CTT16 v Minister for Immigration
[2019] FCCA 2423
•30 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CTT16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2423 |
| Catchwords: MIGRATION – Immigration Assessment Authority – safe haven enterprise visa – whether the Authority erred by failing to exercise its powers to get new information under s.473DC of the Migration Act 1958 – whether the Secretary’s failure to give the Authority a report from the Document Examination Unit was a jurisdictional error in circumstances where the delegate’s reasons for decision contained the conclusions of the Document Examination Unit – whether the Authority failed to consider country information relating to torture – whether the Authority failed to consider the consequences for the applicant of having used a professionally prepared false passport – whether the Authority erred by concluding without evidence that the applicant would receive no more than a fine for his use of a false passport. |
| Legislation: Migration Act 1958 ss.473CB, 473DB(1), 473DC, 473DD |
| Cases cited: AUV15 v Minister for Immigration and Border Protection [2018] FCA 812 |
| Applicant: | CTT16 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File number: | MLG 2071 of 2016 |
| Judgment of: | Judge Riley |
| Hearing date: | 24 April 2019 |
| Date of last submission: | 24 April 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 30 August 2019 |
REPRESENTATION
| Counsel for the applicant: | Anthony Krohn |
| Solicitors for the applicant: | Ambi Associates |
| Counsel for the first respondent: | Nick Wood |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Sparke Helmore |
ORDERS
The application filed on 26 September 2016 and amended on 22 March 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 2071 of 2016
| CTT16 |
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 (“the Authority”). In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicant a safe haven enterprise visa.
The applicant’s claims
The applicant summarised his claims in paragraph 8 of his written submissions filed on 8 February 2019 as follows:
a)The Applicant is a national of Sri Lanka and of no other country. (CB 116)
b)He has no right to enter and to reside in any other country. (CB 116)
c)The Applicant is of Tamil ethnicity. (CB 116)
d)The applicant is Hindu. (CB 116s)
e)The applicant claimed that three uncles had been killed or abducted, one in 1995 as a result of support for PLOTE, and probably killed by the LTTE, while the family believed the other two were abducted by the CID or government forces.(CB 117)
f)He claimed that he had travelled from Sri Lanka in 2006 and returned briefly in 2011, and then travelled again and returned in 2012, each time on a passport in a false name and with a false age. (CB116)
g)He said that the CID had come to his home and questioned him three days after his return in 2012, asking about his uncles, any involvement he had with the LTTE, and weapons. They said they would return. (CB 117)
h)The applicant went to Colombo out of fear. While he was there, the CID came again to his home. His mother informed him of this. s(CB 117)
i)He then decided to leave Sri Lanka. (CB 118)
j)The CID came again several times to his home after he left Sri Lanka, until his mother told them that he was in Australia. (CB 118)
k)The Applicant fears indefinite detention, being suspected of being an LTTE supporter, and torture and assault. (CB 118)
l)He feared this harm as a Tamil, as having travelled on a false passport, as having family links to the LTTE (and PLOTE), and being suspected of having some knowledge of the LTTE. (CB 118-119)
m)The applicant cannot avail himself of the protection of the state. (CB 119)
n)The Applicant has departed Sri Lanka illegally and made a claim for asylum in Australia.
o)The applicant feared serious harm, including: being kidnapped, imprisoned, attacked, killed (CB 118); interrogation, torture (CB 119); lengthy detention, beating, abuse.(CB 255)
The Authority’s reasons for decision
The Minister summarised the Authority’s reasons for decision in his written submissions filed on 21 February 2019 as follows:
Information considered by the IAA
11The IAA had regard to the material sent to it by the Department under s 473CB of the Act. The IAA noted that a submission had been provided which made arguments against the delegate’s decision and discussed country information which had already been before the delegate. The IAA found that this material did not constitute new information and proceeded to consider it: CB 261, [5]-[6].
