further, or alternatively, the IAA's reasoned, in effect, that because the Applicant left the country once in certain circumstances, and there was a particular outcome in terms of attention from the authorities, if he were to leave the country in completely different circumstances the outcome would be the same. This reasoning was seriously illogical or irrational.
c. Further, or alternatively, the IAA reasoned from a finding in relation to Applicant's "profile" in 2014 to a conclusion in relation to real risk of harm in or after 2016 without making findings addressed to the circumstances after 2014. Accordingly, it:
i. failed to address itself to the question of the risk to the Applicant were he to be returned to Sri Lanka in the reasonably-foreseeable future; or
ii. failed to give proper, genuine, or realistic consideration to the risk of harm to the Applicant in the context of the further passage of time since 2014, or reached a conclusion that was affected by serious illogicality or irrationality.
There were two principal ways in which this ground was advanced by the Applicant. I deal with each of them in turn.
The first proposition is that the Authority failed to consider a substantial submission by the Applicant. That submission which is said not to have been considered is set out in the Court Book at page 182 and is extracted below:
‘The applicant left as part of a group from his village travelling to India to fulfil a religious vow…. . As the applicant did not have any extant court orders or arrest warrants against him it was unlikely that he would be stopped at the airport while leaving legally on a valid visa as part of a group of pilgrims travelling to India in 2010.
…
The applicant’s account being monitored by Sri Lankan authorities is consistent with country information that indicates persistent surveillance, intimidation and monitoring by Sri Lankan authorities of persons suspected of association with the LTTE. See for instance the UK Home Office’s ‘Country Information and Guidance Sri Lanka Tamil Separatism, 28 August 2014’ (at paragraphs 2.2.2 and 2.2.3 of that report) regarding the surveillance that continues to be directed at Tamils from the North and the East with a profile of association with the LTTE’. (citations omitted)
The Applicant submits that, in respect of the above, nowhere in the Authority’s reasons does it refer to these submissions or to country information.
The second proposition advanced by the Applicant under this ground is that the Authority’s reasoning is illogical or irrational. The Applicant contends that the Authority’s reasoning amounts, inter alia, to this: because the Applicant left the country once in certain circumstances and there was a particular outcome in terms of attention from the authorities, if he were to leave the country again in completely different circumstances, the outcome would be the same. This reasoning is said to be illogical and would only withstand scrutiny if there were a basis for thinking that the authorities would respond in the same way to a legal trip for religious reasons and for a short-term (on the one hand) as compared to an illegal trip for asylum seeking reasons and for the long-term (on the other hand).
It is also submitted by the Applicant that, even if the Authority appreciated that the test to be applied was forward-looking, it did not think it necessary to consider whether the Applicant’s profile would alter and the risk to him would increase the longer he was (without explanation) out of the country.
The principles in relation to what might be considered irrational or illogical reasoning are set out in the decision of Justice Lee in WAHP v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 87 at [7]. A Full Court of the Federal Court in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at paragraphs [60] and [61] of that decision have noted that in order for an argument to succeed, the lack of logic or irrationality must be extreme.
This first contention advanced above cannot, in my view, succeed. At paragraph [13] of its Decision, the Authority expressly referenced the submission made by the Applicant. The reference is as follows:
‘…I have considered the submissions to the IAA and the Applicant’s further statement concerning his ability freely to depart Sri Lanka in 2010. These are to the effect that the Applicant was not subject to any arrest warrant or court charges and was travelling with a group of persons, and the fact that he was able to freely depart did not undermine his claim to be of ongoing adverse interest to the authorities. However I give weight to the fact that the applicant was able to [depart] Sri Lanka in 2010 as at the very least indicating that notwithstanding having been detained in a rehabilitation centre for 16 months following the end of the Civil War, he was not at the time of his departure from Sri Lanka in 2010 on any “stop” list maintained by the Sri Lankan authorities at the time. Notwithstanding any reporting conditions the applicant may have been on that the time of his departure for India, I consider the fact that he was able to depart as indicating that he was no longer considered to be of significant interest to the Sri Lankan authorities”.
When the above is examined, it can be seen that the Authority actively engaged with the claim. It expressly recognised the Applicant’s claim. It then weighed the Applicant’s submission that he was travelling with a group of people in the circumstances of his departure. The Authority ultimately, however, having weighed the evidence reached a conclusion that the Applicant was not on the stop list and for this reason was not likely to be a person of significant interest to the authorities. That was a finding that was open to the Authority on the evidence before it.