Imputed political opinion
12The IAA accepted that (CB 263-264, [10]-[13]):
12.1the applicant had departed Sri Lanka on a false passport in 2006 and worked in Kuwait until May 2012;
12.2the applicant’s uncle who was involved with PLOTE was killed in 1995;
12.3the applicant’s claims in relation to the kidnappings of his other uncles in 2007 and 2008, and that the applicant’s brother had been involved in basic training with the LTTE; and
12.4the applicant was questioned by the CID about his uncles immediately following his return to Sri Lanka in 2012.
13The IAA did not accept there were follow up visits from the CID due to the applicant’s imputed political opinion, but found it likely that if such visits had occurred, they were likely due to the applicant’s use of a false passport. The IAA otherwise found that, on the basis of country information and the applicant’s individual circumstances, that he did not have any profile that would warrant any ongoing interest from the Sri Lankan authorities: CB 264-266, [11]-[19].
Failed asylum seeker
14The IAA accepted that if returned to Sri Lanka, the applicant would do so as a failed Tamil asylum seeker. Having found that the applicant would not be imputed with any LTTE links, and with reference to country information, the IAA was not satisfied that the applicant faced a real chance of serious harm on return to Sri Lanka as a failed asylum seeker, or as a failed Tamil asylum seeker: CB 266, [20]-[22].
Illegal departure and false passport
15The IAA accepted that, by departing Sri Lanka illegally in 2012, the applicant had committed an offence under the Immigrants and Emigrants Act (I&E Act): 266, [24].
16Having considered country information, the IAA found that the applicant’s prior departure from Sri Lanka (in 2006) on a false passport would come under investigation. However, the IAA found that the applicant would be treated in accordance with standard procedures, regardless of his religion or ethnicity, and may be subject to an additional fine-based penalty under the I&E Act. The IAA found that these processes did not constitute serious harm: CB 266-267, [25]-[32].
17The IAA accepted that prison conditions in Sri Lanka were poor, however, found that any questioning or detention that the applicant may face would be “brief”, and would not constitute serious harm. The IAA also found that the I&E laws were laws of general application, and non-discriminatory in nature: CB 267-268, [33]-[34].
18Having considered the applicant’s circumstances singularly and cumulatively, the IAA was not satisfied that any processes or penalties that the applicant may face as a result of using a false passport to leave Sri Lanka on two occasions, would amount to serious harm: CB 268, [35].
Tamil ethnicity
19Having regard to country information, the IAA found that, although ethnic Tamils continued to face discrimination in Sri Lanka, they did not face treatment amounting to serious harm in “contemporary Sri Lanka” on account of their ethnicity alone: CB 268, [37].
Refugee assessment
20Having considered the applicant’s claims individually and cumulatively, the evidence before it, and the applicant’s circumstances, the IAA was not satisfied that the applicant had a well-founded fear of persecution for reasons of his race, religion, nationality, membership of a particular social group, or political opinion and found he did not meet s 36(2)(a) of the Act: CB 268, [38]-[39].
Complementary protection assessment
21Having regard to its anterior findings, the IAA was not satisfied that there was a real risk that the applicant would suffer significant harm on return to Sri Lanka for reasons of his Tamil ethnicity, any imputed political opinion or connection to the LTTE, as a failed asylum seeker or due to his illegal departure. It was not satisfied that any brief period of detention, questioning, fine or other penalty would amount to significant harm. It also found that if the applicant’s use of a false passport were to become known, the applicant would face no more than additional penalties under the I&E Act, which would not constitute significant harm. It further found that the poor prison conditions that the applicant may be subject to were not intentionally inflicted and would not amount to significant harm. The IAA concluded that the applicant did not meet s 36(2)(aa) of the Act: CB 269-270, [42]-[49].
Grounds of review
The applicant relied on his further amended application, which was filed on 22 March 2019 (“the application”). The application had four grounds, which in total had fourteen sub-grounds.
Ground 1
The first ground of review in the application is:
The Authority erred in the exercise of its power under section 473DC of the Migration Act 1958 and thereby erred in interpreting or applying the law, and failed to exercise its jurisdiction, or erred in the exercise of its jurisdiction, to review the decision of a delegate of the First Respondent.
There were three particulars to this ground, which I will consider in order.
Ground 1(a)
The first particular to ground 1 is as follows:
The Authority did not exercise its power under section 473DC of the Migration Act 1958 to invite the Applicant to an interview or otherwise to get new information from the Applicant about his claims, when the credibility of the Applicant or of claims made by him was critical to the Authority’s decision. (Authority’s Decision and Reasons, [19], Court Book (“CB”) 265).
Section 473CB of the Migration Act 1958 (“the Act”) provided as follows:
(1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a)a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b)material provided by the referred applicant to the person making the decision before the decision was made;
(c)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(d)…
(2)The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.
Paragraph 473DB(1) of the Act provided as follows:
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a)without accepting or requesting new information; and
(b)without interviewing the referred applicant.
Section 473DC of the Act provided as follows:
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
Section 473DD of the Act provided as follows:
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
The parties agreed that the Authority was obliged to exercise its discretion under s.473DC of the Act reasonably. They also agreed that there was a difference between getting information or documents pursuant to the discretion under s.473DC of the Act and considering that information. There are limitations on the consideration of new information under s.473DD of the Act.
The applicant noted that the Authority had accepted the evidence given by the applicant about matters that were within his knowledge, including that:
a)he had three uncles who had been killed or disappeared;
b)one uncle was connected to the LTTE;
c)the applicant had travelled to Kuwait on a false passport, and
d)he was questioned by the CID about his family links to the LTTE.
The applicant argued that a critical point which the Authority did not accept was the claim that the CID had visited the applicant’s family after he had left his home, firstly, while he was en route to Australia and, secondly, after his arrival in Australia. The applicant argued that, in these circumstances, it was unreasonable for the Authority not to have exercised its discretion under s.473DC of the Act and speak to the applicant’s mother by telephone, she being the source of the information that the CID had visited after the applicant had left.
As a subsidiary point, the applicant said that the Authority appears to have relied on a balance of probabilities test when it said at paragraph 19 of its reasons for decision:
… I consider it more likely that any follow up visits if they had occurred may have been a consequence of the authorities becoming aware of the applicant’s previous use of a false passport …
The applicant argued that the Authority’s reliance on a balance of probabilities test heightened the unreasonableness of not seeking further information.
Although the ground of review complains that the Authority did not invite the applicant to an interview, the thrust of the applicant’s submissions was that it was unreasonable for the Authority not to have telephoned the applicant’s mother to obtain a firsthand account of the CID visits.
The Minister noted that:
a)the applicant had been legally represented before the Authority;
b)the applicant was given the standard leaflet which included a section headed, Can I provide new information to the IAA?;
c)the legal representatives sent a letter to the Authority;
d)the letter did not include a request to provide any new information, and, more particularly, did not include a request that the Authority telephone the applicant’s mother.
In addition, the Minister noted the recent decision of the Full Court of the Federal Court in DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222, particularly at [74] where the court said:
Finally, we note the appellant’s criticisms of the IAA’s findings in respect of credibility. However we endorse the observation of Lee J in DBA16 v Minister for Immigration and Border Protection [2017] FCA 1580 at [17] that if the IAA were compelled to invite an applicant to an interview merely because his or her credibility is called into question, the result would be that the IAA would generally come under an obligation to issue an invitation, as adverse credit findings are made in the majority of cases coming before the courts. That would not only be inconsistent with the text of s 473DC(2), but would also defeat the purpose of the fast track review process.
In all the circumstances, the Minister argued that it was not unreasonable for the Authority not to have exercised its discretion under s.473DC of the Act.