As to the contention that the Authority did not make findings that travel beyond 2014 and into the future, paragraph [19] of the Decision is relevant. In that paragraph, the Authority recognises that the question before it is to assess any harm that the Applicant might face now or in the reasonably foreseeable future. In paragraph [19], the Authority states:
‘I am required to assess whether the applicant now or in the reasonably foreseeable future faces the real chance of serious harm on account of any imputed political opinion as an LTTE supporter’
Then at paragraph [21] of the Decision, the Authority in summarising the basis for its rejection of the Applicant’s claims said this:
‘On the basis of the applicant’s claims which I have accepted, I do not consider that the applicant was any longer of a profile that would attract ongoing attention from the Sri Lankan authorities, a matter borne out by the fact that he was not on any reporting conditions… For these reasons, and on a proper consideration of the applicant’s own profile by the time he departed Sri Lanka, I do not accept as plausible that family members of the applicant have more recently been questioned concerning his whereabouts’.
It can be seen from the above paragraph that the Authority concerned itself with the issue of, inter alia, whether the Applicant would be subject to any ‘ongoing’ attention.
Finally, when the Decision is read in its entirety and within context, it is apparent that there were a number of reasons or findings that founded the basis for the Authority’s ultimate determination that the Applicant would not face a real chance of serious harm upon return. I have discussed these matters earlier under ground 1 in paragraphs [39] to [43] of these reasons.
I turn then to deal with the argument that the reasoning of the Authority is illogical or irrational. I am satisfied that the reasoning of the Authority is not illogical or irrational. What the Authority did was to weigh the Applicant’s evidence and submissions against country information in finding that, based on his ability to leave unimpeded to India, he was not a person of significant interest. Part of this consideration involved consideration of the Applicant’s departure to India, his return from India, and his name not being on a ‘stop’ list. There is nothing illogical or irrational about the Authority considering that the Applicant was able to leave Sri Lanka in the aftermath of the Civil War, his name not being on a stop list, and then subsequently return to that country, and using that conclusion (among others) as a reason for determining the Applicant was no longer of any significant interest to the authorities in Sri Lanka. While views may differ about the ultimate conclusion, the conclusion was one that was open to the Authority and was reasonable. It is not, in my view, a conclusion infected with extreme illogicality or irrationality
In assessing any argument about whether the conclusion is illogical or irrational, regard is also to be had to the way in which the Authority assessed any harm to the Applicant in the reasonably foreseeable future. In this respect, I have already set out at paragraphs [53] to [61] above the approach the Authority took to assessing whether any harm was reasonably foreseeable in the future. Further, as discussed under Ground 1 at paragraphs [41] to [46] above, there were a number of bases for the Authority determining that the Applicant would not face a real chance of serious harm upon return. In my view, when these matters are taken account of, they support a conclusion that when the Decision is looked at as a whole and in context, the reasoning of the Authority was not illogical or irrational.
In light of the above, ground 3 of the grounds review is not made out and must be dismissed.
Ground 4
The fourth ground of review in the Application is:
The IAA failed to give meaningful, or proper, genuine, and realistic, consideration to the circumstances pertaining to failed asylum seeker returning from a Western country having illegally departed Sri Lanka, and therefore to the risk of harm to the Applicant arising out of his membership of that group.
Particulars
a. The IAA failed to take into account or give consideration to country information tending to suggest that a broader category of returnee to Sri Lanka than "those with substantial links to the LITE or outstanding warrants" were at real risk of harm (see Reasons [26]).
b. The IAA failed to give proper consideration to the risk that the Applicant would be remanded in custody on return to Sri Lanka, and made speculative findings in the absence of any evidence in relation to sureties or bail.
Under this ground of review, the Applicant takes issue with the alleged failure by the Authority to give proper consideration to two claims advanced by the Applicant.
The first is the Authority’s consideration of the Applicant’s claim to fear harm on the basis that he would, if returned to Sri Lanka, be a failed asylum seeker returning from a Western country having illegally departed Sri Lanka. The Applicant takes issue with the Authority’s reasons at paragraph [26] of the Decision. I have set out paragraph [26] in full below.
‘Having regard to the country information in the referred material and in particular in the DFAT reports, I am not satisfied there is a real chance the applicant would be harmed by the Sri Lankan authorities by virtue of his returned as a failed asylum seeker. In particular, I note the information in the DFAT reports that thousands of Tamils have been returned to Sri Lanka since the end of the Sri Lankan civil war, including from Australia, although there have been reported instances of returnees being harmed, the information before me suggests those were people with substantial links to the LTTE or outstanding warrants. The information before me does not suggest the Applicant is a person with that kind of profile’.
The Applicant contends that the country information relied on by the Authority referred to above is not clear and further submits that the Authority did not have regard to the country information submitted by the Applicant. The submission is founded on the proposition that the material submitted by the Applicant was not limited to the matters referred to by the Authority at paragraph [26] of its Decision, but rather covered threats to people with, among other things, ‘a real or perceived past connection to the LTTE, at whatever level and whether directly or [indirectly]’ (Court Book at 105).