I accept the Minister’s submission on this ground, for the reasons he gave. In addition, I note that the delegate had also rejected the claim that the CID had visited the applicant’s home after he had left: CB229, [66] of the delegate’s reasons for decision. In these circumstances, particularly as the applicant was legally represented, the applicant would have been well aware that the particular claim in issue had been rejected. It was open to him to have provided whatever additional material he wished to the Authority, perhaps including a statement from his mother, and perhaps including a request that the Authority telephone her, or receive a telephone call from her, and ask the Authority to consider it under s.473DD of the Act. In circumstances where the applicant did none of those things, it cannot be said that it was unreasonable for the Authority not to have exercised its discretion under s.473DC of the Act.
The applicant’s subsidiary point, that the Authority had decided the question of the CID visiting the applicant’s home after he had left on the balance of probabilities, failed to take account of the balance of paragraph 19 of the Authority’s reasons for decision, and paragraph 18 to which it refers. Paragraphs 18 and 19 of the Authority’s reasons for decision are as follows:
18.The applicant has also suggested that his brother may have faced questioning in relation to their uncles and has not disclosed this to the applicant. I consider it highly unlikely that the applicant’s brother would fail to disclose such matters if they had in fact occurred.
19.For this reason, whilst I consider it plausible that the applicant was visited by the CID once following his return to Trincomalee in 2012, following a prolonged absence and in the context of a generalised roundup operation in the area at the time, I do not accept that the applicant had any profile that would warrant ongoing adverse interest from the authorities concerning an imputed connection to the LTTE. I do not therefore consider it plausible that the applicant’s family would have been visited by the CID following the applicant leaving Trincomalee for Colombo prior to his departure to Australia, for reasons connected with the applicant’s family profile. For the same reasons, I do not accept as plausible the claim that the CID have visited the applicant’s family in search of him following his arrival in Australia, at least by reference to any ongoing concern in relation to the applicant’s LTTE family connections. I consider it more likely that any follow-up visits, if they had occurred, may have been a consequence of the authorities becoming aware of the applicant’s previous use of a false passport to travel in and out of Sri Lanka. I deal with the question of the applicant’s immigration history in Sri Lanka further below.
As can be seen, those paragraphs explain the reason for rejecting the claim. The last sentence of paragraph 19 of the Authority’s reasons for decision is just a passing comment.
The first aspect of ground 1 is not made out.
Ground 1(b)
The second particular to ground 1 is as follows:
The Secretary in breach of section 473CB of the Migration Act 1958 did not give to the Authority copies of the reports of the Document Examination Unit which were before the Minister’s delegate.
This ground was addressed in the parties’ supplementary written submissions. The Minister conceded that the Secretary, in breach of s.473CB of the Act, had not given the Authority copies of the report of the Document Examination Unit (“DEU”). However, the Minister submitted that the breach was not material, in the sense that it could not realistically have affected the result, and therefore did not result in jurisdictional error.
The report of the DEU is contained in the supplementary court book which consists of the affidavit affirmed by Inshani Ward on 8 March 2019 and its annexure. The report of the DEU is the annexure to that affidavit. The DEU’s report said that it had been asked to examine three documents, being two passports and an identity card. The applicant claimed that the second passport was false The report relevantly said:
Summary of Outcome
…
Item 2:Original Sri Lankan Passport number N0575941 in the name [XY, with X not being the applicant’s given name and Y being the applicant’s family name].
It is my opinion there is qualified support that this is a legitimately manufactured document, issued in an appropriate manner with no fraudulent alteration.
…
Results/Conclusions
…
Item 2
I have examined the document and determined the following:
1. It exhibits manufacturing security characteristics expected in secure documents.
2.The security characteristics introduced during the document issuing process are intact and operating effectively.
3.There is no evidence of fraudulent alteration to the personal data, including the photograph.
It is my opinion there is qualified support that this is a legitimately manufactured document, issued in an appropriate manner with no fraudulent alteration.
This opinion is based on the manufacture and construction of the document. It does not verify the legitimacy of the issuance or the information contained within the document.
Although the Secretary did not provide a copy of the DEU’s report to the Authority, the Authority did have a copy of the delegate’s reasons for decision. The delegate’s reasons for decision relevantly said at paragraph 36:
A report prepared by the DEU on the false Sri Lankan passport returned with the following comments:
It is my opinion there is qualified support that this is a legitimately manufactured document, issued in an appropriate manner with no fraudulent alterations.
The applicant argued that the parts of the report that were not in the delegate’s reasons for decision could have made a difference to the Authority’s decision if it had known about them. The applicant argued that, if the Authority had appreciated that the false passport the applicant had used was very professionally produced, and perfect, the Authority may have realised that the consequences for the applicant may have been more serious than the fine that the Authority considered would be the maximum penalty he would receive for using a false passport. That was because the very perfection of the false passport was indicative of a serious level of corruption.
In his supplementary written submissions, the applicant said that there may have been very grave consequences for him if the Sri Lankan authorities had known that he used a professionally issued false passport, rather than an amateurishly modified one. However, as the Minister submitted, there was no reason to suppose that the Authority was under the misapprehension that the false passport was amateurishly modified. The only information the Authority had, via the delegate’s decision, was that the false passport appeared to be:
… a legitimately manufactured document, issued in an appropriate manner with no fraudulent alterations.
In other words, the Authority was well aware that the false passport used by the applicant appeared to be genuine. The ‘amateurish’ argument is without substance.
The Minister also argued that the applicant did not claim that the prospects of him being harmed were exacerbated by the perfection of the false passport. That is true, but not strictly relevant to the point presently being considered.
Thirdly, the Minister argued that the provision of the full DEU report to the Authority could have made no difference to its decision because its reasons were expressed quite generally, particularly at paragraph 35 of its reasons for decision, which is as follows:
Considered singularly or cumulatively, I am also not satisfied that any processes or penalties that the applicant may face as person who left Sri Lanka illegally on two occasions using a passport in another name and returning to Sri Lanka would amount to serious harm, including in relation to any passport offences the applicant may have levelled against him. Accordingly, I am satisfied that any process or penalty the applicant may face on return to Sri Lanka because of his illegal departure(s) would not constitute persecution for the purpose of the Act.
I do not find that submission helpful. The applicant’s argument was that the Authority’s conclusions would not have been as they were if the detail of the DEU’s report had been provided to the Authority. The Minister’s submission does not really engage with that argument.
In any event, all in all, it is unrealistic to imagine that the details of the DEU’s examination could have led the Authority to any different decision, given that the Authority had the conclusions from the DEU’s examination of the false passport. Those conclusions were, in effect, that the false passport appeared to be perfect. The applicant said that the Authority’s decision may have been different if it had known that the false passport appeared to be perfect. But the Authority did know that. This aspect of ground 1 is without substance.
Ground 1(c)
The third particular to ground 1 is as follows:
Further or in the alternative to Particular (b), the Authority in breach of section 473DB of the Migration Act 1958 did not consider the reports of the Document Examination Unit which were before the Minister’s delegate.
As discussed above, the Authority considered the conclusions of the DEU. That was sufficient. There is no substance to this aspect of ground 1.
Ground 2
The second ground of review in the application is:
The Authority erred in the exercise of its power under section 473DC of the Migration Act 1958 and thereby denied the Applicant natural justice or procedural fairness.
Particulars
(a)The Applicant refers to and repeats Particular (a) to Ground 1 of this application.
The applicant did not dwell upon this ground. In view of the discussion above about ground 1(a), and in view of the strict code relating to the procedural fairness obligations of the Authority, there is no substance to this ground.
Ground 3
The third ground of review in the application is:
The Authority failed to have regard to relevant considerations including relevant information.
There were eight particulars to this ground which I will consider in order.
Ground 3(a)
The first particular to ground 3 is as follows:
(a)The Authority failed to have regard to the extensive volume of material before it relating to torture and serious abuses of human rights by the authorities of Sri Lanka, including abuses inflicted on persons in detention or custody.