Alternatively, the Applicant says that if the country information provided by the Applicant was considered, it was plainly not weighed or properly evaluated or considered in a meaningful way.
In oral submissions, Counsel for the Applicant stated that this submission was perhaps another way of putting the point that had been put under ground one. I agree. As I have indicated earlier, I have found that in respect of ground 1, the Authority had regard to the country information when it made its decision. Accordingly, I do not accept for the reasons articulated previously the submissions made on this point by the Applicant.
The second contention advanced by the Applicant under this ground arises from the Authority’s Decision at paragraph [33]. It is unnecessary to set out the whole paragraph, however, the relevant section of the paragraph is set out below:
‘On return to Sri Lanka, I find the applicant would likely be charged and fined under the IAEA and then released. In the event that the applicant elected to plead not guilty to the offence under the IAEA, he would either be granted bail on personal surety or a family member’.
In respect of the paragraph above, the Applicant submits as follows. Firstly, there was no consideration of whether the Applicant would plead not guilty. Second, there was no consideration of the Applicant’s means in order to enable a finding that he would be capable of paying any personal surety. Third, there was no evidence cited, or basis given for the proposition that the Applicant’s family members have sufficient means to post bail or that his relationship with them is such that, if they had the means, they would post bail. In respect of these matters, the Applicant contends that for how long he would be remanded in custody and in what conditions was a real issue arising for consideration by the Authority and it did not suffice to address it in a sentence.
As is apparent from what is set out above, paragraph [33] of the Decision deals with what will happen to the Applicant on his return to Sri Lanka. A review of the Decision discloses that in determining what will happen to returnees to Sri Lanka, the Authority had regard to the DFAT country information in forming its views. Paragraph [30] of the Decision is relevant and provides as follows:
‘The DFAT reports in the referred material indicate that returnees will be processed by the Department of Immigration and Immigration (DOIE), the State Intelligence Service (SIS) and the CID based at the airport. Immigration officers check travel documents and identity information against the immigration database. SIS checks the returnee against intelligence databases. The CID verifies a person’s identity to determine whether the person has any outstanding criminal matters. I am satisfied on the information before me that the applicant has no identification concerns, or criminal or security records that would raise the concern of these authorities.’
In my view, when the Decision is read in context, the view of the Authority in paragraph [33] of the Decision is based on the country information referred to at paragraph [30] of the Decision and set out above.
In AZG15 v Minister for Immigration and Border Protection [2018] FCA 226, the Federal Court of Australia considered a situation similar to the one presently before the Court. In that matter, the Tribunal noted that DFAT had advised that:
‘No returnee who was just the passenger on a people smuggling venture has been given a custodial sentence for illegal departure. Rather, fines are imposed on such people in the range of 5000 to 50,000 Sri Lankan Rupees, and in most cases returnees have been granted bail on personal recognizance immediately by the magistrate’.
Kenny J dismissed the appeal with costs. At paragraph [55] of the decision, Her Honour stated the well-known proposition that it was ‘primarily a matter for the Tribunal to determine the weight it gave to any particular country information’. She went on to state in the same paragraph that ‘it was therefore open to [the Tribunal], in the circumstances of this case, to rely on the DFAT information, rather than any other country information’.
Her Honour then, in relation to a challenge about whether or not family members were in a position to post bail, said this at paragraph [59]:
‘In this case, the Tribunal made no findings at all as to whether or not a family member of the appellant would be able and willing to be guarantor for his bail. That there was no occasion for the Tribunal to do so is apparent from the inferences the Tribunal drew from the country information on which it relied, including that “in most cases returnees have been granted bail on personal reconnaissance immediately by the magistrate”. It was open to the Tribunal to draw this inference, and the related inferences to which it referred, from the country information.’
The Applicant sought to distinguish the decision in AZG15 on the basis that it dealt with personal recognizance rather than surety. I do not accept that this is a distinction of significance. The point being made by Her Honour Justice Kenny was that the Tribunal was entitled to take account of country information and give it whatever weight it thought appropriate in drawing the inferences that it did.
In this matter, I find that it was open to the Authority, having regard to the country information it relied on, to conclude that if the Applicant chose to plead guilty, he would be treated and subjected to a law of general application with no discriminatory intent or effect. If, of course, the Applicant chose to plead not guilty, then it was open to the Authority to conclude that he may be granted bail on a personal surety or a family member based on the country information.
Having regard to the above, ground four of the grounds of review must be dismissed.
Conclusion
The Applicant has failed to make out any of the grounds of review. Accordingly I will make orders that the Application be dismissed and order costs in favour of the First Respondent.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Blake
Date: 28 June 2019
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