In his written submissions filed on 8 February 2019, the applicant elaborated on the material that he said the Authority did not consider as follows:
45.The material related to:
❖ torture by Sri Lankan security forces, including on civilians detained in all parts of Sri Lanka, including [but not limited to] suspected LTTE connections; (CB 51)
❖ torture against Tamils returned to Sri Lanka; (CB 52, )
❖ suspects in police custody; (CB 53, 56, 57)
❖ torture and abuse of detainees; (CB 54, 56, 57, 255-256)
❖ torture as endemic; (CB 56-57)
❖ torture of those suspected of links to the LTTE; (CB192, 197-198)
❖ torture by military and police continuing after the war;(CB 193-194, 195-199, 255 and 256
The Authority said at paragraph 5 of its reasons for decision that it had had regard to the materials provided by the Secretary. That included the country information provided by the applicant to the delegate, which included all of the information up to CB208.
The Authority said at paragraph 6 of its reasons for decision that it had considered a written submission provided to it which addressed the country information that had been before the delegate. The submission is at CB254 to CB256.
That is, the Authority said it had considered all of the country information that the applicant says it did not consider.
In addition, the Authority said in paragraph 21 of its reasons for decision that it had considered a Department of Foreign Affairs and Trade (“DFAT”) report dated 18 December 2015, which was more recent than the DFAT report mentioned by the applicant, which was dated February 2015.
The Authority said at paragraph 46 of its reasons for decision, in relation to the false passport, that:
In making this finding, I have had careful regard to the additional country information provided by the applicant's representative to the Department that was included in the referred materials. There is nothing in this additional evidence pointing to any treatment of persons of a profile which I have found the applicant is to be, in a manner that would amount to significant harm.
It is well-established that the Authority is not required to express in its reasons for decision a line by line analysis of the country information. For example, in AUV15 v Minister for Immigration and Border Protection [2018] FCA 812 at [27(6)], the Federal Court said:
The Tribunal was not obliged to comment on every item of material before it, to the extent of saying why it rejected a particular item, or attributed less weight to it than to another item …
However, the applicant’s point seems to be that, if the Authority had considered the relevant material, it could not have found, as it did in paragraph 46 of its reasons for decision, that:
There is nothing in this additional evidence pointing to any treatment of persons of a profile which I have found the applicant is to be, in a manner that would amount to significant harm.
That submission comes perilously close to an application for merits review.
In any event, the material nominated by the applicant included material to the effect that the people with familial links to the LTTE were at risk of mistreatment. The Authority accepted that the applicant’s uncles were associated with the LTTE. However, the Authority said that association did not put the applicant at risk. The Authority explained that conclusion at paragraphs 16 and 17 of its reasons for decision, which are as follows:
16.The UNHCR Eligibility Guidelines carry an important qualification in terms of their application by reference to the individual circumstances of a protection claim. In the applicant's own case, I am not persuaded the [applicant] fits within any of the above profiles, including that of a person facing a real chance of persecution by reference to having family links to persons with such profiles. Whilst I have accepted that the applicant's two uncles who were abducted and disappeared in 2007 and 2008 respectively were suspected of and had actual links to the LTTE, in view of the applicant's own prolonged absence from Sri Lanka whilst working in Kuwait I consider it highly implausible that the Sri Lankan authorities would maintain any ongoing interest in the applicant by reference to these family connections, beyond the questioning I accept had occurred following the applicant's return from Kuwait in 2012.
17.In this regard I give weight to the applicant's own evidence that his elder brother, also working in Kuwait who had had historical low-level LTTE links, has been able to travel home to Sri Lanka and to his home area of Trincomalee on three occasions, without any incident being reported to the applicant. The applicant has sought to explain that his brother had been able to do so because he had only returned for short periods and because he had "clean papers" and had not travelled on a false passport like the applicant. I do not accept that the brother's "clean" immigration history explains the lack of any adverse attention towards the brother as a nephew of these uncles, as opposed to the applicant, particularly as the brother would have been identifiable in his true identity during his travels and if any connection was to be made it would be made more readily in relation to the brother.
The Authority’s conclusions in this regard were open to it.
The applicant also submitted that the material showed that even people who had no LTTE links were at risk of torture in Sri Lanka. In this connection, the Authority said in its reasons for decision:
21.Having regard to the country information in the referred material and in particular in the 2015 DFAT report, I am not satisfied there is a real chance the applicant would be harmed by the Sri Lankan authorities by virtue of his return as a failed asylum seeker or failed Tamil 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 indicates those were people with substantial links to the LTTE or outstanding warrants. I am not satisfied the applicant is a person with that kind of profile or indeed with any imputed LTTE links [given the analysis of the applicant’s possible LTTE links set out above].
From the passage set out in bold above, it is clear that the Authority was aware of the allegations of people being mistreated in Sri Lanka. However, the Authority did not consider that was a realistic possibility in the applicant’s case, for reasons which it gave, including the following:
29.… DFAT assesses that returnees are treated according to these standard procedures, regardless of their ethnicity and religion, and are not subject to mistreatment during their processing at the airport.
…
35.… Accordingly, I am satisfied that any process or penalty the applicant may face on return to Sri Lanka because of his illegal departure(s) would not constitute persecution for the purpose of the Act.
…
45.… I consider that were the applicant's earlier usages of a false passport to become known in this process, it would result in no more than additional penalties under the IAEA which would not amount to any form of significant harm.
46.In making this finding, I have had careful regard to the additional country information provided by the applicant's representative to the Department that was included in the referred materials. There is nothing in this additional evidence pointing to any treatment of persons of a profile which I have found the applicant is to be, in a manner that would amount to significant harm.
47.DFAT advises that the risk of torture or mistreatment for people suspected of an offence under the IAEA is low. I find that the likelihood that the applicant will be subject to a custodial sentence is remote, but I accept that the applicant may [be] detained for a brief period as part of the IAEA processes and that he may experience poor conditions if detained in a prison. Critically, I note that country information indicates the poor conditions are due to overcrowding, poor sanitation and lack of resources. I find there is no real risk that the applicant will be arbitrarily deprived of his life or be tortured. While the conditions are poor, I find there is no intention to inflict pain or suffering or extreme humiliation…
In my view, the applicant has not demonstrated that the Authority failed to have regard to the nominated country information. This aspect of ground 3 is not made out.
Ground 3(b)
The second particular to ground 3 is as follows:
(b)In assessing whether the Applicant was a person who was a refugee within the meaning of section 5H(1) of the Migration Act 1958, and thus met the requirements of section 36(2)(a), the Authority failed to have regard to the applicant's claim to fear torture or other serious abuse while in custody, detention or control of the authorities.
As discussed above, the Tribunal did have regard to this claim, but found that any harm that the applicant might face did not rise to the level of a real risk of substantial or serious harm. This aspect of ground 3 is not made out.
Ground 3(c)
The third particular to ground 3 is as follows:
(c)In assessing whether the Applicant was a person who met the requirements of section 36(2)(aa) of the Migration Act 1958, and was thus owed complementary protection, the Authority failed to have regard to the applicant's claim, and evidence for his claim, to fear torture or other serious abuse while in custody, detention or control of the authorities.
As discussed above, the Tribunal did have regard to this claim, but found that any harm that the applicant might face did not rise to the level of a real risk of substantial or serious harm. This aspect of ground 3 is not made out.
Ground 3(d)
The fourth particular to ground 3 is as follows:
(d)The Authority failed to consider cumulatively the risk to the Applicant of his past travel on a false passport and his family connections to the LTTE. (CB 254)
The Authority said in paragraphs 38 and 47 of its reasons for decision that it had considered the relevant matters individually and cumulatively. However, the applicant submitted that was a mere formulaic statement. Nevertheless, in the context of this case, it was sufficient. It is obviously unnecessary for the Authority to enumerate every permutation and combination of the matters it has taken into consideration. This aspect of ground 3 is not made out.
Ground 3(e)
The fifth particular to ground 3 is as follows:
(e)The Secretary in breach of section 473CB of the Migration Act 1958 did not give to the Authority copies of the reports of the Document Examination Unit which were before the Minister's delegate.
As discussed above, the Authority had regard to the conclusions of the DEU. That was sufficient. This aspect of ground 3 is not made out.
Ground 3(f)
The sixth particular to ground 3 is as follows:
(f)Further or in the alternative to Particular (e), the Authority in breach of section 473DB of the Migration Act 1958 did not consider the reports of the Document Examination Unit which were before the Minister’s delegate.
As discussed above, the Authority considered the conclusions of the DEU. That was sufficient. This aspect of ground 3 is not made out.
Ground 3(g)
The seventh particular to ground 3 is as follows:
(g)Further or in the alternative to Particulars (e) and (f), the Authority failed to consider the question whether the consequences may be very grave for the applicant if the Sri Lankan authorities came to know that that he had used a fraudulent document apparently professionally issued, rather than one which was more obviously and amateurishly modified.
As discussed above, the false passport was not obviously and amateurishly modified. The Authority was well aware that the false passport was so well produced that it appeared to be genuine. This aspect of ground 3 is not made out.
Ground 3(h)
The eighth particular to ground 3 is as follows:
(h)Further or in the alternative to Particulars (e) and (f), as the Authority was prepared to consider that the fact of travel on a false passport may become known to the Sri Lankan authorities, then it needed to consider the gravity of the possible consequences to the Applicant, both during investigation - and whether that may involve harm to the Applicant, and as a result of investigation into the nature and provenance of the false passport that he had used.
The applicant did not claim that he would be harmed because of the nature and provenance of his false passport, apart from the fact that it was false. The Authority considered the claims as put, and as they clearly arose from the materials. This aspect of ground 3 is not made out.
Ground 4
The fourth ground of review in the application is:
The Authority fell into jurisdictional error in that it was unreasonable or acted without logically probative evidence.
This ground had two particulars which I will consider in order.
Ground 4(a)
The first particular to ground 4 is as follows:
The Applicant refers to and repeats the Particulars to the other Grounds of this application.
For the reasons discussed above, the Authority’s findings were open to it. This aspect of ground 4 is not made out.
Ground 4(b)
The second particular to ground 4 is as follows:
The Authority had no logically probative evidence for its finding that the Applicant's previous travel to and from Sri Lanka on a passport in a false name "would lead to no more than additional fine-based penalties...." (Authority's Decision and Reasons. [32], [21], CB 159, 161)
The Minister noted that to make out a no evidence case, there needed to be not a skerrick of evidence in support of the finding. The Minister also noted that the Authority did not need to have evidence if it did not make a positive finding, but merely said it was not satisfied of the particular matter.
The Minister argued that, in the present case, the Authority had not relevantly made a positive finding, but had simply said that it was not satisfied of the relevant matter. That was the way the Authority expressed the point in paragraph 35 of its reasons for decision. However, that paragraph was dependent on paragraph 32 of the Authority’s reasons for decision, where the Authority said:
However, I consider this [ie, the false passport] would lead to no more than additional fine-based penalties under the IAEA, and there is no information before me to indicate that the consequences for the applicant would amount to any form of serious harm …
I accept the Minister’s argument that that statement was not a positive finding, because the Authority said that it considered that the false passport would lead to no more than fine-based penalties. That is, on the evidence before it, the Authority was not persuaded that the applicant’s use of the false passport would result in him suffering any greater penalty than a fine.
The fact that paragraph 35 did not contain a positive finding is made more clear by the second part of the sentence quoted in paragraph 76 above, where the Authority said that there was no information before it that the applicant would suffer consequences from the use of a false passport that would amount to serious harm. In other words, the Authority was relying on the lack of evidence before it to conclude that the maximum penalty would be no more than a fine. This aspect of ground 4 is not made out.
Conclusion
As none of the applicant’s four grounds and fourteen sub-grounds has been made out, the application must be dismissed with costs.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 30 August 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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